In the Interest of A.B.

63 A.3d 345, 2013 Pa. Super. 43, 2013 WL 782623, 2013 Pa. Super. LEXIS 89
CourtSuperior Court of Pennsylvania
DecidedMarch 4, 2013
StatusPublished
Cited by193 cases

This text of 63 A.3d 345 (In the Interest of A.B.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Interest of A.B., 63 A.3d 345, 2013 Pa. Super. 43, 2013 WL 782623, 2013 Pa. Super. LEXIS 89 (Pa. Ct. App. 2013).

Opinion

OPINION BY

PLATT, J.:

B.B. (Mother) appeals from the order of the Court of Common Pleas of Philadelphia County, entered July 24, 2012, adjudicating her daughter, A.B. (Child) (born December 28, 2011), dependent. We affirm.

A Philadelphia police officer arrested Mother on a charge of child endangerment on July 6, 2012, after she left Child alone at home while she attended a party. Child was six months old at the time. Philadelphia’s Department of Human Services (DHS) subsequently placed Child in foster care pursuant to an order of protective custody. (N.T., 7/24/12, at 15, 18, 75).

At the adjudicatory hearing held in this matter on July 24, 2012, Philadelphia Police Officer Phillip Muscarnero testified that, while on duty on July 6, 2012, be[348]*348tween midnight and one a.m., he went to the 2400 block of Camac Street in response to “a [r]adio call for a person screaming on the highway.” (Id. at 5). Officer Musearnero arrived to find Mother, the owner of the home where Mother resided, male and female acquaintances of Mother, and a male, D.B., who was identified to the officer as Child’s Father. Mother’s female acquaintance was holding Child, who was crying. (Id. at 5-7, 9). As the officer arrived, Father pedaled away on a bicycle, “screaming and yelling.” (Id. at 5). Mother walked away from the scene and from Child and stopped several houses down the street. She refused to speak to the officer and did not respond to his request that she console Child. (Id. at 10, 13).

When Officer Musearnero was asked how he came to the conclusion that Child had been left unattended, he testified:

After personally speaking to the Mother myself, I found out that the Mother went to a friend’s house, to a party, and left [Child] home alone sleeping. Stated that [C]hild sleeps for nine hours at a time. Stated that the party was very close, yet returned in a cab. I also asked the Mother, you know, if this is what happened and she said, Yes, I wanted to go to the party to see my friend. She also stated, I will take any consequence that happens to me, and started blurting out things, such as, You know, I was thinking about putting this baby up for adoption, as well.

(Id. at 11-12).

Officer Musearnero arrested Mother for endangering the welfare of a child and, when Mother failed to name any family members who might care for Child, he took Child to the DHS facility on Arch Street. (Id. at 15). Officer Musearnero testified that Mother showed no concern for Child when he told her that he was going to place Child with DHS. (Id. at 13-14).

Days after Child’s placement, DHS social workers observed that she was overweight, presented with a flat head, did not use her extremities to reach for things, and had an overall very flat affect, with limited interaction with others, all of which is unusual for a child of her age. (Id. at 29-30). Child has shown improvement in all these areas since she entered foster care. (Id. at 32).

DHS social worker Lakeisha White testified that Mother told her that she thought her roommate would arrive home within ten minutes after she left and that Child would not be alone for more than one half hour. (Id. at 17-18, 23-24).

When DHS began to question Mother as to the circumstances surrounding the July 6, 2012 incident, and Child’s future care and support, Mother’s counsel objected, stating:

I am advising my client to not only take the 5th under the United States Constitution, but also the rights under the Commonwealth’s Constitution to remain silent.

(Id. at 34). When DHS resumed its examination of Mother, she answered a series of questions regarding Child’s Father and his involvement with Child, but refused to answer any questions relating to the July 6, 2012 incident.

At the conclusion of the hearing, during closing argument, counsel for Mother admitted that Mother had left Child alone:

The facts are ... she left [Child] at home that night, July 6, 2012, she left [Child] alone. Was she wrong? Yes. That’s a fact. I am not disputing that for purposes of this hearing.

(Id. at 75). Counsel argued, however, “There is nothing to indicate that July 6th was anything other than an aberration[,]” [349]*349that did not justify an adjudication of dependency. (Id. at 76).

In finding Child to be dependent, the trial court held that Mother’s conduct in leaving Child unattended, “whether it was two minutes or two hours[,]” was behavior that “[cjlearly ... put [Child] at risk.” (Id. at 77). In addition, the trial court cited Officer Muscarnero’s observation that, at the time of the incident, “Mother had no care, concern, whatsoever for [CJhild’s welfare or the safety of [C]hild.” (Id. at 77-78). The trial court found the testimony of Officer Muscarnero to be “clear with regard to that.” (Id. at 78). The trial court concluded that, “[C]hild is at risk with ... Mother and, therefore, I commit [Child] to DHS.” (Id.).

The trial court entered its order adjudicating Child dependent on July 24, 2012. Mother filed her notice of appeal and statement of errors complained of on appeal on August 21, 2012. The trial court issued its opinion on September 18, 2012. See Pa.R.A.P. 1925.

Mother presents the following question for our determination: “Did the trial court err and abuse its discretion in denying Mother’s right to a fair hearing?” (Mother’s Brief, at 8). Our Supreme Court set forth our standard of review for dependency cases as follows.

[T]he standard of review in dependency cases requires an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record, but does not require the appellate court to accept the lower court’s inferences or conclusions of law. Accordingly, we review for an abuse of discretion.

In re R.J.T., 608 Pa. 9, 9 A.3d 1179, 1190 (2010) (citation omitted).

To adjudicate a child dependent, a trial court must determine, by clear and convincing evidence, that the child:

is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals. A determination that there is a lack of proper parental care or control may be based upon evidence of conduct by the parent, guardian or other custodian that places the health, safety or welfare of the child at risk.

42 Pa.C.S.A. § 6802. “Clear and convincing” evidence has been defined as testimony that is “so clear, direct, weighty, and convincing as to enable the trier of facts to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” In re C.R.S., 696 A.2d 840, 843 (Pa.Super.1997) (citation omitted).

In accordance with the overarching purpose of the Juvenile Act “[t]o preserve the unity of the family whenever possible,” see 42 Pa.C.S.A. § 6301(b)(1), “a child will only be declared dependent when he is presently without proper parental care and when such care is not immediately available.” In re R.T.,

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Bluebook (online)
63 A.3d 345, 2013 Pa. Super. 43, 2013 WL 782623, 2013 Pa. Super. LEXIS 89, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-ab-pasuperct-2013.