In the Interest of: D.J., a Minor

Opinion

J-A21045-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: D.J., A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA

APPEAL OF: E.J., MOTHER No. 622 EDA 2015

Appeal from the Order entered January 20, 2015, in the Court of Common Pleas of Philadelphia County, Family Court, at No(s): CP-51-DP-0002954-2014, FID: 51-FN-383670-2009

IN THE INTEREST OF: A.J., A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA

APPEAL OF: E.J., MOTHER No. 623 EDA 2015

Appeal from the Order entered January 20, 2015, in the Court of Common Pleas of Philadelphia County, Family Court, at No(s): CP-51-DP-0002955-2014, FID: 51-FN-383670-2009

BEFORE: ALLEN, MUNDY, and FITZGERALD*, JJ.

MEMORANDUM BY ALLEN, J.: FILED AUGUST 20, 2015

E.J. (“Mother”) appeals from the orders which adjudicated D.J. (born in

September of 2013), and A.J. (born in October of 2014) (collectively “the

Children”) dependent. We affirm.

In its opinion filed March 27, 2015, the trial court set forth the factual

background and procedural history of this appeal. On December 17, 2014,

the Philadelphia Department of Human Services (“DHS”) first became

involved with the family when DHS sought an Order of Protective Custody

* Former Justice specially assigned to the Superior Court. J-A21045-15

(“OPC”) for Mother’s eldest child1, as well as the Children. The OPC stated

that DHS received a General Protective Services (“GPS”) report alleging that

Mother’s eldest child, who was ten years old, did not feel comfortable living

with her father, R.F., because her eleven-year-old cousin who lived in the

home was threatening and hitting her. As a result, Mother’s eldest child

went to the home of maternal grandmother, B.S. The OPC further averred

that on December 17, 2014, DHS visited Mother’s eldest child and Mother at

B.S.’s home, where DHS learned that Mother’s eldest child had two siblings,

the Children. B.S. would not allow the Children to continue to stay at her

home. Mother resided at the home of her boyfriend, M.F., who is the

Children’s father ("Father"). Father would not allow DHS to visit the home

where they resided. Mother did not have housing for the Children or herself.

Consequently, DHS obtained the Order of Protective Custody (“OPC”) for

Mother’s eldest child and the Children, and the eldest child and the Children

were placed in foster care. On December 19, 2014, a shelter care hearing

was held. The trial court lifted the OPC, with the Children to remain in foster

care.

On December 24, 2014, DHS filed petitions seeking a finding that the

Children were dependent. On January 20, 2015, the trial court held a

hearing on the dependency petitions. At the dependency hearing, Deanna

Crawford, the DHS social worker, testified, as did Mother. Following the

1 Mother’s eldest child, A.J., is not subject to this appeal. -2- J-A21045-15

hearing, on January 20, 2015, the trial court entered orders adjudicating the

Children dependent, and removing them from Mother’s home. On January

28, 2015, Mother filed a motion for reconsideration of the trial court’s

January 20, 2015 orders. Before the trial court ruled on Mother’s motion for

reconsideration, Mother filed timely Notices of Appeal on February 17, 2015,

and filed Concise Statements of Errors Complained of on Appeal pursuant to

Pa.R.A.P. 1925(a)(2)(i) and (b). This Court sua sponte consolidated the

appeals.

On appeal, Mother raises two issues:

1. Whether the evidence was sufficient to sustain the [a]djudication of [d]ependency?

2. Additionally, whether the evidence was sufficient to sustain removal of the Children from [Mother], and place them into [DHS]’s custody?

Mother’s Brief at 5.

The relevant standard and scope of review in child dependency

matters is as follows:

We accept the trial court’s factual findings that are supported by the record, and defer to the court’s credibility determinations. We accord great weight to this function of the hearing judge because he is in the position to observe and rule upon the credibility of the witnesses and the parties who appear before him. Relying upon his unique posture, we will not overrule [the trial court’s] findings if they are supported by competent evidence.

In re R.P., 957 A.2d 1205, 1211 (Pa. Super. 2008) (citations and quotation

marks omitted) (brackets in original).

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Section 6302 of the Juvenile Code defines the “dependent child” in

relevant part as one who:

(1) 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. § 6302.

This Court has explained our review of the statutory requirements in a

dependency case as follows:

The burden of proof in a dependency proceeding is on the petitioner . . . who must show [that] the juvenile is without proper parental care, and that such care is not immediately available. A finding of dependency must be supported by clear and convincing evidence that proper parental care and control are not available. The standard of clear and convincing evidence means testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. Without such evidence, a child cannot be adjudged dependent and must be returned promptly to his or her parent.

In the Interest of J.M., 652 A.2d 877, 880 (Pa. Super. 1995), allocatur

denied, 663 A.2d 692 (Pa. 1995) (citations and quotation marks omitted).

“The legislature defined [‘dependent child’] in exceedingly broad terms

precisely because it is impossible to foresee all the possible factual situations

that may arise.” In re R.W.J., 826 A.2d 10, 15 (Pa. Super. 2003) (citation

omitted) (quotations marks and brackets in original). In a dependency case,

the court must make a comprehensive inquiry into whether proper parental

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care is immediately available or what kind of care the parent could provide

in the future. Id., at 14.

Once the court determines that a child is dependent, “the court may

then make an appropriate disposition of the child to protect the child’s

physical, mental and moral welfare, including allowing the child to remain

with the parents subject to supervision . . . .” In re M.L., 757 A.2d 849,

850-51 (Pa. 2000). A dependent child may be separated from parents only

when necessary for the child’s safety, welfare, or health. See In the

Interest of J.O.V., 686 A.2d 421, 422 (Pa. Super. 1996); 42 Pa.C.S.A. §

6301(b)(1), and (3).

After careful review of the record, we are satisfied the trial court

properly addressed Mother’s issues concerning the Children’s dependency

adjudication. The trial court’s decision to remove the Children from the care

of Mother, adjudicate the Children dependent, and place them in the custody

of DHS, and also to impose conditions on Mother for reunification of the

family, is supported by clear and convincing, competent evidence.

Accordingly, we adopt the trial court’s March 27, 2015 opinion as our own,

and affirm the trial court’s orders on the basis of the trial court’s opinion.

Orders affirmed.

-5- J-A21045-15

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/20/2015

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IN THE COURT OF COMMON PLEAS OF PHILADELPHlft.~1:)) FAMILY COURT DIVISION JUVENILE BRANCH 10!5 l·if.;R ~~7 Pi'1 2: 00 .PROPROTHY In The Interest Of: CP-51-DP-0002954-2014 D.J. and A.J., CP-5l-DP-0002955-2014 Minors FID: 51-FN-383670-2009

Appeal of E.J., Mother 622 EDA 2015 623 EDA 2015

OPINION

This Opinion is submitted relative to the appeal of Mother, E.J., ("hereinafter

"Mother"), from this Court's Order entered on January 20, 2015, which adjudicated her

children, D.J. and A.J., dependent. For the reasons discussed, this Court respectfully

submits that its decision should be affirmed.

Background

On December 17, 2014, the Department of Human Services ("DHS") filed an

Order of Protective Custody ("OPC") as to ten-year old Alayna J., one-year old D.J., and

four-month old A.J.1 The OPC alleged that DHS received a General Protective Services

("GPS") report that ten-year old Alayna J. was living with her father and did not feel

comfortable staying with her father because her eleven-year old cousin who lived in her

father's home threatened and slapped her. Alayna J. 's father made arrangements for her

to stay with her maternal aunt while DHS conducted an investigation. However, Alayna

J. and Mother refused this arrangement. The OPC further alleged that on December 17,

2014, DHS conducted a home visit at Alayna l's maternal grandmother's home with

1 Only one-year old D.J. and four-month old A.J. are the subjects of this appeal; ten-year old Alayna J. is not a subject to this appeal. Circulated 08/10/2015 12:03 PM

Alayna J. and Mother. At that home visit, DHS learned of Alayna L's two younger

siblings, one-year old DJ. and four-month old A.J., who were not recorded in the

December 16, 2014 GPS report. The OPC also alleged that the maternal grandmother

indicated that the children could not stay at her home. The OPC further stated that DHS

attempted to assess Mother's home but was told by Mother that her paramour indicated

that DHS could not come into his home. Since Mother and the children had nowhere to

go, an OPC was obtained to place the children in DHS's care.

On December 19, 2014, a shelter care hearing was held, at which time the OPC

was lifted and the children's temporary commitment to DHS was to stand. DHS filed

dependency petitions on the children on December 24, 2014. On January 8, 2015, the

adjudicatory hearing on the dependency petitions was continued because the Court

granted DHS's request for a continuance in order to conduct further investigation.

The adjudicatory hearing for Alayna J., D.J. and A.J. was held on January 20,

2015. At the adjudicatory hearing, the Court heard testimony from DHS social worker

Deana Crawford. Ms. Crawford testified that the case became known to DHS due to a

report that Alayna J. was fearful of returning to her father's house because she was being

threatened by her father and her cousin who lived in the home. N.T. 1/20/15 at 4. Ms.

Crawford testified that Alayna J. 's father had full custody of her, but that Mother had

custody of the two youngest children, D.J. and A.J. Id. at 5. Ms. Crawford testified that

D .J. and A.J. were removed from Mother and placed in foster care because Mother was

not able to provide appropriate housing and Mother refused to allow the social worker to

do a home assessment. Id. at 7. Ms. Crawford stated that when she went to meet with

Mother on December 18, 2014 at the children's maternal grandmother's home, Mother

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stated that she did not live with the maternal grandmother, but that she lived at another

home with someone else who would not allow DHS to enter the home. Id. at 7-8. Ms.

Crawford stated that she was concerned about DJ. and A.J. because she was unsure

where Mother and the children were residing and Mother was refusing to allow DHS to II do a home assessment. Id. Ms. Crawford also stated that when she talked to Mother's

l I paramour, he denied that Mother lived at his home. Id. at 12. Ms. Crawford testified that

as of the date of the adjudicatory hearing on January 20, 2015, she still did not know

I where Mother was residing. Id. Ms. Crawford further testified that since D.J. and A.I.

were placed in a foster home on December 18, 2014 up until the adjudicatory hearing on

January 20, 2015, Mother had not visited the two children nor made any outreach to DHS

regarding visitation or conducting a home assessment. Id. at 8, I 0.

Mother testified at the adjudicatory hearing that she agreed with Ms. Crawford's

testimony that DHS did not know where she was living and agreed that she did not live

with her paramour. Id. at 15. Mother stated at the adjudicatory hearing that she instead

lived with her grandmother at 2037 North 3rd Street and that DHS could do a home

assessment on that house. Id. With respect to visitation, Mother stated that she asked

Ms. Crawford twice when they came to Court when she could visit the children and Ms.

Crawford said "I don't know, we'll call you or it's in the court['s] hands." Id.

After considering all of the testimony and evidence at the adjudicatory hearing,

the Court found by clear and convincing evidence that the children were dependent and

committed them to the custody ofDHS. Id. at 20. The Court ordered, inter alia, for

DRS to conduct a home assessment on where Mother was residing at 2037 North 3rd

Street, Philadelphia, Pennsylvania. The Court also stated that Mother's counsel could

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seek reconsideration of its Order if, after further investigation, counsel found new or

different information. Id. The Court also allowed DHS to proceed at the next hearing on

its claim of aggravated circumstances against Mother, on the basis that Mother's parental

rights were previously involuntarily terminated as to two other of her children, pursuant

to paragraphs "h" and "i" in the children's dependency petitions. Id. at 21.

On January 28, 2015, Mother filed a Motion for Reconsideration of the Court's

January 20, 2015 Order. However, Mother's Motion for Reconsideration did not allege

any new or different facts or circumstances than the facts that were presented at the

adjudicatory hearing. See Mother's Petition to Reconsider Adjudication of Dependency

and Placement (Court Exhibit "A"). Before this Court ruled on Mother's Motion for

Reconsideration, Mother filed the instant appeal as to D.J. and A.Jon February 17, 2015.

Discussion

Mother has raised two issues on appeal in her Pa.R.A.P. l 925(b) Statement. First,

Mother argues that the Court "erred in Adjudicating [the Children] Dependent (the

evidence to have been insufficient to sustain the Adjudication)." See Mother's 1925(b)

Statement, at ,r 1 (Court Exhibit "B"). Second, Mother avers that the Court "erred in

removing [the Children] from [Mother], and the placing of the Child[ren] in the custody

of the Department of Human Services (the evidence having been insufficient to

substantiate that decision as well)." Id. at ,r 2.

Pursuant to 42 Pa.C.S. § 6302, a "dependent child" is defined, in relevant part, as

one who "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." Further, "[a] determination that there is a lack of proper parental care or control

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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. § 6302 (emphasis

added). A finding of dependency must be supported by clear and convincing evidence.

In re J.C., 5 A.3d 284, 288 (Pa. Super. 2010). This means "evidence that is so clear,

direct, weighty and convincing as to enable the trier of fact to come to a clear conviction,

without hesitance, of the truth of the precise facts in issue." Id. "In the course of

conducting this inquiry, the court should of course receive evidence from all interested

parties." In re C.M.T., _861 A.2d 348, 356 (Pa. Super. 2004) (citations omitted).

Additionally, "the judge should receive, and if necessary should seek out, evidence from

objective, disinterested witnesses, e. g., neighbors, teachers, social workers, and

psychological experts." Id. "If a child is adjudicated dependent under the Juvenile Act,

he or she cannot be separated from his or her parents absent a showing that the separation

is clearly necessary." In the Interest of C.P., 836 A.2d 984, 987 (Pa. Super. 2003).

The standard of appellate review which the Pennsylvania Superior Court employs

in cases of dependency is as follows:

[W]e must accept the facts as found by the trial court unless they are not supported by the record ... We review for abuse of discretion ... [W]e accord great weight to the court's fact-finding function because the court is in the best position to observe and rule on the credibility of the parties and witnesses.

In the Interest of C.M., 882 A.2d 507, 513 (Pa. Super. 2005). Accordingly, the

Superior's Court's scope of review "is of the broadest possible nature." In Re C.J., 729

A.2d 89, 92 (Pa. Super. 1999).

Here, the Court determined that there was clear and convincing evidence that DJ.

and A.J. were dependent under 42 Pa.C.S. § 6302. In making this finding, the Court

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heard testimony from several witnesses and carefully considered all of the evidence that

was presented at the adjudicatory hearing. The evidence that was presented supported the

finding that proper parental care and control were not immediately available to the

children by Mother, for purposes of determination that the children's health, safety and

welfare were at risk. Specifically, the Court heard testimony that Mother was not

forthcoming about where A.J. and D.J. were living and that Mother would not allow DRS

to do a home assessment. As a result, DHS could not assess the safety of these very

young children because Mother refused to tell DHS where the children were living. This

gave the Court grave concerns about the children's safety and welfare. As the Court

stated at the adjudicatory hearing in response to Mother's counsel's argument:

[Mother's counsel], doesn't it bother you that the fact that DHS asked mom where your kids living? We need to see them. Then we'll be out your hair, and when mom can't do that doesn't that give you safety concern? Really, doesn't it? Because that's DHS's job, isn't it? To make sure the children are safe. And, in fact, if mom had done that it wouldn't be a safety concern because other than that then we'd have to assume a whole bunch of things. We don't know that the children are safe. We don't know anything because mom just didn't afford them that right. N.T. 1/20/15 at 18-19.

The Court also had concerns regarding Mother's credibility in that she gave her

grandmother's address as her residence for the first time at the adjudicatory hearing and

she had not visited her children or made any outreach to DRS regarding visitation or

conducting a home assessment since her children were placed. Despite this, the Court

nonetheless ordered DHS to conduct a home assessment on Mother's current residence to

2 determine if it was appropriate. The Court also afforded Mother's counsel the

2 The Court has not been made aware of the outcome, if any, of this home assessment.

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opportunity to seek reconsideration of its January 20, 20 I 5 Order, but Mother's counsel

did not offer any new or additional facts in the Motion for Reconsideration.

Based on the testimony received at the adjudicatory hearing, the evidence clearly

showed, by clear and convincing evidence, that DJ. and A.J. were without proper

parental care and the Court was compelled to find, based upon the facts before it, that

Mother placed the health, safety, and welfare of the children at risk. As such, the Court

properly found that DJ. and A.J. were dependent children within the meaning of the

statute and placed them in the custody ofDHS.

Conclusion

For these reasons, the Court respectfully submits that its decision be affirmed.

Dated: March 27, 2015