In the Interest of: J.B.

2021 Pa. Super. 35, 247 A.3d 447

• Court: Superior Court of Pennsylvania
• Decided: March 5, 2021
• Docket: 1416 EDA 2020
• Status: Published

Opinion

J-S52010-20

2021 PA Super 35

IN THE INTEREST OF: J.B. A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: C.B. MOTHER : : : : : : No. 1416 EDA 2020

Appeal from the Order Entered July 2, 2020 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0000548-2020

BEFORE: PANELLA, P.J., McCAFFERY, J., and STEVENS, P.J.E.*

OPINION BY PANELLA, P.J.: Filed: March 5, 2021

In this appeal, we are faced with a conflict between the necessity of a

finding of dependency to allow the state to interfere in a parent-child

relationship, and the necessity of a hearing before a dependency court can

durably transfer custody to a non-custodial parent. Here, custody of J.B. was

temporarily transferred from his custodial mother (“Mother”) to his non-

custodial father (“Father”) pending an investigation into allegations of abuse

at Mother’s home. When the dependency hearing was continued due to the

unavailability of witnesses, Father requested the dependency proceeding be

terminated, as there were no allegations that J.B. was dependent while in

Father's custody. Over Mother’s objections, the trial court dismissed the

dependency petition and entered an order giving Father full physical and legal

____________________________________________

* Former Justice specially assigned to the Superior Court. J-S52010-20

custody of J.B. After careful review, we conclude the court erred in transferring

full physical and legal custody to Father before holding a hearing. We therefore

vacate and remand.

We review orders in dependency cases by accepting the findings of fact

and credibility determinations of the trial court if they are supported by the

record. See In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). We are not, however,

required to accept the trial court’s inferences or conclusions of law. See id.

The appellate court must ensure that the record represents a comprehensive

inquiry and that the trial court has applied the appropriate legal principles to

the record. See In re L.B., 229 A.3d 971, 977 (Pa. Super. 2020). If the

question before us is a question of law, such as the one presented by the

instant case, the scope of review is plenary. See In re K.L.S., 934 A.2d 1244,

1246 (Pa. 2007).

In her first issue, Mother argues that the trial court erred by transferring

legal and physical custody of J.B. to Father after discharging the dependency

petition and without first holding an evidentiary hearing to determine the

validity of the dependency allegations lodged against her. To address this

argument, we must determine what procedure the trial court followed before

entering the orders dismissing the dependency petition and transferring

custody to Father.

On May 19, 2020, the Philadelphia Department of Human Services

(“DHS”) obtained an Emergency Order of Protective Custody (“OPC”) for J.B.,

and he was placed into general foster care. That same day, Father contacted

-2- J-S52010-20

DHS concerning J.B. DHS directed Father to attend the shelter care hearing

scheduled for J.B. the following day.

At the shelter care hearing on May 20, 2020, the trial court lifted the

OPC and ordered the temporary commitment to DHS to stand. The court also

directed DHS to assess Father and his home. If Father was a viable placement

resource for J.B., the court directed DHS to place J.B. with Father. DHS

evaluated Father’s home that same day and found it to be appropriate. Father

also cleared all necessary background checks. J.B. was placed into the care of

Father.

Shortly thereafter, DHS filed a dependency petition pursuant to the

Juvenile Act, 42 Pa. C.S.A. § 6301 et seq., seeking to have J.B. declared

dependent. At the adjudicatory hearing on July 2, 2020, the parties indicated

that they had agreed that the matter would be continued. However, Father

requested that the dependency petition involving J.B. be discharged because

J.B. was in his care and there were no dependency allegations against Father.

See N.T., 7/2/20, at 6.

Father argued that J.B. could not be adjudicated dependent because

Father, as a parent, was ready, willing and able to provide adequate care for

J.B. DHS agreed with Father, stating its position that because J.B. had been

placed with Father and there were not any dependency allegations against

Father, the dependency petition should be discharged. See id. at 7-8, 25. The

guardian ad litem testified that J.B. had been found to be safe in Father’s

-3- J-S52010-20

home and that he had no objection to the court granting DHS’s request to

discharge the dependency petition. See id. at 7-8, 12-13, 25.

Mother, however, repeatedly objected, arguing that the trial court could

not transfer custody of J.B. to Father without first holding a hearing. Mother

claimed that, absent a hearing, the court lacked authority to find she was not

able to provide proper parental care for J.B. See id. at 8, 9, 10, 24, 27-28.

Mother cited to our Supreme Court’s decision in In re M.L., 757 A.2d 849 (Pa.

2000), and this Court’s decision In the Interest of Justin S., 543 A.2d 1192

(Pa. Super. 1988), to support her position that an evidentiary hearing must

first be held before the court can transfer custody to a non-custodial parent in

dependency proceedings.

Over Mother’s objections, and without hearing any evidence, the trial

court discharged the dependency petition involving J.B. The court reasoned

that J.B. was not a dependent child because Father was ready, willing and able

to provide parental care. See N.T., 7/2/20, at 26, 29. The court also made

clear that it was confirming custody with Father, with liberal visitation for

Mother to be arranged by the parties. See id. at 40. The order of adjudication

and disposition reflected that ruling, ordering that legal and physical custody

of J.B. be transferred to Father with liberal visitation for Mother.

Mother filed a timely notice of appeal and subsequently complied with

the trial court’s directive to file a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal. In response, the trial court issued a notice pursuant

to Pa.R.A.P. 1925(a) notifying this Court that the trial court’s reasons for the

-4- J-S52010-20

order discharging the dependency petition as to J.B. could be found on the

record from the July 2, 2020 hearing. It also stated that it had based its

decision on M.L. and Justin S.

On appeal, Mother notes that this Court has expressed its strong

disapproval of using dependency proceedings as a means of transferring

custody from one parent to another. She also notes the general rule that the

disposition of custody is improper in a dependency proceeding if there has

been no finding of dependency. Mother acknowledges, however, that M.L. and

Justin S. allow for the transfer of custody between parents in a dependency

proceeding even without an adjudication of dependency. She maintains,

though, that this transfer of custody can only occur after a trial court has held

an evidentiary hearing and subsequently determined that the custodial parent

is unable to properly care for the child. Mother argues that she was entitled

to such a hearing before the trial court deprived her of the custody of J.B.

DHS now agrees. DHS concedes that it represented at the July 2, 2020

hearing that no dependency issues remained as to J.B. because of his

placement with Father and that it did not object to custody being transferred

to Father. It now takes the position, however, that this was improper and

agrees with Mother that the trial court should have conducted an evidentiary

hearing prior to transferring custody to Father pursuant to M.L. and Justin S.

Father’s argument does not directly address the issue raised by Mother

and echoed by DHS, as it is not centered on the transfer of custody. Rather,

Father focuses on the disposition of the dependency petition. Father asserts

-5- J-S52010-20

that although Mother was not available to provide proper parental care to J.B.

because the dependency allegations against her had not been resolved, Father

was a parent who was ready, willing and able to provide that care to J.B. As

such, J.B was not, by statutory definition, a dependent child and the trial court

therefore correctly discharged the dependency petition under M.L. and Justin

S. According to Father, “maintaining the DHS petition and supervision of the

case would only serve to deprive [F]ather of his right to be free from

unwarranted state interference in his relationship with [J.B.].” Father’s Brief

at 7.

The disparity in the way Mother and Father frame their arguments

highlights the tricky intersection between dependency and custody that this

case presents. It also exposes the competing interests at stake. Nonetheless,

despite their varying arguments, both Mother and Father claim their position

is supported by M.L. and Justin S. Given that the trial court also relied on

these two cases to support its order discharging the dependency petition and

transferring custody to Father, it is only logical to start our analysis with an

in-depth examination of each of the cases.

In M.L., the sole issue addressed by the Court was whether the trial

court in that case erred in adjudicating a child dependent when that child’s

non-custodial parent was ready, willing and able to provide the child with

proper parental care and control. See M.L., 757 A.2d at 849, 850. There, the

mother had primary physical custody of M.L., and the father had partial

custody. The mother contacted the county child welfare agency with

-6- J-S52010-20

allegations that the father was not appropriately caring for M.L. while she was

in his care and later repeatedly alleged that the father was sexually abusing

M.L. No evidence of abuse by the father was uncovered, but the county agency

became concerned with the mother’s continued allegations against the father

and filed a dependency petition.

After two evidentiary hearings, which included the testimony of several

experts and both parents, the trial court concluded that the mother was unable

to provide proper parental care to M.L. and the father was able to provide

such care. See id. at 850 n.1, 851. The trial court adjudicated M.L. dependent

and awarded custody to the father. This Court affirmed.

Although it was the mother who appealed, our Supreme Court granted

allowance of appeal to decide whether the trial court had improperly

adjudicated M.L. as dependent before awarding custody to the father, who

was ready, willing and able to provide parental care. The Court began its

analysis by noting that there was a conflict in the way this Court had resolved

this issue in two published opinions. According to the Court, Justin S. held

that a trial court cannot adjudge a child dependent where the non-custodial

parent is ready, willing and able to provide parental care while In re Barclay,

468 A.2d 778 (Pa. Super. 1983), essentially reached the opposite conclusion. 1

1 In In Re Barclay, the mother had custody of the child when a dependency

petition was filed. Following a hearing, the child was adjudicated dependent, and temporary custody was awarded to the biological but non-custodial father. A disposition hearing in front of a different trial court was later held regarding

-7- J-S52010-20

In resolving this conflict, the Court first outlined the statutory definition

of a dependent child under the Juvenile Act, which includes a child who “is

without proper parental care or control.” 42 Pa. C.S.A. § 6302(1). The Court

then stated that a child simply does not meet this definition if he has a non-

custodial parent who can provide appropriate care, quoting the following from

Justin S.:

It is the duty of the trial court to determine whether the non- custodial parent is capable and willing to render proper parental control prior to adjudicating a child dependent. If the court determines that the custodial parent is unable to provide proper parental care and control “at this moment” and that the non- custodial parent is “immediately available” to provide such care, the child is not dependent under the provisions of the Juvenile Act. Consequently, the court must grant custody of the allegedly dependent child to the non-custodial parent. Once custody is granted to the non-custodial parent, “the care, protection, and wholesome mental and physical development of the child” can occur in a family environment as the purpose of the Juvenile Act directs. 42 Pa.C.S. § 6301(b).

M.L., 757 A.2d at 851. The Court continued:

We are in accord with the Superior Court’s decision in Justin S. The plain language of the statutory definition of a dependent child compels the conclusion that a child is not dependent if the child has a parent who is willing and able to provide proper care to the ____________________________________________

the proper custodial arrangement for the child, which included testimony from the father and two psychologists. Following that hearing, the trial court awarded custody to the father, with liberal visitation to the mother, and ordered that the child remain under the protective supervision of the county child welfare agency. On appeal, this Court first affirmed the adjudication of dependency, even though the non-custodial parent was clearly available to care for the child. See id. at 781. It also affirmed the granting of custody of the child to the father on the basis that the trial court had not erred by finding that was in the best interests of the child. See id. at 783.

-8- J-S52010-20

child. When a court adjudges a child dependent, that court then possesses the authority to place the child in the custody of a relative or public or private agency. Where a non-custodial parent is available and willing to provide care to the child, such power in the hands of the court is an unwarranted intrusion into the family. Only where a child is truly lacking a parent, guardian or legal custodian who can provide adequate care should we allow our courts to exercise such authority. Accordingly, we hold that where a non-custodial parent is ready, willing and able to provide adequate care to a child, a court may not adjudge that child dependent.

Id. at 851.

It is clear from this passage that the Court was concerned with the

implications of saddling a parent with the state involvement that accompanies

an adjudication of dependency when such an intrusion is unwarranted.

Therefore, the Court, like this Court in Justin S., held that no such

adjudication of dependency could take place when the custodial parent is

currently unable to provide proper parental care but the non-custodial parent

is immediately available to do so.2

2 Unlike the majority opinion, the dissenting opinion in M.L. concentrated primarily on the transfer-of-custody issue. The dissent took the position that Justin S. erroneously transferred custody to the non-custodial parent in the absence of a determination of dependency, and that the majority was merely perpetuating this error by authorizing the automatic transfer of custody of M.L. to the father. According to the dissent, a trial court simply does not have the authority to act, including transferring custody to the non-custodial parent, under the Juvenile Act unless it adjudicates the child as dependent. See M.L., 757 A.2d at 855 (dissenting opinion). In response, the majority concluded in a footnote that the trial court had the authority to transfer custody to the father because “a dependency hearing is a form of custody proceeding” and custody courts are given the broad power to fashion resolutions suited to the best interests of the child involved. M.L., 757 A.2d at 851, n.3.

-9- J-S52010-20

In contrast, while Justin S. clearly found that an adjudication of

dependency was improper under these circumstances, it did so in the context

of resolving whether the trial court in that case had properly altered an

existing custody arrangement between a child’s parents without first

adjudicating the child as dependent. In Justin S., Justin’s parents were

divorced and Justin lived with his brother, mother and her paramour. The

mother had custody of the children and the father visited them on weekends.

The county child welfare agency received a report that the father had

physically abused Justin and filed a petition alleging dependency and abuse

pursuant to the Juvenile Act and the Child Protective Services Law (“CPSL”),

then codified at 11 P.S. § 2201 et seq. Following hearings on the matter, the

trial court found Justin to be an abused child under the CPSL but was unable

to identify who had actually perpetrated that abuse.

The mother then alleged that the father had also previously sexually

abused the children, and the guardian ad litem filed an emergency protective

custody order. The court ordered the county agency to take protective custody

of the children, and the guardian ad litem filed an amended petition. In the

petition, the guardian ad litem asserted that the mother had fabricated her

allegations of sexual abuse and coerced the children to accuse their father of

the sexual abuse and that the father had not physically abused Justin. The

court directed the county agency to relinquish custody of the children to the

- 10 - J-S52010-20

Following a hearing the next day, which included testimony from the

court-appointed psychiatrist expressing his concerns about the mother and

that he had been told that the perpetrator of the physical abuse against Justin

was the mother’s paramour, the trial court granted custody to the children’s

father and scheduled a disposition hearing. The court held the disposition

hearing, but still could not identify the perpetrator of the abuse other than

narrowing the possible perpetrators down to the mother, the mother’s brother

or the mother’s paramour. The court also specifically found that the father had

not physically abused Justin and that the mother had coached the children

regarding the sexual abuse allegations. See Justin S., 543 A.2d at 1195. As

such, the court made the finding that the mother was unable to provide proper

parental care to the children but that the father could provide such care. See

id. at 1195, 1198.

The court did not adjudicate the children as dependent. It did, however,

award custody of the children to the father, with supervised visitation for the

mother. The mother appealed, arguing that the court had erred by transferring

custody of the children to the father without first determining that they were

dependent.

In addressing this issue, this Court acknowledged that it is generally

improper to dispose of the custody of a child in a dependency proceeding

where there has been no adjudication of dependency. See id. at 1197.

However, the Court held that no such adjudication of dependency can take

- 11 - J-S52010-20

place where there is a non-custodial parent who is ready, willing and able to

provide proper parental care and control. See id. at 1199.

The Court therefore held that, in a dependency proceeding, a court may

grant custody of an allegedly dependent child to that child’s non-custodial

parent without first declaring the child dependent as long as sufficient

evidence of dependency exists. See id. (emphasis added). In other words, if

a dependency petition is filed against the custodial parent and there is

sufficient evidence for the court to adjudge the child dependent but for the

intervention of the non-custodial parent who is willing and capable of caring

for the child, the trial court may properly grant custody to the non-custodial

parent in a dependency proceeding.

We do not believe that the Supreme Court in M.L. intended to change

this essential holding of Justin S. As noted, M.L. quoted Justin S.

approvingly. Further, both M.L. and Justin S. arose in procedural postures

that included full dependency hearings.

Here, the trial court transferred physical and legal custody to Father but

did so in the absence of any evidence being presented to the court

substantiating or dispelling the dependency allegations against Mother. As

Mother points out, the most glaring distinction between this case and both

M.L. and Justin S. is that the trial court in those cases held evidentiary

hearings and made a finding based on the evidence at those hearings that the

custodial parent could not provide proper parental care to the child. Both M.L.

and Justin could therefore have been adjudicated dependent, but for the

- 12 - J-S52010-20

intervention of the non-custodial parent who was ready, willing and able to

provide care for the child.

Justin S. made clear, however, that before the trial court can enter an

order transferring custody to the non-custodial parent in these circumstances

there must have been a finding that sufficient evidence of dependency exists.

Implicit in Justin S. is the conclusion that this bar can only be met if the court

holds an evidentiary hearing on the dependency allegations made against the

custodial parent and finds, based on the evidence presented, that there was

sufficient evidence to adjudge the child dependent had the non-custodial

parent not intervened. See Pa.R.J.C.P. 1409 cmt. (citing Justin S. for the

proposition that a court only has the authority to transfer custody to the child’s

non-custodial parent without a finding of dependency if sufficient evidence of

dependency would have existed but for the availability of the non-custodial

parent).

In fact, Justin S. essentially used this standard when evaluating the

mother’s second claim that the trial court lacked sufficient evidence to

determine that she was unable to provide proper parental care to Justin. In

rejecting the mother’s claim, this Court looked to the evidence presented at

the disposition hearings and concluded that there was sufficient clear and

convincing evidence to sustain the court’s finding that the mother had failed

to provide proper parental care to Justin. See Justin S., 543 A.2d at 1200-

1201. Such a conclusion, of course, is supported by the Juvenile Act, which

- 13 - J-S52010-20

requires a finding of dependency to be based on clear and convincing

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

We further note that other Superior Court precedent dovetails with our

reading of M.L. and Justin S. See In the Interest of A.E., 722 A.2d 213

(Pa. Super. 1998).3 In A.E., this Court looked to Justin S. when evaluating a

custodial parent’s claim that the trial court had erred in transferring custody

of A.E. to the non-custodial parent after only a shelter care hearing and

without first making a finding that the custodial parent had failed to provide

proper parental care. The A.E. Court found that, given these circumstances,

the case did not fit under what it called the exception created by Justin S.,

i.e. that even when a dependency court does not adjudicate a child as

dependent, it can nonetheless transfer custody to a ready, willing and able

non-custodial parent as long as sufficient evidence of dependency exists. See

id. at 216. The A.E. Court differentiated Justin S. from the case there by

noting that the trial court in Justin S. found by clear and convincing evidence

that the custodial parent could not provide proper parental care after holding

full disposition hearings regarding the dependency petition allegations. See

id. Because this had not occurred in A.E., the Court concluded that the trial

court erred by awarding custody of A.E. to the non-custodial parent. See id.

3 We acknowledge that A.E. pre-dated M.L. and therefore can offer no direct

guidance on interpreting M.L. Importantly, however, we note that M.L. did not overrule or otherwise discuss A.E., which had been published over a year prior to the publication of M.L.

- 14 - J-S52010-20

Like in A.E., the trial court here did not hold an evidentiary hearing and

determine, in light of the evidence adduced at the hearing, that there was

clear and convincing evidence that Mother was unable to provide proper

parental care to J.B. prior to transferring legal and physical custody to Father.

Based on Justin S. and A.E., we conclude that the court erred by failing to

do so.

To be clear, we now explicitly hold that a trial court can only transfer

durable legal and physical custody to a ready, willing and able non-custodial

parent in a dependency proceeding after the court has held an evidentiary

hearing and found, based on that evidence, that the custodial parent is unable

to provide proper parental care and control to the child by clear and convincing

evidence. Because the trial court did not do so here, we agree with Mother

and DHS that the trial court erred by entering an order transferring legal and

physical custody to Father.4

Given our holding that the court must first hold an evidentiary hearing

on the dependency allegations and arrive at a conclusion that Mother is unable

to provide proper parental care before transferring custody, we cannot agree

with Father’s argument that the trial court properly discharged the

dependency petition in the first instance. Father essentially argues that

4 Mother offers several alternative arguments in support of her assertion that

the trial court erred in transferring legal and physical custody to Father without first holding an evidentiary hearing. In light of our agreement with Mother that the trial court so erred, we need not reach the merits of her alternative arguments.

- 15 - J-S52010-20

because he was a parent who was ready, willing and able to provide proper

care to J.B., J.B. could never be a dependent child and the trial court therefore

correctly discharged the dependency petition pursuant to M.L.

It is true that M.L. held that a child cannot be adjudged dependent if

the child has a ready, willing and able non-custodial parent to provide

adequate care for her. That holding, however, does not require the dismissal

of a dependency petition where the child is subject to a temporary or

emergency placement. In M.L., the trial court had awarded custody to M.L.’s

father after a hearing. Therefore, although there was sufficient evidence on

the record to find that M.L. was dependent based on the dependency

allegations asserted against her custodial parent, the Court held that it was

improper to adjudge M.L. dependent because M.L.’s father was available to

assume custody. Again, no such evidentiary hearing took place here, and the

dependency allegations against Mother remained unexplored and unresolved

when the court discharged the dependency petition and transferred custody

to Father.

The problems inherent with this disposition in these circumstances

became immediately apparent when the court attempted to address Mother’s

visitation arrangements for J.B. Once Mother recognized that the court was

going to transfer custody to Father without holding a hearing on the

dependency petition, she asked that the court order visitation for her as part

of the custody order. The court indicated that, because the abuse allegations

remained open, the visits would need to be supervised. See N.T., 7/2/20, at

- 16 - J-S52010-20

34, 37. The court inquired whether DHS could supervise the visits, to which

DHS responded that it could not in light of the fact that the court was

discharging the dependency petition. See id. at 35. Father, however, asked

that the visits be supervised “just based on the allegations.” See id. Mother

responded that there had been no evidence presented that the visits needed

to be supervised. See id. at 37. After a discussion off the record, the court,

without further explanation, confirmed custody with Father with “Mother to

have liberal visits as arranged by the parties.” Id. at 20.

Although there had been no evidence presented, much less a

determination made, regarding whether Mother could or could not provide

proper parental care to J.B., this arrangement essentially left visitation to the

discretion of Father. At the same time, it also failed to provide any protections

to ensure J.B.’s safety given the apparent possibility that unsupervised visits

with Mother could occur. There can be little doubt that such an arrangement

fell short of carrying out the stated purpose of the Juvenile Act to protect the

safety of the children who come under its umbrella. See 42 Pa. C.S.A. §

6301(b)(1.1).

We recognize the unusual circumstances of this case. It was, after all,

DHS that requested that the dependency petition be discharged, even though

no evidentiary hearing had been held on the allegations contained in that

petition. J.B.’s guardian ad litem agreed. Moreover, again in the absence of

any evidentiary hearing, neither DHS nor the guardian ad litem objected to

the transfer of custody to Father or the visitation order. Of course, DHS has

- 17 - J-S52010-20

now changed its position and recognized, as we do, that such an evidentiary

hearing should have been held pursuant to M.L. and Justin S.

We therefore conclude that the trial court erred by discharging the

dependency petition and transferring legal and physical custody to Father

without first holding an evidentiary hearing. As DHS points out, this does not

mean that should the court find that Mother is unable to provide proper

parental care to J.B., and Father is ready, willing and able to provide that care,

that the court cannot properly transfer custody to Father without adjudging

J.B. as dependent. It just means that the court must first hold an evidentiary

hearing before making those findings and issuing an order to that effect.

Given the potential that the trial court could ultimately reach the same

disposition as it did on July 2, 2020 once it considers the case in accordance

with this opinion, DHS argues that it is proper to vacate and remand the trial

court’s order, rather than reverse and remand it as Mother requests. We

agree. See Tribune-Review Pub. Co. v. Dep’t. of Cmty. and Econ. Dev.,

859 A.2d 1261, 1267-1268 (Pa. 2004) (stating that a reversal of an order

directs the lower court to reverse its earlier position whereas a vacation of the

order directs the lower court to reconsider the case in accordance with the

disposition on appeal).

Accordingly, we now vacate the trial court’s order discharging the

dependency petition and transferring legal and physical custody to Father and

remand for proceedings consistent with this opinion.

- 18 - J-S52010-20

Order vacated. Case remanded for proceedings consistent with this

opinion. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/5/21

- 19 -