J-S37016-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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

PENNSYLVANIA

APPEAL OF: D.D., FATHER,

Appellant No. 3574 EDA 2014

Appeal from the Order Entered October 27, 2014

In the Court of Common Pleas of Philadelphia County

Family Court at No(s): CP-51-DP-0002411-2014

BEFORE: GANTMAN, P.J., SHOGAN, and LAZARUS, JJ.

MEMORANDUM BY SHOGAN, J.: FILED JULY 07, 2015

D.D. (“Father”) appeals from the trial court’s October 27, 2014 order 

finding A.D. (“Child”), born in June of 2012, a dependent child under section 

6302(1) of the Juvenile Act, 42 Pa.C.S. §§ 6301–6365. That order granted 

the dependency petition filed by the Philadelphia County Department of 

Human Services (“DHS”) and ordered Child to remain in the legal custody of 

DHS, in her foster care placement.1 We affirm.

The trial court set forth the factual background and procedural history 

of this appeal as follows:

____________________________________________

1

 S.C., Child’s mother (“Mother”), has not filed an appeal from the 

dependency order, nor is she a party to this appeal. When discussing 

Father’s arguments herein, at times we refer to Mother and Father 

collectively as “Parents” due to Father’s characterization of the evidence 

allegedly presented.
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The family first became known to DHS on January 29, 

2014, when DHS received a General Protective Services (“GPS”) 

report stating that Child’s sibling was truant and that there was 

little food in the home. (“DHS Dependency Petition”). On 

September 28, 2014, DHS received another GPS report, which 

alleged that the home Child was living in with Father and Mother 

was in foreclosure and that there was no gas or electric service 

in the home.[2] (“DHS Dependency Petition”). The report also 

alleged that electricity has been previously shut off and that 

Mother had reconnected it illegally, and Father and Mother may 

be squatting in the home. (“DHS Dependency Petition”). On 

September 29, 2014, a DHS Social Worker visited the home and 

found that there was no electricity. (N.T. 10/27/14, pgs. 34, 

35), (“DHS Dependency Petition”). Mother testified that the 

electricity was turned off sometime in August and remained off 

throughout October. (N.T. 10/27/14, pg. 83). A Safety Plan 

was implemented for Child to reside with D.P., (“Grandmother”), 

since there was no electricity at Child’s current residence. (N.T. 

10/27/14, pg. 34). On October 14, 2014, DHS learned that 

Grandmother, in violation of the Safety Plan, returned Child to 

Father and Mother on October 10, 2014. (N.T. 10/27/14, pgs. 

38-39), (“DHS Dependency Petition”). On October 14, 2014, 

DHS filed and obtained an Order of Protective Custody (“OPC”) 

and placed Child in foster care. On October 16, 2014, a shelter 

care hearing was held, the OPC was lifted, and the temporary 

commitment to DHS was ordered to stand. At the shelter care 

hearing, Father brought a vial containing an unknown liquid and 

insisted on having that liquid tested. Father was ordered to go 

to the Clinical Evaluation Unit (“CEU”) for a drug screen and 

assessment, which he did not comply with. (N.T. 10/27/14, pgs. 

21, 40). On October 27, 2014,[3]the adjudication and 

disposition hearings were held[,] and the trial court found clear 

and convincing evidence to adjudicate Child dependent based on 

[Father’s] present inability [to care for Child]. (N.T. 10/27/14, 

____________________________________________

2

 While the trial court did not reference the testimony in its procedural 

history, Norelia Torres, the Turning Points for Children case manager, 

testified that the September 28, 2014 GPS report also alleged drug use by 

Mother. N.T., 10/27/14, at 35.

3

 In the interim, on October 20, 2014, DHS filed a dependency petition, 

seeking to have the court adjudicate Child dependent.
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pg. 103). At the adjudication and disposition hearings, Father 

was referred to ARC for appropriate services, re-referred to the 

CEU for a drug screen and dual diagnosis assessment, and 

monitoring to include alcohol. (N.T. 10/27/14, pgs. 13, 103).

Trial Court Opinion, 2/6/15, at 1–2. On October 27, 2014, the trial court 

entered its order finding Child dependent under 42 Pa.C.S. § 6302(1),

granted the dependency petition filed by DHS, and ordered Child to remain 

in the legal custody of DHS at her foster care placement.

On November 26, 2014, Father timely filed a notice of appeal and a 

concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(a)(2)(i) and (b). Father raises the following single issue for our 

review:

A. Whether the trial court erred in adjudicating Child 

dependent based on paragraph (1) of the definition of a 

“Dependent Child” under 42 Pa.C.S.A. §6302, in finding 

that Child lacked proper parental care and control and that 

Father did not have the present ability or appropriate 

housing to provide for Child?

Father’s Brief at 5.

The Pennsylvania Supreme Court recently set forth our standard of 

review in a dependency case 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 . . . . We review for 

abuse of discretion[.]

In Interest of L.Z., 111 A.3d 1164, 1174 (Pa. 2015) (citing In re R.J.T., 9 

A.3d 1179, 1190 (Pa. 2010)).
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Father contends that DHS failed to meet its burden of proof, by clear 

and convincing evidence, demonstrating that Child was a dependent child. 

Father’s Brief at 8. Father asserts that the only issue identified and 

supported by the evidence at the hearing was that the family had a problem 

with inadequate housing. Id. He avers that he and Mother testified that 

they were transitioning from one house to a new house, and they were able 

to stay in a hotel during the renovation of their new house. Id. at 10. 

Father also claims that there was no clear necessity for removal of Child 

from Parents’ custody. Id. In making these arguments, Father suggests 

that there was no issue concerning Child being at an imminent risk of harm, 

or that Parents did not properly care for her. Id. For these reasons, Father 

urges this Court to reverse the trial court’s finding of dependency.

Section 6302 of the Juvenile Act defines a “dependent child,” inter alia, 

as:

“Dependent Child.” A child 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. § 6302.

With regard to a dependent child, this Court has explained:

[A] court is empowered by 42 Pa.C.S. § 6341(a) and (c) to make 

a finding that a child is dependent if the child meets the 
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statutory definition by clear and convincing evidence. If the 

court finds that the child is dependent, then the court may 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, transferring 

temporary legal custody to a relative or public agency, or 

transferring custody to the juvenile court of another state. 42 

Pa.C.S. § 6351(a).

In re D.A., 801 A.2d 614, 617 (Pa. Super. 2002) (en banc). “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 A.B., 63 A.3d 345, 349 (Pa. Super. 2013); In re J.C., 5 A.3d at 288.

“The question of whether a child is lacking proper parental care or 

control so as to be a dependent child encompasses two discrete questions: 

whether the child presently is without proper parental care and control, and 

if so, whether such care and control are immediately available.” In re G., 

T., 845 A.2d 870, 872 (Pa. Super. 2004) (internal quotation marks and 

citations omitted). See also In re J.C., 5 A.3d at 289 (citations omitted). 

Moreover, the burden of proof “is on the petitioner to demonstrate by clear 

and convincing evidence that a child meets that statutory definition of 

dependency.” In re G., T., 845 A.2d at 872.

This Court has defined “proper parental care” as “that care which (1) is 

geared to the particularized needs of the child and (2) at a minimum, is 

likely to prevent serious injury to the child.” In re A.B., 63 A.3d at 349 

(quoting In re C.R.S., 696 A.2d 840, 845 (Pa. Super. 1997)).
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We have also described the considerations regarding when a child 

should be removed from parental custody, as follows:

The law is clear that a child should be 

removed from her parent’s custody and placed in 

the custody of a state agency only upon a showing 

that removal is clearly necessary for the child’s wellbeing. In addition, this court had held that clear 

necessity for removal is not shown until the hearing 

court determines that alternative services that 

would enable the child to remain with her family are

unfeasible.

In re K.B., 276 Pa.Super. 419 A.2d 508, 515 (Pa. Super. 1980) 

(citations omitted). In addition, this Court has stated: “It is not 

for this Court, but for the trial court as fact finder, to determine 

whether a child’s removal from her family was clearly 

necessary.” In re S.S., 438 Pa.Super. 62, 651 A.2d 174, 177 

(1994).

In re A.B., 63 A.3d at 349–350.

Further, this Court has described an abuse of discretion not merely as 

an error of judgment; rather, if “in reaching a conclusion, the court overrides 

or misapplies the law, or the judgment exercised is shown by the record to 

be either manifestly unreasonable or the product of partiality, prejudice, bias 

or ill will, discretion has been abused.” Bulgarelli v. Bulgarelli, 934 A.2d 

107, 111 (Pa. Super. 2007).

We address Father’s argument that the trial court abused its discretion 

in concluding that DHS sustained its burden of proof for finding Child 

dependent under section 6302(1) of the Juvenile Act. The trial court stated 

its reasoning as follows:
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In the instant case, it was established from testimony that 

Child is without proper parental care for her physical, mental, 

and emotional health and such care would not be immediately 

available. Father was aware that the electricity had been turned 

off for at least two and a half months[,] and he failed to take the 

necessary steps to correct it. Father violated the Safety Plan by 

allowing Child to return home even though he had agreed that 

Child would remain with Grandmother because there was no 

electricity in the home. (N.T. 10/27/14, pg. 34). Father 

testified that sometime in August he found out that the house 

was in foreclosure and at that time, the electricity was shut off. 

(N.T. 10/27/14, pg. 64). Father testified that he attempted to 

contact the electric company to get the power turned on but the 

electric company refused because of unpaid electric bills. (N.T. 

10/27/14, pg. 64). Father testified that he went to a check 

cashing place to put a deposit towards the electric bill but was 

unsuccessful. (N.T. 10/27/14, pg. 65). Father testified that the 

lease that Mother signed with the landlord in January of 2014 

indicates that it is the tenant’s responsibility to pay for all 

utilities. (N.T. 10/27/14, pgs. 67–68). The DHS social worker 

testified that when she visited the home for a second time, there 

was a generator on the porch but it was not connected and it 

was not providing electricity for the house. (N.T. 10/27/14, pg. 

48). The DHS social worker also testified that Father was 

ordered to the CEU for a dual diagnosis assessment but failed to 

go, even though he had many opportunities to go[,] (N.T. 

10/27/14, pgs. 92–93), and even though Father stated at the 

shelter care hearing that he wanted the vial he brought, which 

was filled with an unknown liquid, to be screened for drugs. 

(N.T. 10/27/14, pgs. 21, 39, 40). The DHS social worker 

recommends placement because of the lack of appropriate 

housing, concerns about Father using drugs or alcohol, and 

concerns about an untreated mental health issue because of 

Father’s erratic behavior in the courtroom. (N.T. 10/27/14, pgs. 

43, 44, 49, 92). Father brought a vial with liquid in it wanting to 

be tested for drugs. The vial had his name on it and it was 

labeled oxycodone. (N.T. 10/27/14, pg. 95). The DHS social 

worker also testified that during her interactions with Father, she 

smelled a strong odor of alcohol on his person on three 

occasions. (N.T. 10/27/14, pgs. 58, 60). Father testified that 

he has an active drug[-]related matter in criminal court and an 

[sic] active weapon charges. (N.T. 10/27/14, pg. 63). Father 

and Mother rented a home since the OPC was issued but have 

not moved in yet. (N.T. 10/27/14, pg. 21). The DHS social 
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worker visited this new home and observed that the home was 

not appropriate for Child. (N.T. 10/27/14, pg. 21). The DHS 

social worker testified that the home was still under 

construction, there were no kitchen appliances, there was no 

furniture in the home, and the lease she was shown was only 

signed by the landlord. (N.T. 10/27/14, pgs. 21, 26). 

Furthermore upon questioning by the trial judge, Mother could 

not explain why her last name in the lease was posted with white 

out[,] and the paragraph relating to security deposit indicated 

payments being made for the period of February 1, 2003, to 

January 1, 2004. (N.T. 10/27/14, pgs. 101-103). The DHS 

social worker testified that the home’s current condition is not 

suitable or appropriate for reunification. (N.T. 10/27/14, pg. 

27). The trial court found the DHS and agency social workers 

credible.

The trial court used its discretion[,] recognized under the 

law[,] to adjudicate Child dependent to protect her from any 

future harm because the trial court found that it is against the 

health, safety, and welfare of Child to remain with Father. The 

testimony and evidence presented established that Father is 

unable to provide proper parental care and control of Child and 

that Father is not presently ready, willing, and able to provide 

appropriate care for Child. Father could not immediately provide 

proper care geared to maintain the child safe, at a minimum, 

likely to prevent serious injury. The trial court found that 

continuation in the home would not be in Child’s best interests 

and reasonable efforts to prevent placement were made.

Trial Court Opinion, 2/6/15, at 3–4.

Father posits that the trial court made improper credibility and weight 

determinations and arrived at improper inferences from the evidence at the 

adjudicatory hearing to conclude that Child was dependent because she 

lacked proper parental care and control. Father suggests in his brief that 

Parents’ testimony at the hearing supported a finding that within one week 

after the hearing, Parents could have moved with Child into a home they 

were having renovated, and they could have lived in a hotel until the 
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renovations were completed. Father’s Brief at 10. The trial court found that 

Parents’ testimony was not credible, and the testimony of the DHS and 

agency social workers was credible. Accordingly, the trial court did not give 

Parents’ testimony any weight. Trial Court Opinion, 2/6/15, at 4.

Following our careful review of the record, we conclude that the trial 

court’s credibility and weight determinations are supported by competent 

evidence in the record. Although the trial court referred to Father’s lack of 

proper care and control of Child throughout its opinion, the trial court 

included in its discussion a finding that Mother also failed to provide proper 

parental care and control for Child. Trial Court Opinion, 2/6/15, at 3–4. 

Moreover, the trial court considered Parents’ testimony that they were 

moving to a new home and could temporarily stay in a hotel but rejected 

that testimony as not credible. Id. at 4. Thus, the trial court, in its analysis 

of section 6302(1), properly considered whether Child was able to receive 

proper parental care and control from both parents. N.T., 10/27/14, at 109. 

See In re J.C., 5 A.3d at 289 (stating that the dependency of a child is not 

determined “as to” a particular person, but rather must be based upon two 

findings by the trial court: whether the child is currently lacking proper care 

and control, and whether such care and control is immediately available).

We find no reason to disturb the trial court’s conclusion that DHS 

sustained its burden of proof by clear and convincing evidence that Child 

lacked proper parental care and control, and that such care and control was 
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not immediately available to Child from Parents. Accordingly, we affirm the 

trial court order adjudicating Child dependent pursuant to 42 Pa.C.S. § 

6302(1), and ordering her to remain in DHS’s legal custody in her foster 

care placement.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/7/2015