J

- S01028

- 21

NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

IN THE INT. OF: L.S., A MINOR

APPEAL OF: M.S., BIOLOGICAL MOTHER :
:

:
:

:
:

:
:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1136 MDA 2020
Appeal from the Dispositional Order Entered August 7, 2020 In the Court of Common Pleas of Luzerne County Juvenile Division at

No(s): CP

- 40

- DP

- 0000332

- 2020

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

MEMORANDUM BY McCAFFERY, J. : FILED FEBRUARY 19, 2021

M .S. (Mother) appeals from the order entered in the Luzerne County

Court of Common Pleas, which: (1) adjudicat ed her minor, male child, L.S.

(Child) (born in July of 2020 ), dep endent under the Juvenile Act ; 1 and (2)

plac ed Child in the care and legal and physical custody of Luzerne County

Children and Youth Services (CYS)

. Mother avers the trial court improperly

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 6301

- 6375. See 42 Pa.C.S. §§ 6302 (definition of “dependent child”), 6341(a) (adjudication of dependency), 6351 (disposition of dependent child).

We note Mother refused to disclose to CYS the identity of Child’s father. N.T., 8/3/20, at 4

- 5. Thus, no father, known or unknown, has participated in this case. Furthermore, while CYS has filed a brief in this Court, Child’s guardian ad litem has advised this Court, by letter, that he will not file an appellate brief.J

- S01028

- 21

- 2

-

shifted the burden of proof to her, and erred in basing its adjudication solely

on her mental health history. We affirm.

The trial court set forth the factual background and procedural history

of this appeal as follows :

On or around July 21, 2020, [when Child was approximately three days old,] the court acted upon a temporary shelter care p etition of [ C YS] and transferred temporary legal and physical custody of [C hild to CY S . CYS’ [ petition ] alleged [ CY S] learned that Mother had given birth to [Child] an d that Mother had a significant history of mental health issues. The P etition further stated that on June 1, 2020, Mother was involuntarily committed for treatment at a local hospital ’ s psychiatric ward due to threats to harm herself. Mother also had previously received th r ee (3) years of inpatient care at Clarks Summit State Hospital in connection with a criminal matter. [ C YS] further alleged that [C hild ] is in need of protection and the family is in need of services.

On or around July 24, 2020, a Shelter Care hearing was held and the C ourt finalized the Shelter care and confirmed temporary legal and physical custody in [ CY S]

. . . .

Tr ial Ct. Op. , 10/5/20, at 1

- 2 (citation to record omitted)

.

O n July 22, 2020
, CYS filed a petition to adjudicate Ch ild dependent
,
pursuant to 42 Pa.C.S. § 63 02 (1), and to place Child in the care and custody

of CYS , 42 Pa.C.S. §§ 6341 , 6351

.

On August 3, 2020, a hearing officer conducted a hearing on the petition

via telephonic communication

. William Urbanski , Esquire, represented CYS

and Joseph Borlan , E s quire, represented Mother

. Todd Johns, Esquire, was

the guardian ad litem (GAL) for Child , who was only two weeks old and in

foster care in Hazleton , Pennsylvania . N.T. at 24. CYS presented theJ

- S01028

- 21

- 3

-

testimony of CYS Case worker Anthony Bel l izia; and J ac quelene Marrero, a

drug / alcohol and mental health professional at Pathways t o Recovery in

Haz l eton, who treated Mother for both drug / alcohol and mental health issues.

See N.T., 8/3/20, at 3

- 4; 12

- 13. Mother testified on her own behalf.

The trial court made the following findings of fact from the testimony of

Caseworker Bellizia:

[T] here was a prior [CYS case] with Mother regarding her two older children [ . The y were adjudicated dependen t ] in 2016

. . . as a result of Mother being involved in an armed robbery

. . . with her paramour. [ CY S] discovered that the children were being physically abused by Mother ’ s paramour. Thus, the c hildren, at the time, were placed with the maternal grandm other. Mother became incarcerated and transferred to Clarks Summit State Hospital in Pennsylvania. After a certain period of time, in 2019, Mother voluntarily r elinquished her parental rights with respect to her older children. [N.T. at 5

- 8. ]

Trial Ct. Op. at 4.

[ On June 1, 2020, w hen] Mother was seven

. . . months pregnant with [Child] , she attempted to take her life by cutting her wrist. As a result [,] Mother was

. . . hospitalized for a pproximately six

.

. . days. [ N.T. at 3

- 4.].

Mr. Bellizia testified that [ CY S] learned of the birth of a child at Lehigh Valley Hospital in Hazleton, Pennsylvania. When [Child] was born, the shelter care and dependency actions were filed. [ CY S was] concerned as to Mother ’ s ability to care for the child due to Mother ’ s mental state relating to the incident [one month earlier] wherein Mother cut her wrist while she was seven

. . . months pregnant with [Child]

. Id. at 3

- 4.

* * *

Mr. Bellizia further testified that at the time of the hearing, Mother was receiving mental health services for major depressive disorder and severe recurrent episode anxious distress [sic] through Pathways to Recovery in Hazleton, Pennsylvania. Mr.J

- S01028

- 21

- 4

-

Bellizia indicated that Mother has weekly sessions with a mental health therapis t in addition to medication management appointments. Id. at 8.

Trial Ct

. Op

. at 4

- 5.

The trial court also considered the testimony of Ms. Marrero :

Ms. Jacquelene Marrero testified that she is a drug and alcohol and mental health professional at Pathways to Recovery. Ms. Marrero i ndicated Mother began drug and alcohol treatment on July 23, 2019 and completed the treatment in May 2020. Mother also began her mental health treatment in April 2020 and was still undergoing ment al health treatment at the time of the hearing in August 2020.

Ms. Marrero testified that she was aware of the June incident of Mother ’ s self

- harming behavior. However, Ms. Marrero did not have an ongoing concern for Mother in the course of Mother ’ s tre atment. Ms. Marrero ’ s only concern was to ensure that Mother continued taking her mental health medications and remained stabilized. Despite Ms. Marrero stating that she did not believe that Mother posed any harm upon herself, Ms. Marrero indicated that Mother should be required to undergo ongoing mental health treatment. [N.T

. ] at 8. Ms. Marrero

. . . was not able to indicate whether Mother would pose a danger to the minor child while the child is in her care. Ms. Marrero explained that she did not ob serve Mother ’ s interaction with her child. Her assessment was only based upon seeing Mother on an individual basis. Id. at 16. Thus, although Ms. Marrero had no concern for Mother hurting herself, Ms. Marrero was not able to testify that she had no concerns for the child. The court did take Ms. Marrero ’ s testimony into account. Notably, Ms. Marrero was not able to give any assurance to the court that Mother did not pose a threat of harm to the minor child.

Trial Ct

. Op

. at 5

- 6.

Finally, we note Mother testified ; she agreed that Mr. Bellizia ’s and Ms.

Marrero ’s testimony was accurate. N.T. at 18. Mother further stated,

however, that while she was granted daily video chats with Child, she has not

had any, and that she has not received, as pr omised, “the Foster Mother’sJ

- S01028

- 21

- 5

-

information.” Id. Mother also testified that her in

- person visits with Child

were scheduled at the same time as her appointments at Pathway. Id. at 19.

A s stated above, a t the time of the hearing, Child was in foster care in

Hazleton, Pennsylvania, which the hearing officer found was the least

restrictive placement. N.T. at 24. T he hearing officer foun d, by clear and

convincing evidence
, that : C hild was a dependent child ; that it would be

contrary to Child’s health, safety and welfare to remain in the home ; Child

should be placed in the legal and physical custody of C YS ; and that CYS had

made reasonable efforts to prevent the removal of Child from Mother’s care

and custody

. Id. at 23

- 24. The hearing officer would thus recommend to the

trial court that Child be adjudicated dependent. Id. at 24.

In an order dated August 3 rd , and entered on August 7, 2020, t he trial

court agreed with , and confirmed, the hearing officer’s findings and

recommendation s

. O n September 4 th , Mother filed a timely notice of a ppeal

a long with a concise s tatement of er ror s c omplained of on appeal , pursuant

to Pa.R.A.P

. 1925(a)(2 ) (i) and (b).

On appeal, Mother raises the following issue:

D id the lower C ourt abuse its discretion and err as a matter of law in placing the burden of proof in this dependency action upon [M] other and in f inding, contrary to the testimony of [M] other's treating mental health professional, that there was clear and convincing evidence that [C ] hild is depende nt?J

- S01028

- 21

- 6

-

Mother’s Brief, at 5. 2

Mother argues the evidence di d not satisfy the "clear and convincing"

standard
, and furthermore the trial court erred in effectively placing the

burden of proof on her, rather than CYS. Mother’s Brief at 8, 11, 16. In

support , Mother avers the following: the trial court erred in adjudicating Child

dependent on grounds that her home was unsafe because of her past mental

health treatment. Ms. Marrero ’s professional testimony at the hearing was

that Mot he r w as no longer a risk to herself
, and that Mother was continuing

to participate in mental health treatment as recommended by her mental

health provider. T hus, Mother was not a risk to C hild

. Additionally , to the

extent the trial court relied on evidence that she had recently been

hospitalized for self

- harm, this evidence alone, without more, cannot support

the adjudication of Child as dependent

. Id. at 8. T he Juvenile Act requires

that “ the facts of each case be fully

. . . explored
, ” and “ ‘[ s ] hortcuts ’ relying

on anything o ther than probative and competent evidence demonstrating the

present inability of the parent to properly care for her children have been

uniformly, and repeatedly, rejected. ” Id. Mother con cludes that the court

_________________ __________ ______ ____ _______

2 W e note Mother stated her issue differently in her concise statement : “[CYS] did not meet its burden of proof in disregard of a treating professional[’s] undisputed professional treating opinion [sic] and the decision was contrary to the evidence.” Mother’s Concise Statement o f Errors, 9/4/20. Nevertheless, we find she has sufficiently preserved the present issue for our review

.J

- S01028

- 21

- 7

-

improperly shifted the burden of proof to h er and “ creat [ed] a per se

dependency adjudication based on [ her ] past mental health issue s

. ” Id. at 9.

After careful review, we conclude no relief is due.

We first note:

“ [ T ] he standard of review in dependency cases requires an appellate court to accept 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 inf erences or conclusions of law.” We review for abuse of discretion[.]

In Interest of: L.Z.
, A Minor Child , 111 A.3d 1164, 1174 ( Pa. 2015)

(citations omitted).

Section 6302 of the Juvenile Act defines a “dependent child
, ” in part,

as a child who:

(1) is w ithout 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.

T his Court clarified the procedure for determining the existence of

“proper parental care or con trol,” stating : “ T he 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 c are and control are

immediately available. ” In re G., T. , 845 A.2d 870, 872 (Pa. Super. 2004)J

- S01028

- 21

- 8

-

( citations omitted ); s ee also In re J.C. , 5 A.3d 284, 289 (Pa. Super. 2010).

“ T he burden of proof in a dependency proceeding is on the petitioner to

demonstrate by clear and convincing evidence that a child meets that

statutory definition of dependency.” G., T. , 845 A.2d at 872.

With regard to a dependen cy adjudication , 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 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 ) (citation omitted)

.
In its opinion, the trial court set forth its reasons for granting CYS’

petition to the have Child adjudicated dependent. T he court considered Ms.

Marrero’s testimony, along with Mr. Bellizia’s testimony and CYS’ evidence.

T he trial court reasoned:

The court determined in this case that Mother was not able to provide proper parental care and control to [Child]

. The C ourt further determined that there was no family or resource with which to have the child placed. Thus, the court found [Child] to be dependent pursuant to the Juvenile Act and determined that [ CY S] proved by clear and convincing evidence that [Child] was dependent [,] as Mother did not provide proper care and control to the child.

Credible testimony at the dependency hearing was present ed to show, by clear and convincing evidence, that Mother is incapable of presently providing proper parental care or control for the minor child which is necessary for the physical and mental well

- being of the child.J

- S01028

- 21

- 9

- * * *

The C ourt notes that M other began her drug and alcohol treatment on July 23, 2019 and completed treatment in May 2020. Mother also commenced mental health treatment in April 2020. Two months subsequent to the commencement of her mental health treatment and one month subsequen t to Mother completing her drug or alcohol treatment, Mother cut her wrist after having an argument with the maternal grandmother. As a result of this, Mother was taken to the emergency room and remained in the hospital for six

. . . days. [N.T. at 4, 13

. ] In considering the health and safety of the child, the pivotal question is [: W ] hat if Mother acted in that manner when she had custody of [Child] alone? The C ourt finds that the incident with Mother cutting her wrist is fairly recent and only had occurred in June of 2020.

The court ’ s main focus in this case is to protect the best interest of the child and to ensure the child ’ s safety. The court finds that there has not been sufficient time for Mother to demonstrate that the child would be safe in her hands in light of the June 2020 incident. The court is not making a determination solely based upon Mother ’ s past with her two older children

. Had the incident regarding Mother cutting her wrist not occurred so recently, the court may have different ly decided.

. . . CONCLUSION

The C ourt notes that the [ GAL ] , after having been present for all of the testimony and evidence, i ndicated on the record that he recommended dependency for [Child]

. The [ GAL ] further believed that the C ourt needed to procee d with caution with

. . . respect to insuring the safety of the child. The [ GAL ] stated that although Mother has not had any issues since she voluntarily relinquished her parental rights to her two children in 2019, Mother did not have any children during that timeframe. The [ GAL ] indicated that Mother was unable to meet the requirements of the Family Service Plan in order to gain custody of her two older children, resulting in Mother voluntarily relinquishing her parental rights to her two older children

.

The C ourt further gives weight to the most recent i ncident of Mother's self

– harm when she was seven

. . . months pregnant with [Child] in June of 2020. At the time, Mother was alreadyJ

- S01028

- 21

- 10

-

supported by mental health treatment and drug and alcohol treatment.

The court finds that [ CY S] demonstrated by clear and convincing evidence that [Child] should be determined to be a dependent under the Juvenile Act.

Tr ial Ct

. Op

. at 3 , 6

- 7 (paragraph break added).

Here, t he trial court considered the undisputed evidence that Mother,

whe n seven m onths pregnant with Child, and while she was participating in

mental health treatment, cut her wrist and had to stay in the hospital for

almost a week , and that her action s placed Child’s health and safety at ri sk

shortly before his birth

. At the time of the hearing, Mother was receiving

m ental health care treatment. Contrary to Mother’s contention, Ms. Marrero

did not testify or suggest that Mother does not pose a threat of harm to Child.

Moreover, the trial court did not impose a per se rule against Mother or shift

the burden of proof from CYS to her. Rather, the trial court found after

reviewing all the evidence presented, that Child is without proper parental

care or control necessary for his physical, men tal, or emotional health, or

morals

. See 42 Pa.C.S. § 6302(1). Accordingly, the trial court did not err as

a matter of law or abuse its discretion in finding C hild dependent

. See G., T. ,

845 A.2d at 872. We thus affirm its dependency adjudication.

Ord er affirmed.J

- S01028

- 21

- 11

-

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 02/19/2021