J-S88031-16

 2017 PA Super 39

IN THE INTEREST OF: L.E.A-M., 

A MINOR

IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: J.A-M., UNCLE No. 1984 EDA 2016

Appeal from the Order Entered May 26, 2016, 

in the Court of Common Pleas of Lehigh County,

Juvenile Division, at No(s): CP-39-DP-0030-2016

BEFORE: OLSON, RANSOM, and STRASSBURGER,



JJ.

OPINION BY STRASSBURGER, J.: FILED FEBRUARY 16, 2017

J.A-M. (Maternal Uncle), appeals from the order entered May 26, 

2016, in the Court of Common Pleas of Lehigh County, which denied his 

petition to declare L.E.A-M (Child) dependent. After careful review, we 

affirm.

The juvenile court set forth the pertinent background as follows. 

[C]hild was born [in June 1998], in El Salvador, and lived 

with his mother [in El Salvador] until 2015. His father resides 

about fifteen minutes’ walk from his mother’s house. [C]hild’s 

mother works as a domestic, and his father works in agriculture. 

[C]hild had his own bedroom at his mother’s house. He has 

good relationships with both his parents. [C]hild testified that “It 

was good” to live with his mother, and bad only because “she 

wasn’t able to protect [him] from all the bad things.” 

On October 5, 2015, [Child] left his mother’s home. He 

testified that he left El Salvador because “all the kids from 17 on, 

17, 18, they want to recruit you for their gangs. And if you don’t 

accept, they will kill you.”

[C]hild was afraid of the gang efforts at recruitment. ... 

[C]hild testified that his mother and father decided he should 

leave El Salvador. He then went on to describe the path he took 

 

 Retired Senior Judge assigned to the Superior Court.
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to the United States, beginning with “when I left my mother 

gave me some money so I can- I can leave by bus and [ask] for 

rides until I get there.” He traveled through El Salvador and 

surreptitiously crossed the border to Guatemala. “[In

Guatemala,] I looked for a bus that would say that it would get 

close to Mexico.” [Child] then travel[ed] through Guatemala into 

Mexico. [Child] is unclear about the entry into Mexico. [Child] 

then swam into the United States. He was detained by federal 

authorities and released to [Maternal] Uncle in Allentown[. Child 

testified that] “my mother asked [Maternal Uncle] if he could- if 

he could take care of me here.”[1] Neither his mother nor his 

father has visited [Child in the United States]. However, [C]hild 

talks to his father three times a week. [C]hild feels well cared 

for by [Maternal Uncle. Maternal Uncle] buys him clothing, food, 

provides him with his own room, and sends him to school. 

[Maternal Uncle] is a legal resident of the United States, and 

[Maternal Uncle’s] wife is a United States citizen. 

Juvenile Court Opinion, 7/25/2016, at 1-3.

On February 11, 2016, Maternal Uncle filed an application requesting 

permission to file a private dependency petition. The juvenile court granted 

permission to file. A hearing was held on May 13, 2016. Following the 

hearing, on May 26, 2016, the court entered its order denying Maternal 

Uncle’s petition. Maternal Uncle, joined by Child’s parents, filed a joint 

 

1 By way of further background, Maternal Uncle avers that once Child 

entered the United States, he was immediately taken into custody by the 

Department of Homeland Security. Maternal Uncle’s Brief at 7. 

After [] Child was detained in the United States, [Child’s] Mother 

contacted [Maternal Uncle.] [Maternal Uncle] had no prior knowledge that [] 

Child was coming to the United States. However, [Maternal Uncle] agreed to 

sponsor [] Child during the pendency of his removal proceedings. Since that 

time, [Maternal Uncle and his Wife] have stood in loco parentis to [] Child 

and have fully assumed all parental obligations owed to [] Child. 

Id. at 7-8. 
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motion for reconsideration on June 1, 2016. The motion was denied and this 

timely filed appeal followed.2

Maternal Uncle now raises the following issue for our review.

1. Whether the lower court erred in failing to adjudicate [] Child 

dependent, under subsection (3) of the Juvenile Act’s 

definition of “dependent child,” where [Maternal Uncle] 

proved by clear and convincing evidence that [] Child has

been abandoned by his parents?

2. Whether the lower court erred in failing to adjudicate [] Child 

dependent, under subsection (4) of the Juvenile Act’s 

definition of “dependent child,” where [Maternal Uncle] 

proved by clear and convincing evidence that [] Child is 

without a parent[, guardian, or legal custodian?]

Maternal Uncle’s Brief at 4 (unnecessary capitalization and suggested 

answers omitted). 

We consider this issue mindful of the following.

The standard of review which this Court 

employs in cases of dependency is broad. However, 

the scope of review is limited in a fundamental 

manner by our inability to nullify the fact-finding of 

the lower court. 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 his findings if they are supported by 

competent evidence. 

Furthermore, “[i]t is this Court’s responsibility to ensure 

that the record represents a comprehensive inquiry and that the 

hearing judge has applied the appropriate legal principles to that 

record.” 

 

2 When filing his notice of appeal, Maternal Uncle simultaneously filed a 

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

1925(a)(2)(i).
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* * * 

Dependency must be proven by clear and convincing 

evidence, which is defined as 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.’” 

In re J.C., 5 A.3d 284, 287–88 (Pa. Super. 2010) (citations omitted). 

“[T]he 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.” Id. at 289.

The relevant portions of the Juvenile Act provide that a “dependent 

child” is one who

(3) has been abandoned by his parents, guardian, or other 

custodian;

(4) is without a parent, guardian, or legal custodian;

42 Pa.C.S.A. § 6302.

Maternal Uncle first argues that the testimony provided clear and 

convincing evidence that Child was abandoned by his parents. Maternal 

Uncle’s Brief at 14-15. Although the Juvenile Act does not define 

“abandoned” in the context of a dependent child, Maternal Uncle argues that 
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the juvenile court and this Court should consider and use the definition 

codified in the Adoption Act.3 Id. at 12-13. 

The juvenile court found Child was not abandoned by his parents.4 

Furthermore, when reviewing 42 Pa.C.S.A. § 6302(3), the court noted that 

“the question is not only whether the child has been abandoned by his 

parents ... but also if he has been abandoned by [his parents, guardian,] or 

other custodian.” Juvenile Court Opinion, 7/25/2016, at 8 (emphasis 

added). The juvenile court found, and Maternal Uncle concedes, that 

Maternal Uncle stands in loco parentis to Child and therefore is considered 

Child’s custodian under the Juvenile Act.5 See id. at 8 (“[Maternal Uncle] 

 

3 Specifically, Maternal Uncle cites 23 Pa.C.S. § 2511(a)(1) averring that in 

the context of termination of parental rights, “abandonment occurs where a 

parent evidences ‘a settled purpose of relinquishing parental claim to a child 

or has refused or failed to perform parental duties.’” Maternal Uncle’s Brief 

at 13. 

4

In its opinion pursuant to Pa.R.A.P. 1925(a), the court explained that it 

found based on “the facts in this case, [Child] has not been abandoned by 

his parents. They have not cut off relations and they have attempted to 

fulfill their obligations by ensuring that [Child] had an opportunity to travel 

to a more desirable location and was placed with [Maternal Uncle] in the 

United States.” Juvenile Court Opinion, 7/25/2016, at 7.

542 Pa.C.S. § 6302 defines custodian as “[a] person other than a parent or 

legal guardian, who stands in loco parentis to the child, or a person to whom 

legal custody of the child has been given by order of a court.” In its opinion 

pursuant to Pa.R.A.P. 1925(a), the court explained that it found based on 

“the facts in this case, [Child] has not been abandoned by his parents. They 

have not cut off relations and they have attempted to fulfill their obligations 

by ensuring that [Child] had an opportunity to travel to a more desirable 

location and was placed with [Maternal Uncle] in the United States.” 

Juvenile Court Opinion, 7/25/2016, at 7.
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has assumed the obligations incident to the parental relationship and 

discharges the parental duties to [Child]. [Maternal Uncle] feeds [Child], he 

clothes him, he provides him a home, and he sends him to school. ... 

[Maternal Uncle, Child’s] custodian, has not abandoned him[.]”). 

We agree with the juvenile court that Child was not abandoned under 

subsection 3 because he was, and continues to be under the care of his 

custodian, Maternal Uncle. Maternal Uncle’s contention that he became 

Child’s custodian because Child’s parents abandoned him is of no moment, 

as the statute is clear that a dependent child is one who has been 

abandoned by his parents, guardian, or other custodian. 

Maternal Uncle tries to persuade this Court that Child is dependent 

because the use of “or,” a disjunctive, would imply that Child is considered 

dependent if he were found to be abandoned by either his parents, guardian, 

or custodian. We disagree. It is well-settled that “our rules of statutory 

construction forbid[] absurd results[.]” Commonwealth v. Sloan, 907 

A.2d 460, 467 (Pa. 2006). As stated supra, integral to deeming a child 

dependent, a court’s finding must be based upon “whether the child is 

currently lacking proper care and control, and whether such care and control 

is immediately available.” In re J.C., 5 A.3d at 288. Here, there is no 

indication that Child is currently lacking the proper care while living with 

 

542 Pa.C.S. § 6302 defines custodian as “[a] person other than a parent or 

legal guardian, who stands in loco parentis to the child, or a person to whom 

legal custody of the child has been given by order of a court.”
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Maternal Uncle. To the contrary, the juvenile court found that Maternal 

Uncle and his wife take care of all of Child’s needs, including providing food, 

shelter, clothing, and education. Juvenile Court Opinion, 7/25/2016, at 8. 

Adopting Maternal Uncle’s interpretation would require us to find that any 

child who has been abandoned by his parents, guardian, or custodian is 

considered dependent even if they are currently under the care of one of the 

enumerated parties who has not abandoned, and has no intention of 

abandoning the child. This interpretation leads not only to an absurd result, 

but is contrary to the purpose of the law. 

As observed by the lower court, Maternal Uncle requested that, upon a 

finding that Child is dependent, Child be returned to Maternal Uncle’s care. 

Juvenile Court Opinion, 7/25/2016, at 4. Clearly, Maternal Uncle has not 

abandoned Child and has no intention of doing so. No relief is due.

Maternal Uncle alternatively argues that Child is dependent pursuant 

to subsection (4) because Child is without a parent, guardian, or legal 

custodian. Maternal Uncle’s Brief at 19. Maternal Uncle avers that he is 

neither Child’s guardian nor legal custodian under the law, and based on the 

evidence presented, Child is “for all practicable purposes, without a parent.” 

Id. at 20-21.

In finding Child was not without parents, the juvenile court provided 

the following analysis. 

[C]hild’s parents are alive, their locations are known, and 

they were both served and contacted by counsel in connection 
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with [the dependency petition. C]hild continues to have contact 

with his father by phone three times a week. The definition of 

“[d]ependent [c]hild” in subsection (4) provides dependency 

only if the child is without a parent; there is no additional 

language to provide that a child might be without a parent 

because of physical distance, country borders, or the dangers of 

his native environment. Giving the words of the statute their 

plain meaning, we must conclude that as long as a parent is 

alive and his or her whereabouts are known, the child is not 

without a parent. Accordingly, [Maternal Uncle] has not 

established by clear and convincing evidence that [Child] is 

without a parent. 

Juvenile Court Opinion, 7/25/2016, at 9.

Furthermore, Child’s parents joined in the petition for reconsideration 

in this case. In agreeing with the juvenile court’s interpretation of 

subsection (4), we note Maternal Uncle has provided us with no case law to 

support his argument that, because Child’s parents are in El Salvador and 

have not seen nor provided support to Child since he arrived in the United 

States, Child is without parents. 

Furthermore, we find the Juvenile Act permits a court to find a child 

dependent when clear and convincing evidence establishes that a child has 

been abandoned by his parents (subsection (3)) or is without parents

(subsection (4)). Here, Maternal Uncle has failed to provide such evidence.6 

 

6

Indeed, counsel for Maternal Uncle conceded that Child does in fact have 

parents. See N.T., 5/13/2016, at 52-53 (“[Y]es, I realize that [Child] has 

parents. They are two people. They are alive. They live in another country. 

I successfully served them with mail. I get it. They exist. ... I am arguing 

that they have abandoned him, and they are not parents for any purpose 

under this [A]ct”.). 
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In light of the foregoing, we agree with the juvenile court’s conclusion 

that Child is not dependent. Accordingly, we affirm the order of the juvenile 

court.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/16/2017