J-S37001-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.H.S., A MINOR : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

:

APPEAL OF: L.S., FATHER : No. 3586 EDA 2014

Appeal from the Dispositional Order November 18, 2014

In the Court of Common Pleas of Philadelphia County

Juvenile Division at No(s): CP-51-DP-0002548-2014

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

MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 16, 2015

Appellant, L.S. (“Father”), appeals from the order entered in the 

Philadelphia County Court of Common Pleas, which adjudicated his minor 

daughter, A.H.S. (“Child”), dependent and committed her to the Department 

of Human Services (“DHS”). We affirm. 

The trial court opinion sets forth the relevant facts and procedural 

history of this case as follows:

On October 27, 2014, DHS received a General Protective 

Service (“GPS”) report alleging that Child’s mother[, S.H. 

(“Mother”),] was found incoherent, on the ground and 

under the influence of marijuana and PCP. Child was 

found unattended in her stroller and was taken by 

neighbors, who called the police. Mother was arrested and 

escorted together with Child to Temple University Hospital 

(“TUH”). Mother refused to provide her name to the 

officers but provided Child’s grandmother’s name and 

telephone. However, according to DHS’ investigation, 

grandmother appeared as a perpetrator of a separate 

indicated Child Protective Service (“CPS”) report. As a 

result, Child’s grandmother was ineligible to assume 

Child’s care. Mother provided other caregivers’ names 
J-S37001-15

- 2 -

[who] were also ineligible. On October 28, 2014, DHS 

obtained an Order for Protective Custody (“OPC”) for 

Child.[1] Child was placed in foster care..., where she 

currently remains. At the Shelter Care Hearing on October 

30, 2014, the court lifted the OPC, maintained Child 

committed to DHS and set November 18, 2014, at 11 

A.M., as the date for Child’s adjudicatory hearing. On 

November 18, 2014, a prehearing conference took place at 

10:30 A.M. without Father and Father’s attorney’s 

participation. Child’s mother, Child’s mother’s attorney, 

DHS’ attorney, and [the] Child [A]dvocate were present at 

the pre-hearing conference. The parties fully agreed to 

adjudicate Child dependent. The case was called at 11:30 

A.M. but the parties were not ready since Father’s attorney 

indicated that Father may be coming and the trial court 

was hearing other cases. [The c]ase was pushed back. At 

1:14 P.M. Child’s adjudicatory hearing began with all 

parties present, including Father’s attorney, except Father 

had not shown up. DHS’ city solicitor presented the full 

agreement reached by the parties, Father’s attorney did 

not object to the agreement since he had no position due 

to Father not being present. The trial court accepted the 

parties’ agreement and stipulation of the facts on the 

petition of adjudication. Father was granted weeklysupervised visitation. Child was adjudicated [dependent] 

based on the present inability of the parents [to care for 

Child]. The adjudicatory hearing finished at 1:23 P.M., 

without Father even appearing at the bar of the court. On 

November 24, 2014, Father’s attorney filed a Motion for 

Reconsideration alleging that Father is ready, willing and 

able to assume Child’s care and that Father could not 

attend the adjudicatory hearing because he was paying 

child support on another floor, at the same time of the 

hearing. The trial court denied Father’s...Motion for 

Reconsideration [on December 1, 2014]. On December 

1[5], 2014, Father’s attorney filed a timely notice of appeal 

[and Pa.R.A.P. 1925(a)(2)(i) concise statement of errors 

complained of on appeal], arguing that the court 

committed a reversible error, in finding without clear and 

convincing evidence that Father was not ready and 

available to assume Child’s care. At the permanency 

 

1 Child was living with Mother at this time. Mother and Father do not reside 

together. 
J-S37001-15

- 3 -

review hearing, on February 3, 2015, the court found 

Father in non-compliance with his permanency plan.

(Trial Court Opinion, filed February 20, 2015, at 1-2) (internal footnotes 

omitted). 

Father raises one issue for our review:

WHETHER THE ADJUDICATION OF DEPENDENCY SHOULD 

BE REVERSED WHERE THE CITY OF PHILADELPHIA FAILED 

TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT 

THE CHILD WAS PRESENTLY WITHOUT PROPER PARENTAL 

CARE AND CONTROL?

(Father’s Brief at 7). 

Our standard and scope of review from an adjudication of dependency 

is as follows:

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 [trial] court. We accord great 

weight to this function of the hearing [court] because [it] 

is in the position to observe and rule upon the credibility of 

the witnesses and the parties who appear before [it]. 

Relying upon [the court’s] unique posture, we will not 

overrule [its] findings if they are supported by competent 

evidence.

In re E.B., 898 A.2d 1108, 1112 (Pa.Super. 2006) (quoting In re D.A., 801 

A.2d 614, 617-18 (Pa.Super. 2002) (en banc)). 

Father asserts the court based its decision, to adjudicate Child 

dependent, on the parties’ stipulation to the statement of facts in DHS’ 

dependency petition. Father argues DHS’ statement of facts focuses 

primarily on Mother’s actions on October 27, 2014. Father maintains DHS 
J-S37001-15

- 4 -

failed to investigate Father as a potential caregiver for Child. Father claims 

DHS did not utilize reasonable efforts to locate and interview Father as a 

resource. Father concludes DHS did not establish that Child is dependent by 

clear and convincing evidence, and this Court must reverse the adjudication 

of dependency. We disagree. 

The Juvenile Act defines a dependent child, in pertinent part, as 

follows:

§ 6302. Definitions

“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 [her] 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, including evidence of the parent’s, guardian’s 

or other custodian’s use of alcohol or a controlled 

substance that places the health, safety or welfare of the 

child at risk[.]

42 Pa.C.S.A. § 6302. A court may adjudicate a child as dependent if the 

child meets the statutory definition by clear and convincing evidence. E.B., 

supra. “[W]here a non-custodial parent is ready, willing and able to provide 

adequate care to a child, a court may not adjudge that child dependent.” In 

re M.L., 562 Pa. 646, 650, 757 A.2d 849, 851 (2000). 

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 
J-S37001-15

- 5 -

subject to supervision, transferring temporary legal 

custody to a relative or a private or public agency, or 

transferring custody to the juvenile court of another state.

E.B., supra at 1112. 

Additionally:

In order to preserve an issue for appellate review, a party 

must make a timely and specific objection at the 

appropriate stage of the proceedings before the trial court. 

Failure to timely object to a basic and fundamental error 

will result in waiver of that issue. On appeal, the Superior 

Court will not consider a claim which was not called to the 

trial court’s attention at a time when any error committed 

could have been corrected. In this jurisdiction one must 

object to errors, improprieties or irregularities at the 

earliest possible stage of the adjudicatory process to afford 

the jurist hearing the case the first occasion to remedy the 

wrong and possibly avoid an unnecessary appeal to 

complain of the matter.

In re J.A., 107 A.3d 799, 820 (Pa.Super. 2015) (quoting In re S.C.B., 990 

A.2d 762, 767 (Pa.Super. 2010)) (holding mother waived challenge to 

court’s failure to conduct hearing prior to appointing medical guardian for 

child, where mother did not request hearing at appropriate stage of 

proceedings). 

Instantly, the court held a shelter care hearing on October 30, 2014, 

which Father attended. At the conclusion of the hearing, the court ordered 

Child to remain in the custody of DHS. The court scheduled the next 

proceeding to take place on November 18, 2014, at 11 a.m. in Courtroom M. 

Additionally, DHS’ dependency petition expressly informed Father a prehearing conference would occur on Tuesday, November 18, 2014, at 10:30 
J-S37001-15

- 6 -

a.m. in room 310; an adjudicatory hearing would occur on that date at 11 

a.m. in Courtroom M. The dependency petition also stated: “If you do not 

attend the pre-hearing conference, decisions about your child may 

be made without you.” (Dependency Petition, filed 10/31/14, at 1) 

(emphasis in original). The dependency petition further advised: “Failure 

to appear at this [adjudicatory] hearing may result in the issuance of 

a bench warrant for your arrest.” (Id.) (emphasis in original). 

On November 18, 2014, the court held a pre-hearing conference at the 

scheduled time. Father received notice, but he failed to appear. Mother, 

Mother’s counsel, DHS’ attorney, and the Child Advocate attended the prehearing conference. At that time, those parties agreed to adjudicate Child 

dependent. Thereafter, Father’s counsel informed the court that Father 

might be on his way to court. The adjudicatory hearing was scheduled for 

11 a.m., but the court rescheduled the adjudicatory hearing until later that 

afternoon in an effort to accommodate Father. 

The adjudicatory hearing began at 1:14 p.m. Notwithstanding Father’s 

receipt of notice and Father’s counsel’s representation to the court that 

Father might be on his way to court, Father failed to attend the hearing. 

The parties subsequently informed the court they had reached an agreement 

to adjudicate Child dependent and to commit Child to DHS’ custody, based 

on Mother and Father’s present inability to care for Child. Significantly, 

Father’s attorney did not object to the agreement to adjudicate Child 
J-S37001-15

- 7 -

dependent. The parties further informed the court that Child (who was 7-

months-old at the time of the hearing) had a hernia that was being treated 

at Temple Pediatrics and needed a clothing voucher. The court also heard 

Child was safe in foster care and having her needs met. The Child’s 

Advocate and Mother’s counsel both agreed to adjudicate Child dependent. 

The court then asked Father’s counsel if he had anything to add. Father’s 

counsel responded: “No, Your Honor.” (N.T. Dependency Hearing, 

11/18/14, at 8). Consequently, the court adjudicated Child dependent by 

stipulation of the parties.

In addressing Father’s complaint on appeal, the trial court reasoned:

In the Motion for Reconsideration filed by Father’s 

attorney, it was alleged that Father was not present at the 

adjudicatory hearing because he was paying child support 

in the courthouse on another floor. Father’s excuse is 

without any merit. The record established that Father 

knew the exact date and time [at] which the hearing would 

take place since he was present at the shelter care 

hearing. Even assuming Father was present in the 

courthouse as he claims, he would have had sufficient time 

to pay child support and then attend his Child’s 

adjudicatory hearing. The office that receives child 

support payments opens at 9:00 A.M. and closes at 4:30 

P.M. The pre-hearing conference began at 10:30 A.M., 

with the adjudicatory hearing being pushed back to 1:14 

P.M. and finishing at 1:23 P.M. Not only did Father fail to 

attend, but he also failed to introduce evidence of his 

capacity and readiness to assume Child’s custody. 

Furthermore, he was unwilling to cooperate with DHS. The 

only fact stipulated about Father was that he currently 

resides at his aunt’s home. Under these facts and Father’s 

lack of appearance at court, the trial court could not find 

Father to be ready, willing and able to assume Child’s care. 

Child’s safety and proper parental care and control are 
J-S37001-15

- 8 -

primary considerations for the trial court to take into 

account.

* * *

[T]he record established that at the pre-hearing 

conference the parties reached a full agreement to 

adjudicate Child dependent due to parents’ present 

inability to assume Child’s care. Later, during the 

adjudicatory hearing, DHS’ attorney presented to the court 

the parties’ agreement by stating “your honor we have a 

full agreement today for Child, who is seven months old, to 

adjudicate her dependent, commit her to DHS, and 

discharge the temporary commitment. She is currently in 

a foster home.... The basis of the adjudication is present 

inability.” (N.T. 11/18/14, pgs. 3-4). The record further 

establishes that the trial court accepted the parties’ 

stipulation without any objection from Father’s attorney. 

Consequently, the court’s adjudication order was entered 

based on a valid agreement of the parties pursuant to 

Pa.R.J.C.P. 1405(A)(1)(6).

* * *

The record left no doubt that prior to making a decision, 

the trial court asked Father’s attorney[,] “do you have 

anything to add?” but Father’s attorney answered “no.” 

(N.T. 11/18/14, pg. 8). Father’s attorney’s failure to 

object at the appropriate stage of the proceedings failed to 

preserve the issue for appellate review. Consequently, 

Father has waived his right to appeal any of the issues as 

listed on his [concise statement]. Even assuming that 

Father did not waive his [issues], Father’s issues on appeal 

are without merit since the allegations in the dependency 

petition were clear and convincing for the trial court to 

make a determination of adjudication on present inability 

of the parents.

(Trial Court Opinion at 3-4) (some internal citations omitted). We agree that 

Father waived his challenge to the court’s adjudication of dependency where 

he failed to object to the agreement to adjudicate Child dependent at the 
J-S37001-15

- 9 -

appropriate stage of the proceedings. See J.A., supra. 

Moreover, Father had ample notice of the scheduled pre-hearing 

conference and adjudicatory hearing, but he simply failed to attend. The 

court even pushed back the scheduled adjudicatory hearing to accommodate 

Father, but he still did not show. Father’s complaint on appeal that DHS 

failed to investigate Father as a potential caregiver for Child is disingenuous, 

where Father had an opportunity to present evidence of his ability to care for 

Child at the adjudicatory hearing and waived that chance. 

Furthermore, DHS’ dependency petition alleged that Mother uses drugs 

and Child is at risk of further neglect in her care and that DHS had been 

unable to assess Father’s ability to care for Child. The court accepted the 

facts alleged in DHS’ dependency petition stating, inter alia: (1) on October 

27, 2014, DHS received a GPS report alleging Mother was found incoherent 

on the ground under the influence of drugs while Child was left unattended 

in her stroller; neighbors took Child and called the police; police took Mother 

and Child to Temple University Hospital, and police arrested Mother; a foster 

care agency assumed care of Child; (2) on October 28, 2014, DHS obtained 

an order of protective custody for Child and placed her in a foster home; (3) 

on October 30, 2014, the court lifted the order of protective custody and 

ordered the temporary commitment to DHS to stand; (4) Mother has a 

history of mental illness; (5) Father resides with his aunt and stated he 

wanted to care for Child; (6) DHS recommends that Child be committed to 
J-S37001-15

- 10 -

the care of DHS. The court determined DHS proved the alleged facts by 

clear and convincing evidence. Based on the parties’ agreement and 

Father’s failure to provide evidence of his present ability to care for Child, 

the court adjudicated Child dependent. See Pa.R.J.C.P. 1405(a)(1), (a)(6) 

(stating at any time after filing of dependency petition any party may 

present stipulations or agreements by all parties to court in writing or orally 

on record regarding findings of fact to be deemed admitted by parties; or 

any other stipulation or agreement found to be appropriate by court); 

Pa.R.J.C.P. 1408 (explaining after hearing evidence on dependency petition 

or accepting stipulated facts by parties, court shall enter finding by 

specifying which, if any, allegations in petition were proved by clear and 

convincing evidence). The record support’s the court’s adjudication of 

dependency for Child.2 See 42 Pa.C.S.A. § 6302; E.B., supra. Accordingly, 

we affirm.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/16/2015

 

2 The record shows that at the time of the February 3, 2015 permanency 

review hearing Father was completely not compliant with the permanency 

plan and believed to be incarcerated.