J-S12045-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: M.F. and M.F., 

MINOR CHILDREN

IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: B.D., MOTHER No. 2805 EDA 2014

Appeal from the Order entered August 26, 2014, 

in the Court of Common Pleas of Philadelphia County, Family 

Court, at No(s): CP-51-DP-0001913-2014, CP-51-DP-0001914-2014, 

FID: 51-FN-001837-2014

BEFORE: BOWES, SHOGAN, and FITZGERALD*, JJ.

MEMORANDUM BY FITZGERALD, J.: FILED APRIL 10, 2015

B.D. (“Mother”) appeals from the order entered on August 26, 2014, in 

the Philadelphia County Court of Common Pleas, which found her female 

child, M.F., born in July of 2008, (“Child #1”), and her female child, M.F., 

born in January of 2010, (“Child #2”), collectively (“Children”), not 

dependent, dismissed the petition filed by the Department of Human 

Services of Philadelphia County (“DHS”), and confirmed custody of Children 

with Father. Mother contends the trial court should have determined 

Children were dependent. We affirm.

The trial court set forth the facts and procedural history of this case as 

follows:

Both Child #1 and Child #2 were in the home and 

custody of their Mother. On July 15, 2014, Mother took 

Child #1, a 4-year-old girl, to her primary care physician 

(“PCP”). The PCP recommended that Mother take Child #1 

 

* Former Justice specially assigned to the Superior Court.
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to The Children’s Hospital of Philadelphia (“CHOP”) for 

examination and testing. Child #1 tested positive for 

chlamydia. On July 18, 2014, DHS received a Child 

Protective Services (“CPS”) report alleging that on July 10, 

2014, Mother’s paramour [ ] observed Child #1 standing 

on a bed with her dress pulled up while Mother’s 

paramour’s 11-year-old son sexually assaulted Child #1. 

DHS also learned that Mother’s paramour’s 6-year[-]old 

son had previously sexually assaulted Child #1. On July 

19, 2014, a Safety Plan was implemented[,] which took 

Child #1 and Child #2 out of Mother’s home and placed 

them with Father. On July 21, 2014, DHS visited 

[Children] in Father’s home. Child #2 stated to DHS that 

she had observed Mother’s paramour’s son touching Child 

#1’s buttocks, and Child #1 also stated to DHS that 

Mother’s paramour’s son touched her buttocks. All parties 

tested negative for chlamydia. DHS conducted a forensic 

interview to try to determine how Child #1 contracted 

chlamydia, but due to her age and developmental status, 

Child #1 was unable to verbalize what had happened to 

her; therefore, DHS did not know how Child #1 contracted 

chlamydia.

On July 25, 2014, Mother denied having a history of 

chlamydia and substance abuse. DHS later learned that 

Mother’s medical records indicate that Mother does have a 

history of chlamydia and Mother has had past positive test 

results for chlamydia. DHS learned that Mother had tested 

positive for chlamydia when Child #1 was three months 

old. DHS requested Mother’s complete medical records, 

but Mother failed to provide them. DHS was unable to 

determine if Mother had chlamydia during her pregnancy 

with Child #1. Even if she had chlamydia during her 

pregnancy, there is a possibility that it would not have 

passed to Child #1 because Child #1 was born via 

cesarean. On August 26, 2014, an adjudication hearing 

was held. Reasonable efforts by DHS were found, and 

[Children] were found not dependent. The petition filed by 

DHS was dismissed, and custody of [children] was 

confirmed with Father pursuant to Pa.R.J.C.P. § 

1409(a)(2).

Trial Ct. Op., 11/4/14, at 1-2 (citations to record omitted).
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On September 25, 2014, Mother filed a timely notice of appeal. 

Mother also filed a contemporaneous Concise Statement of Errors 

Complained of on Appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The 

trial court filed a responsive opinion.

Mother raises the follow issue for our review: “Whether [F]ather, and 

not [M]other, should have been given custody of the minor children, M.F. [ ] 

and M.F.[?]” Mother’s Brief at 4.

Mother argues that the evidence was sufficient to support an 

adjudication of dependency. Mother raises concerns about Father being 

abusive and selling marijuana. Mother’s Brief at 8 (unpaginated). She 

contends an adjudication of dependency “would also ensure that [Mother] 

participates in programs designed to address her history of substance abuse 

and mental health issues, before she is reunited with [Children].” Id. She 

concludes that the trial court should have considered and determined the 

Children to be dependent, requiring DHS to put supervision in place to 

alleviate any safety concerns while Children are in Father’s custody. Id. at

9.

Our review is governed by the following principle:

[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. 

Accordingly, we review for an abuse of discretion.

In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010) (citation omitted).
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Pennsylvania Rule of Juvenile Court Procedure 1409 provides:

A. Adjudicating the child dependent. Once the court 

has made its findings under Rule 1408, the court shall 

enter an order whether the child is dependent.

 * * *

(2) No dependency. If the court finds the child not to be 

dependent or the court finds a parent ready, willing, and 

able to provide proper parental care or control, the court 

shall:

(a) dismiss the petition; 

(b) order the child to be discharged from custody and 

any restrictions ordered in the proceedings; and 

(c) enter an order identifying individual(s) who will have 

the legal and physical custody until such order is 

modified by further order of the court.

Pa.R.J.C.P. 1409(A)(2)(a)-(c).

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

a child who:

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, 

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. § 6302. 

“The burden of proof in a dependency proceeding is on the petitioner 

to demonstrate by clear and convincing evidence that a child meets that 
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statutory definition of dependency.” In re M.T., 101 A.3d 1163, 1173 (Pa. 

Super. 2010) (citation omitted). “The definition of a dependent child 

contained in section 6302 clearly states that a child must lack a parent, 

guardian or other legal custodian who can provide appropriate care to the 

child. A child whose non-custodial parent is ready, willing and able 

to provide such care does not meet this definition.” In re M.L., 757 

A.2d 849, 851 (Pa. 2000) (emphases added).

In In re G., T., 845 A.2d 870 (Pa. Super. 2004), we stated: 

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. 

Id. at 872 (internal quotations and citations omitted). 

In the case sub judice, the trial court opined:

In the instant case, it was established by testimony 

that Father is ready, willing, and able to provide 

proper parental care and control of [C]hildren. 

[C]hildren have been residing with Father since July 18, 

2014, and there are no concerns with the girls continuing 

to reside with Father. Father’s home is appropriate, safe, 

and all family members residing in Father’s home have 

been cleared. There are no safety and no dependency 

concerns in regard to Father’s home. Since residing with 

Father, [C]hildren have thrived. Father testified that he 

understands all the services [C]hildren need and he will 

ensure that [C]hildren continue to receive those services. 

Father will also bring [C]hildren to have supervised 

visitation with Mother.

Mother is an inappropriate resource for [C]hildren. 

Mother is given supervised visitation because of the 

concerns regarding who is around [C]hildren when Child 
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#1 and Child #2 are with Mother. The trial court has great 

reservations about Mother’s ability to protect the safety of 

[C]hildren. Another concern is Mother’s ability to ensure 

that [C]hildren’s health and welfare needs are met. 

Children were diagnosed as “failure to thrive.” 

Consequently, [C]hildren were supposed to be fed 

PediaSure formula but there were instances when Mother 

did not give the PediaSure formula to [C]hildren as she 

had been instructed to do. The medical records from 

CHOP indicate that Child #1 is developmentally delayed. 

Mother told DHS that Child #1 suffered from cranial 

stenosis as an infant and currently suffers from acid reflux, 

muscle deformity, and vision problems. DHS social worker 

testified that DHS had had concerns with Mother’s ability 

to parent because Mother did not cooperate with DHS or 

with Father.

Trial Ct. Op. at 3-4 (emphasis added and citations to record omitted).

The trial court authorized the transfer of custody to Father, a noncustodial parent whom the trial court found was ready, willing, and able to 

provide proper parental care and control. Id. at 4. Moreover, the trial court 

found that Father is able to take the Children for all their services and 

understands his obligations as a parent. Id. We find that the trial court 

properly dismissed the dependency petition, and confirmed custody of 

Children with Father. See 42 Pa.C.S. § 6302; Pa.R.J.C.P. 1409(a)(2); In re 

M.L., 757 A.2d at 851. Accordingly, we discern no abuse of discretion. See

In re R.J.T., 9 A.3d at 1190.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/10/2015