J-S12015-15

*

 Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: F.W., A MINOR IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

APPEAL OF: F.W., FATHER

Appellant No. 2259 EDA 2014

Appeal from the Order Entered June 30, 2014

In the Court of Common Pleas of Philadelphia County

Juvenile Division at No(s): CP-51-DP-0001439-2014

CP-51-FN-465690-2009

BEFORE: BOWES, SHOGAN and FITZGERALD,* JJ. 

MEMORANDUM BY BOWES, J: FILED APRIL 14, 2015

F.W. (“Father”) appeals from the June 30, 2014 order of adjudication 

and disposition wherein the juvenile court adjudicated his son, F.W.,1

dependent and placed the child in foster care. After a thorough review of 

the certified record and applicable law, we affirm.

F.W. was born during September 2012. Prior to spring 2014, F.W. 

resided with his birth mother, J.S. (“Mother”), and his two half-brothers. 

The Philadelphia County Department of Human Services (“DHS”) has had 

extensive interaction with Mother and her children. Between April 2010 and 

November 2011, the agency issued three substantiated general protective 

 

1 Since father and son share identical initials, hereinafter, our references to 

F.W. relate to the child. 
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services (“GPS”) reports involving F.W.’s half-siblings. However, none of the 

previous GPS reports resulted in any adjudications of dependency. 

During April of 2014, Father obtained custody of F.W. without DHS’s 

knowledge. Shortly thereafter, DHS reinitiated its involvement with the 

family after Mother was arrested for recklessly endangering a child and for 

recklessly endangering another person. Thereafter, the agency issued 

another GPS report, and on June 19, 2014, the trial court adjudicated F.W.’s 

two half-siblings dependent. The juvenile court continued the dependency 

case relating to F.W. and directed DHS to obtain an order of protective 

custody (“OPC”). Soon after interceding in this matter, DHS learned that 

F.W. was in Father’s care. Indeed, Yolanda Shields, the DHS caseworker 

assigned to the family, testified that she observed Father and F.W. together 

in the 2100 block of North Percy Street in Philadelphia. She explained that 

DHS declined to seek an OPC for F.W. at that juncture since Father’s 

involvement in his son’s care was not alarming and the DHS investigation of 

Father’s living arrangement was pending. 

On June 23, 2014, Father contacted DHS and confirmed that he had 

custody of F.W. since April 2014. Father provided DHS two Philadelphia 

addresses: (1) 2131 North Percy Street; and (2) 1518 Myrtlewood Street, a 

residence that is owned by his sister, C.W. (“Paternal Aunt”). While the 

parties dispute how often Father stayed at the Myrtlewood Street residence 

during the relevant period, it is undisputed that F.W. lived in that home 
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since April 2014. DHS examined Paternal Aunt’s home and reviewed her 

extensive criminal history. The agency determined that the physical 

condition of the residence was acceptable. It had utilities, home safety 

devices, food, and a toddler bed for F.W. Additionally, DHS found that, 

although Paternal Aunt had an extensive criminal record, she did not commit 

any offenses that would preclude her from being considered as a placement 

option. However, since the agency was unable either to endorse Father at 

that point or to document his full-time habitation at Paternal Aunt’s home, it 

placed F.W. into foster care.

During the ensuing adjudicatory hearing, DHS presented testimony 

from Ms. Shields and called Father to testify as if on cross-examination. 

Father also testified on his own behalf. As it relates to the issues on appeal, 

DHS presented evidence that Father, inter alia, made questionable parenting 

decisions regarding F.W.’s welfare, lacked stable employment, failed to 

reside with F.W. during the entire week, and had relatively recent 

convictions for possession of marijuana and harassment. Significantly, the 

2013 harassment conviction stemmed from an incident involving Mother. 

Additionally, Father was convicted of indecent assault during 1992. 

Depending upon the age of that victim, the juvenile court could have found 

aggravated circumstances in this case pursuant to 42 Pa.C.S. § 6302(3)(ii). 

However, since no evidence was presented to indicate the age of the victim, 

the juvenile court did not make any findings regarding aggravated 
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circumstances. See N.T., 6/30/14, at 60 (“The court will take judicial notice 

[of the offenses] for whatever it’s worth”). At the close of the hearing, the 

juvenile court adjudicated F.W. dependent as the term is defined in the 

Juvenile Act, 42 Pa.C.S.§ 6302(1), relating to children who lack proper care 

and control. 

The goal of the initial permanent placement plan was “return to parent 

or guardian.” Order of Adjudication and Disposition, 3/30/14, at 1. 

However, since questions existed concerning whether Father lived with 

Paternal Aunt seven days per week, the juvenile court continued F.W.’s 

placement in foster care and directed DHS to continue to investigate 

potential kinship placement resources. The court granted Father supervised 

visitation with his son twice per week and referred Father to the Clinical 

Evaluation Unit for an immediate drug screen, a dual diagnosis assessment, 

and monitoring. Additionally, the juvenile court directed DHS to refer Father 

to a domestic violence program, parenting services, and housing assistance. 

Father filed a timely notice of appeal and complied with Pa.R.A.P. 

1925(a)(2)(i) by concomitantly filing a concise statement of errors 

complained of on appeal. Father presents one issue for review.

Did the Court err in adjudicating the child dependent and 

removing the child from the Father's care where the Department 

of Human Services failed to prove by clear and convincing 

evidence that the child was a dependent child under 42 Pa.C.S.A 

§6302, and failed to prove by clear and convincing evidence that 

the Department made reasonable efforts to prevent the need for 

placement of the child?
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Father’s brief at 3.2

The following principles are pertinent. In In re A.B., 63 A.3d 345, 

349 (Pa.Super. 2013) (quoting In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010)), 

we explained,

Our Supreme Court set forth our standard of review for 

dependency cases 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. Accordingly, we review for an abuse of 

discretion.

In order to adjudicate F.W. dependent, DHS was required to prove by 

clear and convincing evidence that F.W. “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.” 42 

Pa.C.S. § 6302. We have defined clear and convincing evidence 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., supra at 349 (quoting In re C.R.S., 

696 A.2d 840, 843 (Pa.Super. 1997)). 

 

2 The DHS brief was due on January 5, 2015. As of the date of this writing, 

the agency failed to file a responsive brief. 
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The first aspect of Father’s argument challenges the juvenile court’s 

finding that F.W. was a dependent child. Father asserts that, under the 

totality of the circumstances, the adjudication of dependency was not 

warranted. As the certified record supports the court’s determination, we 

disagree.

In sum, the juvenile court took a prospective view of the events and 

circumstances that arose during F.W.’s brief time in Father’s custody and 

deduced that Father is unable to provide F.W. with the proper parental care 

necessary to maintain the child’s physical, mental, and emotional health. 

The juvenile court stressed that Father’s living arrangement is uncertain and 

his employment is unstable. Additionally, the court highlighted that Father 

declined all responsibility for F.W.’s medical care prior to April 2014, and in 

the short time that Father had custody of his then-two-year-old-son, he 

failed to update his medical and dental care, ensure that his immunizations 

were current, or utilize the child’s medical assistance benefits. 

Father testified that he attempted to take F.W. to the doctor but was 

rebuffed because he lacked insurance. While Father’s brief states that he 

was in the process of switching F.W.’s coverage when DHS interceded, the 

record belies this contention. Indeed, as the trial court points out, rather 

than addressing the administrative impediment to F.W.’s medical coverage,

i.e., the fact that the child was listed under Mother’s medical assistance, 

Father simply declined to return the child to his doctor or utilize a free health 
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clinic. Father’s testimony during the hearing was replete with purported 

clarifications, explanations, and justifications regarding his criminal record, 

employment status, living arrangement, and parental care. However, the 

juvenile court repeatedly made credibility determinations against Father and 

in favor of DHS’s witness, Ms. Shields. 

The court explained, 

Father assumed Child's care on April 2014, when mother 

was arrested (N.T. 6/30/14, pgs. 39, 41, 43, 51). Child remained 

with Father until June 23rd, whereby Child was removed by 

order of court. Throughout the period of time Child was with 

Father, he did not follow up to ensure the Child had a medical 

exam and obtained his immunizations (N.T. 6/30/14, pgs. 39, 

48-49, 52). Despite the fact that Father was the primary 

caregiver for the Child, Father expressly evaded his parental 

obligation stating that Child's health was mother's responsibility 

(N.T. 6/30/14, pgs. 48-49, 52). The record also reflects certain 

concerns with Father's housing. Father testified that he currently 

lives with his sister seven days a week at 1518 Myrtlewood 

Street, Philadelphia, PA (N.T. 6/30/14, pgs. 35-36, 49-52). 

However, his sister stated to DHS that Father lives with her only 

three days a week, contradicting Father's testimony (N.T. 

6/30/14, pgs. 38, 40). His residence the other four days is 

unknown (N.T. 6/30/14, pg. 38). Reaching the Child to provide 

services would be difficult as well as unsafe without knowing 

Father's whereabouts (N.T. 6/30/14, pg. 38). In adjudicating 

Child dependent, the trial court also considered Father's 

economic instability. Father testified that he works odds jobs, 

such as painting and construction (N.T. 6/30/14, pg. 36). 

Initially, Father specified he worked forty hours during the last 

thirty days; however, in further testimony, Father stated that in 

a period of thirty days he only worked thirty hours (N.T. 

6/30/14, pgs. 56-58). Father's ability to properly support his 

Child is highly concerning since now he has become the potential 

primary caregiver for the Child. Up until mother's incarceration 

in April 2014, mother was the primary caregiver.
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Additionally, the court considered Father's criminal history. 

He was found guilty of possession of marijuana in 2011 (N.T. 

6/30/14, pgs. 48, 53-54). Father alluded that he was holding the 

marijuana for a friend, but has admitted usage in the past (N.T. 

6/30/14, pgs. 53-55). In November 2013, Father was convicted 

for harassing mother (N.T. 6/30/14, pgs. 47-48). Furthermore, 

Father has an indecent assault conviction from 1992 (N.T. 

6/30/14, pgs. 32-35). Additionally, if you take Father's 

testimony as being truthful as to where he lives, Father has 

made a judgment to live with a paternal aunt with a long 

criminal history (N.T. 6/30/14, pg. 36). Exposing the Child to an 

environment where adults have extensive criminal records is not 

proper care geared to the particularized needs of the Child[.]

Taking all the testimony of this case into consideration, 

including the short period of time Father was the primary 

caretaker for the Child, the trial court decided there is clear and 

convincing evidence that Father is unable to provide proper 

parental care for the physical, mental and emotional health of 

his two-year old Child without risking his health, safety and 

welfare. DHS witness was found to be credible. Father was found 

not to be credible. The trial court ascertained not only what sort 

of parental care the Child received in the past, but also what sort 

of parental care the Child will receive if custody is given to the 

Father. In [I]interest of K.B., 276 Pa.Super, 380,419 A.2d 508 

(1980).

Trial Court Opinion, 10/21/14, at 3-4. 

Father’s substantive argument assails the juvenile court for failing to 

consider evidence and testimony that was advantageous to his position. For 

instance, Father points to his testimony that he, in fact, lived with Paternal 

Aunt fulltime since he took custody of F.W. during April of 2014, his 

justification for failing to confirm that F.W.’s immunizations were up to date, 

and his testimony that he does not use marijuana despite his guilty plea to 

possession of marijuana during 2011. As it relates to that offense, Father 
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stated that he was holding the drug for a “friend” and had not smoked 

marijuana in five to ten years. N.T., 6/30/14, at 53-54. Although Father 

noted his willingness to submit a urine sample immediately after the 

adjudicatory hearing, he hedged, “I do not know if I will be able to 

[urinate.]” See N.T, 6/30/14, at 63. The certified record does not indicate 

whether Father was able to produce a urine sample or reveal the results of 

any ensuing drug screens.

The cruces of Father’s arguments essentially request that we ignore 

our standard of review, reweigh the evidence, and make a determination in 

his favor. We must decline. See In Re A.B, supra at 349 (“The 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”). Moreover, the certified record sustains the trial 

court’s determination. 

During the adjudicatory hearing, Ms. Shields testified that DHS was 

primarily concerned with Father’s unusual living arrangement and 

highlighted the agency’s unease about returning F.W. to Father under the 

current circumstances. N.T, 6/30/14, at 38. As noted, Father provided DHS 

two different Philadelphia addresses. Id. at 31. Approximately one week 

prior to the hearing, Paternal Aunt informed Ms. Shields that Father resided 

at her home on Myrtlewood Street only three days per week and that she did 

not know where Father lived the remainder of the week. Id. at 38, 40. That 
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information conflicted with Father’s April 2014 statement to Ms. Shields that 

he had moved from the Perry Street residence. Id. at 44. Furthermore, as 

of the date of the hearing, Father still had not documented his actual living 

arrangement. Id. at 38. Thus, Ms. Shields’s concerns persisited. 

In addition, Ms. Shields observed that F.W.’s immunizations were not 

current and that he had not been examined by a doctor in one year. Id. at 

39, 40-41. Moreover, Ms. Shields outlined Father’s and Paternal Aunt’s 

criminal records. Specifically, she testified, “I performed a clearance on the 

paternal aunt. She had no prohibited offenses. But she did have a long 

criminal history. But it was not considered a prohibited offense.” Id. at 32. 

As it relates to Father, Ms. Shields stated, “Father had a prohibited 

offense.[3] A conviction. There were several of them actually.” Id. Hence, 

the record supports the court’s assessment of the respective criminal 

records.

Father also asserts that his financial uncertainty was not a proper 

ground to adjudicate F.W. dependent. We agree with this component of 

Father’s argument. Presuming that a child receives basic subsistence, a 

parent’s economic status alone is an improper basis for an adjudication of 

dependency. See In re R.R., 686 A.2d 1316, 1318 n.1 (Pa.Super. 1996). 

Instantly, the trial court referred to Father’s “economic instability” as “highly 

 

3 As noted in the body of this writing, the juvenile court did not treat 

Father’s 1992 indecent assault conviction as a prohibited offense. 
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concerning” in light of the fact that Father had never previously acted as 

F.W.’s primary caregiver. See Trial Court Opinion, 10/21/14, at 4. Thus, 

absent some evidence that F.W. lacked basic subsistence, the juvenile court 

erred in relying upon financial considerations as a reason to adjudicate F.W. 

dependent.4 Accordingly, we reject that aspect of the court’s rationale as 

contrary to law. Instantly, however, in addition to referencing Father’s 

economic status, the juvenile court also invoked Father’s poor decision 

making, uncertain living arrangement, and his and Paternal Aunt’s criminal 

histories. As the certified record sustains the remaining, valid grounds for 

the adjudication, we will not disturb the order adjudicating F.W. dependent.

On appeal, Father challenges as hearsay Ms. Shields’s testimony 

regarding Paternal Aunt’s statement that Father lived with her only three 

days a week. However, since Father failed to level a hearsay objection when 

the evidence was proffered, the issue regarding the supposed hearsay 

testimony is waived. Moreover, to the extent that Father challenged the 

reliability of Ms. Shields’s iteration during his summation of evidence, the 

trial court made an express credibility determination in the witness’s favor. 

Given that the record sustains the court’s credibility determination, no relief 

is due. 

 

4 While Father’s bleak financial outlook is an improper ground to adjudicate 

F.W. dependent, Father’s sporadic employment remains a relevant and 

accurate reflection of his general instability. Thus, to the extent that the 

court considered Father’s employment history for this purpose, the reference 

is benign.
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In the second component of his argument, Father argues that DHS 

failed to make reasonable efforts to prevent F.W.’s placement. Additionally, 

Father disagrees with the juvenile court’s conclusion that his and Paternal 

Aunt’s convictions affected his ability to parent F.W. because the convictions 

did not preclude their involvement per se. Again, his arguments are 

unpersuasive. Our review of this issue is guided by the following principles:

In regard to when a child should be removed from parental 

custody, we have stated:

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 well-being. 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. 380, 419 A.2d 508, 515 (1980) 

(citations omitted). In addition, this Court has stated: “[I]t is not 

for this [C]ourt, 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., supra at 349-350.

Father’s argument necessarily overlooks Ms. Shields’s testimony 

regarding the steps the agency took to determine whether it would be 

feasible for F.W to reside with Father at Paternal Aunt’s home. As the trial

court outlined in its Rule 1925(a) opinion, Ms. Shields testified that DHS 

investigated the feasibility of Paternal Aunt, who was the only relative that 
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Father presented, and performed an assessment of her home. N.T., 

6/30/14, at 31-32, 37, 45. The agency found that Paternal Aunt’s home was 

appropriate for F.W. but determined that it could not return F.W. to Father 

because the aunt had informed the agency that Father did not stay at the 

residence fulltime. Id. at 38, 40. Moreover, the location, and consequently 

the feasibility, of Father’s alternate accommodations were unknown as of the 

date of the dependency proceedings. Id. at 38. Thus, the trial court 

concluded,

Based on the information provided by Father, DHS made 

reasonable efforts to prevent Child’s placement, and when the 

Child was placed[,] it was in the less restrictive environment 

available. The trial court notes that although Father only 

indicated paternal aunt as a possible resource to DHS, Father 

was well aware that there were other relatives in Philadelphia 

that he chose not to disclose to DHS based on his testimony at 

the adjudicatory hearing (N.T. 6/30/14, pgs. 64-65).

Trial Court Opinion, 10/21/14, at 6. 

Father’s arguments simply rehash his challenges to the weight of the 

evidence supporting the juvenile court’s determination regarding the 

uncertainty of Father’s living arrangements and the effect of his and Paternal 

Aunt’s criminal records. However, for the reasons we expressed supra, we 

are not vested with the authority to reweigh the evidence in order to make a 

determination in Father’s favor. See In Re A.B, supra at 350 (“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.”).
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All told, the facts regarding Father’s care of F.W. present a close case. 

While we find that the certified record sustains the juvenile court’s factual 

conclusions and credibility determinations, it is not self-evident that a 

different fact finder considering the identical factual scenario would reach the 

same conclusions as the juvenile court herein. However, our responsibility is 

not to review the facts anew. The juvenile court was in a superior position 

to assess the witnesses’ credibility and evaluate the conflicting evidence. 

Ultimately, the court determined that Father did not dwell at Paternal 

Aunt’s home more than three days per week and that his and Paternal 

Aunt’s criminal records were sufficiently distressing to raise a safety concern 

even though neither record warranted automatic disqualification. That 

situation, in combination with the safety concerns stemming from Father’s 

commitment to F.W.’s welfare and his potential drug use made F.W.’s 

placement in foster care necessary to enforce the child’s wellbeing. 

Finally, we observe that neither the technical effects of the juvenile 

court’s adjudication of dependency and placement of F.W. in foster care nor 

their practical ramifications are tantamount to terminating Father’s parental 

rights. Unlike an involuntary termination of parental rights, orders entered 

under the Juvenile Act are subject to periodic review and modification. See

In Interest of R.T., 592 A.2d 55, 61 (Pa.Super. 1991) (quotation omitted) 

(“[I]n the interest of safeguarding the permanent welfare of the child, 

decrees concerning children are temporary and subject to modification to 
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meet changing conditions.”). Here, the juvenile court ordered DHS to 

provide Father biweekly visitation with F.W. and to refer him to services and 

programs that are designed to address his parenting deficiencies and lead to 

reunification. The court’s temporary measures permit DHS to maintain 

oversight of Father’s parenting and to ensure F.W.’s best interest until 

Father is able to document where he lives, address his parenting 

deficiencies, and demonstrate that his and Paternal Aunt’s criminal histories 

will not place his son in danger. After Father resolves these issues, the 

juvenile court can place F.W. with Father and/or Paternal Aunt with 

confidence, and DHS can continue to provide the family services until the 

court determines that F.W. is no longer a dependent child. 

For all of the foregoing reasons, we affirm the juvenile court’s 

adjudication and disposition.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/14/2015