J-S23031-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

IN THE INTEREST OF: M.A., A 

MINOR

APPEAL OF: T.A., MOTHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 506 EDA 2023

Appeal from the Order Entered February 1, 2023

In the Court of Common Pleas of Philadelphia County

Juvenile Division at No(s): CP-51-DP-0000868-2022

IN THE INTEREST OF: R.A., A 

MINOR

APPEAL OF: T.A., MOTHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 507 EDA 2023

Appeal from the Order Entered February 1, 2023

In the Court of Common Pleas of Philadelphia County

Juvenile Division at No(s): CP-51-DP-0000869-2022

BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.

MEMORANDUM BY KING, J.: FILED AUGUST 29, 2023

Appellant, T.A. (“Mother”), appeals from the order entered in the 

Philadelphia County Court of Common Pleas, which dismissed the dependency 

petitions filed by the Philadelphia County Department of Human Services

(“DHS”) and transferred legal and physical custody of her minor children, R.A. 
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(daughter) and M.A. (son) (collectively, “Children”), to I.W. (“Father”). We 

affirm. 

The relevant facts and procedural history of this case are as follows. 

Mother and Father are the natural parents of R.A., who was born in January 

2012, and M.A., who was born in June 2013. Shortly after M.A.’s birth, Mother 

and Father’s relationship deteriorated. While Father moved to Ohio, Children 

remained in Pennsylvania with Mother. 

On September 1, 2022, DHS received a General Protective Service 

(“GPS”) report alleging that Mother had been hospitalized after suffering a 

bone infection. (See Dependency Petition for M.A., filed 10/3/22, at ¶b). 

After Mother was discharged from the hospital, she “had physical limitations 

that affected her ability to care for” Children. (Id.) The report also alleged 

that Mother might have been abusing prescription pain medication, and she 

had not enrolled Children in school for the 2022-2023 academic year. 

On September 2, 2022, DHS employees went to Mother’s residence for 

further investigation. Upon arrival, DHS employees observed Mother “to be 

confused and disoriented[.]” (Id. at ¶c). Although Children appeared to be 

safe, the home was cluttered with “multiple cigarette butts strewn on the 

floor” and “cigarette burns on [Mother’s] sheets[.]” (Id.) Mother kept open 

pill bottles within Children’s reach. Mother also confirmed that she had yet to 

enroll Children in school, and Children “had not attended school since the 

family moved to Philadelphia [from Johnstown] in December 2021.” (Id.) 
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While the DHS employees spoke with Mother, her “behavior became 

increasingly erratic, and she became verbally abusive toward DHS.” (Id.) 

DHS subsequently contacted D.L. and T.L. (“Maternal Grandparents”), 

who agreed to care for Children while Mother “addressed the condition of her 

home and sought appropriate services for herself.” (Id. at ¶d). Mother’s inhome services commenced on September 7, 2022. On September 9, 2022, 

during a “Crisis Rapid Response Family Meeting,” DHS determined that Mother 

had untreated mental health issues. (Id. at ¶g). DHS also confirmed that 

Mother was abusing her prescription medications. Considering Mother’s 

condition, DHS contacted Father on September 14, 2022. At that time, Father 

stated “that he shared custody of the children with [Mother]; that he was in 

agreement with [Children] residing with [Maternal Grandparents] through a 

Safety Plan; and that he wanted to seek full custody of the children.” (Id. at 

¶i). 

On October 3, 2022, DHS filed separate dependency petitions for 

Children. The court conducted an adjudicatory hearing on February 1, 2023. 

At the hearing, the court received testimony from the DHS social worker, the 

Community Umbrella Agency (“CUA”) case manager, Father, and Mother. 

Additionally, the guardian ad litem entered Father’s “secure criminal court 

summary” into evidence. (N.T. Hearing, 2/1/23, at 144). At the conclusion 

of the hearing, the court found that DHS presented clear and convincing 

evidence to warrant an adjudication as to Mother. (See id. at 151). The court 
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also found that Father “is ready, willing, and able to care for these children.” 

(Id. at 152). Thus, the court entered an order dismissing the dependency 

petition and transferring legal and physical custody of Children to Father. On 

February 27, 2023, Mother timely filed separate notices of appeal and concise 

statements of errors. This Court consolidated the matters sua sponte on 

March 22, 2023. 

Mother now raises two issues for our review: 

Whether the trial court committed reversible error when the 

trial court did not adjudicate [Children] dependent and 

commit them to [DHS], where an adjudication of 

dependency and [commitment] to DHS was supported by 

clear and convincing evidence under the Pennsylvania 

Juvenile Act, 42 Pa.C.S. §§ 6301-6365. 

Whether the trial court committed reversible error when the 

trial court placed [Children] in the legal and physical custody 

of [Father], where such determination was not supported by 

clear and convincing evidence under the Pennsylvania 

Juvenile Act, 42 Pa.C.S. §§ 6301-6365. 

(Mother’s Brief at 8). 

Mother’s issues are related, and we address them together. Initially, 

Mother concedes that she “is not appealing the adjudication of dependency as 

to her,” and her arguments are “limited to the transfer of the physical and 

legal custody of” Children to Father. (Id. at 12). Regarding custody, Mother 

insists that the record did not support the court’s decision to transfer custody 

of Children to Father. Mother emphasizes a DHS policy requiring that each 

child should have their own bedroom. Nevertheless, Father testified that he 

lives in a two-bedroom apartment. Although Father testified that he is willing 
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to sleep on a sofa for Children to have separate bedrooms, Mother maintains 

that there is no way to ensure this will happen where the record does not 

mention whether “the State of Ohio and the appropriate county agency was 

going to pick this case up for supervision[.]” (Id. at 14). Mother also argues 

that: 1) DHS did not obtain Father’s criminal history from Ohio; 2) Father 

failed to provide specific testimony about his plans for childcare; 3) Father’s 

relationship with Children was fractured due to Father’s move to Ohio; and 4) 

Children did not want to live with Father. Under these circumstances, Mother 

asserts that the transfer of custody to Father is not in Children’s best interests. 

Mother concludes that this Court must reverse the order that transferred

custody. We disagree. 

The applicable scope and standard of review for dependency cases is 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 [trial] court’s inferences or conclusions of law. 

Accordingly, we review for an abuse of discretion. 

In re A.B., 63 A.3d 345, 349 (Pa.Super. 2013) (quoting In re R.J.T., 608 Pa. 

9, 26-27, 9 A.3d 1179, 1190 (2010)). 

We accord great weight to this function of the hearing judge 

because [the court] is in the position to observe and rule 

upon the credibility of the witnesses and the parties who 

appear before [the court]. Relying upon [the court’s] unique 

posture, we will not overrule [its] findings if they are 

supported by competent evidence. 
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In re A.H., 763 A.2d 873, 875 (Pa.Super. 2000). 

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 his [or 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 of a dependent child by clear and convincing evidence. 

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

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 a private or public agency, or transferring 

custody to the juvenile court of another state. 42 Pa.C.S. § 

6351(a). 

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. 
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* * *

The plain language of the statutory definition of a dependent 

child compels the conclusion that a child is not dependent if 

the child has a parent who is willing and able to provide 

proper care to the child. When a court adjudges a child 

dependent, that court then possesses the authority to place 

the child in the custody of a relative or a public or private 

agency. Where a non-custodial parent is available and 

willing to provide care to the child, such power in the hands 

of the court is an unwarranted intrusion into the family. 

Only where a child is truly lacking a parent, guardian or legal 

custodian who can provide adequate care should we allow 

our courts to exercise such authority. 

In re M.L., 562 Pa. 646, 649-50, 757 A.2d 849, 850-51 (2000). “In other 

words, if a dependency petition is filed against the custodial parent and there 

is sufficient evidence for the court to adjudge the child dependent but for the 

intervention of the non-custodial parent who is willing and capable of caring 

for the child, the trial court may properly grant custody to the non-custodial 

parent in a dependency proceeding.” Interest of J.B., 247 A.3d 447, 453 

(Pa.Super. 2021). 

Instantly, Father testified regarding his current circumstances, as well 

as his history with Mother and Children. Father explained that he and Mother 

separated in 2013 or 2014, after the birth of M.A. In 2016, Father sought 

custody of Children. The court initially provided Father with supervised visits.

1

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1 Father mentioned that the court had ordered supervised visitation because 

“the allegations came up about me.” (See N.T. Hearing at 87). These 

allegations were addressed in greater detail by Calli Hagan, the DHS social 

(Footnote Continued Next Page)
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When Children failed to appear for the visits, the court issued a bench warrant

for Mother. Although the warrant remained active, Father moved to 

Cincinnati, Ohio and kept tabs on Children by calling other family members. 

At the time of the hearing, DHS had confirmed that Father lived in an 

apartment, which was across the street from the school that Children would

attend. Authorities in Ohio conducted a home assessment and “cleared it” for 

Children to occupy. (N.T. Hearing at 20). Although Father did not have the 

necessary furniture to furnish Children’s rooms, he “talked about buying beds 

and dressers for them.” (Id. at 21). Father also testified that: 1) he did not 

have a criminal record for child abuse; 2) he held a steady job; 3) he was 

willing to take custody of Children; 4) Children could be added to his health 

insurance plan; and 5) he would take Children to all medical and dental 

appointments.

____________________________________________

worker. Specifically, DHS received a report on October 25, 2022, which 

alleged that Father had raped R.A. in 2017. (See id. at 17). Although DHS 

investigated in 2017, Ms. Hagan investigated the matter again in 2022. 

During the 2022 investigation, R.A. was interviewed by the Philadelphia 

Children’s Alliance (“PCA”). In this interview, R.A. “did disclose that it 

happened, but she would not give any other details regarding the incident.” 

(Id.) Ms. Hagan also reviewed R.A.’s 2017 PCA interview, where R.A. “also 

said that it did happen, but she didn’t give any further information.” (Id.) 

DHS interviewed Father, who denied the allegations. Father believed that 

Mother told R.A. to make the allegations in 2017, because Mother and Father 

“had a falling out and they didn’t have a very good relationship at the time.” 

(Id. at 19). Ultimately, DHS found the report to be unfounded. Ms. Hagan 

expressed concerns that Mother had coached R.A., because R.A. “said that 

mom told her what to say.” (Id. at 22-23). 
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On cross-examination, Father stated that DHS had recently facilitated

visitation for him with Children. Prior to DHS’s involvement, however, Father 

had not seen Children for approximately six years. (See id. at 95). Father 

indicated that Maternal Grandparents permitted him to have telephone contact 

with Children “about once or twice a week[.]” (Id. at 94). In speaking with 

Maternal Grandparents, Father developed the following plan for reuniting with 

Children: 

So the kids are in school for the first time in their life, and 

they seem to be doing better with the help of ya’ll, [the CUA 

case manager and DHS Social Worker]. They helped my 

children get in school for the first time along with [Maternal 

Grandparents]. I consented for [Maternal Grandparents] to 

get [Children’s] birth certificates and their socials so they 

can enroll them in school. 

So as a father I love my children. I don’t want to disrupt 

my children’s life anymore that it already is. So my plan 

with [Maternal Grandparents] is that the kids stay there 

until the end of the school year. You know what I’m saying. 

* * *

But if there’s any complications because of them staying 

out, I’m willing to take my children right now. 

(Id. at 96). 

At the conclusion of testimony, the court received argument from 

counsel. The child advocate expressed Children’s preferences. Regarding 

M.A., the child advocate asserted that “[h]e has told me actually on two 

separate occasions today that he would be willing to go to Ohio.” (Id. at 142). 

M.A. “also vacillated and said ... ‘I want to be with my dad and my mom.’” 
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(Id.) Regarding R.A., she initially told the child advocate “she was all right to 

go to Ohio.” (Id. at 143). R.A. “quickly recanted,” and she indicated a desire 

to stay in Philadelphia. (Id.) R.A. remained “willing to visit” Father in Ohio. 

(Id.) 

Thereafter, the guardian ad litem entered a summary of Father’s 

Pennsylvania criminal history into evidence. The summary revealed a juvenile 

adjudication for a drug charge, a 2013 conviction for driving under the 

influence of alcohol, and several arrests that did not result in prosecution. 

(See id. at 144-45). Based upon these arrests, the last of which occurred in 

2015, the guardian ad litem argued that Father lacked the ability to parent 

Children: 

But what disturbs me and what indicated to me that [F]ather 

doesn’t have the present ability to care for these children is 

his arrest record. We deal with behaviors in this court. We 

have a different standard of proof. We don’t have to prove 

these allegations beyond a reasonable doubt. Past 

behaviors are an indication. They are indicia of a present 

ability to care for children. 

Now I wouldn’t be making this argument except for the 

sheer number of arrest[s] that the father has had and for 

the different types of crimes he’s had. 

(Id. at 145). 

The court analyzed the record and concluded that Father was available 

and willing to care for Children: 

Notwithstanding the court’s determination of present 

inability on the part of Mother, the trial court heard credible 

clear and convincing evidence to establish that Father was 

ready, willing and able to care for the children. Father is 
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employed and supplied the CUA case manager with his proof 

of income. Father’s home was assessed and deemed 

appropriate for the children, and Father is willing to accept 

voluntary services for the children if needed. Father lives 

directly across the street from the children’s potential school 

and has maintained consistent contact with the CUA case 

manager. Father did not present an inability to care for the 

children and is willing, ready, and able to maintain proper 

care and control over the children. To the contrary, Father 

demonstrated the ability to immediately care for the 

children and the absence of any dependency issues in his

home. 

[The guardian ad litem] moved into evidence, Father’s 

secure criminal court summary. [The guardian ad litem] 

argued Father’s arrests from 2002, 2009, 2010, and 2015 

displayed a pattern for arrests and criminal activity. 

However, each of these arrests were withdrawn or 

dismissed. The court found this argument to be 

unpersuasive and egregious. Father’s arrest record is not 

evidence of an inability to care for these children. Father’s 

only conviction of driving under the influence was nearly ten 

years ago. The legal system is built on the foundation that 

people are innocent until proven guilty. 

(Trial Court Opinion, filed 3/29/23, at 9) (internal citations omitted). The 

court also found “sufficient evidence supported the finding that the children 

should be placed with Father and that it would be contrary to their welfare 

and best interests to commit them to DHS at this time.” (Id. at 10). 

Here, the court credited the testimony demonstrating that Father is 

willing and capable of caring for Children. Our review leads us to conclude 

that competent evidence supported the court’s findings. See In re A.H., 

supra. Therefore, we cannot say that the court abused its discretion by

placing Children in Father’s custody after it found sufficient evidence to 
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adjudge Children dependent as to Mother. See Interest of J.B., supra; In 

re A.B., supra. Accordingly, we affirm. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/29/2023