J-A12020-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

IN THE INTEREST OF: K.B., A MINOR : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

:

:

APPEAL OF: A.B., MOTHER : No. 2001 MDA 2014

Appeal from the Order entered November 12, 2014,

Court of Common Pleas, Luzerne County,

Juvenile Division at No. CP-40-DP-0000318-2014

IN THE INTEREST OF: E.T., A MINOR : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

:

:

APPEAL OF: A.B., MOTHER : No. 2002 MDA 2014

Appeal from the Order entered November 12, 2014,

Court of Common Pleas, Luzerne County,

Juvenile Division at No. CP-40-DP-0000319-2014

BEFORE: BOWES, DONOHUE and ALLEN, JJ.

MEMORANDUM BY DONOHUE, J.: FILED MAY 08, 2015

Appellant, A.B. (“Mother”), appeals from the orders entered on 

November 12, 2014 by the Luzerne County Court of Common Pleas 

regarding her minor children, K.B. and E.T. (collectively, “the Children”). 

After careful review of the record, we affirm.

A summary of the relevant facts and procedural history is as follows. 

Mother is the biological mother of K.B. and E.T., who have different 

biological fathers. K.B.’s biological father, A.C., is incarcerated. At all 

relevant times, Mother and E.T.’s biological father, L.T., had shared legal 
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custody of E.T. pursuant to a custody order. Under the custody order, 

Mother had primary physical custody and L.T. had partial physical custody. 

Mother and L.T. also had an informal arrangement such that when L.T. had 

E.T. in his custody, K.B. was also in his custody. The Children both call L.T., 

“dad.” 

On June 19, 2014, Mother left her home that she shared with her 

father (“Maternal Grandfather”) and twenty-four-year-old brother (“Maternal 

Uncle”) at approximately 8:00 p.m. to run errands, leaving K.B. and E.T. in 

the care of Maternal Grandfather. After Mother left the house, Maternal 

Grandfather, Maternal Uncle, K.B., and E.T. went to the garage to build a 

bench. At some point, Maternal Grandfather left the garage. Following 

Maternal Grandfather’s departure, Maternal Uncle allegedly sexually 

assaulted E.T and further physically assaulted K.B. in an attempt to keep her 

from telling anyone about what she saw. Both K.B. and E.T. ran to Maternal 

Grandfather and told him what occurred in the garage. Maternal 

Grandfather immediately called the Pennsylvania State Police. The following 

morning, Maternal Uncle was arrested based on these allegations.1 

 

1

 Maternal Uncle fled the home when the state police officers arrived. N.T., 

6/23/14, at 25. He returned to the home on June 20, 2014, at 

approximately 6:30 a.m., at which time, Maternal Grandfather notified the 

police. Id. at 26. The police instructed Maternal Grandfather to hold him at 

the residence and wait for them to come get him. Id. At approximately 

5:00 p.m., the police arrived and arrested Maternal Uncle. Id.
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On the night of the assaults, E.T. was transported to the hospital by 

ambulance for an examination. Mother met E.T. at the hospital. Following 

the hospital examination, Mother transported E.T. to the Child Advocacy 

Center (“CAC”) in Scranton for a forensic interview. Mother remained with 

E.T. at the hospital and at the CAC until she had to go to work, at which 

time, Mother made arrangements for the Children to stay with her sister.2 

On June 20, 2014, Luzerne County Children and Youth Services 

(“CYS”) filed a temporary shelter care petition for the Children based on the 

allegations regarding Maternal Uncle. The trial court granted the petition 

and transferred temporary legal and physical custody of the Children to CYS. 

CYS placed the Children in kinship care with L.T. and his girlfriend, B.B. On 

June 23, 2014, the trial court held a hearing on the continuation of shelter 

care. The trial court ordered the continued temporary legal and physical 

custody of the Children with CYS and granted Mother a minimum of eight 

hours of unsupervised visits with the Children per week. The trial court 

decided that the Children would remain in L.T. and B.B.’s home for the time 

being. 

 

2

 Mother testified that since Maternal Uncle had absconded, the police did 

not want the Children to return home and asked if the Children could stay 

somewhere else until Maternal Uncle was found. N.T., 6/23/14, at 42. 

Mother agreed, arranging for her sister to care for the Children. Id. At 

some point, however, for reasons unknown to this Court, the Children were 

transferred to L.T.’s girlfriend, B.B. Id. at 42-43. 
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On June 27, 2014, CYS filed dependency petitions alleging that the 

Children were without proper parental care and control. CYS claimed that 

the Children were fearful of returning home and were in need of protection 

and services. CYS filed amended dependency petitions for the Children on 

July 29, 2014, further alleging that Mother failed to meet the Children’s 

dental needs and failed to meet E.T.’s mental health needs. On August 4, 

2014, the trial court held an adjudication hearing on the dependency 

petitions, at the conclusion of which the trial court closed the case with 

regard to E.T., transferring physical custody of E.T. to B.B. until the 

completion of L.T.’s criminal background check. The trial court found K.B. to 

be a dependent child and granted CYS temporary legal and physical custody 

of the child. The court ordered K.B. to be placed in kinship care with B.B., 

as K.B. already had a kinship relationship with L.T. and B.B. and to prevent 

separating K.B. from E.T. 

On August 14, 2014, Mother filed a motion for reconsideration and a 

petition for review of visitation. The trial court expressly granted Mother’s 

motion for reconsideration and vacated the August 4, 2014 order. A hearing 

was held on October 28, 2014, at which all testimony from the June 23, 

2014 and August 4, 2014 hearing was incorporated. 

On November 12, 2014, the trial court issued an order denying 

reconsideration of its August 4, 2014 order. With regard to K.B., the trial 

court found by clear and convincing evidence that K.B. was a dependent 
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child and transferred custody to L.T. and B.B., with Mother receiving 

supervised visitation rights. The trial court further found by clear and 

convincing evidence that E.T. was not a dependent child and transferred 

physical custody of her to L.T. The trial court granted Mother and Father 

shared legal custody of E.T. and granted Mother supervised visitation rights. 

On November 18, 2014, Mother filed a timely notice of appeal to this Court. 

On appeal, Mother raises the following issues for our review:

1. Whether the trial court erred in finding K.B. 

dependent in light of the undisputed fact that the 

concerns that led to the filing of shelter care, that 

removed the [C]hildren from the care of [] Mother, 

were remedied prior to the time of the adjudication 

hearing?

2. Whether the trial court erred in transferring 

custody of E.T. to [] Father in light of the undisputed 

fact that the concerns that led to the filing of shelter 

care, that removed the [C]hildren from the care of [] 

Mother, were remedied prior to the time of the 

adjudication hearing?

Mother’s Brief at 3.

For her first issue on appeal, Mother asserts that the trial court erred 

in finding K.B. dependent. Mother’s Brief at 12. Mother specifically asserts 

that the trial court erred because CYS admitted that the safety concerns 

regarding Mother’s ability to protect K.B. that led to the filing of the shelter 

care petition were remedied prior to the time of the adjudication hearing, 

and because CYS admitted that Mother and Maternal Grandfather acted 

appropriately. Id.
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In addressing this issue, we begin with our well-settled standard of 

review for dependency cases: 

[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 E.B., 83 A.3d 426, 430-31 (Pa. Super. 2013) (citing In re R.J.T., 9 

A.3d 1179, 1190 (Pa. 2010)). 

Section 6302 of the Juvenile Act defines a “dependent child,” in 

relevant 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.A. § 6302(1). 

Proper parental care is defined as “care which (1) is geared to the 

particularized needs of the child and (2) at a minimum, is likely to prevent 

serious injury to the child.” In re A.B., 63 A.3d 345, 349 (Pa. Super. 2013) 

(quoting In re C.R.S., 696 A.2d 840, 845 (Pa. Super. 1997)). “The 

question of whether a child is lacking proper parental care and control so as 
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to be a dependent child encompasses two discrete questions: whether the 

child presently is without proper care or control, and if so, whether such care

and control are immediately available.” In re C.P., 836 A.2d 984, 987 (Pa. 

Super. 2003) (quoting In re D.A., 801 A.2d 614, 619 (Pa. Super. 2002)).

The petitioner carries the burden of demonstrating by clear and 

convincing evidence that the child meets the statutory definition of 

dependency. In re J.J., 69 A.3d 724, 730 (Pa. Super. 2013) (citing In re 

J.C., 5 A.3d 284, 289 (Pa. Super. 2010)). “‘Clear and convincing’ evidence 

has been defined 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., 63 

A.3d at 349 (citing In re C.R.S., 696 A.2d at 843). 

In this case, the trial court determined that Mother could not provide 

proper parental care and control to the Children. Trial Court Opinion, 

12/18/14, at 7. The trial court found that “Mother should have insisted that 

[Maternal Uncle] be on his medication before allowing him to be present 

around [the C]hildren ... [and] should have either required her brother to 

move out or she should have moved out with the [C]hildren,” since Maternal 

Uncle refused to do so. Id. at 9; N.T., 8/14/14, at 67, 75. The trial court 

found that “[t]he scenario was a figurative ticking time-bomb,” and that 

Mother jeopardized the safety of the Children by allowing Maternal Uncle to 

have contact with them. Trial Court Opinion, 12/18/14, at 9.
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After reviewing the record, we conclude that there is no support in the 

record for the trial court’s conclusions regarding the foreseeability of 

Maternal Uncle’s conduct. To the contrary, both Maternal Grandfather and 

Mother testified that Maternal Uncle never exhibited sexual behavior towards 

the Children, became violent towards them,3or acted inappropriately 

towards them. N.T., 6/23/14, at 22, 39-40. They also testified that they did 

not notice a change in Maternal Uncle’s behavior prior to the incident. Id. at 

29, 40. Furthermore, Mother testified that when she left the Children at the 

house, she always left the Children in the care of Maternal Grandfather, not 

Maternal Uncle. Id. at 52. Both Maternal Grandfather and Mother testified 

that the Children were rarely left alone with Maternal Uncle. Id. at 22, 52-

53. Finally, we note that CYS intake caseworker, Sabrina Pall (“Pall”), 

testified that Mother and Maternal Grandfather acted appropriately during 

the incident. Id. at 14. 

We nevertheless find that the trial court’s error in this regard is of 

minor significance as the trial court seemingly accepted Mother’s assertions 

and CYS’ admission on cross-examination that Mother remedied the 

concerns with regard to Maternal Uncle prior to the dependency hearing. 

 

3

 Although Mother and Maternal Grandfather testified that Maternal Uncle 

was not an aggressive person, they admitted that he was previously 

involved in two physical altercations with other adults, including one 

altercation with L.T. N.T., 6/23/14, at 23, 27; N.T., 8/4/14, at 145-46, 160-

61. It is a far cry to reach the conclusion, however, that Maternal Uncle’s 

involvement in physical altercations with other adults would put Mother on 

notice that he would sexually assault or otherwise harm the Children. 
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See Trial Court Opinion, 12/18/14, at 9; N.T., 8/4/14, at 79-81.4 The trial 

court’s opinion reflects that it did not base its determination that Mother 

could not provide proper parental care and control on its concerns regarding 

Maternal Uncle, but instead, rested its determination upon “additional 

concerns” involving Mother’s alleged drug use and Mother’s neglect of the 

Children’s dental and mental health needs:

Mother did not act appropriately during the time 

frame between shelter care and dependency 

hearings, specifically in failing to report for requested 

drug screens. Furthermore, this [c]ourt finds that 

Mother failed to address E.T.’s mental health needs 

and the [C]hildren’s dental needs which are currently 

adequately addressed by E.T.’s father, [L.T.]

Trial Court Opinion, 12/18/14, at 19. The trial court determined that these 

additional concerns evidenced that K.B. was without proper parental care 

and control when residing with Mother. Id. at 7. After our careful review of 

the record, we conclude that the trial court did not abuse its discretion. 

CYS presented evidence supporting its concerns regarding Mother’s 

alleged drug use. Pall testified at the August 4, 2014 dependency hearing 

that she received a referral that Mother was abusing drugs. N.T., 8/4/14, at 

75. Pall testified that she had concerns regarding Mother’s drug use and 

requested that she submit to a urinalysis drug screen prior to having 

 

4

 Mother obtained new housing for herself and the Children, which CYS 

inspected and deemed appropriate. N.T., 8/4/14, at 79. Maternal 

Grandfather also testified at the shelter care hearing that if Maternal Uncle 

were released from incarceration, he would not be permitted to return to his 

home. N.T., 6/23/14, at 20-21.
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overnight visits with the Children. Id. at 89-90. Despite her phone call to 

Mother on October 24, 2014, informing her that she needed to submit to a 

urinalysis drug screen that afternoon, Mother failed to appear for the screen. 

N.T., 10/28/14, at 27.

At the October 28, 2014 hearing, testimony established that Mother

submitted to a drug screen and tested positive for one narcotic substance, 

Suboxone. Id. at 16-17. CYS had not yet obtained records regarding 

Mother’s Suboxone use, however, because Mother did not provide CYS with 

releases from her doctors until October 20, 2014. Id. at 28. Counsel for 

CYS informed the trial court that CYS had difficulty locating the doctor that 

prescribed Mother Suboxone because Mother failed to “provide exact 

information as to the location of the doctor.” Id. at 28-29. Furthermore,

counsel for CYS informed the trial court that CYS obtained results from a 

previous drug screen from Mother’s primary physician, in which Mother 

tested positive for “several substances that the doctor was not aware of and 

didn’t have information that she was prescribed [those substances].”5 Id. at 

26. 

CYS also presented evidence that Mother neglected K.B.’s dental 

needs. Dr. Allen Woods testified that he treated K.B. on April 4, 2013. N.T., 

 

5 According to counsel for CYS, Mother submitted to a drug screen in April of 

2014. N.T., 10/28/14, at 29. Mother tested positive for “Morphine, 

[N]oroxycodone, Oxycodone, Alprazolam, Oxymorphone, and then another 

medication that were not listed on any requisition.” Id.
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8/4/14, at 58. At that time, K.B. had three cavities; one in a baby tooth, 

and two in her adult teeth. Id. at 58-59. K.B. had an appointment 

scheduled for April 25, 2013 to have further work completed, but K.B. did 

not come to the appointment. Id. at 59. 

Dr. Shawn Casey testified that he examined and treated K.B. on June 

24, 2014 when “she came in with an emergency problem.” Id. at 46-47. Dr. 

Casey testified that K.B. required two fillings on two of her adult teeth and 

had one baby tooth extracted that was decayed and nonrestorable. Id. at 

46-48. Dr. Casey testified that the decay of the tooth was extensive and 

that there was “a little bit of infection” in the tissue around the tooth.6 Id.

at 47, 49, 51. Dr. Casey also testified that K.B. experienced some 

discomfort from the tooth that had to be extracted. Id. at 46-47. According 

to Dr. Casey, K.B.’s discomfort most likely came from the decay of the tooth, 

but he admitted that it could have been caused by the pressure from the 

permanent tooth that was coming in immediately underneath it, or from a 

 

6

 Dr. Casey testified that a ruptured abscess could cause the infection. N.T., 

8/4/14, at 49. Dr. Casey also testified that L.T.’s girlfriend, B.B., provided a 

medical history and described that K.B. had an abscess on that tooth, which 

is the reason why she came to the office for treatment. Id. at 48-49. Pall 

testified that K.B. informed her that she previously told Mother she had a 

“bubble” on her tooth and that she was experiencing pain. N.T., 8/4/14, at 

68-69. According to Pall, Mother’s friend’s mother “popped said bubble.” 

Id. Mother contested this information and asserted that K.B. “did not 

address the problem to [her],” and that she just recently learned of this 

information. Id. at 125-26. The trial court, however, did not find Mother 

credible, choosing instead to believe Pall’s testimony on this issue. See Trial 

Court Opinion, 12/18/14, at 13.
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combination of the decay and the pressure from the permanent tooth. Id.

at 46-47, 52.

Mother attempted to provide an explanation for the lack of dental care, 

testifying that she did not follow up with Dr. Woods because L.T., who 

provided dental insurance to the Children, “dropped their insurance” when 

he quit his job. Id. at 113-14. When questioned, Mother admitted that she 

never called the insurance company to determine whether the Children had 

coverage. Id. at 128. Mother, however, applied for and received welfare 

assistance, including a medical ACCESS card, after she learned that the 

Children’s insurance was cancelled. Id. at 117-18. Mother did not return to 

Dr. Woods, however, because he did not accept the ACCESS card. Id. at 

118. Furthermore, Mother testified that the Children did not complain of any 

pain and that she did not receive any reports from L.T. that the Children 

complained of pain, and therefore, did not see “a major issue that needed to 

be prompted [sic] immediately.” Id. at 118, 122-125. 

The trial court did not find Mother credible, stating, “The court finds 

Mother’s testimony to be inconsistent with respect to whether she was told 

the health insurance was actually cancelled or whether she assumed it was 

cancelled at the time her second appointment was scheduled with Dr. Woods 

in April of 2013.” Trial Court Opinion, 12/18/14, at 14. The trial court also 

deemed credible L.T.’s testimony that the Children complained about dental 

pain. Id. 
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As the trial court is the sole arbiter of the credibility of witnesses, we 

are unable to find that the trial court abused its discretion. See Busse v. 

Busse, 921 A.2d 1248, 1255 (Pa. Super. 2007) (“The fact-finder is in the 

best position to assess credibility of witnesses and we do not disturb 

credibility determinations on appeal.”). Furthermore, “we are not in a 

position to reweigh the evidence and credibility determinations of the trial 

court[,]” even if the opposite conclusion could be reached. In re R.J.T., 9 

A.3d at 1190. In this case, the record contains evidence establishing 

Mother’s inability to provide proper care or control necessary for K.B.’s 

physical health. CYS also established a concern that Mother’s substance 

abuse threatened the health, safety, and welfare of K.B.7 Accordingly, we 

conclude that the record supports the trial court’s determination. The trial 

court did not abuse its discretion in adjudicating K.B. dependent. 

For her second issue on appeal, Mother argues that the trial court 

erred in transferring custody of E.T. to L.T. since she remedied the 

conditions that led to the filing of the shelter care petition prior to the time 

of the adjudication hearing. Mother’s Brief at 16. Mother asserts that the 

trial court erred in relying on the principles of In the Interest of Justin S., 

 

7 This Court has established that evidence of a parent’s use of alcohol or a 

controlled substance is a proper consideration in determining whether 

parental care and control is immediately available. In re J.J., 69 A.3d at 

731; see also 42 Pa.C.S.A. § 6302(1). 
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543 A.2d 1192 (Pa. Super. 1988), as that case is distinguishable from the 

case herein. Mother’s Brief at 16. 

In In the Interest of Justin S., a trial court altered an existing 

custody arrangement between a divorced mother and father by awarding 

custody to the father without first adjudicating their two children dependent. 

In the Interest of Justin S., 543 A.2d at 1200. Prior to the trial court’s 

decision, the mother had custody of the children. The trial court 

determined, however, that the mother could not provide her two children 

with proper parental care and control, while the father of the children could 

immediately provide the children with such care. Id. On appeal to this 

Court, mother argued that the trial court erred in awarding custody to father 

without first adjudicating the children dependent. Id. 

This Court held that “in a dependency proceeding, a court may grant 

custody of an allegedly dependent child to that child’s non-custodial natural 

parent without first declaring the child dependent as long as sufficient 

evidence of dependency exists.” Id. at 1199. We further found that, in 

general, “any attempted disposition of the custody of an infant in a 

dependency proceeding is improper where the record indicates no finding of 

dependency was ever made.” Id. at 1187. “[A] court cannot adjudge a 

child to be dependent when his non-custodial parent is ready, willing, and 

able to provide the child with proper parental care and control[.]” Id. at 

1191. Thus, we concluded:
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It is the duty of the trial court to determine whether 

the noncustodial parent is capable and willing to 

render proper parental care and control prior to 

adjudicating a child dependent. If the court 

determines that the custodial parent is unable 

to provide proper parental care and control ‘at 

this moment’ and that the non-custodial parent 

is ‘immediately available’ to provide such care, 

the child is not dependent under the provisions 

of the Juvenile Act. Consequently, the court 

must grant custody of the allegedly dependent 

child to the non-custodial parent.

Id. (emphasis added).

Mother asserts that In the Interest of Justin S. is inapplicable 

because CYS did not meet its burden of proof for dependency in this case, 

and therefore, the Children should be returned to her. Id. at 16. We 

disagree.

As previously discussed, CYS presented evidence establishing a 

concern regarding Mother’s alleged drug use. With respect to E.T.’s health 

and safety in particular, CYS presented evidence that as with K.B., Mother 

neglected E.T.’s dental needs. Dr. Woods treated E.T. on April 4, 2013, and 

discovered that E.T. had five cavities. N.T., 8/4/14, at 58, 60. Dr. Woods 

referred E.T. to a pedodontist to have two pulpotomies (root canals on baby 

teeth) conducted, as the cavities had reached the middle of the tooth where 

the nerve is located. Id. at 60-61. Mother did not follow up with the 

pedodontist or pursue any additional treatment despite Dr. Woods’ referral.
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Another dentist, Dr. Leigh Jacopetti, testified that she treated E.T. on 

June 23, 2014. E.T. did not report any pain at that time, but Dr. Jacopetti 

filled a cavity in one of E.T.’s permanent molars and extracted two baby 

teeth. Id. at 37, 39. Dr. Jacopetti testified that E.T. needed three 

additional fillings, including one tooth, which needed a pulpotomy. Id. at 

38. Given E.T.’s young age, however, Dr. Jacopetti testified that the 

additional work had to be scheduled for a future date “because it’s too much 

for [young children] to sit through in one visit.” Id. at 41.

CYS also presented evidence that Mother failed to follow 

recommendations with regard to E.T.’s mental health needs. Because E.T. 

exhibited problems at school both socially and academically, E.T.’s school 

recommended that Mother seek treatment for E.T. Id. at 114. Mother 

chose to take E.T. to Northeast Counseling since they accepted the ACCESS 

card. Id. at 158. A psychiatrist at Northeast Counseling diagnosed E.T. 

with social phobia and determined that E.T. required further evaluation to 

determine if she had Attention Deficit Disorder. N.T., 8/4/14, at 24. Janice 

Wile Judge (“Ms. Judge”), the program director of the children’s outpatient 

department at Northeast Counseling, testified that Mother and E.T. attended 

two therapy sessions with the psychiatrist, but failed to attend a third 

session, and thereafter failed to respond to any letters sent by Ms. Judge or 

Northeast Counseling. Id. at 25-27. 
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Mother testified that she stopped attending sessions at Northeast 

Counseling because they wanted to medicate E.T. Id. at 140. L.T. testified 

that he attended the session at Northeast Counseling when they discussed 

recommendations for E.T. and that they never discussed medicating E.T. 

Id. at 169-70. The trial court found that Mother’s testimony lacked 

credibility. Trial Court Opinion, 12/18/14, at 12-13. 

Mother further testified that she did not engage any other services or 

agencies to treat E.T.’s mental health needs because E.T. had shown 

significant improvement without outside intervention. N.T., 8/4/14, at 141-

42. Mother asserted that in two months she helped E.T. bring her grades up 

“from [fifties] to straight A’s [sic],” Id. at 115, and that E.T.’s mental health 

needs were being met by the school’s counseling services and her 

individualized education plan (“IEP”). See id. at 114-17. Mother and CYS 

stipulated, however, that an IEP draft report showed that E.T. had a thirtythree in spelling. Id. at 133-39. 

We once again reiterate that “[w]e must defer to the factual findings 

of the hearing judge and accord them great weight as he has had an 

opportunity to observe and rule upon the credibility of the witnesses and 

parties who have appeared before him.” In the Interest of Justin S., 543 

A.2d at 1198. In this case, the record reveals evidence to support the trial 

court’s determination that Mother neglected E.T.’s dental and mental health 

needs, and that Mother had drug concerns. Thus, contrary to Mother’s 
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assertion, we do not find In the Interest of Justin S. to be distinguishable, 

as CYS demonstrated that Mother could not provide proper parental care and 

control for the Children. 

Mother further asserts that unlike the father in In the Interest of 

Justin S., which the trial court in that case deemed immediately available to 

provide proper parental care and control, L.T. was not “a fit and willing 

resource for the court to consider.” Id. at 17. Mother states that L.T. had 

the same failings as she did with regard to the dental needs and mental 

health of the Children and that “it is illogical to hold [Mother] accountable 

but not dad when he had the [C]hildren [twenty] of the days the month 

preceding shelter care.” Id.

The trial court specifically rejected Mother’s assertion, stating, “This 

[c]ourt disagrees with Mother’s argument that [L.T.] failed to take the child 

[(E.T.)] and her half-sibling [(K.B.)] to dental appointments or to counseling 

appointments.” Trial Court Opinion, 12/18/14, at 17. The trial court found 

credible L.T.’s testimony and Pall’s testimony that L.T. attempted to address 

the Children’s dental needs by discussing the issue with Mother.8 Id. The 

trial court also accepted the testimony and stipulations by Mother and L.T. 

that L.T. could not schedule appointments for counseling to address E.T.’s 

mental health needs because Mother would not let him see the Children for a 

 

8

 We note that since L.T. gained custody of the Children, L.T. and B.B. have 

addressed the dental needs of the Children. See N.T., 8/4/14, at 165-66, 

170.
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period of time, evidenced by the three custody contempt petitions L.T. filed 

against Mother. Id. at 17-18. As credibility determinations are left to the 

trial court, we do not disturb the trial court’s findings in this regard. See 

Busse, 921 A.2d at 1255. 

As a result, we conclude that pursuant to In the Interest of Justin 

S., the trial court was required to grant custody of E.T. to L.T. since L.T., the 

noncustodial parent, was available to provide E.T. with proper parental care 

and control. Accordingly, the trial court did not err in transferring custody of 

E.T. to L.T.

Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/8/2015