In the Int. of: A.B., Appeal of: F.W. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: F.W., MOTHER : No. 1502 EDA 2022
Appeal from the Order Entered May 16, 2022
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-DP-0001245-2021
BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.
MEMORANDUM BY KING, J.: FILED NOVEMBER 8, 2022
Appellant, F.W. (“Mother”), appeals from the order entered in the
Philadelphia County Court of Common Pleas, which adjudicated her minor
child, A.B. (“Child”) dependent. We affirm.
The trial court set forth the relevant facts and procedural history of this
case as follows:
The Philadelphia Department of Human Services (“DHS”)
first became aware of this family on September 9, 2021,
when DHS received a Child Protective Services (“CPS”)
report alleging that [Child] had been sexually abused for
several years by Mother’s paramour. The CPS report alleged
that the most recent incident of sexual abuse occurred in
June 2021. The report further alleged that Mother did not
believe the allegations.
On September 9, 2021, [Child] had a forensic interview with
Philadelphia Children’s Alliance (“PCA”). In the interview,
[Child] confirmed that Mother’s paramour sexually abused
her from 2013 until 2020. [Child] stated that she informed
Mother about the abuse on several occasions. When DHS
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visited Mother’s home on September 10, 2021, Mother and
her paramour denied the allegations in the CPS report.
When DHS filed its dependency petition on December 23,
2021, Mother continued to reside with her paramour.
[Child] was initially placed with her father in Pottstown, PA,
but DHS learned that Father later left [Child] at her paternal
grandmother’s house. DHS implemented a safety plan in
paternal grandmother’s home in which [Child] was not to
return to the home where Mother and her paramour resided.
The safety plan also stated that any communication
between [Child] and Mother was to be monitored.
On November 18, 2021, [Child’s] paternal grandmother
informed DHS that she was unable to care for [Child] on a
long-term basis. On December 6, 2021, DHS identified an
appropriate placement for [Child]. On that date, DHS
obtained an order of protective custody (“OPC”) for [Child]
and placed her with the identified caregiver. At the
December 8, 2021 shelter care hearing, the OPC was lifted
and the temporary commitment to DHS was ordered to
stand. [Child] was referred to Behavioral Health Services
(“BHS”) for an evaluation.
At the February 2, 2022 hearing, which was continued, [the
trial c]ourt learned that [Child] was absent without leave
(“AWOL”). [The trial c]ourt deferred [Child’s] adjudication
and ordered a private investigator (“PI”) to be hired. The
court also ordered a missing person’s report to be filed and
for the missing persons protocol to be followed.
On May 16, 2022, [the trial c]ourt held an adjudicatory
hearing for [Child]. At the beginning of the hearing,
Mother’s counsel requested that [the c]ourt discharge
[Child’s] case because of the child’s AWOL status. Prior to
making a determination regarding Mother’s request, [the
c]ourt heard testimony from the Community Umbrella
Agency (“CUA”) case manager, Mr. Davon Dixon, regarding
the Child’s AWOL [status]. Mr. Dixon testified that he was
assigned to this case in December 2021. He stated that
[Child] went AWOL on January 7, 2022. Mr. Dixon further
testified that a police report was filed, the Center for Missing
and Exploited Children was notified, and an on-grounds PI
search was conducted. Mr. Dixon further stated that the PI
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was unable to locate [Child]. Additionally, Mr. Dixon
conducted unannounced visits at Mother’s home, but did not
see the child there. Mr. Dixon testified that he spoke to
Mother about the child’s whereabouts, but Mother stated
she “has no idea where she could be.” On cross-
examination by the child advocate, Mr. Dixon testified that
[Child] has not attended school since January 2022. Mr.
Dixon stated that he had been unable to communicate with
[Child’s] previous kinship parents from whose home [Child]
went AWOL. Mr. Dixon further testified that he has never
met the child.
Counsel for DHS also called DHS Investigator, Ms. Jocelyn
Childs, to testify regarding [Child’s] AWOL [status]. Ms.
Childs testified that the last time she saw [Child] was on
January 7, 2022. On that date, she attempted to locate a
new foster placement for [Child] after her kinship placement
failed. Ms. Childs testified that [Child] packed, she assisted
[Child] with putting her belongings in the car, but [Child]
refused to get in the vehicle. A police report for [Child] was
filed that same day. Ms. Childs further testified that at some
point between January 7, 2022 and January 12, 2022, she
received a phone call from [Child’s] previous kinship parent
stating that [Child] still shared her iPhone location with her.
The last location that the kinship parent reported for
[Child’s] iPhone was at Mother’s home. Ms. Childs further
testified that the kinship parent sent a screenshot of
[Child’s] iPhone location to her, which she also shared with
CUA and the assigned PI.
After hearing the testimony presented, [the trial c]ourt
denied Mother’s request to discharge [Child’s] case and
proceeded with the adjudicatory hearing. Counsel for DHS
called Ms. Jocelyn Childs to testify again. Ms. Childs testified
that she was the assigned DHS investigator for the CPS
report involving this family. She testified that on September
9, 2021, DHS received a CPS report alleging that [Child] was
sexually abused by Mother’s paramour. The allegations in
the CPS report were that Mother’s paramour sexually
assaulted [Child] by placing his penis in her mouth and
vagina. [Child] was the victim child named in the CPS report
and Mother’s paramour was the alleged perpetrator.
Prior to Ms. Childs receiving this investigation, [Child] was
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interviewed by [PCA] about the allegations in the CPS
report. During the PCA interview, Ms. Childs testified that
[Child] disclosed that she had been sexually abused by
Mother’s paramour.
During her investigation, Ms. Childs spoke with Mother,
Mother’s paramour, the child, and Father. When Ms. Childs
received the investigation, she conducted an unannounced
visit at Mother’s home to determine if Mother’s paramour
was there. She testified that Mother’s paramour answered
the door and identified himself. When Ms. Childs spoke to
Mother, she informed her of the allegations in the CPS
report. Ms. Childs testified that Mother stated that she did
not know why the child would make up or lie about the
allegations. Mother stated to Ms. Childs that she believed
[Child] made the disclosure to avoid getting into trouble for
previously running away from home. Mother’s paramour
denied the allegations in the CPS report. When Ms. Childs
concluded her investigation, Mother’s paramour continued
to reside in the home with Mother.
When Ms. Childs interviewed [Child], [Child] made a
disclosure about being sexually assaulted by Mother’s
paramour. However, [Child] then attempted to recant the
disclosures she made in the PCA interview and minimize the
allegations. Ms. Childs stated that [Child] recanted the part
of the PCA interview in which she disclosed that Mother’s
paramour sexually assaulted her. [Child] stated to Ms.
Childs that Mother’s paramour attempted to sexually assault
her, but then [Child’s] brother walked into the room, and
Mother’s paramour did not actually assault her. Ms. Childs
went to the paternal grandmother’s home to interview
[Child]. Before Ms. Childs mentioned the sexual assault
allegations, [Child] immediately stated, “Everything I said
before didn’t happen.” When Ms. Childs asked for
clarification regarding [Child’s] statement, she stated that
Mother’s paramour did not have sex with her, but rather
“just tried to.”
When the DHS investigation concluded, the CPS report was
indicated for sexual abuse. Ms. Childs testified that the CPS
report was indicated because [Child] made an initial full
disclosure at an emergency forensic interview with PCA. Ms.
Childs stated that she maintains the DHS file and had an
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opportunity to review the file. [Child] also made a full
disclosure when she was interviewed alone by the DHS
hotline social worker. This disclosure was consistent with the
allegations in the CPS report. In the disclosure to the hotline
social worker, [Child] stated Mother’s paramour sexually
abused her on more than one occasion. Additionally, [Child]
disclosed to the hotline social worker that she and her
brother told Mother about the sexual abuse, but that Mother
did not believe her.
Ms. Childs testified that she did not believe [Child’s]
recantation of the sexual abuse was credible. On cross-
examination by the child advocate, Ms. Childs stated that
[Child’s] kinship parent was concerned that [Child] was
having inappropriate and unsupervised phone contact with
Mother. There were also concerns regarding Mother
allegedly attempting to provide [Child] with money, gifts,
and promises to go shopping if she recanted.
(Trial Court Opinion, filed 7/7/22, at 1-6) (internal record citations and some
capitalization omitted).
By order entered May 16, 2022, the court adjudicated Child dependent
and transferred legal custody to DHS. The court also indicated that Child’s
placement goal was to return to Mother. Mother timely filed a notice of appeal
on June 13, 2022. The notice of appeal included a concise statement of errors
complained of on appeal.
Mother now raises four issues for our review:
Did the trial court violate Mother’s due process rights under
state and federal law by admitting hearsay statements that
were not subject to cross-examination?
Did the trial court err in law or abuse its discretion when it
admitted the hearsay testimony for the truth of the matter?
Did the trial court err in law or abuse its discretion and
lacked personal jurisdiction when it adjudicated a child that
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was AWOL and not present and the child was not served to
be present at the hearing?
Did the trial court err in law or abuse its discretion when it
adjudicated that child without clear and convincing
evidence?
(Mother’s Brief at 5).
In her first two issues, Mother contends that DHS submitted improper
hearsay evidence to support its contention that Mother’s paramour sexually
abused Child. Specifically, Mother claims that Ms. Childs “had no personal
knowledge [of the abuse] and all her statements testified to in court were
from other individuals and reports.” (Id. at 9). Mother also complains that
“Child was not present to be cross-examined as to the statements she made,”
and “DHS had the burden to call the child, the father, PCA interviewer, and
the hotline worker who had personal knowledge about [the] case.” (Id. at 9-
10)
Mother recognizes that there are exceptions to the general prohibition
against hearsay evidence, and she acknowledges that the trial court relied on
the “business records” exception set forth in Pa.R.E. 803(6). Mother insists,
however, that the exception requires a witness with personal knowledge of
the business records to authenticate the documents. Mother maintains that
Ms. Childs lacked such personal knowledge because she “did not create these
records during her normal course of business.” (Id. at 11). Under these
circumstances, Mother concludes that the trial court erred by admitting
impermissible hearsay evidence that could not satisfy the “clear and
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convincing” standard required to support Child’s adjudication. We disagree.
“The admission of evidence is within the discretion of the trial court and
such decisions will be reversed only if the trial court has abused its discretion.”
Interest of I.R.-R., 208 A.3d 514, 519 (Pa.Super. 2019) (quoting In re
Adoption of R.K.Y., 72 A.3d 669, 675 (Pa.Super. 2013)). “The Rules of
Juvenile Court Procedure provide that in adjudications, each party shall have
an opportunity to present evidence subject to the rules of evidence.” Id.(citing Pa.R.J.C.P. 1406(C), cmt.)
“‘[H]earsay is defined as an out-of-court statement, which is offered in
evidence to prove the truth of the matter asserted.” Adams v. Rising Sun
Medical Center, 257 A.3d 26, 35 (Pa.Super. 2020), appeal denied, ___ Pa.
___, 263 A.3d 246 (2021). “Generally, hearsay is inadmissible because it is
deemed untrustworthy since it was not given under oath and subject to cross-
examination.” Id. Nevertheless, the Pennsylvania Rules of Evidence provide
an exception to the general rule prohibiting hearsay for certain types of
business records:
Rule 803. Exceptions to the Rule Against Hearsay—
Regardless of Whether the Declarant is Available as a
Witness
* * *
(6) Records of a Regularly Conducted Activity. A
record (which includes a memorandum, report, or data
compilation in any form) of an act, event or condition if:
(A) the record was made at or near the time by—or
from information transmitted by—someone with knowledge;
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(B) the record was kept in the course of a regularly
conducted activity of a “business”, which term includes
business, institution, association, profession, occupation,
and calling of every kind, whether or not conducted for
profit;
(C) making the record was a regular practice of that
activity;
(D) all these conditions are shown by the testimony of
the custodian or another qualified witness, or by a
certification that complies with Rule 902(11) or (12) or with
a statute permitting certification; and
(E) the opponent does not show that the source of
information or other circumstances indicate a lack of
trustworthiness.
Pa.R.E. 803(6). “In regard to the business records exception, the
circumstantial trustworthiness arises from the regularity with which business
records are kept and the reliance that businesses place on the accuracy of
those records.” Bayview Loan Servicing LLC v. Wicker, 651 Pa. 545, 560,
206 A.3d 474, 483 (2019).
This exception has been incorporated into Pennsylvania law through the
Uniform Business Records as Evidence Act (“the Act”), which states:
A record of an act, condition or event shall, insofar as
relevant, be competent evidence if the custodian or other
qualified witness testifies to its identity and the mode of its
preparation, and if it was made in the regular course of
business at or near the time of the act, condition or event,
and if, in the opinion of the tribunal, the sources of
information, method and time of preparation were such as
to justify its admission.
42 Pa.C.S.A. § 6108(b). “The Act and the Rule substantially overlap in that
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both generally require that a custodian or other qualified witness testify that
the record was made ‘at or near the time’ of the event recorded and that the
record was kept in the regular course of business.” Bayview Loan Servicing,
supra at 560, 206 A.3d at 483 (internal footnote omitted).
Regarding the requirement of testimony from a custodian or qualified
witness, our Supreme Court has recognized:
Quite often different individuals have personal knowledge of
the various phases of a transaction so that no one individual
has knowledge of the entire transaction. In addition, the
frequent turnover of personnel often makes it impossible to
identify the employee—if it were only one—who took part in
the transaction. Under these circumstances, to require the
entrant to have personal knowledge of the event recorded,
and to require proof of the identity of the recorder, would
exclude almost all evidence concerning the activities of large
business organizations—a result diametrically opposed to
the purpose and spirit of the Business Records as Evidence
Act.
Id. at 561, 206 A.3d at 483-84 (quoting Fauceglia v. Harry, 409 Pa. 155,
158-59, 185 A.2d 598, 600 (1962)). “While a qualified witness need not have
personal knowledge, the individual must be able to ‘provide sufficient
information relating to the preparation and maintenance of the records to
justify a presumption of trustworthiness….’” Carlini v. Glenn O. Hawbaker,
Inc., 219 A.3d 629, 641 (Pa.Super. 2019) (quoting Keystone Dedicated
Logistics, LLC v. JGB Enterprises, Inc., 77 A.3d 1, 13 (Pa.Super. 2013)).
Thus, “the import of the Act is to require that the basic integrity of the record-
keeping is established,” and “as long as someone in the organization has
personally observed the event recorded, the evidence should be admitted.”
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Bayview Loan Servicing, supra at 562, 206 A.3d at 484 (internal quotation
marks omitted).
Instantly, DHS presented testimony from Ms. Childs, the social worker
who investigated Child’s circumstances. Ms. Childs explained that DHS
received a CPS report alleging that Mother’s paramour, A.O., sexually abused
Child. (See N.T. Hearing, 5/16/22, at 18-19; DHS’s Exhibit 2, CPS Report,
dated 9/9/21). Initially, a DHS hotline worker contacted Child “and
implemented a safety plan.” (N.T. Hearing at 20). Thereafter, Ms. Childs
contacted Mother and A.O. at the family home. Mother told Ms. Childs that
she did not believe Child’s allegations against A.O., and Mother felt that Child
fabricated the allegations “to avoid getting into trouble because she had
recently ran away and gotten into trouble for it.” (Id. at 21).
Ms. Childs began to testify about Child’s forensic interview at PCA, and
Mother’s counsel objected. The thrust of this objection was that DHS was not
presenting the PCA employee who was “the actual interviewer.” (Id.) The
court overruled the objection and permitted Ms. Childs to continue. DHS’s
attorney then asked Ms. Childs about her subsequent interview of Child.
Again, Mother’s counsel objected and argued that “[t]he child’s not here and
it's hearsay, anything that she has said to the child is hearsay.” (Id. at 21-
22). The court also overruled this objection, and Ms. Childs continued to
testify about her interview of Child.
After this line of questioning, DHS entered its investigation report into
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evidence. (Id. at 25; DHS’s Exhibit 3, Form CY48, dated 10/8/21). Mother’s
counsel objected to this report because “the actual investigator is not
present.” (N.T. Hearing at 25). The court quickly corrected counsel, informing
her that Ms. Childs was the investigator. (Id. at 26). The court also overruled
the objection. Ms. Childs concluded her testimony by stating that she
maintained the DHS case file while conducting the investigation, and she had
an opportunity to review the file. As part of that review, she studied the notes
from Child’s prior interviews.
In defense of its evidentiary rulings, the court noted:
DHS properly laid the foundation for the admissibility of Ms.
Childs’s testimony regarding [Child’s] PCA interview as well
as the statements [Child] made to Ms. Childs during her
investigation. Ms. Childs testified that she was the DHS
investigator assigned to conduct the DHS investigation of
the allegations in the CPS report. Ms. Childs interviewed the
child as a normal part of her DHS investigation. Ms. Childs
further testified that she maintains the DHS file for this case
and had the opportunity to review the file. The statements
that [Child] made to Ms. Childs were given during the
normal course of Ms. Childs’s investigation, thus [the trial
c]ourt found the statements relevant and admissible under
Pa.R.E. 803(6). The CPS report which Ms. Childs was
assigned to investigate was filed based on the disclosure of
sexual abuse that [Child] made during her PCA interview.
These statements formed the basis of the DHS investigation
and are relevant and admissible in the Adjudicatory Hearing.
Additionally, in a disposition hearing, all evidence that is
helpful in determining the questions presented may be
considered by the court to the extent of its probative value.
42 Pa.C.S.A. § 6341(d).
(Trial Court Opinion at 17). Here, we agree that Ms. Childs provided sufficient
information relating to the preparation and maintenance of the reports to
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justify a presumption of trustworthiness. See Carlini, supra.
Moreover, we disagree with Mother’s argument that Ms. Childs lacked
personal knowledge to justify the admission of the records under Rule 803(6).
Contrary to Mother’s assertions, the DHS employee who oversees the
investigation into child abuse allegations is uniquely suited to comment on the
preparation and maintenance of the reports in the investigation file. See 42
Pa.C.S.A. § 6108(b). On this record, we conclude that the court did not abuse
its discretion with its evidentiary rulings. See Interest of I.R.-R., supra.
Accordingly, Mother is not entitled to relief on her first two issues.
In her third issue, Mother argues that dependency courts “must have
personal jurisdiction by serving the parties with a summons.” (Mother’s Brief
at 12). In light of DHS’s inability to locate Child, Mother maintains that the
court lacked personal jurisdiction in this case. Mother also insists that she did
not waive this issue where her “counsel objected to the hearing going forward
and requested that the petition be discharged because the child had been
AWOL … and she was [unavailable] to cross-examine.” (Id.) Mother
concludes that the trial court lacked personal jurisdiction when it adjudicated
Child dependent. Mother’s issue is waived.
“Personal jurisdiction is [a] court’s power to bring a person into its
adjudicative process[.] Moreover, personal jurisdiction is readily waivable.”
Grimm v. Grimm, 149 A.3d 77, 83 (Pa.Super. 2016), appeal denied, 641 Pa.
592, 169 A.3d 25 (2017) (internal citations and quotation marks omitted).
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Under the Juvenile Act, attendance at and participation in
dependency proceedings are restricted. Dependency
hearings are closed to the general public. Only a “party”
has the right to participate, to be heard on his or her own
behalf, to introduce evidence, and/or to cross-examine
witnesses. Although the Juvenile Act does not define
“party,” case law from this Court has conferred the status
of party to a dependency proceeding on three classes of
persons: (1) the parents of the juvenile whose dependency
status is at issue; (2) the legal custodian of the juvenile
whose dependency status is at issue, or (3) the person
whose care and control of the juvenile is in question. These
categories logically stem from the fact that upon an
adjudication of dependency, the court has the authority to
remove a child from the custody of his or her parents or
legal custodian. Due process requires that the child’s legal
caregiver, be it a parent or other custodian, be granted
party status in order to be able to participate and present
argument in the dependency proceedings.
In re L.C., II, 900 A.2d 378, 381 (Pa.Super. 2006) (internal citations
omitted).
After a dependency petition is filed, the court “shall direct the issuance
of a summons to the parents, guardian, or other custodian, a guardian ad
litem, and any other persons as appear to the court to be proper or necessary
parties to the proceeding, requiring them to appear before the court….” 42
Pa.C.S.A. § 6335(a). “The summons shall also be directed to the child if [she]
is 14 or more years of age….” Id. Nevertheless, our Rules of Juvenile Court
Procedure recognize certain situations when a child need not be present:
Rule 1128. Presence at Proceedings
A. General Rule. All parties, including the child, shall
be present at any proceeding unless the exceptions of
paragraph (B) apply.
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B. Exceptions.
(1) Absence from Proceedings. The court may proceed
in the absence of a party upon good cause shown except
that in no case shall a hearing occur in the absence of a
child’s attorney. If a child has a guardian ad litem and legal
counsel, both attorneys shall be present.
(2) Exclusion from Proceedings. A party may be
excluded from a proceeding only for good cause shown. If
a party is so excluded, counsel for the party shall be
permitted to be present.
Pa.R.J.C.P. 1128(A), (B).
Instantly, at the start of the adjudication hearing, Mother’s counsel
made the following statement:
Your Honor, this case has been open since December and
the child is still AWOL. My client has cooperated with the
investigation. They still have not been able to identify where
the child is located, and I’m requesting that the case be
discharged.
(N.T. Hearing at 7).
Although Mother now argues that counsel’s generic request for
discharge preserved her specific claim related to personal jurisdiction, the
court disagreed:
At [Child’s] adjudicatory hearing, Mother’s counsel did not
raise any objection regarding the child not being served or
given notice of the adjudicatory hearing. Additionally,
Mother’s counsel did not raise any objection at the
adjudicatory hearing regarding [the trial c]ourt’s personal
jurisdiction over [Child] given her AWOL status. Mother’s
counsel appeared before [the trial c]ourt in this matter on
numerous occasions and failed to raise objections to the
child’s lack of notice and service or [the c]ourt’s personal
jurisdiction over the child.
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(Trial Court Opinion at 11) (some capitalization omitted).
Based upon our review of the record, the court correctly determined that
Mother did not preserve her claim regarding personal jurisdiction. See PCS
Chadaga v. Torres, 252 A.3d 1154 (Pa.Super. 2021) (reiterating that party
must make specific objection to alleged error before trial court in timely
fashion and at appropriate stage of proceedings to preserve claim of error for
appellate review; failure to raise such objection results in waiver of underlying
issue on appeal). Even if Mother had not waived her claim, the court properly
concluded that it could proceed without Child based upon the demonstration
of “good cause.”1 See Pa.R.J.C.P. 1128(B)(1). Accordingly, Mother is not
entitled to relief on her third issue.
In her fourth issue, Mother contends that the court’s ruling was “based
on inadmissible hearsay” evidence because Child was not available to testify.
(Mother’s Brief at 13). Mother insists that she provided for all of Child’s needs
and, aside from the abuse allegations, “there were no other dependency issues
in the home.” (Id. at 15). Mother posits that Child may have “mental health
and/or behavioral issues that may not be identified,” and that these are the
real cause of the family’s problems. (Id.) Absent more, Mother concludes
that DHS did not provide clear and convincing evidence to support the
adjudication. We disagree.
____________________________________________
1We note that Child’s attorney/guardian ad litem attended the hearing. (See
N.T. Hearing at 6).
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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.
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.
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A court may adjudicate a child as dependent if the child meets the
statutory definition of a dependent child by clear and convincing evidence. In
re E.B., 898 A.2d 1108, 1112 (Pa.Super. 2006). Additionally, “a finding of
dependency can be made based on prognostic evidence and such evidence is
sufficient to meet the strict burden of proof necessary to declare a child
dependent.” In re R.W.J., 826 A.2d 10, 14 (Pa.Super. 2003). “The court
must make a comprehensive inquiry into whether proper parental care is
immediately available or what type of care [the parent] could provide in the
future.” Id.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.
In re E.B., supra at 1112.
Upon a finding of dependency, the court must focus on the child’s best
interests and order a disposition best suited to the child’s safety and well-
being. In re S.B., 943 A.2d 973 (Pa.Super. 2008), appeal denied, 598 Pa.
782, 959 A.2d 320 (2008). The court may not separate the child from the
parent unless it finds that the separation is clearly necessary. In re G.T., 845
A.2d 870 (Pa.Super. 2004). Such necessity is implicated where the child’s
welfare, safety, or health demands he or she be taken from his or her parent’s
custody. Id.; In re R.W.J., supra.
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Instantly, the trial court concluded that DHS satisfied its burden and
demonstrated that Child was without proper parental care and control. (See
Trial Court Opinion at 9). After summarizing DHS’s evidence, the court noted:
The allegations in the indicated CPS report as well as
Mother’s position regarding the sexual abuse [Child]
suffered greatly concern [the trial c]ourt. The evidence
reflects Mother lacks the ability to provide adequate care
and supervision for [Child] due to the sexual abuse [Child]
suffered while in her care. The record reflects that [Child]
and her brother informed Mother on numerous occasions
that [Child] was sexually abused by Mother’s paramour, but
that she did not believe them. Mother’s refusal to
believe [Child’s] disclosure of sexual abuse as well as
Mother continuing to allow her paramour to reside in
the home with [Child] placed [Child’s] safety and
wellbeing at risk.
(Id. at 10) (emphasis added). We agree with the court’s analysis.
We also emphasize that the crux of Mother’s appellate issue concerns
the quality of the evidence supporting Child’s sexual abuse allegations. The
court, however, did not base its ruling on the allegations alone. Significantly,
the court recognized that Mother’s response to the allegations placed Child at
risk. Thus, we cannot say that the court abused its discretion in adjudicating
Child dependent. See In re A.B., supra. Accordingly, we affirm.
Order affirmed.
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J-S33016-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/8/2022
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