In the Int. of: J.S., Appeal of: A.M. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: A.M., FATHER :
:
:
:
:
: No. 869 EDA 2020
Appeal from the Order Entered March 11, 2020
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-DP-0000016-2020
BEFORE: PANELLA, P.J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, P.J.: FILED NOVEMBER 06, 2020
Appellant, A.M. (“Father”), files this appeal from the order entered
March 11, 2020, in the Philadelphia County Court of Common Pleas, that
adjudicated his child, J.S., born in February 2016 (“Child”), adjudicating Child
dependent; finding it in Child’s best interest and welfare to be removed from
the home, and that the Philadelphia Department of Human Services (“DHS”)
made reasonable efforts to prevent or eliminate the need for removal; and
ordering that legal custody transfer to DHS with Child’s placement to remain
in foster care. Child’s mother, S.S. (“Mother”), did not file a separate appeal
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or participate in the instant appeal. After careful review, we affirm the trial
court’s order.
Mother and Father’s family came to DHS’s attention in 2017 when DHS
filed dependency petitions for two of Mother’s children. See N.T., 3/11/20, at
11-13. More recently, DHS received a report on November 30, 2019 related
to substance abuse by Mother at the birth of her youngest child, who is not
the subject of this matter. See id. at 8-9, 20. When DHS visited Mother’s
home in December 2019 to investigate the latest referral, Mother appeared to
be under the influence. See id. at 10-11. She indicated being prescribed
Xanax at thirteen years old but could not produce a current prescription. See
id. A safety plan was implemented due to other adults in the home, namely
a maternal cousin, and an urgent petition was filed on January 6, 2020. See
id. at 15.
As a result of Mother’s whereabouts becoming unknown and the
maternal cousin reporting that she was unable to care for all of Mother’s
remaining four children under her care, including Child,1 DHS obtained an
1 Mother’s infant child was reunified with his father. See, 3/11/20, at 10.
Mother’s remaining four children, including Child, remained under her care
with the imposition of a safety plan. See id. at 15. While these three other
siblings were the subject of the dependency proceedings along with Child, they
are not the subject of the instant appeal.
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Order of Protective Custody (“OPC”) in January 2020. Child was temporarily
committed to DHS custody and placed in foster care. See N.T., 3/11/20, at
34-35, 40; see also N.T., 1/15/20, at 6-7; see also Order of Protective
Custody, 1/16/20. Pursuant to a shelter care hearing on January 17, 2020,
the court lifted the OPC and continued the temporary commitment to DHS.
See Recommendation for Shelter Care, 1/17/20. The court acknowledged
that Mother was hospitalized. See id. Child’s father was reported as
unknown. See id. DHS filed an amended dependency petition later in
January. See Dependency Petition, 1/21/20.
An adjudicatory hearing was scheduled for February 12, 2020 but
continued as Father appeared and was appointed counsel. See Continuance
Order, 2/12/20. The court took brief testimony from Community Umbrella
Agency (“CUA”) case manager Veronica Soto, Asociación Puertorriqueños en
Marcha (“APM”), as to placement and safety. See N.T., 2/12/20, at 8-9.
Further, Father responded to a few questions from the court. See id. at 5-6,
12.
The court then conducted an adjudicatory hearing on March 11, 2020.
Mother was present and represented by counsel. Father was not present but
was represented by counsel. Child was represented by a guardian ad litem
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who also served as legal counsel.2 DHS presented the testimony of DHS social
worker, Jerrod Yates; former CUA case manager, Tyesha Grasty; and current
CUA case manager, Veronica Soto. Additionally, Mother testified on her own
behalf.
The court adjudicated Child dependent. See Order of Adjudication and
Disposition, 3/11/20, at 1. The court found that it was in Child’s best interest
and welfare to be removed from the home, and that DHS made reasonable
efforts to prevent or eliminate the need for removal. See id. at 1-2. The
court further ordered that legal custody transfer to DHS with Child’s placement
to remain in foster care. See id. at 2. Thereafter, on March 14, 2020, Father,
through appointed counsel, filed a motion for reconsideration. The trial court,
however, did not rule on this motion. Also on March 14, 2020, Father, through
appointed counsel, filed a timely notice of appeal, along with a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b).
2On January 8, 2020, the Defender Association of Philadelphia Child Advocacy
Unit was appointed as counsel and guardian ad litem for Child. See Order
Appointing Counsel, 1/8/20. On February 28, 2020, subsequent to the
granting of a motion to withdraw, Ruth Brice, Esquire, was appointed as
counsel and guardian ad item for Child. See Order Appointing Counsel,
2/28/20. We observe that Attorney Brice is also referred to as a child
advocate. Attorney Brice did not submit a brief to this Court.
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Father raises the following issues for our review:
1. Whether the trial court erred as a matter of law or abused its
discretion when it determined that the Philadelphia Department of
Human Services made reasonable efforts to prevent or eliminate
the need for removal of [Child] from his parents’ care[?]
2. Whether the trial court erred as a matter of law or abused its
discretion when it determined that [Child] is a dependent child[?]
3. [Whether t]he trial court erred as a matter of law and abused
its discretion when it entered a disposition that custody of [Child]
be transferred to [DHS] [?]
Father’s brief at 3 (suggested answers omitted).
Our 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
lower court’s inferences or conclusions of law. Accordingly, we
review for an abuse of discretion.
In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010) (citations omitted). This Court
has highlighted the trial court’s direct observation of testimony as the reason
for the distinction between our review of factual findings and our review of
legal conclusions:
In dependency proceedings our standard of review is broad. [In
Re C.J.], 729 A.2d 89 (Pa.Super. 1999). Nevertheless, we will
accept those factual findings of the trial court that are supported
by the record because the trial judge is in the best position to
observe the witnesses and evaluate their credibility. [Id.] We
accord great weight to the trial judge’s credibility
determinations. [Id.] “Although bound by the facts, we are not
bound by the trial court’s inferences, deductions, and conclusions
therefrom; we must exercise our independent judgment in
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reviewing the court's determination, as opposed to its findings of
fact, and must order whatever right and justice dictate.” [Id.] at
92.
In re S.J.-L., 828 A.2d 352, 355 (Pa. Super. 2003).
We take Father’s issues on appeal out of order and address Father’s
second issue, his challenge to the adjudication of Child as dependent, first.
While recognizing that Mother lacked parental care and control, Father argues
that, not only did DHS fail to reach out to him, but that they further failed to
establish his lack of parental care and control or immediate availability. See
Father’s Brief at 29. Father suggests that he was ready, willing, and able to
care for Child and that the only concern raised by DHS was the use of space
heaters. See id. at 29, 31-32. Father asserts:
DHS failed to meet the second prong of the test for dependency
here, that proper parental control is not immediately available for
the Child. In this case, DHS did not contact Father prior to taking
custody of the Child. DHS testified that it also did not go out to
evaluate [F]ather’s home. In fact, DHS was involved with the
family for two years and had never reached out to Father. While
the Child was born under conditions that would suggest that
Mother was not immediately able to provide adequate parental
care and control, no neglect, and certainly no abuse, was
attributed to Father. At all times, Father has been ready, willing
and able to care for the Child. The only issue that DHS testified
to concerning Father was his use of space heaters.
Id. at 29. He continues:
In this case, the trial court erred by not determining that parental
care and control were immediately available for the Child in
Father’s care. There was no testimony that Father was unable to
provide for the Child. The only factor attributed to Father was the
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use of space heaters. This does not amount to a lack of parental
care and control, necessitating an adjudication that a child is
dependent. There was, therefore, no clear and convincing
evidence that Father was not able to immediately provide care and
control of the Child.
Id. at 31-32.
We review a court order finding a child dependent by assessing whether
there is clear and convincing evidence of record capable of establishing the
child lacks appropriate parental care:
[T]o adjudicate a child dependent, a trial court must
determine, by clear and convincing evidence, that the child:
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.
42 Pa.C.S.A. § 6302(1). “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 accordance with the overarching purpose of the Juvenile
Act “[t]o preserve the unity of the family wherever possible,” see
42 Pa.C.S.A. § 6301(b)(1), “a child will only be declared
dependent when he is presently without proper parental care and
when such care is not immediately available.” This Court has
defined “proper parental care” as “that 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) (case citations omitted).
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Our Supreme Court has held “a child, whose non-custodial parent is
ready, willing and able to provide adequate care to the child, cannot be found
dependent[.]” In re M.L., 757 A.2d 849, 850-51 (Pa. 2000). The Court held
that non-custodial parents who can readily assume responsibility for the child
are to be given that opportunity:
[I]t is the duty of the trial court to determine whether the non-
custodial parent is capable and willing to render proper parental
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. Once custody is
granted to the non-custodial parent, “the care, protection, and
wholesome mental and physical development of the child” can
occur in a family environment as the purpose of the Juvenile Act
directs. 42 Pa.C.S.A. § 6301(b).
Id. at 851 (quoting In the Interest of Justin S., 543 A.2d 1192, 1200 (Pa.
Super. 1988)); see also In re S.J.-L., 828 A.2d 352, 355-56 (Pa. Super.
2003) (affirming order terminating dependency and placing child with father
without a hearing as the child was not dependent as father was “immediately
ready, willing, and able to provide parental care and control”).
Father’s argument echoes the appellant’s argument in In the Interest
of B.B., 745 A.2d 620, 622 (Pa. Super. 1999). There, this Court addressed a
noncustodial father’s argument against dependency that the petitioning
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agency had failed to present evidence that he could not provide proper care
and control. Important to this Court was the fact that the father was not
previously involved or present and, therefore, was not an appropriate parental
caregiver:
To address this issue, we must keep in mind the particular
facts of this case. This is not a case where the father is actively
involved in his children’s lives, nor is it one where the father is
uninvolved but has a physical presence. In fact, this case is not
one where the father is a once-a-week, month, or year visitor.
Father virtually is a stranger to these boys. Throughout the five
years CYS has been providing services to Mother and the boys,
there is no evidence that CYS even knew this man existed until
after it filed the petitions for dependency. This trial court did not
fail to consider evidence that Father could provide proper parental
care to the children. Rather, it determined that the fact that he is
completely unknown to the children prevents his designation as a
proper parental caregiver to them. We cannot say this conclusion
is erroneous.
The trial court addressed the issue in its opinion, and we
adopt its reasoning as our own.
In the case at bar, father has never had a
relationship with the children, seeing them only once
during their lives. Although he says he is willing to
provide proper parental care ... he has not shown he
is capable of doing so. Rather, he decided to
completely ignore his parental responsibilities
altogether, whereas Mother attempted to care for the
children but failed. We recognize it is the petitioner's
burden to show by clear and convincing evidence
father is incapable of providing proper parental care.
We feel this has been demonstrated by father’s
conscious decision not to parent these children.
Essentially, father is saying he is “a fit parent by
default” in that his absence from the children's lives
has prevented CYS[] from knowing anything about
him, good or bad. As such, CYS[] was unable to
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produce any evidence concerning father’s inability to
provide proper parental care for the children because
he has chosen to be a non-factor in the children’s lives
and, thus, has had no contact with CYS[]. We feel
father’s choosing to be a stranger to his children,
taking no responsibility for their care and the fact his
parental rights could possibly have been terminated
demonstrate proper parental care is not immediately
available from him.
Furthermore, this court could not in good
conscience turn the children over to a strange man
rather than a known foster family. Because of his
absence from his children’s lives, we know nothing
about his character, habits, reputation, morals or
child-care abilities. All we know about him is he
impregnated mother on two occasions and then
decided not to be involved in the children’s lives.
Contrary to Appellants’ position, then, this case does not
involve a dearth of evidence to support a conclusion that Father
could not provide proper parental care, there is sufficient evidence
that he cannot do so. The trial court clearly acted properly in
declaring the children dependent.
Id. (internal citations omitted) (emphasis in original).
Similarly, in In re J.C., 603 A.2d 627, 628-29 (Pa.Super. 1992), we
rejected an argument requiring a petitioning agency to locate an absent, non-
custodial parent whose whereabouts were unknown:
The Juvenile Act defines a dependent child as one who “is
without proper parental care or control....” 42 Pa.C.S.A. § 6302.
We have long held that the proper inquiry to decide whether a
child lacks proper care and control encompasses two discrete
questions: (1) Is the child at this moment without proper care and
control?; (2) If so, is such care and control immediately
available? (emphasis ours) Here, it is clear that “at this moment”
the children, if the substance of the allegations are correct, are
without proper care and control. Moreover, the non-custodial
parent is not “immediately available.” Appellant would have us
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totally undercut the immediacy implicit in the standard used to
determine dependency by placing the onerous burden on the local
CYS of attempting to locate an absent father. While it is true that
the fundamental purpose of the Juvenile Act is to preserve family
unity, the above standard reflects a concern that the child be
taken out of an abusive environment with dispatch and placed in
a more favorable one.
We are especially reluctant to require a local CYS to
investigate the whereabouts of an absent non-custodial parent
where our legislature has not provided guidance. Judicial restraint
demands that we not place on a local CYS a requirement that has
no explicit or implicit statutory origin. Investigating the
whereabouts of an absent non-custodial parent can be time
consuming and costly. This may be especially true because a local
CYS may not have the expertise or trained personnel to track
down an absent parent. We find the appellant’s first argument
without merit.
Id. (internal citations omitted) (emphasis in original).
Here, the trial court found that Child was currently without appropriate
parental care and no other family resource was immediately available:
Based upon the credible, persuasive testimony presented by
DHS, this [c]ourt found clear and convincing, competent evidence
to support the allegations set forth in the Petition. The [t]rial
[c]ourt found that, based on the evidence, this [c]hild was
[d]ependent under section 6302 of the Juvenile Act, as without
proper care or control, subsistence, education as required by law,
or other care or control necessary for their physical, mental, or
emotional health, or morals. This [c]ourt also found that, based
upon these findings, it was in the best interest of this [c]hild to be
removed from Mother’s care and not be placed with Father
because he was not ready, willing and able to provide a suitable
home for the Child.
This [c]ourt found that DHS had shown by clear, direct,
weighty and convincing evidence that the Child lacked proper
parental care or control based on the evidence of Mother’s drug
history and the fact that Mother left the Child and his siblings with
the Maternal [Cousin]. Maternal [Cousin] then brought them to
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DHS to be placed because she could no longer care for them. This
[c]ourt found that DHS made reasonable efforts to place the
siblings together, and that DHS was to engage and continue in
family finding.
This [c]ourt also found that Father was not ready, willing
and able to care for the Child at this time based on his lack of
appropriate housing. He lived in a home that did not have proper
heating and was using portable electric heaters. Therefore, at this
time it would not be in the Child’s best interest to be placed with
Father.
Trial Court Opinion, 5/13/20, at 10-11.
Upon review, we discern no abuse of discretion in the trial court’s
adjudication of Child as dependent. As such, we do not disturb it.
Specifically, the evidence supports the court’s finding that Child was
without proper parental care and control. Father concedes that Child lacked
parental care and control from Mother. He states that “DHS knew that Mother
had a substance abuse problem and that her housing situation was
untenable,” and that “Child was born under conditions that would suggest that
Mother was not immediately able to provide adequate parental care and
control.” Father’s brief at 17, 29.
However, the record belies that Father was immediately available to
provide parental care and control. Critically, Father had no involvement with
Child prior to these proceedings. See N.T., 3/11/20, at 46. CUA case
manager, Veronica Soto, testified that the February hearing was only the
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second time Father saw Child. See id. at 49. She only recommended
supervised visitation between Father and Child due to the lack of a relationship
between the two. See id. at 48.
Moreover, despite indicating at the February 12, 2020 hearing that he
was in a position to care for Child, Father’s housing was inappropriate and he
failed to secure appropriate housing, see N.T., 3/11/20, at 37-38. Soto
reported that Father utilized space heaters which are “prone to starting fires.”
Id. at 48. While Father indicated to her that would try to move in with a
relative, he was unable to do so. See id. at 37. In fact, she testified that
Father had conceded his home was not suitable for raising Child:
A. In speaking with [Father], he informed me that his current
home was not suitable due to not having proper heating. He was
going to speak with an aunt to ask if he can move in so that he
can have [Child] with him. However, he has not been successful.
On our last communication in the beginning of the week he stated
that he still has not been able to --
...
Q. He’s not been able to -- he doesn’t have appropriate housing
for [Child]?
A. Right, he doesn’t have appropriate housing at this time.
Id. at 37-38.
Notably, although Father appeared at the hearing on February 12, 2020,
he failed to appear at the adjudicatory hearing on March 11, 2020 to pursue
his alleged desire for involvement with Child or present any contrary testimony
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as to his ability to provide parental care and control. He does not provide any
explanation for his absence.
Given Father’s previous lack of involvement related to Child and lack of
relationship with Child, the court was entitled to conclude he was not fit for
consideration as a proper caregiver. See B.B., 745 A.2d at 623. Further, the
evidence presented corroborated that Father lacked parental care and control
due to inappropriate housing. Father’s argument that DHS failed to present
evidence establishing his lack of care or control, fails. See id. Similarly,
Father’s argument that DHS was required to locate him, as an absent, non-
custodial parent, also fails. See J.C., 603 A.2d at 628-29. Hence, we discern
no abuse of discretion and Father’s challenge to the trial court’s adjudication
of Child as dependent lacks merit.
Next, Father suggests that the trial court utilized the improper legal
standard and failed to provide analysis in finding that DHS had made
reasonable efforts to prevent Child’s placement in foster care. See Father’s
Brief at 16-19. Father again argues that DHS failed to locate and engage him.
See id. at 19, 21. He further maintains that DHS then failed to offer any
assistance as to the heating issues he was experiencing. See id. at 21. Father
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unironically highlights the length of the dependency proceedings to argue DHS
failed to make reasonable efforts to notify him of Child’s lack of parental care:
The trial court erred here in determining that DHS made
reasonable efforts to prevent or eliminate the need for the
removal of the Child from his family. Prior to ordering that a child
be removed from his home, the trial court was obligated to make
a finding that DHS made reasonable efforts to prevent that
placement. The trial court ruled that DHS did make reasonable
efforts here to prevent [Child]’s placement in foster care.
However, DHS was involved with this family for nearly the
Child’s entire life, and had open dependency petitions for his
siblings. Mother had serious substance abuse issues, and her
housing situation with the children was unstable and unsuitable.
Despite this, neither DHS nor its subcontractor CUA agency ever
looked to involve Father in [Child]’s life, or consider him as a
placement resource, prior to placing [Child] in foster care. This is
not a reasonable performance of DHS’s social work
responsibilities.
...
This court should vacate the trial court’s finding that DHS
made reasonable efforts for two separate and independent
reasons. First, the trial court ignored the proper legal standard
here. Second, under the facts of this case, where DHS was
involved in the family’s life for two years, where DHS knew that
Mother had a substance abuse problem and that her housing
situation was untenable, and where for that two year period, DHS
failed to ever engage Father, DHS cannot be said to have made
reasonable efforts to prevent or eliminate the need for the
placement of the Child in foster care.
...
Analyzing this matter under the correct legal standard, this
Court should hold that the [trial] court erred and abused its
discretion in finding that DHS made reasonable efforts to prevent
or eliminate the need for removal of [Child] from his family. DHS
was involved with this family for two years. They knew that
Mother’s living situation was precarious, and they knew she had a
history of substance abuse. Even so, they never reached out to
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or engaged Father. Also, once they did, after the Child was
already removed from Mother, they based their determination
that Father was an inappropriate resource, and thrust the Child
into foster care, solely because he had space heaters.
...
Here, the trial court erred in determining that DHS made
reasonable efforts to prevent the removal of the Child. The trial
court did not address the reasonable efforts requirement in its
opinion in this case. It also did not provide any explanation for its
reasonable efforts finding at the March 11, 2020 hearing. The trail
[sic] court did not address Father’s Motion for Reconsideration
regarding reasonable efforts.
On the basis of the record developed below, it is clear that
DHS failed to make any efforts to reach out to, or even find Father.
DHS has been involved with the family for two years prior to the
removal. DHS failed to inquire about Father’s heating bill, or if
they could assist with it. If DHS felt that there were any other
services that were needed to be provided for Father in order to
prevent the Child’s removal, they did not testify to any, and at no
time did they offer any. Therefore, it is clear that DHS did not
meet the reasonable efforts requirement here.
Id. at 13, 17, 19, 21.
Father further makes several public policy arguments in support of his
position that the trial court erred in finding that DHS used reasonable efforts
to prevent removal of Child. See id. at 22-28. Father argues that
benchmarking, fiscal responsibility, the purpose of the Juvenile Act, and harm
to Child, do not support a finding of reasonable efforts here.3 See id.
3 DHS argues that these public policy arguments are waived as they present
information outside of the certified record and as Father fails to cite to
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In a related argument, Father contends that the evidence did not
support a finding that Child’s removal was clearly necessary. Father
emphasizes his belief that the only evidence of his unavailability was his use
of space heaters. See Father’s brief at 33. Moreover, Father suggests that
the court failed to consider options other than removal. See id. He states:
Here, the trial court did not consider the appropriate legal
standard before removing the Child from her [sic] parents’ care.
The testimony did not establish that it was clearly necessary that
the Child could not be reunified with his father. There were no
issues concerning abuse or neglect with Father. The only issue
was Father’s use of a space heater. There is no basis in the record,
then, for the trial court to find any facts which supported the
necessity of removal.
Removal of the Child from their home his parents’ care was
not the only option here, even if the trial court properly
adjudicated him dependent. The trial court could have ordered a
disposition that the Child remain with his father, under the
supervision of the agency. The trial court, however, did not
consider this alternate disposition. Because the clear necessity
standard was not met here, this Court should reverse the trial
court’s order that the Child be removed from his parents’ care.
Id.
When the court found Child dependent, it had the power remove the
child from the home only if it made two explicit findings:
(1) that continuation of the child in his home would be contrary to
the welfare, safety or health of the child; and
(2) whether reasonable efforts were made prior to the placement
of the child to prevent or eliminate the need for removal of the
appropriate legal authority in his brief. See DHS’s brief at 20-22. Given our
findings as to the merits, we need not address these assertions.
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child from his home, if the child has remained in his home pending
such disposition;
42 Pa.C.S.A. § 6351.
In addressing reasonable efforts to prevent removal, the trial court
stated:
Father alleges the [c]ourt erred in transferring custody of
the Child to DHS and that DHS made reasonable efforts to prevent
or eliminate the need for removal of the Child from his home. This
[c]ourt disagrees.
Father, although he availed himself at the 2/12/2020
hearing, and stated he was in a position to parent the Child, later
[] informed Ms. Soto, the CUA worker, that he did not have
heating and would try to move in with a relative so he could care
for the Child. Father then reported to Ms. Soto that he was
unsuccessful in obtaining housing.
Father was properly served with a hearing notice on
2/12/2020, and he was served and signed for service on
3/10/2020 for the hearing on 3/11/2020, however, he failed to
appear at the Adjudicatory Hearing.
Father did not avail himself to this [c]ourt to testify
regarding his housing situation at the Adjudicatory Hearing, nor
did Father’s attorney inform this [c]ourt as to the reason Father
was absent. Therefore, this [c]ourt found that Father was not
ready, willing and able to care for the Child because of not having
[appropriate] heating in his place of residence. This [c]ourt
reasoned it would not be in the Child’s best interest to be placed
with Father, and it was clear and necessary for the welfare of the
Child, to be placed in a safe and appropriate setting.
Trial Court Opinion, 5/13/20, at 11-12.
Here, Father’s claims as to reasonable efforts to prevent removal are
meritless as DHS was not required to locate and engage Father as an absent,
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uninvolved father. See J.C., 603 A.2d at 628-29. Moreover, the record
reveals that DHS did in fact make reasonable efforts to prevent Child’s removal
as they first left Child in Mother’s custody under the auspices of a safety plan
in December 2019. See N.T., 3/11/20, at 15. They only sought Child’s
removal once Mother’s whereabouts became unknown and her maternal
cousin came forward shortly thereafter indicating that she could not
appropriately care for the four children, including Child. See id. at 15-16, 22,
26, 34-35; see also N.T., 1/15/20, at 7.
Father relies on Interest of K.C., 156 A.3d 1179 (Pa. Super. 2017),
where this Court found that the trial court was incorrectly focused on
reasonable efforts to finalize a placement for Child, as opposed to reasonable
efforts to prevent removal. However, unlike the court in K.C., the trial court
here did not improperly “appl[y] the standard set forth under [42 Pa.C.S.A. §
6351(f)], related to permanency hearing.” Id. Rather, the court applied the
standard set forth under 42 Pa.C.S.A. § 6351(b). The court specifically found
that DHS “made [r]easonable [e]fforts to prevent or eliminate the need for
removal of this child from the home.” Order of Adjudication and Disposition,
3/11/20, at 2. Likewise, we observe that, although in a footnote, the court
explicitly cited to and set forth 42 Pa.C.S.A. § 6351(b), the applicable statute
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setting forth the standard as to reasonable efforts to prevent removal. See
Trial Court Opinion, 5/13/20 at 11.
Further, for the same reasons as set forth above in support of the
determination finding Child dependent, the record likewise supports clear
necessity for removal. Given the lack of relationship between Father and Child
and the lack of parental care and control, the trial court was entitled to
conclude that removal of Child was “best suited to the protection and physical,
mental, and moral welfare of the child.” In re S.M., 614 A.2d 312, 314-15.
As determined by the court here, “it was clear and necessary for the welfare
of the Child[] to be placed in a safe and appropriate setting.” Trial Court
Opinion, 5/13/20, at 12. There is ample record support for this conclusion.
Accordingly, we again discern no abuse of discretion.
As a result, for the foregoing reasons, we affirm the trial court’s order
adjudicating Child dependent and ordering that legal custody transfer to DHS
with Child’s placement to remain in foster care.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/20
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