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In re I.C.

Superior Court of Pennsylvania

June 19, 2013



Appeal from the Order Entered November 26, 2012 In the Court of Common Pleas of Lebanon County Juvenile Division at No(s): CP-38-DP-0000034-2012, CP-38-DP-0000035-2012




Appellant, A.C. (Mother), appeals from the November 26, 2012 orders, adjudicating I.C. and S.C. (the Children) dependent.[1] After careful review, we affirm.[2]

The trial court summarized the relevant factual and procedural history of this case as follows.

Mother and [J.D. (Father)] are parents to [I.C], born May 31, 2002, and [S.C], born May 23, 2003. [CYS] became involved with the [] family in March, 2012 due to issue [I.C] was experiencing in school. A service plan was created by CYS in June of 2012. On November 5, 2012, a [dependency [p]etition was filed in the interest of [the Children]. On November 6, 2012, Loreen Burkett, Esquire was appointed [l]aw [g]uardian to represent [the Children]. A hearing was scheduled for November 19, 2012. Prior to the hearing date, Mother removed the [C]hildren from Pennsylvania to Michigan. Th[e trial c]ourt continued the hearing until November 26, 2012 and ordered Mother to return the [C]hildren to Pennsylvania before that date.
On November 26, 2012, a dependency hearing was held. Counsel for Mother, [the] Children, and CYS appeared at the hearing. Mother was not in attendance and was found in contempt of [c]ourt. Father was not in attendance; however, he had previously informed CYS that he did not have room in his residence for the [C]hildren and could not be a resource for them. The [trial c]ourt heard testimony from CYS [c]aseworker Pamela Smith. Upon consideration of testimony presented, [the C]hildren were adjudicated dependent and custody was transferred to CYS. On December 4, 2012, Mother returned the [C]hildren to the Commonwealth of Pennsylvania and presented them to CYS.

Trial Court Opinion, 1/18/13, at 2-3. On December 21, 2012, Mother filed timely notices of appeal as well as a concise statements of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i). The trial court filed its Rule 1925(a) opinion on January 18, 2013.

On appeal, Mother raises two issues for our review.

1. Whether the trial court committed an error of law and/or abused its discretion in finding [CYS] established by clear and convincing evidence that [the Children] are dependent []?
2. Whether the trial court erred in placing the Children in foster care when they were in the care of a fit and willing relative?

Mother's Brief at 4.

We begin by noting our well settled standard of review. Our Supreme Court set forth our standard of review for dependency cases as follows.

[T]he standard of review in dependency cases requires an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record, but does not require the appellate court to accept the lower court's inferences or conclusions of law. Accordingly, we review for an abuse of discretion.

In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). Section 6302 of the Juvenile Act defines a "dependent child" as follows.

[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) (emphasis added).

In In re G., T., 845 A.2d 870 (Pa. Super. 2004), this Court clarified the definition of "dependent child" further.

The question of whether a child is lacking proper parental care or control so as to be a dependent child encompasses two discrete questions: whether the child presently is without proper parental care and control, and if so, whether such care and control are immediately available.

Id. at 872 (internal quotations and citations omitted); see also In re J.C., 5 A.3d 284, 289 (Pa. Super. 2010). Additionally, we note that "[t]he burden of proof in a dependency proceeding is on the petitioner to demonstrate by clear and convincing evidence that a child meets that statutory definition of dependency." G., T., supra.

In her first issue, Mother avers that CYS failed to present clear and convincing evidence to find the Children dependent. Mother's Brief at 10. Mother acknowledges that the home in which the Children were living with her and their Grandmother was dirty, but nevertheless avers that the record otherwise reveals that CYS "failed to present any evidence that [the Children were] dependent and the home conditions ... did not justify a finding of dependency." Mother's Brief at 11-12.

At the dependency hearing, CYS presented the testimony of the Children's caseworker, Pamela Smith. Smith testified that CYS first became involved when the Children's school voiced concerns as to I.C. soiling herself several times a day. N.T., 11/26/12, at 15. The school would supply I.C. with extra changes of clothing, but eventually exhausted its resources. Id. at 16. Mother would not answer the school's phone calls, but I.C.'s aunt would come to the school with a change of clothes when she was available. Id. at 15, 16. Due to a prior confrontation at the school, Mother was not permitted to be on school grounds, so the school requested that she meet a school security guard or other personnel at a nearby street corner to exchange a change of clothes for I.C. Id. at 16. Mother refused to do even that. Id. As a result, I.C. "would sit for hours in the nurse's office in the same clothing if she had no other change of clothes." Id. Mother also refused to sign individualized education plans for either of the Children. Id. at 15-16.

Additionally, on two or three occasions, Mother prevented Smith from entering the home to evaluate it and to check on the Children. Id. at 18. It was only after Smith had called Grandmother at her place of work and sought her permission to enter the home, that Smith was allowed access. Id. Based on her observation of the home, Smith concluded that the condition of the home was "poor" and not suitable for children. Id. at 19. Smith further described the conditions of the home as follows.

You have to walk through a path -- or on a path to get through the bottom part of the home or the first floor.
There is so much clutter you don't see the tables. They had the lights low so you really couldn't see how dirty the floors were.
There was a strong odor of animal urine and things like that. They had animals in the home, dogs, cats, [and] a rabbit.
To the best of my recollection there might have been a guinea pig. But all of these animals in the home were in cages.
Upstairs was a little bit better, a little bit clearer. But downstairs was absolutely filthy.

Id. Smith also noted that in addition to Grandmother, Mother, and the Children, Mother's sister and her two children also reside in the home. Id. at 20. Smith could recall only seeing three bedrooms in the home. Id.

Mother correctly notes that she did follow through with some of the Agency's recommendations, such as completing a parenting course through Good Samaritan Hospital and getting therapy for herself and the Children through Pennsylvania Counseling Services. Id. at 20, 21. However, the therapy was not without incident as Mother at first refused to allow the therapist to speak to officials at I.C.'s school. Id. at 21. We also note that Smith testified Mother would not sign either the permanency plan or the family service plan. Id. at 22. Finally, the record suggests Mother removed the Children from Pennsylvania and sent them to Michigan to avoid the proceedings. See id.

Upon careful review of the certified record, we conclude Smith's observations as to the cleanliness, number of bedrooms, and number of persons living in the home support the trial court's finding that "there [were] problems with the [Children's living conditions." Trial Court Opinion, 1/18/13, at 6. Although Mother avers that the state of the home is not enough to adjudicate S.C. dependent, the case law in this Commonwealth does not support that position. See In re R.T., 778 A.2d 670, 673-675, 678 (Pa. Super. 2001) (concluding adjudication of dependency proper where testimony revealed home was "very, very dirty, very unkept[, ]" contained clutter and several animals, and the smell of animal urine and feces was potent throughout the home), appeal denied, 792 A.2d 1254 (Pa. 2001).

Furthermore, Smith's testimony also supports the trial court's conclusion that "Mother will not cooperate with CYS or the [Children's school." Id. Although the record indicates that Mother was not physically present due to a previous altercation that ended with her being cited by the police, this "does not... expla[in] as to why mother refused to engage in any effective course of communication with the school ...." Guardian's Brief at 9 (emphasis added). Overall, we conclude the record supports the trial court's conclusion that Mother "continues to be unresponsive to the educational, medical, and emotional needs of [the C]hildren." Trial Court Opinion, 1/18/13, at 7; see also G., T., supra; 42 Pa.C.S.A. § 6302. As a result, we conclude that the trial court did not abuse its discretion in finding the Children to be dependent.

In Mother's second issue, she avers that even if the Children were correctly adjudicated dependent, the trial court erred in placing them in foster care instead of with David Dietz, whom Mother refers to as the Children's "grandfather" in Michigan. Mother's Brief at 13. Mother limits her argument to the assertion that the Children should have been placed with Dietz and does not advance an alternative argument that any other "fit and willing relative" was available. Id. At the outset, we note the record reveals that Dietz has no biological or adoptive relation to Mother but he has been in Mother's life since she was 15 days old. N.T., 11/26/12, at 10. We also observe that Dietz did not testify at the dependency hearing. The Juvenile Act gives a detailed outline of a judge's discretion in placing a child who had been adjudicated dependent.

§ 6351. Disposition of dependent child

(a) General rule.—If the child is found to be a dependent child the court may make any of the following orders of disposition best suited to the safety, protection and physical, mental, and moral welfare of the child:
(1) Permit the child to remain with his parents, guardian, or other custodian, subject to conditions and limitations as the court prescribes, including supervision as directed by the court for the protection of the child.
(2) Subject to conditions and limitations as the court prescribes transfer temporary legal custody to any of the following:
(i) Any individual resident within or without this Commonwealth, including any relative, who, after study by the probation officer or other person or agency designated by the court, is found by the court to be qualified to receive and care for the child.
(2.1) Subject to conditions and limitations as the court prescribes, transfer permanent legal custody to an individual resident in or outside this Commonwealth, including any relative, who, after study by the probation officer or other person or agency designated by the court, is found by the court to be qualified to receive and care for the child. A court order under this paragraph may set forth the temporary visitation rights of the parents. The court shall refer issues related to support and continuing visitation by the parent to the section of the court of common pleas that regularly determines support and visitation.

(b) Required preplacement findings.—Prior to entering any order of disposition under subsection (a) that would remove a dependent child from his home, the court shall enter findings on the record or in the order of court as follows:

(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 child from his home, if the child has remained in his home pending such disposition; or
(5) if the child has a sibling who is subject to removal from his home, whether reasonable efforts were made prior to the placement of the child to place the siblings together or whether such joint placement is contrary to the safety or well-being of the child or sibling.

42 Pa.C.S.A. § 6351.[3]

In the case sub judice, the testimony at the dependency hearing highlighted several problems with transferring the Children to Dietz's custody in Michigan. Although Smith testified that CYS's Michigan counterpart had inspected Dietz's home and found nothing wrong with it, the Michigan caseworker did inform Smith that there were three documented complaints against Dietz alleging abuse and neglect, though none of them were ever founded. N.T., 11/26/12, at 11. Additionally, Dietz informed Smith that there had been 22 complaints filed against his former wife in South Dakota, all of those complaints were also unfounded. Id. at 11-12. Smith also noted that residing in Dietz's home is a 14-year-old child who has on at least two occasions attempted to harm other children. Id. at 24, 28. Also residing in the home is Margaret Dietz who had previously lost custody of her four children due to a dependency action. Id. at 28. It was based on these considerations that Smith determined that Dietz's home would not be an appropriate placement for the Children. We therefore conclude that the trial court did not err or abuse its discretion when it ordered the Children placed in foster care. See In re R.J.T., supra. As a result, Mother's second issue is meritless.

Based on the foregoing, we conclude the trial court did not abuse its discretion or commit an error of law when it adjudicated the Children dependent and ordered them placed in foster care. Accordingly, the November 26, 2012 orders are affirmed.

Orders affirmed.

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