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[U] In re of M.B.

Superior Court of Pennsylvania

June 21, 2013

IN THE INTEREST OF M.B., A MINOR CHILD APPEAL OF: T.B., NATURAL MOTHER IN THE INTEREST OF B.M., A MINOR CHILD APPEAL OF: T.B., NATURAL MOTHER IN THE INTEREST OF D.B., A MINOR CHILD APPEAL OF: T.B., NATURAL MOTHER

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered June 9, 2011 In the Court of Common Pleas of Fayette County Criminal Division at No. 53 Juvenile Court 2011, 55 Juvenile Court 2011, 54 Juvenile Court 2011.

BEFORE: BENDER, J., GANTMAN, J. AND OLSON, J.

MEMORANDUM

BENDER, J.

T.B. ("Mother") appeals from the orders dated June 1, 2011, and entered June 9, 2011 in the Court of Common Pleas of Fayette County, adjudicating dependent her three female children, M.B. (born in September of 2001), D.B. (born in November of 2008), and B.M. (born in July of 2009), pursuant to 42 Pa.C.S. § 6302. We affirm.

This case arises from an investigation by Fayette County Children and Youth Services ("FCCYS"). On May 14, 2011, Mother was alleged to have duct taped the mouths of the Children, photographed B.M. in that state, and sent that photograph to the Children's father, J.M. ("Father"), by cell phone. State police and FCCYS were contacted and investigated the incident.

That same day, FCCYS took custody of the Children pursuant to Mother's voluntary consent to placement. FCCYS could not find appropriate relatives with whom to place the Children at that time, and they were placed with a foster family. On May 31, 2011, FCCYS filed petitions for dependency. An adjudicatory hearing was held on June 1, 2011, and, by orders entered on June 9, 2011, the Children were adjudicated dependent, pursuant to 42 Pa.C.S. § 6302. On June 30, 2011, Mother simultaneously filed her notices of appeal and concise statements of error complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). This Court consolidated Mother's appeals, sua sponte, by order entered July 26, 2011.

On appeal, Mother raises one issue for our review:

Whether the honorable trial court erred in determining that the appellee, Fayette County Children and Youth Services, adduced sufficient evidence to meet the clear and convining [sic] evidentiary standard required to adjudicate [Mother's] three minor children dependent?

Mother's Brief at 3 (capitalization omitted).

In dependency,
appellate courts must employ an abuse of discretion standard of review, as we are not in a position to make the close calls based on fact-specific determinations. Not only are our trial judges observing the parties during the hearing, but usually . . . they have presided over several other hearings with the same parties and have a longitudinal understanding of the case and the best interests of the individual child involved. Thus, we must defer to the trial judges who see and hear the parties and can determine the credibility to be placed on each witness and, premised thereon, gauge the likelihood of the success of the current permanency plan. Even if an appellate court would have made a different conclusion based on the cold record, we are not in a position to reweigh the evidence and the credibility determinations of the trial court.

In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).

It is well settled that a court:

is empowered by 42 Pa.C.S. § 6341(a) and (c) to make a finding that a child is dependent if the child meets the statutory definition by clear and convincing evidence. If the court finds that the child is dependent, then the court may make an appropriate disposition of the child to protect the child's physical, mental and moral welfare, including allowing the child to remain with the parents subject to supervision, transferring temporary legal custody to a relative or a private or public agency, or transferring custody to the juvenile court of another state. 42 Pa.C.S. § 6351(a).

See id. (quoting In re M.L., 757 A.2d 849, 850–51 (Pa. 2000)).

A dependent child is one who, among other definitions,
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. § 6302.

In Mother's argument on appeal, she asserts that the Children were provided well above a minimum standard of care, Mother's Brief at 12-13; that FCCYS failed to demonstrate any serious injury regarding the duct tape incident, id. at 13-14; that FCCYS failed to interview a witness to the incident and failed to request additional photographs, id. at 14; that FCCYS presented no expert medical or psychological testing to demonstrate that Mother's panic disorder and depressive disorder impact her ability to care for the Children, id. at 14-15; and that the trial court failed to engage in a comprehensive inquiry into the kind of care the Children might receive in the future, id. at 15-19.

The trial court explained:

The old cliché, a picture speaks a thousand words cannot be more apropos than in this case. The photo admitted into evidence of B.M. shows a panic stricken child with a large piece of duct tape totally covering her mouth and possibly nostrils. The tape is indented in her mouth as she is obviously attempting to inhale through her mouth. B.M.'s eyes are partially closed and she is being placed up in the air by her arms. This is a child in distress. Mother informed the caseworker that she duct taped all three children, that she is suffering from an untreated panic disorder and that she is not receiving counseling as recommended by her doctor. Mother admits she may have an alcohol problem. It is clear to this [c]ourt, given the circumstances of these children, that they lack proper parental care by [M]other which is vitally necessary for their physical, mental and emotional security. These children are at risk and must remain dependent children until such time as [M]other receives the services required for reunification and also in light of the fact that there are no appropriate caregivers available other than foster care in the interim.

Trial Court Opinion, 11/28/12, at 5-6.

Our review discerns no merit in Mother's arguments on appeal. Mother argues that, by generally providing a minimum standard of care for the Children, the Children may not be adjudicated dependent as a result of the incident at issue here. Mother's Brief at 12-13 (citing Interest of Theresa E., 429 A.2d 1150, 1158 (Pa. Super. 1981); Interest of Justin S., 543 A.2d 1192 (Pa. Super. 1988)). Such a barrier to adjudications of dependency does not exist at law.

Mother goes on to argue that this incident, and FCCYS's presentation of its case, both fail to demonstrate injury or potential for future injury. Mother's Brief at 13. The trial court, however, concluded the Children are at risk, and provided a compelling description of the sources of its conclusion. See Trial Court Opinion at 5-6. We find that this factual conclusion is well within the scope of the trial court's discretion, and that this conclusion is based upon competent evidence. See In re R.J.T., 9 A.3d at 1190.

Mother additionally argues that FCCYS failed to request additional evidence, which, she asserts, would provide exculpatory context for the incident at issue. Mother's Brief at 13-14. Mother provides no citation to law that requires FCCYS to defend Mother against allegations made against her. See Pa.R.A.P. 2119(a). Moreover, we are unaware of any reason why Mother would not undertake the burden of requesting the asserted additional photographs in making her own case.

Mother next argues that no medical evidence or testimony was provided to establish Mother's panic disorder and depressive disorder. Mother's Brief at 14-15. We note that it was Mother who admitted these disorders to an FCCYS caseworker. Mother's Brief at 14; N.T. at 8-9.

In a summary of her prior points, Mother argues that the trial court failed to engage in a "comprehensive inquiry" into both whether the Children are without proper care and control, and whether proper care and control is immediately available from Mother going forward. Mother's Brief at 15-19 (citing In re: Swope, 571 A.2d 470 (Pa. Super. 1990); Interest of H.B., 437 A.2d 1229 (Pa. Super. 1981)).

The trial court, however, provided a detailed explanation of its rationale. The photograph of B.M.'s duct taped face, as well as Mother's own admission of mental health issues, along with Mother's failure to obtain treatment for those mental health issues, combined to convince the court that the Children were without proper care and control at the time of their adjudication. Additionally, the court concluded that the Children remain at risk until such time as, at a minimum, Mother's participates in mental health treatment. Trial Court Opinion at 5-6. Competent evidence in the record supports these findings. See In re R.J.T., 9 A.3d at 1190. As noted above, "Even if an appellate court would have made a different conclusion based on the cold record, we are not in a position to reweigh the evidence and the credibility determinations of the trial court." Id. Even if the duct tape incident alone was not sufficient evidence to permit an adjudication of dependency, Mother omitted any rebuttal of the implications of her mental health issues at the time of the dependency hearing. She may not now diminish those issues with her own assertions.

Accordingly, for the reasons stated above, we affirm the trial court's orders, adjudicating the Children dependent, pursuant to 42 Pa.C.S. § 6302.

Orders affirmed.


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