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[U] In re C.W.

Superior Court of Pennsylvania

September 9, 2013

IN THE INTEREST: C.W., A MINOR
v.
APPEAL OF: C.D.W., FATHER IN THE INTEREST: C.W., A MINOR APPEAL OF: J.W., MOTHER

NON-PRECEDENTIAL DECISION

Appeal from the Order entered January 23, 2013, in the Court of Common Pleas of Dauphin County, Criminal Division, at No(s): CP-22-DP-0000115-2012.

BEFORE: BENDER, SHOGAN, and MUSMANNO, JJ.

MEMORANDUM

BENDER, J.

C.D.W. ("Father") and J.W. ("Mother") (collectively "Parents") separately appeal two orders, both entered January 23, 2013.[1] One of the two orders adjudicated C.W. ("Child") dependent and changed Child's permanency goal to adoption. The other order determined that "aggravated circumstances" existed, pursuant to 42 Pa.C.S. § 6302.[2] After review, we affirm in part, and vacate in part.

Child was born in December of 2012. Shortly before Child's birth, in September of 2012, the Court of Common Pleas of Dauphin County Orphans' Court Division, terminated the parental rights of Parents to another child, I.M.W. In the days following Child's birth, the Dauphin County Social Services for Children and Youth ("Agency") filed a dependency petition with respect to Child. On January 10, 17, and 22, 2013, the trial court held hearings on the petition. On January 23, 2013, the trial court entered the two orders at issue in this case. Specifically, the first order held that aggravated circumstances existed, based on the recent termination of Parents' parental rights to Child's sibling, I.M.W., which, at that time, was on appeal to this Court. The second order adjudicated Child dependent, and changed the permanency goal to adoption.

On February 22, 2013, Mother and Father each filed a notice of appeal, purporting to appeal holdings in both of the trial court's orders entered on January 23, 2013. Both Mother and Father simultaneously filed their concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). Subsequently, on April 12, 2013, this Court reversed the termination of parental rights decrees with respect to I.M.W. In this appeal, Mother raises three issues for our review:

1. Whether the trial court abused its discretion in adjudicating the minor child dependent?
2. Whether the trial court abused its discretion when it ordered the goal change to adoption?
3. Whether the trial court abused its discretion in determining that aggravated circumstances existed?

Mother's Brief at 6 (capitalization modified).

Father raises three identical issues, though he presents them in a different order:

Whether the [t]rial [c]ourt committed reversible error in determining aggravated circumstances under the Juvenile Act, 42 Pa.C.S. §6301 et seq., where an appeal is extant respecting the parental rights termination order on which this determination relies[?]
Whether the [t]rial [c]ourt committed reversible error in granting a goal change to adoption under the Juvenile Act, 42 Pa.C.S. §6301 et seq., and thereby denying any good faith effort by the Appellee Agency in providing reasonable efforts to prevent the Minor's removal and retain Appellant Father's family unity[?]
Whether the [t]rial [c]ourt committed reversible error in adjudicating dependent, 42 Pa.C.S. §6302; In re R. W.J., 826 A.2d 10 (Pa. Super. 2003), the Minor, C.W., under the Juvenile Act, 42 Pa.C.S. §6301 et seq., upon evidence sufficient to meet a clear and convincing standard, 42 Pa.C.S. §6341(c)[?]

Father's Brief at 4-5.

We first address Mother's first issue, and Father's third issue: whether the trial court erred as a matter of law or abused its discretion in adjudicating Child dependent?
[T]he proper standard of review in dependency cases is whether the trial court abused its discretion, noting that the appellate court must accept the facts as found by the trial court, unless they are not supported by the record, but that the court is not bound by the trial court's inferences or legal conclusions.

In re R.J.T., 9 A.3d 1179, 1185 (Pa. 2010).

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).

In re M.L., 757 A.2d 849, 850-51 (Pa. 2000). To adjudicate a child dependent, a trial court must determine 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. § 6302. "The 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." In re G., T. 845 A.2d 870, 872 (Pa. Super. 2004).

Here, on January 23, 2013, the trial court entered an order, dated January 22, 2013, adjudicating Child dependent, pursuant to definitions (1) and (10) of "Dependent Child" provided in 42 Pa.C.S. § 6302:

(1) The child is without proper care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals[. . . .]
(10) The child is born to a parent whose parental rights with regard to another child have been involuntarily terminated under 23 Pa.C.S. § 2511 (relating to grounds for involuntary termination) within three years immediately preceding the date of birth of the child and conduct of the parent poses a risk to the health, safety or welfare of the child.

Order of Adjudication and Disposition, 1/23/13, at 1 (selectively quoting 42 Pa.C.S. § 6302).

The trial court explained the basis for its determination in its opinion pursuant to Pa.R.A.P. 1925(a):

In the present matter, this [c]ourt determined that C.W. was without proper parental care if Mother and Father were granted custody and that such proper parental care was immediately available through the Agency. In supporting this finding this [c]ourt reviews the facts presented at the hearing. We first note that Mother and Father have an extensive negative history with the Agency with regard to multiple termination of parental rights. Mother has voluntarily relinquished her parental rights to two of her children and has had her parental rights involuntarily terminated with respect to [I.M.W.]. Father has also voluntarily relinquished his parental rights to two of his children and has had his parental rights terminated involuntarily with respect to [I.M.W.] as well. We note that Mother and Father's involuntary termination of parental rights alone satisfies the Juvenile Act's definition of dependent child with regard to C.W. but we find further support of our finding of C.W. as a dependent child based upon the totality of the circumstances presented at trial. See 42 Pa.C.S. § 6302.
This [c]ourt notes that Mother and Father initially wanted to sign their parental rights over to Gerri Hill who has an extensive negative history with the Agency. The Agency also conducted extensive family finding efforts because Mother and Father indicated to the Agency that they wanted to relinquish their parental rights to C.W. During the dependency hearing, it was revealed that Mother and Father have a history of failing to comply with the objectives that the Agency had set for them for reunification with their previous children. Despite the Agency's past attempts at reunification, Mother and Father have never successfully completed any of the reunification services offered to them by the Agency.
This [c]ourt also took into consideration Mother's psychological condition in that she tested as a high risk in two significant areas with regard to parenting. Mother was determined to be in the very high risk of abuse or neglect category in the areas of empathy toward children and power and independence granted to children. In summary of Mother's mental condition, Dr. Rossen testified that Mother's predicted success at parenting was low.
Father has a similar history of failing to comply with the services offered from the Agency. We also noted that Father has been convicted of simple assault against Mother and aggravated assault of an unborn child with respect to [I.M.W.] Additionally, Father has a juvenile history of [involuntary deviate sexual intercourse] with a child less than 13 years of age and failed to complete mandated treatment recommendations.
Taking into consideration all of these factors this [c]ourt determined that C.W. would be without proper care or control with Mother and Father and that such proper care and control is not immediately available with either Mother or Father. Therefore, this [c]ourt respectfully submits that it relied upon clear and convincing evidence to support our finding that C.W. was a dependent child as defined in the Juvenile Act.

Trial Court Opinion, 3/20/13, at 14-15 (emphasis in original).

Our review of the record reveals that evidence supports the trial court's determination that Child is a dependent child, as there is evidence of conduct that places the health, safety or welfare of Child at risk. Specifically, the trial court heard testimony that Father was adjudicated delinquent on charges of involuntary deviate sexual intercourse upon a child under thirteen years of age, and that Father was recently incarcerated, arising out of an incident where he assaulted Mother, and kicked then-pregnant Mother in the stomach. See N.T., 1/17/13, at 54-56; N.T., 1/10/13, at 56-58. The trial court also heard testimony from an expert witness, Dr. Howard S. Rosen, pursuant to a psychological evaluation of Mother. Dr. Rosen testified that Mother presented a low likelihood of successfully parenting a child, and that her mental capacity and parenting ability presented a "very high risk" to the safety of the infant Child. N.T., 1/17/13, at 20; N.T., 1/17/13, at 23. Moreover, the Agency provided testimony detailing the Parents extensive involvement with the Agency.

Taken as a whole, we find that the record supports the trial court's adjudication of dependency under definition (1) of 42 Pa.C.S. § 6302. See In re R.J.T., 9 A.3d at 1185.[3]

The remaining issues before us turn on the question of whether a finding of aggravated circumstances may stand, where it is premised solely upon a decree for the involuntary termination of parental rights that is subsequently reversed on appeal. We conclude that it may not.

The Juvenile Act provides the following definition, excerpted in pertinent part:

"Aggravated circumstances." Any of the following circumstances:
* * * *
(5) The parental rights of the parent have been involuntarily terminated with respect to a child of the parent.

42 Pa.C.S. § 6302.

Additionally, Section 6341 of the Juvenile Act provides, in pertinent part:

If the court finds from clear and convincing evidence that aggravated circumstances exist, the court shall determine whether or not reasonable efforts to prevent or eliminate the need for removing the child from the home or to preserve and reunify the family shall be made or continue to be made . . . .

42 Pa.C.S. § 6341.

In the instant matter, on January 23, 2013, the trial court entered an order wherein it found that aggravated circumstances existed, based upon the involuntarily termination of the Parents' parental rights "with respect to another child of the parents; proven as to the mother, [Mother] and the father, [Father]."[4] Aggravated Circumstances Order, 1/23/13. The trial court also ordered that no reasonable efforts shall be made to preserve the family or reunify Child with the Parents. Id. On the same date, though in a separate order, the trial court set Child's placement goal as adoption. Order of Adjudication and Disposition, 1/23/13.

The trial court premised its finding of aggravated circumstances and, consequently, its goal change order, on the involuntary termination of Parents' parental rights to I.M.W., entered September 10, 2012. See Trial Court Opinion, 3/20/13, at 16-19. On April 12, 2013, however, this Court reversed the trial court's decrees for the involuntary termination of parental rights as to both Mother and Father. See In the Interest of: I.M.W., Docket No. 1774 MDA 2012 (Pa. Super. April 12, 2013); In the Interest of: I.M.W., Docket No. 1775 MDA 2012 (Pa. Super. April 12, 2013).[5]

As noted above, we review dependency orders for an abuse of discretion. While we generally must accept the facts as found by the trial court, we need not accept those facts that are not supported by the record. Moreover, we are not bound by the trial court's legal conclusions. See In re R.J.T., 9 A.3d at 1185.

Upon review of the trial court's finding of aggravated circumstances, we cannot subscribe to the court's conclusion that the parental rights of Mother and Father were involuntarily terminated with respect to I.M.W., because it is not supported by the realities of this case. The decree terminating the parental rights of Parents to I.M.W. no longer stands. That decree formed the basis of the trial court's finding of aggravated circumstances, and, in turn, the trial court's finding of aggravated circumstances was the basis for its granting the Agency's motion for goal change to adoption. See Trial Court Opinion, 3/20/13, at 16-20.

Given this Court's reversal of the decree for the involuntary termination of Parents' parental rights to I.M.W., we cannot now affirm the trial court's finding of aggravated circumstances, or the consequent goal change to adoption, because they are both premised on a decree that no longer exists.

Accordingly, for the reasons stated above, we affirm the adjudication of Child as dependent, pursuant to definition (1) of "Dependent Child" under 42 Pa.C.S. § 6302; we vacate the goal change to adoption; and we vacate the trial court's Aggravated Circumstances Order, dated January 22, 2013 and entered January 23, 2013.

Orders affirmed in part, vacated in part. Case remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.


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