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[U] In re T.B.

Superior Court of Pennsylvania

February 6, 2014

IN RE: T.B., A MINOR APPEAL OF: R.B., FATHER

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered June 5, 2013 In the Court of Common Pleas of Allegheny County Civil Division at No(s): 631-2013

BEFORE: BENDER, P.J., LAZARUS, J., and MUNDY, J.

MEMORANDUM

LAZARUS, J.

R.B. ("Father") appeals from the order of the Court of Common Pleas of Allegheny County, which granted legal and physical custody of the parties' son, T.B., to T.L. ("Mother").[1] After careful review, we affirm.

On March 25, 2013, the Allegheny County Office of Children, Youth and Families ("CYF") filed a dependency petition alleging that 8-year-old T.B. was without proper care and parental control based on his frequent absences from school. The petition noted that T.B. "should be in [third] grade but is in [first] grade because of poor attendance." Dependency Petition, 3/25/13, at 3.

The trial court held a hearing on June 5, 2013. The evidence established that Father enrolled T.B. in kindergarten at Fulton Elementary School during the 2009-2010 school year. T.B. was absent 62 days, and at the end of the year, it was recommended that he repeat kindergarten, but Father refused. N.T. Dependency Hearing, 6/5/13, at 40. During the 2010-2011 school year, T.B. was in the first grade at Fulton, but stopped attending in January 2011. Id. There is no evidence that he attended school during the 2011-2102 school year. Id. In 2012-2013, T.B. was again enrolled in first grade at Fulton, but was absent 75 days. T.B. has the lowest academic performance of any student in first grade at Fulton despite the fact that at his age he should be in the third grade. Id. at 45.

Since February 13, 2013 when Father took T.B. from Fulton, the child has not returned to school. Id. at 74. Father testified that he was home schooling T.B. Id. at 55. School social worker Christina Yancey testified that she explained to Father what he needed to do to home school T.B. However, Father did not provide evidence that he fulfilled the requirements for home schooling or that he had made adequate progress toward doing so. Id. at 34.

The court found that Mother's home environment is clean and safe, and that Mother will see that T.B. attends school and is properly educated if T.B. is returned to her. While the court found that Father's home was also clean and safe, it found that Father would not provide for T.B.'s education as required by law.

The court dismissed the dependency petition and issued an order granting legal and physical custody to Mother, with Father having supervised visitation Saturdays and Sundays from 10:00 a.m. to 2:00 p.m.

On July 3, 2013, Father filed a notice of appeal and a statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court filed its Rule 1925(a) opinion on August 21, 2013.

Father raises the following issues for our review:

1. Did the juvenile court commit an error of law and abuse its discretion under the Juvenile Act, 42 Pa.C.S. [§§ 6301-6375], by making a custody determination of a minor child when the court had not found that minor child to be a "dependent child" under the Juvenile Act or found sufficient evidence of dependency as to R.B.?
2. Did the juvenile court commit an error of law and abuse its discretion by failing to keep the conduct of the dependency hearing "separate from other proceedings not included in section 6303" of the Juvenile ...

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