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[U] In re T.B.

Superior Court of Pennsylvania

February 6, 2014



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




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 Act, as provided by 42 Pa.C.S. § 6336(a)?

Appellant's Brief, at 7.

[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 6303(a)(1) of the Juvenile Act provides, in relevant part, that the Act applies to proceedings in which a child is alleged to be dependent. Accordingly, Father asserts that once the court determined that T.B. was not a dependent child, it should simply have dismissed the dependency petition without issuing a custody order.

The Domestic Relations Code specifically provides that the term "child custody proceeding . . . includes a proceeding for . . . dependency." 23 Pa.C.S. § 5402. Father's position is contrary to In re M.L., 757 A.2d 849 (Pa. 2000), where our Supreme Court noted:

Judges in custody matters have broad powers to fashion remedies to meet the best interests of the children involved. For example, a custody judge may modify any existing custody order to a shared custody order sua sponte or may decline to enter a custody order as agreed to by the parents. As a general rule, a judge must consider a number of factors including any abusive conduct by any adult member of the child's household. A dependency hearing is a form of custody proceeding. Thus a judge in a dependency proceeding has authority to modify the existing custody arrangement whether or not the judge makes a finding of dependency.

Id. at 851 n.3 (citations omitted, emphasis added).

The Supreme Court in In re M.L. quoted with approval the following portion of this Court's opinion in In the Interest of Justin S., 543 A.2d 1192 (Pa.Super. 2000):

[I]t is the duty of the trial court to determine whether the noncustodial 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 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.

Id. at 1200. Accordingly, it is clear that the trial court had authority to issue a custody order after it determined that T.B. was not a dependent child.[2]

Section 6303 of the Juvenile Act enumerates several types of proceedings to which the Act applies. Section 6336(a) provides that "hearings under this chapter shall be conducted, without a jury, in an informal but orderly manner and separate from other proceedings not included in section 6303 (related to scope of chapter)." Father argues that the trial court erred as a matter of law and abused its discretion when, contrary to section 6336(a), it permitted witnesses to testify about criminal charges involving Father. Specifically, Mother testified about pending criminal trespass charges that arose out of an incident when Father climbed into a window and removed T.B. from Mother's home. N.T. Dependency Hearing, 6/5/13, at 7. Also, school social worker Christina Yancey testified that a citation was issued to Father to appear in magistrate court due to T.B.'s poor attendance.

Father asserts that the mere mention of these other proceedings violates section 6336(a). We reject this argument.

"Words . . . shall be construed . . . according to their common and approved usage." 1 Pa.C.S. § 1903(a). Webster's Dictionary defines the verb "to conduct" as "to direct or take part in the management of." Merriam–Webster (online dictionary), available at (last reviewed Jan. 27, 2014). It is clear that the June 5, 2013 hearing was "conducted" for the sole purpose of determining whether T.B. was a dependent child. The court did not "conduct" a hearing on the citation issued to Father for T.B.'s absences, nor did it "conduct" a hearing on criminal trespass charges. Accordingly, nothing transpired at the hearing that violated section 6336(a).

If Father believed that the court erred or abused its discretion by allowing the testimony of Mother regarding criminal charges and testimony of Ms. Yancey regarding the issuance of a citation, he could have raised a timely objection. However, our review of the record indicates that no such objections were made. Accordingly, that issue is waived on appeal. See Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.").

Order affirmed.

Judgment Entered.

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