Opinion
J-S12045-14 No. 3213 EDA 2013 No. 3214 EDA 2013
06-05-2014
IN THE INTEREST OF: C.Z. APPEAL OF: S.K., MOTHER IN THE INTEREST OF: L.Z., A MINOR APPEAL OF: S.K., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order entered April 11, 2013,
in the Court of Common Pleas of Carbon County,
Juvenile Division, at No. CP 13 DP 0000003-2013
Appeal from the Order entered April 11, 2013,
in the Court of Common Pleas of Carbon County,
Juvenile Division, at No. CP 13 DP 0000004-2013
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, and JENKINS, JJ. MEMORANDUM BY JENKINS, J.:
In these consolidated appeals, S.K. (Mother) appeals the orders of the Court of Common Pleas of Carbon County that denied the dependency petitions filed by Carbon County Children and Youth Services (CCCYS) on behalf of her children, C.Z., born in August of 2007, and L.Z., born in December of 2008, and transferred custody of the Children to their father, R. Z. (Father). We vacate and remand, with instructions.
This Court consolidated these appeals, sua sponte, in an order entered on January 9, 2014.
Mother has another child, B.S., who is 17 years of age. B.S. is not a subject of this dependency proceeding.
--------
This matter arose when CCCYS initiated services for Mother and the Children because of Mother's problems with housing and drug use. Mother obtained and has maintained appropriate housing but has continued to struggle with controlled substances.
To assist Mother with her drug problem, CCCYS engaged the services of Justice Works. CCCYS caseworker, Toby Butz, however, testified that Mother had: 1) tested positive for illegal substances on two occasions; 2) refused to provide urine samples at the request of Justice Works three times; 3) failed to appear for six urine screenings; 4) cancelled or failed to appear at drug and alcohol appointments; and, 5) thwarted Justice Works' attempts to provide further assistance to the family. N.T. 4/10/13, at 9-12.
CCCYS filed dependency petitions on behalf of the Children on March 19, 2013. At the first hearing on the petition on April 8, 2013, Mother appeared and asked the trial court to appoint counsel for her. The trial court appointed counsel and continued the hearing to April 10, 2013. Mother told the trial court that the only way to contact her was by the phone number in the court file. N.T. 4/8/13, at 5.
Mother's appointed counsel, the guardian ad litem, and Father appeared at April 10, 2013, hearing; Mother did not appear. Ms. Butz told the court that they had been told that Mother could not be there because one of the Children was sick. N.T. 4/10/13, at 3. Justice Works attempted to contact Mother at the phone number it had for her, but no one answered. Justice Works then received a text message from Mother's older daughter, B.S., stating that Mother was now sick in bed and that she, B.S., did not have any minutes on her phone to talk to CCCYS or Justice Works. Mother's Counsel requested a continuance on the grounds of Mother's absence and the fact that he had not had contact with his client. N.T. 4/10/13, at 4-6. The trial court denied that request and conducted the dependency hearing.
Ms. Butz testified that Mother complied with CCCYS initially but stopped cooperating when her first drug screen indicated positive for methamphetamine. N.T. 4/10/13, at 8. According to Ms. Butz, Justice Works was unable to obtain samples from Mother despite a series of eight attempts to secure them during February and March of 2013. Id. When CCCYS was finally able to obtain a sample in March of 2013, it tested positive for methamphetamine and opiates. Id., at 9. Mother made an appointment for drug and alcohol intake but failed to appear. Id. That was the last contact CCCYS had with Mother.
At the close of the hearing, the trial court denied the dependency petitions and transferred custody of the Children to Father at the request of CCCYS. Id., at 39-40. The trial court entered its orders transferring custody of the Children to Father on April 11, 2013. Mother filed her notice of appeal and statement of errors complained of on appeal on May 10, 2013. CCCYS did not file an appeal.
Mother presents the following questions for our determination:
1. Whether the trial court erred as a matter of law and/or abused its discretion by refusing to grant [Mother's] request for a continuance due to [M]other's illness and/or unavailability, where [M]other's counsel requested a continuance due to [M]other not contacting counsel, as well as [Father] advising the court that [Mother] was ill?Mother's Brief, at 5.
2. Whether the trial court erred as a matter of law and/or abused its discretion by transferring custody of the [C]hildren to [Father] where the trial court failed to properly apply the best interests standard and/or the factors of 23 Pa.C.S.A. §5328, and also where [Mother] was unable to appear in court due to illness, [F]ather did not testify about his relationship with the [C]hildren, where there was no testimony of the effect of removing the [Children] from the same household as their older sister, where there was no testimony of the effect of removing the [Children] from [M]other's care, where there was no testimony that the Children were in danger, malnourished, or otherwise in need of assistance (as the trial court denied the petition for dependency)?
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., 608 Pa. 9, 26-27, 9 A.3d 1179, 1190 (2010).
To adjudicate a child dependent, a trial court must determine that the child:
(1) 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 or42 Pa.C.S.A. § 6302 (emphasis added).
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...
A dependency hearing is a two-stage process. The first stage requires the trial court to hear evidence on the dependency petition and determine whether the child is dependent pursuant to the standards set forth in section 6302. 42 Pa.C.S.A. §6341(a). If it finds "clear and convincing" evidence that the child is dependent, the court may move to the second stage, an adjudicatory hearing where it must make an appropriate disposition based on an inquiry into the best interests of the child. 42 Pa.C.S.A. §6341(c); In re B.S., 923 A.2d 517, 521 (Pa. Super. 2007). "Clear and convincing" evidence has been defined as testimony that is "so direct and unambiguous as to enable the trier of fact to come to a sure determination, without conjecture, of the truth of the exact facts at issue." In the Matter of C.R.S., 696 A.2d 840, 845 (Pa. Super. 1997).
In accordance with the overarching purpose of the Juvenile Act "to preserve family unity wherever possible," see 42 Pa.C.S.A. § 6301(b), a child will only be declared dependent when he is presently without proper parental care or control, and when such care and control are not immediately available. In the Interest of R.T., 592 A.2d 55, 57 (Pa. Super. 1991). This Court has defined "proper parental care" as "that care which (1) is geared to the particularized needs of the child and (2) at a minimum, is likely to prevent serious injury to the child." C.R.S., 696 A.2d at 845. "In addition, a child, whose non-custodial parent is ready, willing and able to provide adequate care to the child, cannot be found dependent[.]' In re M.L., 562 Pa. 646, 647, 757 A.2d 840, 850-851 (2000)."
In regard to when a child should be removed from parental custody, we have stated:
The law is clear that a child should be removed from her parent's custody and placed in the custody of a state agency only upon a showing that removal is clearly necessary for the child's well-being. In addition, this court had held that clear necessity for removal is not shown until the hearing court determines that alternative services that would enable the child to remain with her family are unfeasible.In Interest of K.B., 419 A.2d 508, 515 (Pa. Super. 1980). In addition, we have stated, "[I]t is not for this court, but for the trial court as fact finder, to determine whether [a child's] removal from her family was clearly necessary." In the Interest of S.S., 651 A.2d 174, 177 (Pa. Super. 1994).
Mother relies on this Court's decision in In re K.J., 27 A.3d 236 (Pa. Super. 2011), to argue that the trial court abused itthe hearing. In J.K., a mother's counsel requested a continuance based s discretion when it refused her request for a continuance on the day of on a call he received the night before that mother had been hospitalized. This Court found that the trial court did not abuse its discretion in denying the request because there was no evidence of the alleged hospitalization. Mother attempts to distinguish J.K. on the basis that that case had a long history, that out-of-state witnesses were there to testify, and that even the mother's counsel did not think that a continuance was appropriate.
We find the current case to be similar to rather than different from J.K. Mother never reached out to CCCYS, Justice Works, or her attorney to explain her circumstances. Instead, CCCYS and Justice Works received calls informing them only that one of the Children was sick. This claim does not necessarily prevent nor excuse Mother from attending. In addition, when CCCYS attempted to contact Mother to verify her claim, no one answered their calls. The only other information they received was a text message sent to a representative of Justice Works by Mother's older daughter in which she claimed that her phone has no minutes on it so she could not speak to anyone and that it was now mother who was ill. N.T. 4/10/13 at 21. This information contradicted the previous message that one of the Children was sick. Finally, Mother's attorney told the trial court that neither he nor anyone at his office had heard from Mother despite their attempts to contact her. The trial court considered these facts and concluded, "Based on the circumstances, this [c]ourt does not find any credibility in the stance proffered by Mother's counsel in support of the continuance." Trial Court Opinion, 6/18/13, at 9. Absent an abuse of discretion, we will not disturb a trial court's determination of credibility. In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003). Our review of the record reveals that the trial court did not abuse its discretion when it denied Mother's request for a continuance. Mother's first claim of error is without merit.
In her second issue, Mother complains that the trial court erred in transferring custody of the Children to Father. Mother argues, "The trial court found no dependency. Therefore, Mother argues that the trial court had no means to change placement of the Children." Mother's Brief, at 11. We disagree.
In its opinion, the trial court relies on our decisions in In the Matter of Mark T., 442 A.2d 1178 (Pa. Super 1982), and In the Interest of Anita H., 505 A.2d 1014 (Pa. Super. 1986), for the proposition that a trial court is free to transfer custody of a child to a willing parent as an alternative to an adjudication of dependency. The trial court is correct in that it has this power. We find, however, that the trial court erred in the way that it exercised this power.
In Mark T., the trial court adjudicated children dependent without determining whether their father was available to render proper parental care and control. This Court vacated the adjudication and remanded with instructions that the trial court make that determination. In Anita H., the trial court adjudicated three children dependent after refusing to hear their fathers' requests that the trial court place the children with him. This Court determined:
[T]he lower court should have continued its hearing and ordered the studies rather than entering a finding of dependency and505 A2d, at 1016 (quoting the trial court opinion). This Court concluded:
stating that the children 'may eventually be placed with their fathers; however, that decision will depend upon the home studies done by the Berks County Children and Youth Services.'
Accordingly, we must vacate the order of the lower court and remand for further proceedings. The [trial] court shall direct an investigation of the fathers' homes and consider the results of such investigations before making its adjudication.Id. In a footnote to this statement, this Court made the following relevant observation; we quote it with approval:
Appellee contends that appellants should not use dependency proceedings as an alternate means to seek custody. Indeed, this [C]ourt has cautioned against such efforts by non-custodial parents. In the Interest of Theresa E., 429 A.2d 1150 (Pa. Super. 1981). However, when a dependency petition is filed by a third party, we cannot condemn a non-custodial parent who intervenes in order to protect his child from being declared dependent and placed in the custody of a public agency or with foster parents.Id., at fn. 3.
The trial court was correct to decline to find the Children dependent and to consider Father as a resource for the Children. Our examination of this case in light of our case law, however, reveals that the trial court erred in not first determining whether Father was capable of rendering proper parental care and control.
Accordingly, as this Court ordered in Anita H., we vacate the order of the trial court and remand for further proceedings. The trial court shall direct an investigation of Father's home and consider the results of that investigation before making its adjudication.
Order vacated; case remanded, with instructions. Jurisdiction relinquished.
P.J.E. Ford Elliott files a dissenting memorandum statement. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary