Opinion
J-A19003-18 No. 404 MDA 2018
10-10-2018
IN THE INTEREST OF: T.S., A MINOR APPEAL OF: J.D.S., FATHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered February 12, 2018
In the Court of Common Pleas of York County
Juvenile Division at No(s): CP-67-DP-0000375-2017 BEFORE: GANTMAN, P.J., NICHOLS, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY GANTMAN, P.J.:
Appellant, J.D.S. ("Father"), appeals from the order entered in the York County Court of Common Pleas that adjudicated T.S. ("Child") dependent and made a finding of physical abuse against Father. We affirm in part the order adjudicating Child dependent but reverse the finding of abuse against Father.
The relevant facts and procedural history of this case are as follows. On December 5, 2017, the York County Office of Children, Youth and Families ("CYF") received a child protective services referral regarding Child (born January 2011). Specifically, Child reported to school on that day with a bruise on his cheek. Child's teacher noticed the bruise and contacted the school counselor. Child told the school counselor that K.S. had slapped him and hit him in the face with a lunchbox that morning because he had not put his clothes away.
Throughout the proceedings, the court and the parties referred to K.S. as Child's stepmother. The record confirms Father and K.S. are not married, and K.S. is not a party to this appeal. Father and K.S. are the biological parents of Child's younger half-brother.
A CYF caseworker visited the school and spoke with Child that day. Child repeated the same abuse allegation to the caseworker. Later that day, two CYF caseworkers visited Child's home to discuss the abuse allegation with Father and K.S. Father and K.S. denied the allegation and offered possible alternative explanations for the bruise. The next day, CYF intake supervisor, Lori DuPont, interviewed Child. Child repeated that K.S. had hit him with his lunchbox. Ms. DuPont went back to Child's home that day along with a police officer in an attempt to develop a safety plan with Father and K.S. Father refused to sign any paperwork regarding a safety plan before consulting a lawyer. Without a safety plan in place, CYF contacted the York County Court of Common Pleas for verbal authorization to remove Child from the home. The court granted verbal authorization for removal, and CYF placed Child in foster care.
On December 7, 2017, CYF filed an application for emergency protective custody, alleging Child lacked proper parental care or control, based on the abuse allegation. The application further noted that Father, K.S., and Child previously lived in South Carolina and had been involved with the Department of Social Services ("DSS") due to allegations of corporal punishment. As a result of the allegations, DSS had implemented a safety plan on February 22, 2017, removed Child from the home, placed Child with relatives, and permitted Father and K.S. only supervised contact with Child. When Father, K.S., Child, and Child's younger half-brother moved to Pennsylvania in March 2017, DSS closed the case in South Carolina.
The South Carolina safety plan was included in Child's school file. It indicated Father and K.S. were using excessive corporal punishment, and Child had visible bruises on his legs.
CYF's application for emergency protective custody indicated its concern for Child's safety based on Child's current abuse allegation against K.S. and the family's prior involvement with DSS in South Carolina. The court granted CYF's application that day and entered an order affirming its prior verbal authorization for removal of Child from the home. Meanwhile, Father and K.S. suggested an aunt and uncle as potential kinship caregivers. CYF conducted an investigation, determined the aunt and uncle were appropriate resources, and placed Child in their care.
The court held a shelter care hearing on December 8, 2017. CYF informed the hearing officer about Child's abuse allegation against K.S. and the family's prior involvement with DSS in South Carolina. In addition to the incident in South Carolina that had prompted the South Carolina safety plan, CYF explained the family had two other prior incidents with DSS in South Carolina but both of those cases had been closed as unfounded, so CYF could not obtain details about those earlier incidents. Regarding the Pennsylvania case, Father denied that K.S. hit Child with a lunchbox and maintained Child did not have the bruise on his face when he left for school that morning. Father said Child sustained the bruise on the school bus after he fell asleep with his head on the metal window frame. Child was present for part of the hearing. The hearing officer noted on the record his observation of the bruising on the left side of Child's face and around his left eye. The hearing officer also noted that Child was apprehensive, looked at Father at least five times when the hearing officer asked Child if there was anything he wanted to say, and seemed fearful to make statements. At the conclusion of the proceeding, the hearing officer found sufficient evidence to continue Child's placement and granted Father and K.S. supervised visits with Child.
CYF filed a dependency petition on December 12, 2017, alleging Child lacked proper parental care or control. CYF also alleged Child was a victim of abuse by K.S. CYF stated concerns about Child's safety in Father's care due to the prior abuse allegations in South Carolina but did not allege that Father perpetrated that abuse. The court scheduled a dependency hearing for December 22, 2017. On December 21, 2017, the Children's Advocacy Center ("CAC") conducted a forensic interview of Child. The next day, the parties appeared for the scheduled dependency hearing. CYF asked to continue the hearing so the parties could view a DVD of CAC's interview with Child. The court granted the continuance and rescheduled the dependency hearing for January 22, 2018.
At the dependency hearing on January 22, 2018, the court heard testimony from Clara Roberti, who had conducted the forensic interview of Child on December 21, 2017. Ms. Roberti testified that Child reiterated the abuse allegation against K.S. regarding the lunchbox. Child said Father did not see the lunchbox incident because he was sleeping. Ms. Roberti also said Child disclosed abuse by Father but did not give a timeframe or where the abuse occurred. As a result of Child's abuse allegations during the interview, Ms. Roberti recommended CYF to continue its investigation. ( See N.T. Dependency Hearing, 1/22/18, at 6-16). Following Ms. Roberti's testimony, the court continued the dependency hearing until February 12, 2018. CYF also informed the court at the conclusion of the hearing that it had completed its investigation regarding Child's abuse allegation against K.S. concerning the lunchbox and marked the referral as "indicated."
At the February 12, 2018 dependency hearing, the court heard testimony from the school personnel about their interactions with Child on December 5, 2017, and the school's referral to CYF. ( See N.T. Dependency Hearing, 2/12/18, at 8-42). The court also heard testimony from CYF intake supervisor, Ms. DuPont, about CYF's actions following the referral. Ms. DuPont recommended adjudicating Child dependent. Ms. DuPont explained that K.S. had moved back to South Carolina, but Father intended to stay in Pennsylvania long enough to regain custody of Child and then would move back to South Carolina as well. Father told Ms. DuPont that he and K.S. were no longer together, and he would be living in his own home in South Carolina upon his return. Ms. DuPont testified that returning Child to Father at that juncture was inappropriate because Father could then go to South Carolina without receiving necessary services regarding parenting and disciplinary skills. Ms. DuPont explained CYF's investigation of abuse by Father was still ongoing, but CYF was concerned about Father's ability to parent and disciplinary style, based on Child's disclosures during the CAC interview that Father and K.S. hit Child with a belt in the past. ( See id. at 42-84).
K.S. testified at the hearing via telephone. K.S. denied hitting Child with a lunchbox on December 5, 2017, but she admitted "popping" Child on the back of the head because he made a mess in his room. K.S. denied ever hitting Child with a belt but said Father had used a belt on Child in "extreme cases" when necessary. K.S. said the family moved from South Carolina to Pennsylvania to work on her grandparents' farm but, when her grandfather died unexpectedly, her grandmother decided to sell the farm, so they would return to South Carolina. K.S. said she would not be living with Father in South Carolina, as they were no longer together. ( Id. at 87-97).
At the time of the hearing, K.S. was pregnant with Father's child and could not be physically present.
Father testified that he was present when K.S. "popped" Child on the head on the morning of December 5, 2017, and denied that K.S. hit Child with a lunchbox. Father claimed Child said he sustained the bruise on the school bus after falling asleep on the window frame. Father denied ever hitting Child in the past. Father said he was currently taking parenting classes and would do whatever necessary to regain custody of Child. ( Id. at 97-121).
CYF asked the court to adjudicate Child dependent and enter a finding of physical abuse against K.S. based on the lunchbox incident. Regarding Father, CYF's attorney expressly stated: "[W]e are not seeking a finding [of abuse] against [Father]. That may be unfounded. It may be indicated. I don't know. It's still ongoing. But the one against [K.S.] we believe is—it does rise to the level of the definition of physical abuse under the [Child Protective Services Law] in Pennsylvania." ( Id. at 123). Child's guardian ad litem ("GAL") agreed with the relief sought.
At the conclusion of the hearing, the court found clear and convincing evidence to adjudicate Child dependent and entered a finding of abuse against K.S. Notwithstanding CYF's express statement that it was not seeking a finding of abuse against Father at that time, the court also entered a finding of abuse against Father, based on Child's disclosure during the CAC interview that Father used a belt to discipline Child, which the court found credible. The court rejected Father's testimony as incredible and found the safety plan entered in South Carolina "quite compelling." The court also expressed suspicions about Father's intended move to South Carolina as an attempt to evade CYF's supervision. ( Id. at 124-28). Father objected to the court's finding of abuse against him. On March 5, 2018, Father timely filed a notice of appeal and concise statement of errors complained of on appeal per Pa.R.A.P. 1925(a)(2)(i).
Father raises two issues for our review:
WHETHER THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FINDING THAT FATHER...PHYSICALLY ABUSED [CHILD] WHEN [CYF] HAD NOT YET COMPLETED [ITS] INVESTIGATION AS TO FATHER, THAT [CYF] DID NOT INDICATE FATHER FOR ANY PHYSICAL ABUSE DUE TO THE INVESTIGATION NOT YET BEING COMPLETED, THAT [CYF] WAS NOT SEEKING A FINDING OF PHYSICAL ABUSE AT THE DEPENDENCY HEARING AS TO FATHER, THAT FATHER HAS NOT RECEIVED ANY CHARGES RESULTING FROM THE ALLEGED PHYSICAL ABUSE, AND THAT [CYF] DID NOT PROVIDE SUBSTANTIAL EVIDENCE THAT THE COURT SHOULD MAKE A FINDING OF PHYSICAL ABUSE.(Father's Brief at 7).
WHETHER THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FINDING THAT CHILD...IS A DEPENDENT CHILD WHEN CLEAR AND CONVINCING EVIDENCE WAS NOT PRESENTED TO ADJUDICATE CHILD DEPENDENT AS TO FATHER....
Our standard of review from an adjudication of dependency:
[R]equires 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 [trial] court's inferences or conclusions of law. Accordingly, we review for an abuse of discretion.In re A.B., 63 A.3d 345, 348 (Pa.Super. 2013) (internal citation omitted). In other words: "Although bound by the facts, we are not bound by the trial court's inferences, deductions, and conclusions therefrom; we must exercise our independent judgment in reviewing the court's determination, as opposed to its findings of fact, and must order whatever right and justice dictate." In re D.A., 801 A.2d 614, 618 (Pa.Super. 2002) (en banc).
In his first issue, Father argues CYF did not request a finding of abuse against him in its dependency petition and expressly stated at the dependency hearing that its investigation concerning Father's potential abuse was still ongoing. Father contends Child's GAL also did not seek a finding of abuse against Father. Father maintains CYF did not prove he abused Child by clear and convincing evidence. Father suggests CYF, at most, had concerns about Father's ability to parent, based on his initial refusal to participate in a safety plan, past allegations against Father and K.S. in South Carolina, and Father's intention to return to South Carolina. Father stresses that CYF did not "indicate" Father for abuse due to the ongoing investigation. Father emphasizes that the forensic interviewer, Ms. Roberti, could not uncover whether Child's allegations of abuse against Father were based on past or recent events. Father highlights Child's testimony during the forensic interview that Father was asleep when K.S. struck Child with the lunchbox. Father complains the court issued a finding of abuse against him based solely on inferences gleaned from the safety plan entered in South Carolina and Child's forensic interview. Father concludes the court's finding of abuse against him was improper, and this Court must reverse that portion of the court's order. We agree.
Notably, CYF agrees with Father that the court's finding of abuse against him was improper.
During the course of dependency proceedings, a trial court may find a parent to be the perpetrator of child abuse as defined under the Child Protective Services Law ("CPSL"). In Interest of J.M., 166 A.3d 408, 421-22 (Pa.Super. 2017). Significantly, however, the "CPSL does not create or include a separate action for child abuse, and, under the Juvenile Act, a finding of abuse can only be made as part of a dependency proceeding in which abuse is alleged." In Interest of R.T., 592 A.2d 55, 59 (Pa.Super. 1991) (emphasis added). See also 23 Pa.C.S.A. § 6370(b)(2)(i) (stating that if county agency deems it appropriate in dependency or delinquency proceeding, including instance in which alleged perpetrator has access or poses threat to child, county agency may petition court for finding of child abuse).
The CPSL charges the county agencies with investigating reports of suspected child abuse, as follows:
§ 6368. Investigation of reports
(a) Response to direct reports.—Upon receipt of a report of suspected child abuse by a perpetrator from an individual, the county agency shall ensure the safety of the child and any other child in the child's home and immediately contact the department in accordance with the provisions of section 6334 (relating to disposition of complaints received).
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(c) Investigation.—An investigation under this section shall include the following:
(1) A determination of the safety of or risk of harm to the child or any other child if each child continues to remain in the existing home environment.
(2) A determination of the nature, extent and cause of
any condition listed in the report.
(3) Any action necessary to provide for the safety of the child or any other child in the child's household.
(4) The taking of photographic identification of the child or any other child in the child's household, which shall be maintained in the case file.
(5) Communication with the department's service under section 6332 (relating to establishment of Statewide toll-free telephone number).
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(e) Review of indicated reports.—A final determination that a report of suspected child abuse is indicated shall be approved by:
(1) the county agency administrator or a designee and reviewed by a county agency solicitor, when the county agency is investigating; or
(2) the secretary or a designee and reviewed by legal counsel for the department, when the department is investigating.
(f) Final determination.—Immediately upon conclusion of the child abuse investigation, the county agency shall provide the results of its investigation to the department in a manner prescribed by the department. Within three business days of receipt of the results of the investigation from the county agency, the department shall send notice of the final determination to the subjects of the report, other than the abused child. The determination shall include the following information:
(1) The status of the report.
(2) The perpetrator's right to request the secretary to amend or expunge the report.
(3) The right of the subjects of the report to services from the county agency.
(4) The effect of the report upon future employment opportunities involving children.23 Pa.C.S.A. § 6368(a), (c), (e), (f). The CPSL defines "child abuse" in pertinent part, as follows:
(5) The fact that the name of the perpetrator, the nature of the abuse and the final status of a founded or indicated report will be entered in the Statewide database, if the perpetrator's Social Security number or date of birth are known.
(6) The perpetrator's right to file an appeal of an indicated finding of abuse pursuant to section 6341 (relating to amendment or expunction of information) within 90 days of the date of notice.
(7) The perpetrator's right to a fair hearing on the merits on an appeal of an indicated report filed pursuant to section 6341.
(8) The burden on the investigative agency to prove its case by substantial evidence in an appeal of an indicated report.
§ 6303. Definitions
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(b.1) Child abuse.—The term "child abuse" shall mean intentionally, knowingly or recklessly doing any of the following:
(1) Causing bodily injury to a child through any recent act or failure to act.
23 Pa.C.S.A. § 6303(b.1)(a)(1), (5). "Bodily injury" is "[i]mpairment of physical condition or substantial pain." 23 Pa.C.S.A. § 6303(a). "The existence of 'child abuse' pursuant to Section 6303...must be proven by clear and convincing evidence." In re L.V., 127 A.3d 831, 837 (Pa.Super. 2015). Further, Pennsylvania permits parents to use reasonable force on or against their children for the purposes of supervision, control and discipline, so long as the force does not constitute child abuse. See 23 Pa.C.S.A. § 6304(d).
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(5) Creating a reasonable likelihood of bodily injury to a child through any recent act or failure to act.
The Pennsylvania legislature recently amended Section 6303 on October 28, 2016 (effective immediately), February 21, 2018 (effective immediately), and June 12, 2018 (effective immediately). The definitions of "child abuse" under Section (b.1)(1) and (5) and "bodily injury" have remained the same throughout these amendments.
In certain circumstances, the court may decide the identity of the abuser by prima facie evidence. See 23 Pa.C.S.A. § 6381(d) (stating: "Evidence that a child has suffered child abuse of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or the other person responsible for the welfare of the child shall be prima facie evidence of child abuse by the parent or other person responsible for the welfare of the child"). As Child expressly named his abuser in this case, Section 6381(d) is not applicable here.
Regarding abuse allegations against a resident of Pennsylvania involving a Pennsylvania child victim that occurred in another state, the CPSL provides, in pertinent part:
§ 6334. Disposition of complaints received
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(h) Child abuse in another state where the victim child and the alleged perpetrator are residents of the Commonwealth.—A report of suspected child abuse by a resident perpetrator occurring in another state shall be referred by the department to the county agency where the
child resides in this Commonwealth and shall be investigated by the county agency as any other report of suspected child abuse by a perpetrator if the other state's child protective services agency cannot or will not investigate the report.23 Pa.C.S.A. § 6334(h).
Instantly, CYF's involvement with Child began on December 5, 2017, based on Child's allegation to school authorities that K.S. had hit him in the face with a lunchbox, causing a bruise to Child's cheek and eye. Child repeated the same allegation of abuse to two CYF caseworkers. On December 7, 2017, CYF filed an application for emergency protective custody, alleging Child lacked proper parental care or control, due to the abuse allegation. CYF's application for emergency protective custody indicated its concern for Child's safety based on Child's current abuse allegation and the family's prior involvement with DSS in South Carolina.
CYF filed a dependency petition on December 12, 2017, alleging Child lacked proper parental care or control and was a victim of abuse by K.S. Significantly, CYF did not allege Child was a victim of abuse by Father. On December 21, 2017, the CAC conducted a forensic interview of Child, during which Child disclosed that K.S. and Father had hit him. Child did not reveal when or where any incidents involving Father occurred.
At the conclusion of the dependency hearing on January 22, 2018, CYF informed the court that it had completed its investigation regarding Child's abuse allegation against K.S. concerning the lunchbox and marked the referral as "indicated." The dependency hearing continued on February 12, 2018, at which time CYF told the court that its investigation concerning Father was still ongoing. CYF's attorney made clear the agency was seeking an adjudication of dependency and a finding of abuse against only K.S. CYF's attorney stated: "[W]e are not seeking a finding [of abuse] against [Father]. That may be unfounded. It may be indicated. I don't know. It's still ongoing. But the one against [K.S.] we believe is—it does rise to the level of the definition of physical abuse under the [CPSL] in Pennsylvania." (N.T., 2/12/18, at 123). Child's GAL agreed with the relief sought.
Notwithstanding CYF's express statement that it was not seeking a finding of abuse against Father, the court adjudicated Child dependent following the hearing and entered a finding of abuse against both K.S. and Father. The court explained its rationale as follows:
CYF presented testimony at four separate proceedings in this matter between December 2017 and February 2018, [which] support a finding of abuse. At the shelter care hearing in December, the [hearing officer] states that the bruising to [Child's] head from the lunchbox incident was visible from across the room. CYF testified as to the family's involvement with the children and youth agency in Berkeley County, South Carolina, on three separate occasions. Details of the first two incidents were unavailable from that agency. The third incident, however, was due to allegations of physical abuse and resulted in a safety plan ordering all contact between the parents, including [Father], and children, including [Child], be supervised. That order also specified that no corporal punishment was to be used. The [c]ourt found it extremely suspect that [Father] chose to move his family to Pennsylvania while the South Carolina agency's case was still open. Further, [Father] admitted that both he and [K.S.] would "pop" [Child] on the head as
a disciplinary measure. Clearly, [Father] disregarded the safety plan.
Equally concerning is the fact that [Father] testified that [Child] had suffered seizures as a baby. Nonetheless, he continued to use corporal punishment and to "pop" [C]hild on the head. [Father] offered alternative explanations for the bruise to [Child's] temple. The [c]ourt found [Father's] testimony to be far from credible. [Father] offered the trampoline as a possible source. Yet, he testified that the bruise was not there on the morning of December 5th, before [Child] left for school. Thus, logistically, [Child] would have had to have hit his head on the trampoline sometime after leaving home, but before reaching school, which seems quite impossible. [Father] also offers the school bus as an alternative explanation. His theory by itself, that [Child] was sleeping on the bus with his head on the metal window frame, and that the bus hit a bump which caused the bruise, is unconvincing.
[Child], on the other hand, was quite convincing. The [CAC] conducted a forensic interview, which the [c]ourt viewed on DVD. In the interview, [Child] stated that both [Father] and [K.S.] hit him with a belt. [K.S.] also testified that [Father] uses a belt to punish [Child], but insists she had not. [Child] had visible bruising on his legs and rear, consistent with having been hit with a belt. The evidence is not merely substantial, but is, in fact, clear and convincing, that [Father's] use of physical force exceeded the limits of corporal punishment and rose to the level of abuse. Additionally, the [c]ourt notes that [Child's] answers and demeanor during the CAC forensic interview evinced palpable fear of [Father] and [K.S.]
[Father] complains that CYF did not indicate him for any physical abuse, yet [Father] is named in the Shelter Care
Application of December [8], 201[7]. Even if [Child] came to the attention of CYF because of [K.S.'] alleged immediate actions, namely the lunchbox, [Father] is not indemnified. ... In In re L.V.[, supra ,] the Pennsylvania Superior Court upheld the [trial] court's findings that a mother was abusive and the child dependent, where the father had unquestionably abused the child, and mother failed to act. We find the instant case analogous. The legislature clearly intended to hold parents to a positive duty to protect their children. Here, even if we had not found [Father] to be abusive, which we have, he would still be abusive for having allowed [K.S.'] abusive actions. ...(Trial Court Opinion, filed April 3, 2018, at 4-6).
Father admitted that one time, he popped Child on top of the head. ( See N.T., 2/12/18, at 120).
The record is unclear which petition the court is referring to here. CYF filed an application for emergency protective custody on December 7, 2017, and a dependency petition on December 12, 2017. Both documents mention Father and concern Child's safety and welfare, but neither expressly names Father as a perpetrator of abuse against Child.
Under the facts of this case, we cannot affirm the court's finding of abuse against Father. Initially, some of the trial court's remarks are belied by, or omit other relevant facts of, the record. For example, Ms. DuPont stated at the December 8, 2017 shelter care hearing that CYF could not obtain any details regarding the earlier two referrals involving Father and K.S. because they were closed and unfounded. ( See N.T. Shelter Care Hearing, 12/8/17, at 7). Additionally, Child disclosed during the CAC interview that Father hit him with a belt but did not reveal when or where that occurred. The court states Child's disclosure is consistent with bruises Child had sustained on his leg, which were documented in the safety plan from South Carolina. Thus, Child's allegation of Father's abuse is more consistent with events which occurred in South Carolina.
More importantly, the court's finding of abuse against Father cannot stand, given CYF's failure to allege abuse against Father, its ongoing investigation regarding Father's potential abuse, and its clear statement at the February 12, 2018 dependency hearing, that it was not seeking a finding of abuse against Father at that time. See 23 Pa.C.S.A. § 6370(b)(2)(i); Interest of R.T., supra. Child did not disclose abuse by Father until the CAC interview on December 21, 2017. At the time of the February 12, 2018 dependency hearing, CYF's investigation was still ongoing, consistent with the procedures outlined in the CPSL. See 23 Pa.C.S.A. § 6368; 6334(h). The court's finding of abuse against Father prior to conclusion of the investigation essentially deprived Father of rights he would otherwise be entitled to under the CPSL following an "indicated" referral. See 23 Pa.C.S.A. § 6368(f). Further, the abuse finding against Father could have other potential adverse consequences for Father in the event of future dependency proceedings involving Father's children. See 42 Pa.C.S.A. § 6302 (permitting finding of aggravated circumstances against parent where child or another child of parent has been victim of physical abuse resulting in serious bodily injury, sexual violence or aggravated physical neglect by parent); In re L.V., supra (explaining that, upon finding of aggravated circumstances, court has discretion to eliminate agency's obligation to provide reunification services). For these reasons, the trial court's finding of abuse against Father exceeded the scope of these dependency proceedings.
In his second issue, Father argues CYF failed to prove by clear and convincing evidence that Child lacked proper parental care or control in Father's custody. Father reiterates that CYF did not "indicate" him for abuse. Father contends he complied with CYF's recommendation to take parenting classes and agreed to undergo a psychological evaluation. Father maintains he has separated from K.S., who was the perpetrator of abuse against Child. Father highlights Child's remarks to the court that he wants to live with Father. Father submits his actions demonstrate a willingness to care for and provide for Child's proper physical and mental wellbeing. Father complains the court based its adjudication of dependency on the abuse allegations, which were still under investigation concerning Father. Father emphasizes that corporal punishment is legal in Pennsylvania, within limits, and CYF presented no testimony that any disciplinary actions Father took against Child caused bodily injury. Father avers the court improperly emphasized Child's history with seizures as a baby instead of focusing on Father's current parenting style and more recent disciplinary actions with Child. Father concludes the court abused its discretion by adjudicating Child dependent when Father was available to parent Child without K.S., and this Court must reverse the adjudication of dependency. We disagree.
The Juvenile Act defines a dependent child, in pertinent part, as follows:
§ 6302. Definitions
"Dependent child." A child who:42 Pa.C.S.A. § 6302. A court may adjudicate a child as dependent if the child meets the statutory definition by clear and convincing evidence. In re E.B., 898 A.2d 1108, 1112 (Pa.Super. 2006). "The question of whether a child is lacking proper parental care or control so as to be a dependent child encompasses two discrete questions: whether the child presently is without proper parental care and control, and if so, whether such care and control are immediately available." In re G., T., 845 A.2d 870, 872 (Pa.Super. 2004) (internal citation omitted).
(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 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[.]
The legislature amended Section 6302 on June 28, 2018, effective August 27, 2018. The prior version of Section 6302 is relevant to this case and provides the same definition of a "dependent child."
Instantly, Ms. DuPont testified at the February 12, 2018 dependency hearing that CYF recommended adjudicating Child dependent. Ms. DuPont explained that K.S. had moved back to South Carolina, and Father intended to stay in Pennsylvania long enough to regain custody of Child and then move back to South Carolina as well. Ms. DuPont testified that returning Child to Father at this juncture was inappropriate because Father could then go to South Carolina without receiving necessary services regarding parenting and disciplinary skills. Ms. DuPont explained CYF's investigation of abuse by Father was still ongoing, where CYF was concerned about Father's ability to parent and his disciplinary style, due to Child's disclosures during the CAC interview. ( See N.T., 2/12/18, at 42-84). Father admitted that, at the time of the dependency hearing, he had only been participating in parenting services for about two weeks. ( See id. at 107). In light of Ms. DuPont's testimony, CYF's ongoing investigation into the allegation of Father's abuse of Child, and Father's short period of receiving services, the record makes clear Child lacked proper parental care or control at the time of the dependency hearing necessitating an adjudication of dependency. See 42 Pa.C.S.A. § 6302; E.B., supra ; In re G., T., supra. Accordingly, we affirm the portion of the court's order adjudicating Child dependent, see Plasticert , Inc. v. Westfield Ins. Co., 923 A.2d 489 (Pa.Super. 2007) (explaining this Court can affirm trial court's order on any valid basis), but reverse the finding of abuse against Father, because that finding exceeded the scope of these proceedings.
Order affirmed in part, reversed in part. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/10/2018