In re Mother
| Decision Date | 05 March 2021 |
| Docket Number | No. 1416 EDA 2020,1416 EDA 2020 |
| Citation | 247 A.3d 447 |
| Parties | In the INTEREST OF: J.B., A Minor Appeal of: C.B., Mother |
| Court | Pennsylvania Superior Court |
Elizabeth Ann Larin, Philadelphia, for appellant.
Robert D. Aversa, Philadelphia, for Department of Human Services, appellee.
Kathleen Bola Kim, Philadelphia, for Department of Human Services, appellee.
Janice Michelle Sulman, Philadelphia, for I.A., participating party.
Joshua A. Neil, Philadelphia, Guardian Ad Litem, for participating party.
In this appeal, we are faced with a conflict between the necessity of a finding of dependency to allow the state to interfere in a parent-child relationship, and the necessity of a hearing before a dependency court can durably transfer custody to a non-custodial parent. Here, custody of J.B. was temporarily transferred from his custodial mother ("Mother") to his non-custodial father ("Father") pending an investigation into allegations of abuse at Mother's home. When the dependency hearing was continued due to the unavailability of witnesses, Father requested the dependency proceeding be terminated, as there were no allegations that J.B. was dependent while in Father's custody. Over Mother's objections, the trial court dismissed the dependency petition and entered an order giving Father full physical and legal custody of J.B. After careful review, we conclude the court erred in transferring full physical and legal custody to Father before holding a hearing. We therefore vacate and remand.
We review orders in dependency cases by accepting the findings of fact and credibility determinations of the trial court if they are supported by the record. See In re R.J.T ., 608 Pa. 9, 9 A.3d 1179, 1190 (2010). We are not, however, required to accept the trial court's inferences or conclusions of law. See id . The appellate court must ensure that the record represents a comprehensive inquiry and that the trial court has applied the appropriate legal principles to the record. See In re L.B. , 229 A.3d 971, 977 (Pa. Super. 2020). If the question before us is a question of law, such as the one presented by the instant case, the scope of review is plenary. See In re K.L.S ., 594 Pa. 194, 934 A.2d 1244, 1246 (2007).
In her first issue, Mother argues that the trial court erred by transferring legal and physical custody of J.B. to Father after discharging the dependency petition and without first holding an evidentiary hearing to determine the validity of the dependency allegations lodged against her. To address this argument, we must determine what procedure the trial court followed before entering the orders dismissing the dependency petition and transferring custody to Father.
On May 19, 2020, the Philadelphia Department of Human Services ("DHS") obtained an Emergency Order of Protective Custody ("OPC") for J.B., and he was placed into general foster care. That same day, Father contacted DHS concerning J.B. DHS directed Father to attend the shelter care hearing scheduled for J.B. the following day.
At the shelter care hearing on May 20, 2020, the trial court lifted the OPC and ordered the temporary commitment to DHS to stand. The court also directed DHS to assess Father and his home. If Father was a viable placement resource for J.B., the court directed DHS to place J.B. with Father. DHS evaluated Father's home that same day and found it to be appropriate. Father also cleared all necessary background checks. J.B. was placed into the care of Father.
Shortly thereafter, DHS filed a dependency petition pursuant to the Juvenile Act, 42 Pa. C.S.A. § 6301 et seq ., seeking to have J.B. declared dependent. At the adjudicatory hearing on July 2, 2020, the parties indicated that they had agreed that the matter would be continued. However, Father requested that the dependency petition involving J.B. be discharged because J.B. was in his care and there were no dependency allegations against Father. See N.T., 7/2/20, at 6.
Father argued that J.B. could not be adjudicated dependent because Father, as a parent, was ready, willing and able to provide adequate care for J.B. DHS agreed with Father, stating its position that because J.B. had been placed with Father and there were not any dependency allegations against Father, the dependency petition should be discharged. See id . at 7-8, 25. The guardian ad litem testified that J.B. had been found to be safe in Father's home and that he had no objection to the court granting DHS's request to discharge the dependency petition. See id . at 7-8, 12-13, 25.
Mother, however, repeatedly objected, arguing that the trial court could not transfer custody of J.B. to Father without first holding a hearing. Mother claimed that, absent a hearing, the court lacked authority to find she was not able to provide proper parental care for J.B. See id . at 8, 9, 10, 24, 27-28. Mother cited to our Supreme Court's decision in In re M.L. , 562 Pa. 646, 757 A.2d 849 (2000), and this Court's decision In the Interest of Justin S. , 375 Pa.Super. 88, 543 A.2d 1192 (1988), to support her position that an evidentiary hearing must first be held before the court can transfer custody to a non-custodial parent in dependency proceedings.
Over Mother's objections, and without hearing any evidence, the trial court discharged the dependency petition involving J.B. The court reasoned that J.B. was not a dependent child because Father was ready, willing and able to provide parental care. See N.T., 7/2/20, at 26, 29. The court also made clear that it was confirming custody with Father, with liberal visitation for Mother to be arranged by the parties. See id . at 40. The order of adjudication and disposition reflected that ruling, ordering that legal and physical custody of J.B. be transferred to Father with liberal visitation for Mother.
Mother filed a timely notice of appeal and subsequently complied with the trial court's directive to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. In response, the trial court issued a notice pursuant to Pa.R.A.P. 1925(a) notifying this Court that the trial court's reasons for the order discharging the dependency petition as to J.B. could be found on the record from the July 2, 2020 hearing. It also stated that it had based its decision on M.L. and Justin S.
On appeal, Mother notes that this Court has expressed its strong disapproval of using dependency proceedings as a means of transferring custody from one parent to another. She also notes the general rule that the disposition of custody is improper in a dependency proceeding if there has been no finding of dependency. Mother acknowledges, however, that M.L. and Justin S. allow for the transfer of custody between parents in a dependency proceeding even without an adjudication of dependency. She maintains, though, that this transfer of custody can only occur after a trial court has held an evidentiary hearing and subsequently determined that the custodial parent is unable to properly care for the child. Mother argues that she was entitled to such a hearing before the trial court deprived her of the custody of J.B.
DHS now agrees. DHS concedes that it represented at the July 2, 2020 hearing that no dependency issues remained as to J.B. because of his placement with Father and that it did not object to custody being transferred to Father. It now takes the position, however, that this was improper and agrees with Mother that the trial court should have conducted an evidentiary hearing prior to transferring custody to Father pursuant to M.L. and Justin S.
Father's argument does not directly address the issue raised by Mother and echoed by DHS, as it is not centered on the transfer of custody. Rather, Father focuses on the disposition of the dependency petition. Father asserts that although Mother was not available to provide proper parental care to J.B. because the dependency allegations against her had not been resolved, Father was a parent who was ready, willing and able to provide that care to J.B. As such, J.B was not, by statutory definition, a dependent child and the trial court therefore correctly discharged the dependency petition under M.L. and Justin S. According to Father, "maintaining the DHS petition and supervision of the case would only serve to deprive [F]ather of his right to be free from unwarranted state interference in his relationship with [J.B.]." Father's Brief at 7.
The disparity in the way Mother and Father frame their arguments highlights the tricky intersection between dependency and custody that this case presents. It also exposes the competing interests at stake. Nonetheless, despite their varying arguments, both Mother and Father claim their position is supported by M.L. and Justin S. Given that the trial court also relied on these two cases to support its order discharging the dependency petition and transferring custody to Father, it is only logical to start our analysis with an in-depth examination of each of the cases.
In M.L. , the sole issue addressed by the Court was whether the trial court in that case erred in adjudicating a child dependent when that child's non-custodial parent was ready, willing and able to provide the child with proper parental care and control. See M.L. , 757 A.2d at 849, 850. There, the mother had primary physical custody of M.L., and the father had partial custody. The mother contacted the county child welfare agency with allegations that the father was not appropriately caring for M.L. while she was in his care and later repeatedly alleged that the father was sexually abusing M.L. No evidence of abuse by the father was uncovered, but the county agency became concerned with the mother's continued allegations against the father and filed a dependency petition.
After two evidentiary hearings, which included the testimony of several experts and both parents, the trial court concluded that ...
To continue reading
Request your trial