In re M.L.

¶1Allowance of appeal was granted in this matter limited to the issue of whether a court may properly adjudge a child to be dependent where the non-custodial parent is ready, willing and able to provide the child with proper parental care and control. The Superior Court affirmed the trial court’s finding of dependency in the instant case even though the child’s father was available and willing to provide adequate care for the child. We hold that a child, whose non-custodial parent is ready, willing and able to provide adequate care to the child, cannot be found dependent and, therefore, reverse.

¶2Appellant is the natural mother of the child, born February 6, 1995, and R.G. is the child’s natural father. The child’s parents never married but shared custody of the child from the time of her birth. A *850January 1997 custody dispute ended with appellant having primary physical custody and the father having partial custody every other weekend. In May of 1996, appellant contacted Cambria County Children and Youth Service (CYS) to complain that the father did not care for the child properly during her weekends with him in that he lacked supplies for the child and did not feed her appropriately.

¶3Then, in August of 1996, appellant began alleging that the father was sexually abusing the child. Between August 1996 and January 1997, appellant subjected the child to six separate physical examinations for possible sexual abuse at either the hospital emergency room or the child’s pediatrician’s office. Each examining physician reported that the child had diaper rash or normal redness for a child of her age wearing diapers; no signs of sexual abuse were found in any of the examinations. Despite the lack of evidence, appellant continued to allege that the father was sexually abusing the child, leading CYS to file a petition for dependency. Following two evidentiary hearings on February 24 and March 19, 1997, the trial court found, on March 25, 1997, that the child was a dependent child and awarded custody to her father.1

¶4The sole issue for our determination is whether the trial court erred in finding that the child was a dependent child when her father was ready, willing and able to provide adequate care to her. Two earlier panels of the Superior Court reached conflicting decisions as to whether a child can be found dependent and then placed in the custody of the non-custodial parent. In In the Interest of Justin S., 375 Pa.Super. 88, 543 A.2d 1192 (1988), a panel of the Superior Court held that a trial court cannot adjudge a child dependent where the non-custodial parent is ready, willing and able to provide proper care; while in In re Barclay, 321 Pa.Super. 417, 468 A.2d 778 (1983), a second panel affirmed a finding of dependency with placement of the child with the noncustodial parent. This Court must resolve this conflict between the two Superior Court decisions.

¶5A dependent child is defined in pertinent part at 42 Pa.C.S. § 6302 as:

A child who:

(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;2

(2) has been placed for care or adoption in violation of law;

(3) has been abandoned by his parents, guardian, or other custodian;

(4) is without parent, guardian, or legal custodian;

¶6A court is empowered by 42 Pa.C.S. § 6341(a) and (c) to make a finding that a child is dependent if the child meets the statutory definition by clear and convincing evidence. If the court finds that the child is dependent, then the court may make an appropriate disposition of the child to protect the child’s physical, mental *851and moral welfare, including allowing the child to remain with the parents subject to supervision, transferring temporary legal custody to a relative or a private or public agency, or transferring custody to the juvenile court of another state. 42 Pa.C.S. § 6351(a).

¶7The definition of a dependent child contained in section 6302 clearly states that a child must lack a parent, guardian or other legal custodian who can provide appropriate care to the child. A child whose noncustodial parent is ready, willing and able to provide such care does not meet this definition. In Justin S., 375 Pa.Super. at 104, 543 A.2d at 1200, the Superior Court stated:

[I]t is the duty of the trial court to determine whether the non-custodial 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 that 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. Once custody is granted to the non-custodial parent, “the care, protection, and wholesome mental and physical development of the child” can occur in a family environment as the purpose of the Juvenile Act directs. 42 Pa.C.S. § 6301(b).

¶8We are in accord with the Superior Court’s decision in Justin S. The plain language of the statutory definition of a dependent child compels the conclusion that a child is not dependent if the child has a parent who is willing and able to provide proper care to the child. When a court adjudges a child dependent, that court then possesses the authority to place the child in the custody of a relative or a public or private agency. Where a noncustodial parent is available and willing to provide care to the child, such power in the hands of the court is an unwarranted intrusion into the family. Only where a child is truly lacking a parent, guardian or legal custodian who can provide adequate care should we allow our courts to exercise such authority. Accordingly, we hold that where a non-custodial parent is ready, willing and able to provide adequate care to a child, a court may not adjudge that child dependent.

¶9In the instant case, there is no dispute that the child’s father was available, capable and willing to provide care to the child. Therefore, she does not meet the statutory definition of a dependent child, and the trial court erred in adjudging her dependent. Therefore,, the decision of the Superior Court affirming the trial court’s finding that the child is a dependent child is reversed.3

¶13concurring.

¶14I join the majority’s opinion and agree with its conclusion that a child is not dependent if a non-custodial parent is ready, willing and able to provide adequate parental care. I write separately to note that this holding does not restrict either the non-custodial parent or the State from responding to allegations of child abuse because both the Protection from Abuse Act1 and the Child Protective Services Law (CPSL)2 provide a mechanism to respond.

¶15The Protection from Abuse Act, relevant to the facts as existed here, allows a noncustodial parent to file a petition in court alleging abuse by the custodial parent. 23 Pa.C.S.A. § 6106(a).3 Within ten days, the court must hold a hearing, or if the matter involves “immediate and present danger of abuse” to the child or children, the court “shall conduct an ex parte proceeding.” 23 Pa.C.S.A. § 6107. If the non-custodial parent proves by a preponderance of the evidence that the custodial parent has abused the child, the court can fashion an appropriate order to implement custodial and support issues, which could include, but do not necessarily require, transfer of temporary custody or supervised visitation. E.g., 23 Pa.C.S.A. § 6108(a)(4).4 The permanent custody issues between parents then could continue through Chapter 53 of Title 23.

¶16The CPSL provides the mechanism for state involvement in a family unit where child abuse is alleged. I agree with the Dissent’s discussion that the purpose of the CPSL is to promote swift investigation of suspected child abuse, and provide protective services for children and rehabilitative services for their parents in order to ensure the well-being of the child and to preserve and stabilize family life wherever appropriate. 23 P.S. § 6302(b). However, that does not mean that the State may declare a child dependent because of alleged abuse if a non-custodial parent is involved in the child’s life, and is in no way connected with the alleged abuse, and has not evidenced a lack of parental control or •care.

¶17The determination that a child can not be declared “dependent” if a non-custodial parent is ready, willing and able to assume parental care and control does not restrict the State from addressing the abuse because it can act through the CPSL without declaring the child dependent. The CPSL mandates that certain classes of people must report suspicions of child abuse. 23 Pa.C.S.A. § 6311. When a report of abuse is made, a county agency is directed to investigate. 23 Pa.C.S.A. §§ 6334-6338, 6368. If a child is in imminent risk of harm because of abuse, the *853county agency may seek a judicial order to take the child into protective custody, such as temporary foster care or other “shelter” care, pursuant to 28 Pa.C.S.A. § 6315, 23 Pa.C.S.A. § 6369.5 While Section 6315 states that a child may be taken into protective custody as provided for in 42 Pa. C.S.A. § 6324, a child does not have to be declared “dependent” before removal is authorized. 23 Pa.C.S.A. § 6315(d); 42 Pa.C.S.A. 6324(c). Moreover, pursuant to Section 6315(d) of the CPSL, the child is not declared “dependent” before the court conducts an informal hearing regarding the appropriateness of the protective custody within twenty-four hours of assuming custody. See 23 Pa.C.S.A. § 6315(b),(c) and (d) and 42 Pa.C.S.A. § 6332. The CPSL at Section 6315 does allow the county agency to initiate dependency proceedings, but it does so only after the county agency has notified the parents of the child’s whereabouts and only if a dependency hearing is “appropriate.” 23 Pa. C.S.A. § 6315(c), (d). It seems to me that if, at the informal hearing, a non-custodial parent were “ready, willing and able” to assume care of the child and the noncustodial parent was not implicated in the abuse, a dependency hearing would not be “appropriate.” Moreover, if a non-custodial parent did not come forward at the informal hearing to assume custody or the non-custodial parent’s involvement in the abuse was unclear, then no “ready, willing and able” parent exists and the child would be therefore “dependent.”

¶18Further, in situations where the county agency does not have reason to believe that a child is in imminent risk of harm, but is concerned that abuse might continue, the agency can implement appropriate social services for the child and family. 23 Pa.C.S.A. § 6370(a). In cases where the child’s parents do not live together, social services should be offered to the family, including custodial and non-custodial parents, to address the abuse of the child. If either parent refuses these social services, then the county agency may initiate “the appropriate court proceeding” pursuant to Section 6370(b). Thus, in some circumstances, even though a child has both a custodial and non-custodial parent willing to assume care for the child, neither parent is willing to accept social services in order to exercise proper parental care and control, and thereby prevent the abuse and, again, the child would be declared “dependent.” It could also be that after social services are offered, they do not achieve their goal and protective services are required to avoid continued abuse and neglect. In these circumstances, the county agency of course could file a petition in accordance with 23 Pa.C.S.A. § 6315 or § 6370(b), as discussed above. However, that was not the case here.

¶19The record indicates that Mother and Father were involved in custody proceedings that began in the summer of 1996. The county agency conducted home study evaluations of the parties and submitted these to the family court judge. (R. 30a). In the fall of 1996, during the pendency of this custody matter, Mother filed reports regarding harassment and child abuse by Father. The county agency conducted an investigation and had Mother, Father and child evaluated by a psychiatrist in November of 1996. Mother was in counseling during this time, but continued to make increasingly more outrageous claims of abuse against Father, which could not be substantiated. On January 17, 1997, the family court held another custody hearing and, even following the evaluations of November 1997, the court continued custody with the Mother, and visitation with Father. (R. 32a). The County Agency then on February 5,1997, filed a petition pursuant to 42 Pa.C.S.A. § 6302 on the basis that the child was “dependent,” not that *854protective services were required pursuant to 23 Pa.C.S.A. § 6315.

¶20This is where the county agency exceeded its authority. If some event of abuse occurred between the- time of the court’s custody hearing on January 17, 1997 and February 5, 1997, which caused the county agency to fear that the child was in imminent risk of harm, then the appropriate course of action was to file a petition for protective services as discussed above.6 At that time, the child would be temporarily placed in appropriate “shelter” care and an immediate informal hearing could take place where the court could place the child with Father or in another protective placement, as appropriate. Father could also then petition to modify the custody order in the ongoing dispute, before the family court judge who was already adjudicating and overseeing the matter.7 Indeed, it appears from the record, that Father did exactly that on or about February 10, 1997. (R. 33a). Thus, it was the decision of the family court judge, through the modification petition, to determine issues of custody and what custody arrangement was in the best interests of the child. Accordingly, it was inappropriate for the county agency to turn this matter into a dependency matter before the juvenile court.