C.S. v. L.C.

• Court: Superior Court of Pennsylvania
• Decided: May 10, 2018
• Docket: 1392 MDA 2017
• Status: Unpublished

Opinion

J-S01006-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

C.S., : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : L.C. : : : APPEAL OF: LACKAWANNA : No. 1392 MDA 2017 CHILDREN AND YOUTH

Appeal from the Order Entered August 2, 2017 in the Court of Common Pleas of Lackawanna County, Civil Division at No(s): 2009-FC-41245

IN THE INTEREST OF: C.S., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : : : APPEAL OF: LACKAWANNA COUNTY : CHILDREN AND YOUTH SERVICES : No. 1450 MDA 2017

Appeal from the Order Entered August 31, 2017 in the Court of Common Pleas of Lackawanna County, Civil Division at No(s): CP-35-DP-0000099-2017

BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED MAY 10, 2018

In these consolidated appeals, Lackawanna County Children and Youth

Services (“CYS” or “OYFS”) appeals from the Order (hereinafter, the

“Dependency Order”) directing CYS to file a dependency petition concerning

the minor male child, C.S. (hereinafter “Child” – born in March 2008), and

place Child in the custody of his biological father, C.J.S. (hereinafter “Father”),

under intense supervision. CYS also appeals a subsequent Order (hereinafter,

the “Withdrawal Order”) allowing CYS to withdraw its dependency Petition, J-S01006-18

and stating that Father shall have primary physical custody of Child, subject

to periods of partial physical custody by Child’s mother, L.C. (hereinafter

“Mother”).1 We affirm.

The trial court thoroughly set forth the factual background and

procedural history underlying this appeal in its Opinion, which we incorporate

as though fully set forth herein. See Trial Court Opinion, 9/27/17, at 1-4, 6-

14.2, 3

On August 2, 2017, the trial court, the Honorable Trish Corbett (“Judge

Corbett” or “the trial judge”), entered the Dependency Order, and, on August

31, 2017, entered the Withdrawal Order. CYS timely filed Notices of Appeal

from both Orders, simultaneously with Concise Statements of errors

complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). This

Court thereafter consolidated the appeals.

CYS now presents the following questions for our review:

____________________________________________

1 Concerning the Withdrawal Order, the trial court explained that “this [c]ourt allowed [CYS] to withdraw the dependency [P]etition … after Father and Father’s paramour completed parenting classes and continued to cooperate with [CYS]. [] [C]hild was never adjudicated dependent.” Trial Court Opinion, 9/27/17, at 14 (emphasis added).

2We will refer to the hearings that the trial court conducted on these specified dates as follows: July 13, 2017 – hereinafter, “the shelter care hearing”; July 24, 2017 – hereinafter, “the dependency hearing”; and August 31, 2017 – hereinafter, the “adjudication hearing.”

3 Pursuant to the trial court’s directive in the Dependency Order, on August 14, 2007, CYS filed a dependency Petition, in response to which the trial court scheduled the adjudication hearing. -2- J-S01006-18

1. While the [trial] [j]udge authorized the withdrawal of the Dependency Petition on August 31, 2017, whether the matter is not moot despite the withdrawal of the Dependency Petition?

2. Whether the trial judge erred and/or abused her discretion by issuing an Order in a [c]ustody matter[,] requiring [CYS] to file for dependency and to place [] [C]hild with [] Father under intense supervision?

3. Whether the [trial] judge erred by not allowing any testimony by [CYS] at the shelter care hearing, including testimony that would have made the case eligible for federal funding, to [CYS’s] and [Lackawanna] [C]ounty[’s] detriment[?] This must be determined at the first hearing, and cannot be addressed later, see 42 U.S.C. [§] 671[.]

4. Whether the trial judge erred and/or abused her discretion by conducting questioning of witnesses at the shelter care [hearing] and first adjudication hearing, instead of allowing [CYS] and other parties to call witnesses, [and] having direct and cross[-]examination by counsel, with clarification questions by the [trial] judge? [CYS] contends that this conduct was not compatible with an impartial trier of fact, as is expected of the judiciary.

5. Whether the [trial] [j]udge abused her discretion by ordering [] [C]hild removed from his home[,] in the absence of a Petition for Emergency Custody[,] and by denying [CYS’s] request to withdraw the Shelter Care Petition for lack of grounds to keep temporary custody of [] [C]hild?

6. Whether the [trial] judge erred and/or abused her discretion in the … [Withdrawal] Order by not specifically addressing whether [intense] supervision (which was not defined) should be continued in the [Withdrawal] Order[,] despite [CYS] having no safety concerns[,] and by stating in the [Withdrawal] Order that “All prior Order[s] that are not inconsistent with this Order shall remain in effect,[”] creating ambiguity?

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Brief for Appellant at 5 (issues renumbered, some citations omitted).4

In dependency matters, we review the trial court’s order pursuant to an abuse of discretion standard of review. As such, we must accept the court’s findings of fact and credibility determinations if they are supported by the record, but we need not accept the court’s inferences or conclusions of law.

In the Interest of H.K., 172 A.3d 71, 74 (Pa. Super. 2017) (citations

omitted).

In its first issue, CYS contends that, contrary to the trial court’s ruling,

the matter of whether Child is dependent is not moot, despite the entry of the

Withdrawal Order approving the withdrawal of the dependency Petition. See

Brief for Appellant at 19-21. Specifically, pointing to one of the exceptions to

the mootness rule (hereinafter referred to as “the repetition exception”), CYS

asserts that “while [] [C]hild [wa]s not found dependent, he was still removed

from his home by Court Order. [CYS] believes the situation would reoccur[,]

and appellate review [would be] evaded[,] by no finding of dependency.” Id.

at 19 (citing Chruby v. Dep’t of Corr., 4 A.3d 764, 771 (Pa. Cmwlth. 2010)

(stating that the repetition exception to the mootness rule is met where “the

conduct complained of is capable of repetition yet likely to evade review[.]”)).

In support of this assertion, CYS contends that “[s]ince this appeal was filed,

[CYS] learned of another order[, in a separate case, issued by a different trial

court judge], ordering [CYS] to open a dependency case, do an assessment,

4 We note that neither Mother/Father, nor the Guardian Ad Litem for Child, Corrine E. Thiel, Esquire (hereinafter, the “GAL” or “GAL Thiel”), have filed briefs in this appeal. -4- J-S01006-18

and provide immediate services to children by a custody order.” Brief for

Appellant at 19.

This Court has discussed the mootness rule and the repetition exception

as follows:

Generally, an actual claim or controversy must be present at all stages of the judicial process for the case to be actionable or reviewable. Plowman v. Plowman, 409 Pa. Super. 143, 597 A.2d 701, 705 (1991). If events occur to eliminate the claim or controversy at any stage in the process, the case becomes moot. Id. Even if a claim becomes moot, we may still reach its merits if the issues raised in the case are capable of repetition, yet likely to continually evade appellate review. Id. See also In Re Fiori, 543 Pa. 592, 600 n. 4, 673 A.2d 905, 909 n.4 (1996) (holding death of patient did not preclude appellate review where issue was of important public interest, capable of repetition, yet apt to elude appellate review); Commonwealth v. Bernhardt, 359 Pa. Super. 413, 519 A.2d 417, 420 (1986) (holding exception to mootness doctrine exists where (1) the question involved is capable of repetition but likely to evade review, or (2) the question involved is one of public importance).

In re Duran, 769 A.2d 497, 502 (Pa. Super. 2001) (quotation marks

The trial court addressed this matter in its Opinion and determined that

CYS’s claims challenging the Dependency Order (and matters related to

dependency) are moot because Child was never adjudicated dependent and

the Withdrawal Order permitted CYS to withdraw its dependency Petition. See

Trial Court Opinion, 9/27/17, at 22-23. We agree with the trial court’s analysis

and determination, and thus incorporate it as though fully set forth herein.

See id. Moreover, there is no merit to CYS’s claim that the circumstances

here meet the repetition exception to the mootness rule. While the issue may

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be capable of repetition in the future (i.e., in other cases, Lackawanna County

Court of Common Pleas judges may potentially direct CYS to open a

dependency case), it is not likely to continually evade appellate review, as CYS

may challenge such rulings if and when they happen. See Duran, supra;

see also In re Estate of Dorone, 502 A.2d 1271, 1274 (Pa. Super. 1985)

(stating that the repetition exception is met only where the issues “capable of

repetition but likely to evade review are ‘substantial questions,’ or ‘questions

of public importance.’”). Nevertheless, even though some of the claims that

CYS presents in this appeal are moot, we, like the trial court, will briefly

address all of its claims.

In its second issue, CYS contends that the trial judge erred by issuing

the Dependency Order, purportedly in a custody case, which directed CYS to

file for dependency and place Child with Father under intense supervision.5

Brief for Appellant at 11-13. CYS argues that the trial judge

abused her discretion by failing to remember that she had sought and approved both an Emergency Custody Order and a Shelter Care Order[,] putting [Child] into temporary custody of [CYS], which placed this matter under the Juvenile Act[, 42 Pa.C.S.A. § 6301 et seq.], and disregarded the procedures and safeguards of [the Juvenile] Act in ordering a change of custody by a [c]ustody Order.

Brief for Appellant at 12-13; see also id. at 12 (asserting that “[w]hen the

[trial] [j]udge issued the [Dependency Order] as a [c]ustody Order, the

5CYS clarifies that it is not appealing the trial court’s placement of Child with Father. See Brief for Appellant at 10; see also Rule 1925(b) Concise Statement, 9/15/17, ¶ 2. -6- J-S01006-18

Juvenile Act process [] existed, and nothing had been filed to bring the matter

back to custody court.”). In support of its claim, CYS cites this Court’s decision

in Fallaro v. Yeager, 528 A.2d 222 (Pa. Super. 1987).

In Fallaro, the matter was initially before the trial court on cross-

petitions for custody. Id. at 224. However, though neither party had filed a

petition for dependency, the court, sua sponte, made such a determination.

Id. This Court held the trial court committed reversible error in this regard,

stating that

in order for a court to have jurisdiction to find a child to be dependent, there must be a petition filed under the Juvenile Act which alleges the dependency of the child. Since no such petition was filed in this case, the court below had no jurisdiction to find [] child to be a dependent child.

Id. at 225.

In its Opinion, the trial court concisely addressed CYS’s claim,

distinguished Fallaro, and determined that the Court did not err or lack

jurisdiction to issue the Dependency Order, where the court did not adjudicate

Child dependent prior to the filing of a dependency petition. See Trial Court

Opinion, 9/27/17, at 16-17. We agree with the trial court’s rationale and legal

determination, and therefore affirm on this basis in rejecting this issue. See

id.

In its third issue, CYS contends that Judge Corbett erred by not allowing

any testimony by CYS at the shelter care hearing, including testimony that

would have made the case eligible for federal funding. See Brief for Appellant

at 13-15. CYS asserts that

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[t]he sequence of events [at the shelter care hearing] shows that [] [J]udge [Corbett] did not want [CYS] to testify. [CYS’s] witness(es) would have testified to the recommendation to withdraw the [shelter care] Petition. This was not what [] Judge [Corbett] wanted to hear. [CYS] submit[s] that [] [J]udge [Corbett] desired [] [C]hild to stay in temporary custody of [CYS], which meant foster care, and sought evidence from [Mother and Father] to secure that objective. This is at variance with the obligation of [] [J]udge [Corbett] to be impartial and to weigh the evidence in making a decision. In pertinent part here, that meant no testimony which would make the case eligible for federal funding, as required by 42 U.S.C. [§] 671 [(setting forth, inter alia, the requirements for a state plan for foster care/adoption to receive federal funding)]. The relevant portion of that statu[t]e required evidence to support a finding that reasonable efforts were made to prevent placement or that there were emergency circumstances precluding such efforts. [See id. § 671(a)(15).] Judge Corbett was focused on keeping [] [C]hild in foster care, and was not focused on [CYS’s] funding.

Brief for Appellant at 14 (emphasis and some citations omitted). CYS further

asserts that “[t]he evidence [that CYS] had, including [] [F]ather’s compliance

with what [CYS] asked of him, did not support safety issues or other reasons

to keep [] [C]hild out of [Father’s] home. Therefore[, CYS] sought to withdraw

the shelter care [P]etition and later[,] the dependency [P]etition.” Id. at 15.

In her Opinion, Judge Corbett concisely addressed this claim and

determined that the court did not err or abuse its discretion in the fashion in

which it conducted the shelter care hearing. See Trial Court Opinion, 9/27/17,

at 15-16. We agree with the trial court’s analysis and determination, which is

supported by the record, and therefore affirm on this basis as to this issue.

See id.

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In its fourth issue, CYS argues that Judge Corbett abused her discretion

in the fashion in which she conducted the dependency hearing,6 which

included not allowing CYS or Mother and Father an opportunity to present and

question witnesses. See Brief for Appellant at 15-16. According to CYS,

[b]y her actions, [] Judge [Corbett] is seeking evidence to keep [] [C]hild in custody, and not acting impartially with respect to [Mother and Father]. … By her actions in taking over the [dependency] hearing, conducting questioning [of witnesses (i.e., GAL Thiel)], and finding for shelter care, without giving [CYS,] or [Mother and Father], the parties, an opportunity to testify, [] Judge [Corbett] is not acting as an impartial judge, but is focused on achieving the outcome she wants. This is not due process. This is an abuse of discretion.

Id. at 16.

In her Opinion, Judge Corbett concisely addressed CYS’s claim, set forth

the relevant law and a description of what had occurred at the dependency

hearing, and opined that she committed no impropriety or abuse of discretion

in conducting the dependency hearing. See Trial Court Opinion, 9/27/17, at

17-18. As Judge Corbett’s rationale is supported by the record, and we agree

with her determination, we affirm on this basis as to this issue. See id.

In its fifth issue, CYS contends that the trial court abused its discretion

in ordering that Child be removed from the care of Father/Mother, where CYS

(1) had not filed a petition for emergency custody; and (2) did not have

6 Though CYS, in its corresponding issue in its Statement of Questions Presented section, purports to challenge Judge Corbett’s actions at the shelter care hearing and the “first adjudication hearing,” its Argument section only references the dependency hearing. -9- J-S01006-18

grounds to keep temporary custody of Child. See Brief for Appellant at 17-

18. CYS asserts as follows:

Under the Dependency Rules, a case is commenced by the filing of a [dependency] petition or emergency custody application (P[a].R.J.C.P. 1200(1)[,] (2)). Since there was an Emergency Custody Order approved by Judge Corbett, there should have been a [p]etition/application with facts averred to support the requested relief. There is no application to support the removal of [] [C]hild from a parent’s home. While there is a Shelter Care Petition, (a copy of which is attached to the [Trial Court’s] Opinion as Exhibit “B”) …, [CYS] contends that this [P]etition cannot substitute for the lack of the earlier petition. [CYS] sought to withdraw the shelter care [P]etition because it had no basis to keep custody based on its investigation.

Brief for Appellant at 17.

The trial court addressed this claim in its Opinion and determined that

the court did not abuse its discretion in this regard since (1) CYS’s filing of the

shelter care Petition was sufficient and warranted by the facts of record; and

(2) this issue is not relevant since CYS is not appealing the shelter care

requirement, but rather, the Dependency Order, which directed CYS to file a

dependency petition concerning Child. See Trial Court Opinion, 9/27/17, at

18-22. We agree with the trial court’s determination and analysis, and

- 10 - J-S01006-18

therefore affirm on this basis as to this issue. See id.7

In its sixth and final issue, CYS argues that the trial judge erred insofar

as the Withdrawal Order, which approved the withdrawal of the dependency

Petition and stated that “[a]ll prior Order[s] that are not inconsistent with this

Order shall remain in effect[,]” was ambiguous and thus cannot be enforced.

See Brief for Appellant at 21-22. Specifically, CYS asserts that the Withdrawal

Order was improperly ambiguous for failing to clarify whether the court-

ordered “intense supervision” of Father’s custodial time, which was ordered in

the Dependency Order but not defined therein, was to be continued. Id. CYS

poses the question, “[h]ow often are [home] visits under intens[e]

supervision? Once a day, once a week, one every two weeks? It is not clear,

either to [CYS], which had to guess what was meant, or to a person of

reasonable understanding.” Id.

Contrary to CYS’s argument, we discern no reversible error by Judge

Corbett in this regard. If CYS is confused as to the meaning of “intense

7 As an addendum, we note that the cases CYS relies upon in support of its claim are distinguishable. See In the Interest of M.B., 514 A.2d 599, 602 (Pa. Super. 1986) (holding that the trial court erred in adjudicating the child dependent where no dependency petition had been filed and the matter was before the court based upon abuse allegations); In re A.L., 779 A.2d 1172, 1175 (Pa. Super. 2001) (quoting Fallaro, supra, and stating that “in order for a court to have jurisdiction to find a child to be dependent, there must be a petition filed under the Juvenile Act which alleges the dependency of the child.”). In the instant case, Child was never adjudicated dependent.

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supervision,” it may file a petition seeking clarification from the trial court.8

Further, at the adjudication hearing, the trial judge pointed out that Father’s

custodial time would be under “intense supervision,” in response to which the

attorney for CYS stated as follows: “Yes. And that intense supervision is

gonna remain, Your Honor.” N.T., 8/31/17, at 21. However, the CYS attorney

did not seek clarification of this phrase at that time. The Withdrawal Order is

enforceable and not improper due to ambiguity.

Based on the foregoing, we affirm the Dependency Order and the

Withdrawal Order.

Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/10/2018

8 Moreover, given Father’s admission to having previously physically abused Child, as the trial court thoroughly detailed in its Opinion, we deem that the CYS supervisor was prudent in “interpret[ing] the term [intense supervision] to mean a daily caseworker visit to the home[.]” Brief for Appellant at 21. - 12 - Circulated 04/25/2018 02:55 PM

Plaintiff _Si L CP; HKAAV N..4T'b' iM'w."6.1C?,y1,6i7T OF COMMON PLEAS

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OPINION

This Court issued an Order dated August 2, 2017 regarding the custody of one minor

child in the above -referenced matter. An Appeal was filed and the(615inion in support of that

Order is now ripe and as such, iS addressed below on fhis 1day of September, 2017.

CORBETT, J.

I FACTUAL AND PROCEDURAL HISTORY

This case involves a custody dispute over one minor child, C.S. date of birth March

2008 (hereinafter "minor child"). The matter was before this Court on Custody arid

Dependency.

By way of background, this case began in 2009 when C.S. (hereinafter "Father")

filed for a Petition, for Custody of the minor child, Thereafter, Attorney Danielle Ross was

appointed Guardian Ad Liter (hereinafter "GAL"). (Order 09/25/09). At that time Father

and L.G. (hereinafter "Mother") had shared legal and physical custody of the minor child.

(Order 10/21109). Allegations of abuse arose beginning in 2011 when Mother filed a

Petition for Custody! Mother again raised allegations of abuse by Father against the minor

child in 2013 by filing a Petition for Emergency Special Relief, whichis the next filing on

the docket.' At that time, the GAL was changed from Attorney Ross to Attorney Bonni

I A conciliation conference was scheduled. Bowever, the file does not indicate what occurred at said conference. 2 It is important for this Court to note the history of abuse allegations in this case.

1 custody of the minor child. (Orders, She1p and Mother was grantedtemporary physical

(2) months where Mother was 05/13/13). There was a brief period of approximately two

granted primary physical custody and Father had periods of partial physical custody. (Order,

a Protection from Abuse (hereinafter 07/03/13). Thereafter in September 2013, Mother filed being conducted in Luzerne County "PFA") Order in Luzerne County. An investigation was

regarding allegations of abuse of the minor child by Father's paramour Monty C. 60/40 ic Or (hereinafter "Father's paramour") presumably y Luzeme County Children and Youth

in the matter. Based on those allegations, Services. Subsequently, a review hearing was held of the minor child and ordered Father to this Court granted Mother primary physical custody was completed. (Order, have no contact with the minor child until the, investigation entered a Stipulated Order wherein Father 09/17/13). In 2014, the Honorable Judge Gibbons with the minor child at the Children's shall have supervised visits/reunification therapy 2014, Father filed a Petition for Emergency Service Center. (Order, 02/12/14). In September by the Honorable Judge Gibbons and later Special Relief, which was temporarily granted Father to begin the aforementioned withdrawn by the Honorable judge Saxtoneiwho ordered 09/10/14).3 In 2015, Mother again made reunification therapy. (Order, 09/02/14; Order, and Father was only allowed to see the allegations of abuse of the'rninor Child by Father

minor child in a supervised setting. (Order, 06/11/15), Corinne Thiel as the In December 2016, this Court appointed Attorney after Father's filing of a Petition for Guardian Ad Litem (hereinafter "GAL Thiel") ordered both parties to comply Contempt .(Order, 12/01/16). Thereafter, this Court

residence because she.was living with nine people, that Father averred that Mother was evicted from her that Mother refused to contact the supervision agency, and 3 Mother was selling the minor child's medication., that the minor child was being abuied. 2 01/05/17). Then in June at a with scheduling the EOTC visits with the minor child. (Order, a Stipulated Order with GAL Thiel Guardian Ad Litem Conference, the parties entered into to Father's periods of and agreed that Mother shall have primary physical custody subject 06/16/17). partial physical custody every other weekend. (Order, for Emergency Special Relief with Recently, Father filed a PFD. Petition and Petition

allegations that Mother's paramour was abusing the minor child.'(PFA Petition, 06/22/17;

Thereafter, Lackawanna County Office of Petition, 06/22/17).4 Both Petitions were denied. became involved because of the minor Youth and Family Services (hereinafter "OYFS") and Father's home. After the minor child's allegations of safety concerns in Mother's home "CAC") interview and OYFS child's Children's Advocacy Center (hereinafter to enter into a'Stipulated Order wherein recommendation, the Court allowed the parties of the minor child subject to Father's periods Mother would have primary physical custody GYPS provided that Mother's of supervised partial custody to occur at EOTC or through (Order, 07/101/7).5 Additionally this Court paramour have no contact with the minor child. with the minor child_ (Order 07/19/17). ordered that Father's paramour shall have no contact

OYFS took Emergency Protective Custody of the minor child on July 11, 2017

she could not take care of the minor pursuant to this, Court's request after Mother stated Father could only have supervised visits with child and this Court already detenriined that care of the minor child on July 13, the minor child. (Order, 07/11./17).6 OYFS took shelter was filed, but this Court held it in. abeyance 2017. (Order, 07/13/17). A dependency petition

however, by this Court with only the information from ofte party, These temporary petitions are usually heard Court believed it was necessary to have both of this case, this since this Court is famfEar with the long history petitions. parties appear before considering any temporary time, the minor child disclosed to GAL Thiel his fear of Father, Father's paramour and Mother's 5 At that paramour. for this Court to describe 6 Although this specific appeal is regarding the Family Court Docket, it is important this Court requiringAo agency to file a dependency. the history of the OYFS case as OYFS is appealing at the request of OYFS to allow Mother to confirm, whether she and the minor child

came forward and stated could live with Maternal Grandmother. Thereafter, Mother ale( Para elootr she was moving back in with I - -_..Since Father and his paramour were attending

Court allowed the minor child to parenting classes and complying with OYFS, this dependency and place the family be placed with. Father provided that OYFS Bled a

under intense supervision due to the long history of allegations of abuse and Father's

two Orders on August 31, admission thereof. (Order, 08/02/17). This Court issued OYFS to withdraw dependency and 2017. The Order under the OYFS case allowed the minor child subject to that Father shall have primary physical custody of among other things. (Order, Mother's periods of partial on a weekly regiment this Court issued. an Order granting 08/31/17). Under the Family Court Docket, partial physical custody. (Order, Father primary physical custody subject to Mother's

08/31/17).7 2, 2017 Order On September 1, 2017, OYFS filed a Notice of Appeal of the August

Appeal. (Notice, 09/01/17).8 and Statement of Matters Complained of on

II. DISCUSSION

A. MOOT must exist at all stages of the judicial "As a general rule, an actual case or controversy issue can become moot during the process, or a case will be dismissed as moot. An in the facts of the case or due to an pendency of an appeal due to an intervening change case, an opinion of this Court is rendered intervening change in the applicable law. in that

entered after the August 2, 2017, which is under appeal, it is 7Although the August 31, 2017 Orders were and therefore the issue is moot, allowed to be withdrawn important to note that the dependency was are appeals in the above referenced case. However, the docket numbers and divisions OYFS filed two appeals separately. different Therefore, this Court will address the 4 is moot if in ruling upon the issue the court advisory in nature. An issue before a court In re J./.f., 107 A.3d 799, 811 (Pa. cannot enter an order that has any legal force or effect" actual case or controversy. Although a Super. 2015). Ti the case at bard, there is no was never adjudicated dependent and this dependency petition was filed, the minor child

Court allowed ()YTS to withdraw the dependency.

B. CUSTODY/DEPENDENCY custody provision of the August 2, 2107 Order, it Although OYIRS is not appealing the

dependency to explain this Court's Order. is important to discus both custody and decision is abuse of discretion." Ottolini v. "The standard of review for a trial court's in any Ct. 2008). "The fundamental consideration Barrett, 954 A.2d 610, 612 (Pa. Super. Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d child custody case is the best interest of the child." best interest and permanent "In determining minor child's custody, child's 5.12 (Pa. 1980).

fixed standard, but by determining what is best welfare must be decided, not in. relation to (Pa. ex rel. Bottursv. Batturs, 60 A.2d 610, 611 for child under all circumstances." Corn.

Super. 1948).

Dependency requires a different approach. are the childs [sic] ['best interests] but The hearing judge should not ask what care and if so whether such care is whether the child is presently without proper matters, we must accept the facts as immediately available.' In child dependency found by the trial court unless they are not supported by the record. Although bound court's inferences, deductions, and by the facts, we are not bound by the trial independent judgment in reviewing the conclusions therefrom; we must exercise our court's determination, as opposed to its findings of fact, and must order whatever of discretion. Our scope of review, right and justice dictate. We review for abuse In re R.W.J., 826 _A...2c110, 12 (Pa accordingly, is of the broadest possible nature. Siiper. Ct. 2003). and the courts to ensure that parents meet "The Juvenile Act authorizes state agencies minimum standards in executing their parental certain legislatively determined irreducible rights ".?n ref W., 578 A.2d 957-8 (Pa. Super. 1990). "Furthermore, when determining

whether a parent is providing a minor with proper care and control... the caretaker's acts and

omissions should weigh equally. The parental duty extends beyond mere restraint from

actively abusing a child; rather, there exists a duty to protect the child from the harm that

others may inflict." In re iti41.31, 826 A.2d at 14 (Pa. Super. 2003).

A dependent child is defined as,

(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 ofproper 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 that parent's, guardian's or other custodian's use of alcohol or a controlled substance places the health, safety or welfare of the child at risk; (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 a parent, guardian, or legal custodian; (5) while subject to compulsory school attendance is habitually and without justification truant from school; (6) has committed a specific act or acts of habitual disobedience of the reasonable and lawful commands of his parent, guardian or other custodian and who is ungovernable and found to'be in need of care, treatment or supervision; (7) has committed a delinquent act or crime, other than a summary offense, while under the age of ten. years; (8) has been formerly adjudicated dependent, and is under the an jurisdiction of the court, subject to its conditions or placements and who commits act which is defined as ungovernable in paragraph (6); (9) has been referred act pursuant to section 6323 (relating to informal adjustment), and who commits an which is defined as ungovernable in paragraph (6); or (10) is born to a parent whose parental rights with regard to another child have been involuntarily terminated under 23 Pa.C.S. § 2511 (relating to grounds for involuntary termination) within three years immediately preceding the date of birth of the child and conduct of the parent poses a risk to the health, safety or welfare of the child. 42 Pa.C.S.A. § 6302 (Test 2017).

This Court is very familiar with -the history of this case. As described above, the the record is replete with allegations of Father and/or Father's paramour abusing

minor child. Mother has hail primary physical custody of the minor child subject to

Father's periods of sup Dr dsed partial custody to occur at specific agencies since

September 2013 to June 2017, except for a period of seven (7) days pursuant to which was temporarily granted Father's filing of a Petition for Emergency Special Relief, 2017, after a GAL Conference on the and later withdrawn in 2014. Thereafter in June that Father would increase his matter, the parties agreed without the Court's involvement partial custody every other time from supervised visitation to periods of unsupervised

weekend. The Monday after Father's first weekend of unsupervised custody pursuant to that

for Emergency Special Relief and a custody agreement, he came to .Court to file a Petition petitions without the other side being present PFA Petition. Normally, this Court hears said

However, this Court is well aware of the history of the case and believed it was necessary to

recording the minor child reporting hear from both parties. At that time, Father disclosed this Court listened to said recording and that Mother's paramour abused him. However, child and trying to get the minor child Father's paramour was clearly interrogating the minor safety concerns with Father's residence and to say certain things. The minor child disclosed

Mother's paramour to GAT, Thiel. OYFS, who had the minor child This Court believed it was necessary to contact (hereinafter "CAC"). After the CAC interviewed that the Children's Advocacy Center have contact with the minor child. interview, Mother agreed to not let her paramour visitation as he felt supervision was Furtbeunore, Father asked GAL Thiel for supervised followed up with GM,. Thiel in an email stating, necessary. OYES Supervisor Megan Sparer the stipulations to the custody should be No "Hey Corinne, Just to touch base about '

,46116(5 ii0.ro,?-40v.r for child to be given at Mother and Father's [sic] contact for [child] with F V . Medication and Parenting. Supervised visits for father, home. [sic]. Father to attend Anger Management [sic]. No Corporal Punishment [sic] to until he has set up Anger Management and Parenting. Mother needs to provide proof of her be used by any and all parties or household members.

7 at their request" (See attached email Suboxone Program and screen for OYFS was in the best interest of the minor child marked Exhibit A). This Court believed it that the minor child have no contact for Mother to have primary custody provided determined it was in the best interest for with Mother's paramour..This Court also At that time, OYFS was clearly in Father to only have supervised visitation. visitation. agreement with Father only having supervised was contacted because Mother claimed After the July 10, 2017 Order, OYFS out and left him with Father. Testimony came the minor child was not safe with her Father despite this Court's stand ing Order that in the OYFS Shelter Care hearing that Mindy with the minor child, OYFS caseworker could only have supervised visitation minor child to go home with Father and reside Hughes told Father it was fine for the

there. Father specifically testified, Tuesday after we left here because they Now I'll be honest, now I went there but I wasn't sure if we had to come or said we had court at 9 a.m. with you, to me here. I went upstairs to CYS and not, so the mother dropped [child] off go home to your house, so I asked spoke to Mindy and Mindy said just and she agreed to that, she came Mindy if that was okay he was with me, him back home to my house and I back out and said that was fine, so I took house, I went to the agency and I said, waited, but then before we got to my 10 to 12, but I have court, but I I'm supposed to start my first class today house with me and wait there son to my have orders from CYS to take my [sic]. H.T.( 07113/17 p. 6).

Order of this Court This Court is unaware of any OYFS clearly told Father to violate an did not authority that allows OYFS to advise parties to violate Court Orders. OYFS legal determined with Father because this Court already have the right to place the minor child visitation. that Father could only have supervised Custody because Father was not a OYFS did take Emergency Protective at resource and Mother admittedly could not take care of the minor child placement

8 Despite this Court having heard the that time. (Order under DP number, 07/11/17). Relief, signing the Emergency Protective Order, temporary Petition for Emergency Special the OYFS regarding the case, OYES scheduled Order, and this Court being in contact with Judge Harhut. After this Court was advised that Shelter Care hearing before thelionorable Shelter Care snd allow Father to have custody of the OYFS was attempting to withdraw the and determination that Father could only minor child despite this. Court's standing Order child, this Court presided over the matter. At that have supervised visitation with the minor

time, this Court was'not only well aware of the history of the case, but that not even a month

Father and Father's paramour and Father's prior, the minor child made allegations against the time of the stipulated order, therefore the request to only have supervised visits at and this Court proceeded with the hearing. request to withdraw the shelter care was denied Joseph Price (hereinafter "OYFS During the hearing, OYFS solicitor Attorney Mother has left the child in the care of father. Attorney") stated, "July 11, I apologize that an inappropriate caretaker based on the Court's Determination was made that father is p. 2). He further stated, "At this time I believe involvement with father." (I-I.T. 07/13/17, or not The Court wishes to take statements the Court has made a determination, whether Court's discretion, however, at this time I believe from mother or father, I believe it's in The to be save [sic] for the child to be returned home The Court has determined that it would not this Court asked Mother, "And at that time father at this time," id During that hearing [child] said that he was afraid, that he was getting bit supervised visits were ordered because Mother testified, "Yes." Id This Court asked, at father's house; is that correct?" Id. at 4. as well; is that correct?" Id. Mother replied, "And he was afraid of his father's boyfriend entered a on July 10, of this year, you and -Fe1/44.1,e.f. "Yes." Id. This Court asked, "And then

9 physical custody stipulated order. wherein o, fined' will have petiods of supervised Honor, because I through EOTC?" Id. Father testified, "I asked.for that, Your

didn't know with everything that had transpired . . I asked her if it would be best

months of Children and since CYS [sic] was involved already, if I could get three

Youth supervised visits and then three months with the agency justso that they cad

at that time that was see me with my son." Id. at 4-5. The. Court, "And you felt Id. at 5. Then Father important for you:to get these classes and everything else?" his paramour. testified that he just began his five-week parenting class with would have his Later in the hearing, there was testimony that Father live there. OYFS paramour move out of the residence if the minor child could referred to as his fiance, Attorney stated, "And judge, at this point, I believe he was tient to him leaving the which does make me question whether or not the commiti asked "Well, you have a house is legitimate." Id. at 8. Also at the hearing, this Court violence issue, but you also history of PFAS, which is one -thing, there's a domestic Id. at The Court asked, have a history of hitting [child]." Father testified, "Yes." 9'.

"And mom "Isn't that true?" Id Father testified, "Yes; yes." Id. The Court stated,

says, and I applaud her coming forward if she feels that her household is unsafe right

matter of law find that now, to say he's unsafe in my household, and I cannot as a properly. As late he's safe in your household until you learn how to get to parent him slap him around if he calls you as last week you admitted to Corrine [sic] that you'd

a name." Id. Father stated, "I slap him around, I put him over my knee and spank

I was told, but CYS [sic] does him with an open hand and that's allowed in PA, what state law, by CYS [sic] not agree to that, that's what I was told. It's allow [sic] in PA

10 to Corrine doesn't agree to that, that's all I ever did to [child] and that's what I admitted [child] was afraid of you [sic]." Id. at 9-10. The Court asked, "Well, to the point where he's afraid right?' Id. at 10. Mother stated, "It's really Monty." Id. The Court stated, "And

of Monty." Id. Mother stated, "And Frankie." Id. The Court asked, "And who's Frankie?" i e Pitoftl ere( *Jo. Mo'A1 Id. Mother testified, "My husband7Well, it's going to be my ex-husband, but I - the reason

I said it was unsafe, [child], he came; to talk to me, him and my husband don't get along, so I

feel like it' snnsafe and I feel he's more safer [sic] with his father, but not with the

right now until boyfriend." Id. Further, this Court stated, "And I don't feel comfortable

earned' is stripes, do you understand?" Father replies, "Yeah I agree." Id. at 11. F-0Aerhas Id. The Court Mother stated, "And I as a mother don't want Money [sic] around nay son." [sic] foster care -- stated, "Well, there you go, so at this point he has'to remain in sheltercare will be be able to ?" Id. Mother asked, "But that if he after [sic] he takes his parenting class up with your fiancé, that's live there?" Id. The Court: stated, "Yes, and if you are breaking fact that he's an entirely different 'story, but right now I can't do that, and in addition the right. As long as you smokes pot and smokes it around him." Id. at 11-2. Father stated, "All

know, he doesn't' smoke it around him, but that's what CYS -." Id. at 12. The Court stated,

and that's a different "His levels are coming down. Well, show us proof of those things believes that story, okay, but right now I have to find that mom under her own admission The Court has he's unsafe in her home because of the husband that she's living with, and required and foster found that he was unsafe in Dad's home, therefore, a sheitercare [sic] is get you get these care is required." Id The Court also stated, "Temporary until we can

things moving and changed and I see change - it is never my object to keep children away long since decided, Mo from their parents, you know, I want you to be involved. We've

11 us see what the story is with that you are a good mother, okay? It's riot done. And let

Monty, and.if he shows somethingdifferent to CYS, then that changes the

above, OYFS first wanted to circumstances." Id. Shelter care was gr-mted. As stated to his paramour as his withdraw shelter care then clearly stated that Father refers with having his paramour fiance and OYFS does not believe Father is being honest only was shelter care leave the residence. It is clear from the testimony that not despite OYFS not wanting warranted, but that both parties agreed with shelter care

to provide safe shelter for the-minorchild. held off on At the dependency hearing on July 24,2017, this Court minor child with Mother after adjudicating the minor child dependent and placed the and keep the minor child away she testified that she would move put of her residence /4044..24 rvraelotAti of 2017 and stated that she from her husband. Mother then came forward in August and Father's paramour was moving back in with her paramour. At that time, Father cooperating with OYFS. had attended more than two parenting classes and were child with Father under the Therefore, this Cora felt comfortable placing the minor under intense supervision. condition that OYFS file a dependency and place Father because the minor child This Court believed a dependency petition was warranted was based on the evidence that was without proper parental care or control, which she determined the minor chi Id Mother could not care for the minor child because of abusing the minor child by was not safe around her paramour and Father's history 24, 2017 -hearing. GAL Thiel admission. This is verified by 'testimony at the July ---the whole [sic.] issue has testified, "From the beginning of this case this whole child." 07/24/17, p. 16). always been parent/child conflict with dad and minor (1-1.T.

12 been consistent with rue regarding GAL Thiel also testified, "Correct, father [sic] has always father, we have a great working his father. It has always been a strained relationship, I like corporal punishment, that he relationship, he's.very- forthright, he acknowledges that he uses Id. at 19. Furthermore GAL has difficult with [child's] behaVior, as well as morn does." punishment and slapping Thiel testified, "He [Father] talked openly about using corporal to dad regarding his him in the face when he says derogatory nr.enes and statements

relationship with another male. I think that's a point of contention between the two, so that

[Child] has always wanted to be with has always been consistent since I've been involved. Id. at 19-20. GAL Thiel stated, mom, and we were working on his relationship with father."

Well, if I'm asked for a recorame,ndation, my recommendation is that I just don't of dad being supervised iinderstand how we can- go from. June 22, a recommendation and then a few days later mom and there's issues in the home, after a CAC interview to relinquish custody back to the says I can't take care of the child and we're going dad, when that was the initial referral. To me, that is more of a matter of convenience do have concerns. There are a lot than rather a matter of protection and safety, and I - and my job is to well, of issues that we 'need tO work on between father and child, safety. I don't think there's been all our job [sic] is to do what's best and maintain to work on the issues between dad enough work Or enough services at aLl in this case and. child. Id. at 22.

at the. August 31, 2017 hearing that there Additionally, caseworker Ivlindy Hughes testified -they were concerned with Father's were ongoing concerns with Mother and Father and history of'the case, the testimony at the parenting and inappropriate discipline. Based on the Court believes this fits under the definition hearings, and the evidence before the Court, this petition. Furthermore, OYFS of dependency and gave OYFS grounds to file a dependency July 24, 2017 after questions whether the Attorney stated at the Dependency Hearing on ar)d. GYFS Attorney stated, "They grandparents could take unship care of the minor child that they are also referred to for both have, Your Honer, and for various reasons; namely, .T. 07/24/17, p. 10), This Court is improper discipline; they were deemed inappropriate.

13 because of unclear how the minor child cannot be placed with either grandmother has a history of abusing the inappropriate discipline, but can be placed with Father' who to the full extent possible or not. minor child. OYFS either has to protect the minor child with Father nntil he proved. himself. This Court was not comfortable placing the minor child is providing a minor with proper As previously stated, "When deteiruining whether a parent equally. The parental care and controL;the caretiker'S acts and ()Missions should -weigh a child; rather, there exists a duty .duty extends beyond mere restraint from actively abusing inflict." In re 826 A.2d at 14 (Pa. .to protect the child from the harm that others may

proper care and control in this case. Super. 2003). Cle' arly, neither parent was providing petition on Tn addition, this. Court allowed OYFS to withdraw the dependency p arenting classes and August 31, 2017 after Father and Father's paramour completed never adjudicated dependent. continued to cooperate with DYE'S. The minor child was with the Honorable Furthermore, on June 2, 2017, this. Court had a meeting "Director Browning"), Judge Jarbola, Director of OYFS. Bill. BroWning (hereinafter "Assistant Director Assistant Director of OYFS Carrie Browning (hereine.ter Clifford regarding dependency Browning") and Chief of Juvenile Probation Rich Director Browning told the actions. At thattime, Director Browning and Assistant the Court believes it is Court to contact OYFS to file a dependency petition if However, when c:413.eze and OYFS will follow through with the dependency.

stated to the Court that there this Court requested a dependency to be filed, OYFS Mother states her are no grounds. The Court replied that the minor child is homeless. custody had to be supervised home is unsafe and this Court has determined Father's

by someone other than the person with whom he lived.

14 and in fact Therefore, OYFS' position as to gratinds for dependency was invalid

directed Father to violate this' Court's Custody Order. should be For the foregoing reason's, the Order of Court dated August 2, 2017

affinned.

M. MA.TTERS:COMPLATNED OF ON APPEAL on. Appeal on or about OYFS filed a Concise Statement of Matters Complained of

in turn. September 1;2017, which.are listed below and addreSsed

[sic diced by not allowing any testimony by the agency at the trial jUdie .

A. The made the case eligible shelter care bearing, including testimony that would have This must be for federal funding, to the agency's and county's detriment. later. See 42 U.S.C. determined at the first hearing, and cannot be addressed

671. [sic]

This' clearly shows the motivation behind this- appeal. The federal funding for the

agency is clearly more important than the safety and welfare of this minor child.

hearing, they sought to OYFS did not even want to proceed with the Shelter Care that this Court was fully withdraw the Shelter Care before a different judge knowing

involved in the case. Shelter Care hearing Additionally, OYFS Attorney was clearly involved in the Attorney stated, "July and participated numerous times. During the bearing, OYFS

11,1 apologize that Mother has left the child in the care of father. Detemaination was

Court's involvement with made that father is an inappropriate caretaker based on the

father." (H.T. 07/13/17, p. 2). He further stated, "At this time I believe the Court has

made a determination, whether or not The Court wishes to take statements from

15 mother or father, `1 believe it's in The Court's discretion, however, at this time I be The Court haS determined that it would not be save [sic] for the child to believe the Id. This Court is not required to advise returned hone-to father at this fnue." for funding. case or require that the case be eligible attorneys on how to proceed in a wished to call witnesses in the case, If OYFS had questions of the witnesses or to call witnesses during the hearing. OYFS 'attorney should have requested OYFS is only appealing the August 2, Lastly, this issue -is not relevant because 0 tote( shelter care and.is only appealing -the 2017!which has no requirement for

reqUirement of filing a dependency-. be - For the foregoing reasons, the Order of Court dated August 2, 2017 should

affirmed. -

an or [sic] abused her discretion by issuing B. The trial judge [sic]erred/and agency to file for dependency and place Order in a custody matter requiring the supervision. See Fallaro v. Yeager, 364 the child with the father ender intense

PA. Super. 408, 528 A.2d 222 (PA. Super. 1986).

procedures developed for resolution of "The Courts must adhere to the the welfare of children. Absent a various problems which arise concerning jurisdiction to make a determination." dependency petition, the court is without (Pa. Super. 1987). The Court did not Fallaro v. Yeager, 528 A.2d 222, 230 before a dependency-petition was even determine the minor child was dependent v. Yeager. Rather, this Court ordered OYFS to filed, as the lower court did in.Fallaro Court minor child in foster care because this file a dependency without placing the by was concerned with the long history of allegations of abuse of the minor child

16 Father. This Court is well aware of the due process requirements for dependency

litigation.

Furthermore as stated directly on OYFS's iisfebsite, "Lackawanna County

Office of Youth and FaMily Services Will ensure child safety and family stability

Coun while respecting the rights and dignitY of the family group." Lackawatma

Website (2617) available at

http://www.lackawann.acounty.org/index_php/departmentsagencies/hutnaa- children are services/children-and-youth-services. It is OYFS' s duty to ensure minor

safe: The Court was requiring that in this matter. 2, 2017 should be For the foregoing reasons, the Order of Court dated August

affirmed.

C. The trial judge [sic] erred and/or abused her"discretion by conducting

questioning of witnesses at the shelter care and first adjudication hearing,

having direct instead of allowing the agency and other parties to call witnesses, by the judge. and cross-examination by 'counsel, with clarification questions

[sic]. The conduct was not compatible with an impartial trier of fact, as is

expected of the judiciary.

Under Pennsylvania Rule of Evidence 614,

(a) Calling. Consistent with its function as an impartial arbiter, the court, with notice to the parties, may call a witness on its own or at a party's request. Each party is the interest of entitled to. cross-examine the witness. (b) Examining. Where justice so requires, the court may examine a witness regardless of who calls the court's calling or examining a witness. (c) Objections. A party may object to the witness when given notice that the witness will be called or when the witness is eXamined. When requested to do so, the court must give the objecting party an Rule 614 opportunity to 'make objections out of the presence of the jurY."Pa.R.E., (West 2017).

17 -A review ofthe July 24, 2017 transcript will show that the attorneys for the

minor child and the par.ents were qtiestioning this. Court about thecase because they

werenot rriade aware offacts by OYFS. This Court was not going to testify about

the facts-Of the ease, therefore GM, Thiel testified about her knowledge of the case.

OYFS- had 'atull opportunity to cross examine the witness. No objections were made

by OYFS Attorney. Furthermore, the OYFS Attoiaiey did not request to call any

witnesses at the time of the hearing despite fully pizticipating in the hearing. This

Court 'cannot advise OYFS .attorney that the agency should be calling witnesses. An

error committed by OYFS is not an error by the Court.

Furthermore, this issue is nbt relevant because OYFS is not appealing :this

dependency proceeding and the minor child was never time adjudicated dependent.

Rather, OYFS is appealing fhe requirement of a dependency petition being filed on

August 2, 2017.

For the foregoing reasons, the Order of Court dated August 2, 2017 should be

armed. D. The child was removed from his home by the Judge's order, without a Petition

for EmergenerCustody by the Agency, which had no grounds for such

removal The agency sought to withdraw the -Shelter Care Petition, which the

judge [sic] denied. This raises due process issues, as well as abuse of discretion

issues with respect to the judge's actions. Whether the Judge abused her

discretion by ordering the child removed from his home in absence of a Petition

for Emergency Custody and by denying the agency's request to withdraw the

1e custody of the Shelter Care -Petition for lacli of grounds tokeep temporary

Child? Custody is A revieW of the file shows that OYFS's Petition for Emergency 2017, which is- attached hereto fileduncler Docket-Number DP -99-2017 on July 12, and utter misrepresentation and marked Exhibit B. Therefore, this issue is a complete

of the facts:

This Court is not required to follow every request by OYFS, especially when

As previously the minor child would clearly be unsafe in'Father's residence. Made allegations against Father discussed, not even a month prior, the. minor thud supervised visits at the time and Pather's'paramour. arid Father's request to only have shelter care was denied. of the stipulated order, therefore the request to withdraw the apologize that Mother has left During the hearing,-OYFS Attorney stated, "July 11, 1

that father is an inappropriate the child in the care of father: Determination was made (H.T. 07/13/17, p. 2). He caretaker baser' on the Court's involvement with father." a determination, whether or further stated, "At this time I believe the Court has made or father, I believe it's in The not The Court wishes to take statements from mother Court has determined that it Court's discretion, however, at this time I believe The

would not be save [sic] for the child to be returned home to father at this iime." Id.

at that time supervised visits During that hearing this Court asked Mother, "And that he was getting hit at were ordered because [child] said that he was afraid,- "Yes." icZ This Court father's house.; is that correct?" Id. at 4. Mother testified, as well; is that correct?" Id asked, "And he Was afraid of his father's boyfriend on July 10, of this year, you Mother replied, "Yes." Id. This Court asked, "And then

19 ) will have periods of and.ro,-11, ex , entered a -stipulated order whereinfet-i-Lee

supervised physical custody-till'-ought tOTC?" Id. Father testified, "I asked for that,

I asked Yaw 1:-Ionor,..beCanse rdidn't know with everythingthat had transpired .

best since CYS [sic] was. involved already, if I could get three heiitit Would be morith-s.of Children and Youth -supervised visits and then three months with

The Court, "And you agency just sb-ithat they pet see me with my soh"/c. at 4-5. classes and everything else?" - felt at th-a.f time.tfOIA* important for you: to get these parenting class with -Id.:at 5..Later Father testified that he ju-'st began his.five-week

his paramour. Later -in the hearing, there was testimony that Father would have his

parambur pag-ve out of the residence if the minor child could live there. GYPS

referred to as his fiancé, Attorney stated, And Judge, at this point, I believe he was to him leaving the which does Make inc question whether or not the c'ornmitment

house -ii legit-if:nate." Id. at 8. Also at the hearing, this Court asked "'Well, you have

also a histoiy of PFAS, which is one thing, there's a domestic violence issue, but you Tlae Court asked, have a hi'stofy of hitting [child]." Father testified, "Yes." Id. at 9. stated, "And mom "Isn't that true?" Id. Father testified, "Yes, yes.'? Id. The Court

says, and I applaud her coming forward if she feels that her household is unsafe right a matter of law find that now, to say he's unsafe in my household, and cannot as to parent him properly. As late hers safe in your household until You learn how to get

as last 'week you admitted to Conine [sic] that you!ci slap him around if he calls you

my knee and spank a name." Id, -Father stated, "I slap him around, I put him over -

I was told, but CYS [sic] does him with an open hind and that's allowed in JA, what

not agree to that, that's what I was told. It's allow [sic] in PA state laW, by CYS [sic]

20 Trid that's what I admitted to doesn't agree to that, that's all ever did to [cbildl to the poirif where [child] was Corrine [sit]." Yd. -at9,10.The Court asked, "Well,

afraid of you right?" Id at 10. Mother stated, "Ifs really Monty." Id. The Court "And Frankie." Id The Court stated, ."And he's afraid of-Monty." Id. Mather stated, "My husband. Well, it's going to asked, "And who's Frarilder Id. Mother testified,

the reason I said itwas unsafe, [child], he came to talk to be my ex-hu.sband, but like it's unsafe and I feel he's me, him and: m husband -don't get along, so I feel

more safer [sic] with his fathei-", but not with the boyfriend" Id Further, this Court

stated, "And I don't feel comfortable right now until r has earned his stripes, do

Id. at 11 Mother stated, "And I as a yon understand?" Father replies, "Yeah I agreb." Id. The Court stated, "Well, there mother ddn't want Money [sic] arOund my sem" [sic] foster care --T' Id. you go, so at this point he has to remain in sheltercare his parenting class will he be able to Mother asked, "But that if he after [sicl he takes if you are breaking up with your fiancé, live there?" id The Court stated, "'Yes, and

that's an entirely:different story, but right now I can't do that, and in addition the fact

at I1-2. Father stated, "All right. that he's srnokes pot anad smokes it around him." Id

he doesn't' smoke it around him, but that's what CYS -." As Iong as you know, Well, show us proof of those at 12. The Court stated, "His levels are coming down.

things and that's a different story, okay, but right now I have to find that mom under

he own admission believes that he's unsafe in her home because of the husband that

he was unsafe in Dad's home, she's living with, and The Court has found that care is required." Id The Court therefore; a sheltercare [sic] is required and foster get then; things moving and changed also stated, "Temporary until we can get -.you

21 and I see change -- it:is never my object to keep -children 'away from their parents,

you knrcw,lwant you .to be involved. We've 104' ince decided,1A034 that you are

a godd mother, okay? ITS not:done. And let us sec what the story is with Monty, and

if he slabVis something: differentto CYS, then that cha.n-ges the circumstances." Id

Shelier-care:waS tinted. As stated above, OYFS first wanted to withdraw shelter

care then clearly slated that Father refers to his paramour as his fiancé and OYFS

does tot believe:Father is being honeSt with having his paramour leave the, but residence. It is clear from the testimony that not only was shelter care warranted, safe that both parties agreed with shelter care despite OYES. not wanting to provide

shelter for the miner chiid..OYFS' statement that there were no grounds for shelter

care is not. supported' by the record.

'Furthermore, this issue is not relevant. OYTS is not appealing the shelter care

requirement. OYFS is only appealing the requirement that a dependency be filed

Under the August 2, 2017 Order.

For the foregoing reasons, the Order of Court dated August 2, 2017 should be

E. While the judge [sic} authorized the withdrawal of the Dependency petition [sic]

on August 31, 2017, the issue is not moot because the agency believes the

situation will reoccur and escape review. 'Whether the matter is not moot

despite the withdrawal of the Dependency Petition?

"As a general rule, an actual case or controversy must exist at all stages of the

moot judicial process, or -a case will be dismissed as moot. An issue can become

during, the. pendency of an'appeal due to an intervening change in the facts of the

22 law. In that case, an opinion of case or due to an intervening change in the applicable a court is moot if in ruling this Court is rendered advisory in. nature. An issue before

upon. the issue:thecoUrt cannot enter an order thathas any legal force or effect." In

at hand, there is no actual re 3:A., 107 A.,11-799,. 811 (Ph: Super. 2015). In the case the minor child was case or controversy. Although a dependency petition was-file,id, to withdraw the nearer adjudicated. dependent atid this Court allowed OYES may happen in. the dependency. 'OYFS cannot base an appeal on something that

future. Honorable Furthermore:on JUne 2, 2017, this Court had a meeting with.the arid Chief of Judge Jarbola, Director Browning, Assistant Director Browning actions. At that time, Juvenile Probation Rich Clifford tegarding dependency suggested that the Court contact DirectOr Browning and Assistant Director Browning and OYFS will. OYFS to file a dependency if the, Court believes it is necessary Court requested a follow through with the dependency. However, when. this no grounds. The dependencyto be filed, OYFS stated to the Court that there are states her home is unsafe and, Court replied that the minor child is homeless. Mother supervised by someone other this Court has determined Father's custody had to be to say that this situation will than the person with whom he lived. Now for OYFS was doing exactly what reoccur and escape review is irrational, because this Court suggested the Court to do both Director. BrowniM g. and Assistant Director Browning

if it felt OYFS involvement was necessary. For the foregoing reasons, the Order of Court dated August 2, 2017 should be

affhTne,d

23 IV. CONCLUSION. 006.r Based on. the foregoing this Court has issued. the August 2, 2017 placing the minor

child with.Father and requiringOYFS to file a dependency and place.Father under intense

supervision.

BY TECES COURT:

coRiirr )