J-A35043-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: C.T. a minor, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
:
APPEAL OF: K.T., : No. 1076 WDA 2015
Appeal from the Order June 16, 2015
in the Court of Common Pleas of Lawrence County,
Civil Division, No. 30 of 2015 D.P.
BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 06, 2016
K.T. (“Father”) appeals from the Order adjudicating C.T. (born
2/10/01) (hereinafter “Child”) dependent and placing Child in foster care.1
We affirm.
The trial court set forth the relevant factual and procedural
background in its Opinion, which we adopt for purposes of this appeal. See
Trial Court Opinion, 8/5/15, at 3-8.2
Father filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.
1925(a)(2)(i) Concise Statement of Errors Complained of on Appeal.
On appeal, Father raises the following issues for our review:
1
Child’s mother, H.T. (“Mother”), is not a party to this appeal.
2
A more thorough and extensive factual and procedural history of this case
can be found in the trial court’s February 27, 2015 Opinion, addressing the
basis for its Custody Order. See Trial Court Opinion, 2/27/15, at 2-62. We
also note that this Court affirmed the trial court’s February 27, 2015 Custody
Order. See K.T. v. H.T., 454 WDA 2015 (Pa. Super. 2015) (unpublished
memorandum).
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I. Whether the trial court committed an error of law
adjudicating [C]hild dependent under 42 Pa.C.S.[A.]
§ 6301(1)[,] and removing him from the home[,] when
there was a ready, willing and able parent?
II. Whether the trial court committed an error of law in finding
that Lawrence County Children and Youth Services
[“LCCYS”] proved by clear and convincing evidence that
[C]hild was dependent under 42 Pa.C.S.[A.] § 6302(6)[,]
by finding that [C]hild was ungovernable by Father?
III. Whether the trial court committed an error of law in
relying on findings [it made] in the concurrent custody
proceeding [during its adjudication of] the dependency
matter[,] when a different evidentiary standard applied?
IV. Whether the trial court [erred] in finding that it was in the
best interest of [C]hild to be removed from the home of
Father where [C]hild was thriving; by finding that
permitting [C]hild to remain in the home of Father would
be contrary to [C]hild’s welfare when no effort was made
to investigate the appropriateness of kinship placement;
when the court determined that foster care was the least
restrictive placement and by punishing [C]hild for refusing
to live with Mother by first placing [C]hild in a juvenile
detention center and then by placing [C]hild in distant
foster care?
V. Whether the trial court committed an error in finding that a
bonding assessment, trauma evaluation and therapy were
necessary to achieve the permanency plan of “return to
parent or guardian[,]” when there were no reasonable
efforts made by [LCCYS,] and nothing in the plan for
Father to complete to remediate the need for placement?
VI. Whether the trial [judge] committed an error by refusing
to recuse [him]self from the dependency matter when the
February 27, 2015 custody [O]rder pre-determined the
dependency matter, as the trial court prohibited LCCYS or
any agency or law enforcement agency from returning
[C]hild to Father?
Father’s Brief at 8-9 (issues renumbered for ease of disposition).
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As Father’s first two issues pertain to the trial court’s adjudication of
Child as dependent, we will address them together. In his first issue, Father
contends that LCCYS failed to establish by clear and convincing evidence
that Father lacks care, custody and control of Child. Id. at 18. Father
claims that prior to the dependency hearing, while in Father’s care, Child
was a straight “A” student, had friends, was involved in student government,
attended boy scouts, regularly attended church, and was “thriving.” Id. at
19. Father contends that Child only experienced difficulty in his relationship
with Mother, and that during the fifteen months prior to Child’s entry into
the juvenile system, Mother made no attempt to communicate with Child.
Id. at 19-20.
Father argues that, in adjudicating Child dependent, the trial court
erred by using its prior finding, made in the custody proceedings, that Father
would promote the continued alienation of Child from Mother. Id. at 20.
Father asserts that, by including in the Custody Order the provision that
Child was not to be returned to Father if Child ran away from Mother during
her custodial periods, the trial court effectively adjudicated Child as
dependent without the safeguards provided in the Juvenile Act, 42 Pa.C.S.A.
§§ 6301-6375. Father’s Brief at 22.
In his second issue, Father contends that Child is not “ungovernable.”
Id. at 23. Father asserts that the trial court erred by requiring that Child
obey the Custody Order because only Father and Mother, and not Child, are
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parties to the Custody Order. Id. at 24. Father claims that the trial court
impermissibly shifted the burden of compliance with the Custody Order to
Child, and thereafter used Child’s non-compliance as an improper
justification for determining that Child is dependent. Id.
Father also argues that Child does not meet the definition of a
“dependent” child under 42 Pa.C.S.A. § 6302(6). Father’s Brief at 25.
Father contends that, to be “dependent” under section 6302(6), Child must
disobey the lawful commands of his parents and be ungovernable and in
need of care, treatment or supervision. Id. Father asserts that Child does
not meet this standard because there is no evidence that (1) Mother has
made any reasonable attempts to control Child; or (2) that Child is in need
of care, treatment or supervision. Id. at 26. Father claims that, because
Mother could not persuade Child to come with her in the custody case, she is
using the dependency proceedings to accomplish her goal of keeping Child
away from Father. Id. Father argues that the trial court’s concern
regarding the adverse effect on Child from his parents’ constant custody
litigation is not a basis for a dependency finding. Id. at 27. Father contends
that the trial court is improperly using the dependency proceedings to punish
Child and Father. Id.
The standard of review which this Court employs in cases
of dependency is broad. However, the scope of review is limited
in a fundamental manner by our inability to nullify the fact-
finding of the lower court. We accord great weight to this
function of the hearing judge because he is in the position to
observe and rule upon the credibility of the witnesses and the
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parties who appear before him. Relying upon his unique
posture, we will not overrule his findings if they are supported by
competent evidence.
In re B.B., 745 A.2d 620, 622 (Pa. Super. 1999) (citations omitted). We
review a trial court’s adjudication of dependency for an abuse of discretion.
In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).
Dependency proceedings are governed by the Juvenile Act. The
Juvenile Act, in furtherance of its goal of preserving family unity whenever
possible, requires clear and convincing evidence of dependency before the
trial court can intervene in the relationship between a parent and child. In
re R.R., 686 A.2d 1316, 1317 (Pa. Super. 1996); see also 42 Pa.C.S.A.
§ 6301(b). Clear and convincing evidence has been defined as testimony
that is “so clear, direct, weighty, and convincing as to enable the trier of fact
to come to a clear determination, without hesitancy, of the truth of the
precise facts at issue.” In re A.B., 63 A.3d 345, 349 (Pa. Super. 2013).
The Juvenile Act does not necessarily require proof that a parent is
“unfit” before a child can be adjudicated dependent. Indeed, pursuant to the
Juvenile Act, a “dependent child” includes a child who “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.” 42
Pa.C.S.A. § 6302(6). Thus, pursuant to section 6302, a child may be
adjudged dependent regardless of parental fitness.
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In its Opinion, the trial court addressed Father’s first two issues, set
forth the relevant law, and determined that they lack merit. See Trial Court
Opinion, 8/5/15, at 10-14. Based on the sound reasoning of the trial court,
we conclude that Child’s dependency under section 6302(6) was established
by clear and convincing evidence, and affirm on this basis as to Father’s first
two issues. See id.3
In his third issue, Father contends that, because the trial court found
in the custody proceedings, using the lesser preponderance of the evidence
and best interest standards, that Father is a fit and proper parent, the trial
court was precluded from finding in the dependency proceedings, under the
higher, clear and convincing standard, that Father was unfit to care for
3
Because the clear and convincing evidence supported a finding of
dependency under section 6302(6), we need not address Father’s claims
with regard to section 6302(1). In any event, as noted above, parental
fitness is not a prerequisite to a dependency adjudication.
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Child.4 Father’s Brief at 32; see also id. at 20, 21, 22-23, 38 (wherein
Father makes this same argument). Father asserts that the evidence
presented at the custody trial was incorporated into the dependency
proceedings, including evidence regarding Father’s ability to be a ready,
willing and able parent, and that no additional evidence regarding Father’s
fitness was presented at the dependency proceedings. Id. at 19, 32. Father
claims that the trial court made extensive findings of fact in the custody
case, and that LCCYS adopted those findings as its evidence in the
dependency proceedings. Id. at 33. Father argues that the evidence of
record establishes that Child has proper parental care and control when he is
with Father. Id. at 34. Father contends that there is no clear and
convincing evidence that (1) Child is habitually disobedient; (2) has an
underlying psychological issue; or (3) is in need of care and treatment that
cannot be offered outside of the dependency setting. Id. Father asserts
that the trial court erred by adopting its findings from the concurrent
4
Father misunderstands the relationship between two evidentiary standards
at issue in this case. A “preponderance of the evidence” standard merely
requires that the evidence in favor of a proposition is of “greater weight”
than the evidence in opposition. See Ferri v. Ferri, 854 A.2d 600, 603 (Pa.
Super. 2004) (stating that “to tip a scale slightly is the criteria or
requirement for preponderance of the evidence.”) (citation and internal
quotation marks omitted). In contrast, a “clear and convincing” evidentiary
standard is a more difficult burden to meet, and requires evidence that is “so
clear, direct, weighty, and convincing as to enable the trier of fact to come
to a clear determination, without hesitancy, of the truth of the precise facts
at issue.” In re A.B., 63 A.3d at 349. That a particular body of evidence
may satisfy the easier “preponderance of the evidence” standard does not
necessarily mean that the same body of evidence can or will satisfy the
more demanding “clear and convincing” evidence standard.
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custody matter, and relying on such findings as a basis for its adjudication of
dependency. Id. at 34-35.
In its Opinion, the trial court addressed Father’s third issue, set forth
the relevant law, and determined that it lacks merit. See Trial Court
Opinion, 8/5/15, at 13-14. We concur with the reasoning of the trial court
and affirm on this basis as to Father’s third issue. See id.
As Father’s fourth and fifth issues pertain to the trial court’s
dispositional ruling, we will address them together. In his fourth issue,
Father challenges the trial court’s characterization of Child’s behavior as
dangerous, and claims that Child was never in harm’s way. Father’s Brief at
36. Father argues that, at the initial disposition hearing, LCCYS presented
no evidence regarding alternative dispositions for Child, and ignored the
family and friends who came forward during the dependency proceedings to
offer themselves as placement alternatives. Id. at 36. Father contends that
Child’s placement at Krause Youth Center was inappropriate, and that the
only appropriate placement for Child was with Father. Id. at 38. Father
claims that LCCYS made no effort to determine an appropriate placement for
Child, or whether, with services, he could remain with Father or Mother. Id.
Father argues that, as a result of his federal habeas corpus lawsuit, Child
was removed from Krause Youth Shelter and Child’s placement was changed
to foster care. Id. at 39. Father asserts that the trial court’s decisions
regarding placement of Child were not designed to serve Child’s best
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interests, and were instead designed to punish Child until he goes with
Mother. Id. at 41.5
In his fifth issue, Father contends that the trial court created a
situation where there was nothing that Father could do to prevent Child from
being adjudicated dependent or eliminate the need for his placement. Id. at
28. Father asserts that the trial court abused its discretion by finding that
Child needs trauma therapy and bonding assessments, and by ratifying a
dispositional plan that precludes reunification with Father. Id. at 32.6
A dependency hearing is a two-stage process. As noted above, the
first stage requires the trial court to determine by clear and convincing
evidence whether the child is dependent pursuant to the standards set forth
in section 6302. See In re A.B., 63 A.3d at 349. If the trial court finds that
the child is dependent, it may move to the second stage, in which it must
make an appropriate disposition based upon an inquiry into the best
5
Father additionally contends that Child’s subsequent placement with a
foster family in Crawford County was inappropriate, and was not in Child’s
best interest. Father’s Brief at 40. Father also contends that Child’s current
placement with Father’s cousins is inappropriate. Id. at 41. However, these
events occurred subsequent to the entry of the June 16, 2015 Order from
which Father appeals, and are not part of the record on appeal. Accordingly,
we cannot consider them. See Pa.R.A.P. 1921, note (stating that “[a]n
appellate court may consider only the facts which have been duly certified in
the record on appeal.”).
6
Father also references hearings conducted on July 2, 2015, and August 10,
2015, and efforts made by LCCYS to unify Child and Father subsequent to
the June 16, 2015 Order from which Father appeals. See Father’s Brief at
29-31. However, because these events occurred subsequent to the entry of
the June 16, 2015 Order, they are not part of the record on appeal.
Accordingly, we cannot consider them. See Pa.R.A.P. 1921, note.
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interests of the child. See In re L.C., II, 900 A.2d 378, 381 (Pa. Super.
2006).
Regarding the placement of a child who has been adjudicated
dependent, this Court has explained:
[w]hen a child is adjudicated dependent, the child’s proper
placement turns on what is in the child’s best ‘interest, not on
what the parent wants or which goals the parent has achieved.
See In re Sweeney, 393 Pa. Super. 437, 574 A.2d 690, 691
(1990) (noting that “[o]nce a child is adjudicated dependent. . .
the issues of custody and continuation of foster care are
determined by the child’s best interests"). Moreover, although
preserving the unity of the family is a purpose of the Act,
another purpose is to “provide for the care, protection, safety,
and wholesome mental and physical development of children
coming within the provisions of this chapter.” 42 Pa.C.S.
§ 6301(b)(1.1). Indeed, “[t]he relationship of parent and child
is a status and not a property right, and one in which the state
has an interest to protect the best interest of the child.” In re
E.F.V., 315 Pa.Super. 246, 461 A.2d 1263, 1267 (1983).
In re K.C., 903 A.2d 12, 14-15 (Pa. Super. 2006).
The Juvenile Act grants juvenile courts broad discretion
when determining an appropriate disposition. ... We will disturb
a [trial] court’s disposition only upon a showing of a manifest
abuse of discretion.
Interest of C.A.G., 89 A.3d 704, 709 (Pa. Super. 2014) (citations omitted).
In its Opinion, the trial court addressed Father’s arguments, and
thoroughly stated its reasons, based on competent evidence of record, for its
dispositional determination that placement in foster care was in Child’s best
interest. See Trial Court Opinion, 8/5/15, at 9-14. We discern no manifest
abuse of discretion by the trial court, and affirm on this basis as to Father’s
fourth and fifth issues. See id.
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To the extent that Father contends that the trial court erred by
determining, as part of its disposition, that a bonding assessment and
trauma evaluation should be conducted, we conclude that such
determination is amply supported by the record. Given Child’s repeated and
defiant refusal to stay in Mother’s custody, or to follow Father’s directive to
do so, an assessment of Child’s relationships with his parents was
appropriate. See Trial Court Opinion, 8/5/14, at 4, 7. Additionally, given
the bitterly contentious custody proceedings between Child’s parents, which
have extended continuously since 2004 and have included allegations of
physical harm and parental alienation, a trauma evaluation of Child was also
appropriate. See id. at 3-4 (referencing one jurist’s lamentation that this
case is “one of the most tragic custody cases she had ever seen and one of
the most tragic cases of parental alienation by [Father].”); see also Father’s
Brief at 32 (wherein Father concedes that “this case stems from protracted
and contentious custody litigation” and that “Mother and Father have been
arguing about custody of [Child] for nearly 11 years.”). Accordingly, we
discern no abuse of discretion by the trial court in ordering these services for
Child.
In his final issue, Father contends that President Judge Dominick Motto
(“President Judge Motto”) prejudged the dependency matter by ruling, in the
custody case, that law enforcement was prohibited from returning Child to
Father if Child ran away during Mother’s custodial time. Father’s Brief at 43.
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Father asserts that the effect of this provision was that if Child ran away
from Mother, he would be adjudicated dependent. Id. at 43-44. Father
claims that President Judge Motto knew that Child would not stay with
Mother, and therefore “created a situation” where Father was no longer a
ready, willing and able parent.” Id. at 43. Father contends that, by
prejudging the dependency matter and engaging in actions designed to
punish Child, President Judge Motto’s actions raise the appearance of
impropriety. Id. at 42. Father asserts that President Judge Motto should
have recused himself, pursuant to Father’s Motion for recusal, and another
judge from outside Lawrence County should have been appointed to hear
the case.7 Id. Father argues that President Judge Motto’s February 27,
2015 Custody Order and supporting Opinion reflect his “impression of Father
as conniving, underhanded, and determined to undermine [Child’s]
relationship with Mother.” Id. at 46. Father contends that “there was an
obvious and absolute appearance of impropriety” and President Judge Motto
erred by denying Father’s Motion to recuse. Id. at 48.
Our standard of review of a trial court’s determination not to recuse
from hearing a case is exceptionally deferential. See Commonwealth v.
Bonds, 890 A.2d 414, 418 (Pa. Super. 2005). Our trial judges are
“honorable, fair and competent,” and although we employ an abuse of
7
Father notes that President Judge Motto is the fifth judge assigned to this
case, and that two of the prior judges assigned to this case recused
themselves when suit was filed against them by Mother or Father. Father’s
Brief at 43.
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discretion standard, we do so recognizing that the judge himself is best
qualified to gauge his ability to preside impartially. Id. (citation omitted).
Accordingly, a party seeking to compel a judge’s disqualification must
“produce evidence establishing bias, prejudice or unfairness which raises a
substantial doubt as to the jurist’s ability to preside impartially.”
Commonwealth v. Abu-Jamal, 720 A.2d 79, 89 (Pa. 1998) (citations
omitted).
In light of the high burden placed on Father by our standard of review,
as well as our review of the record and the trial court’s well-reasoned
explanation, we conclude that Father has failed to produce evidence
establishing bias, prejudice or unfairness which raises a substantial doubt as
to President Judge Motto’s ability to preside impartially. See id. To the
contrary, given the extensive evidence of Child’s ongoing course of defiance,
Child’s difficulties in his relationship with Mother, Father’s efforts to alienate
Child from Mother, and the element of contentiousness that has pervaded
this case from its inception, we conclude that President Judge Motto
assessed the dependency Petition in an impartial manner, and fashioned an
appropriate dispositional Order that was designed to serve Child’s best
interests. See Trial Court Opinion, 8/5/15, at 9-14; see also id. at 14-15
(wherein President Judge Motto addressed his decision to deny Father’s
Motion to recuse). Accordingly, we find no merit to Father’s argument that
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President Judge Motto’s action raised an appearance of impropriety, or that
he erred by declining to recuse himself from this case.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/6/2016
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IN THE INTEREST OF: IN THE COURT OF COMMON PLEAS
C.T. LAWRENCE COUNTY, PENNSYLVANIA
NO. 30 OF 2015, D.P.
APPEARANCES
For Lawrence county children Carolyn J. Flannery, Esq.
and Youth Services: 1001 E. Washington Street
New castle, PA 16101
For K. T': Richard B. Sandow, Esq.
Stephanie T. Anderson, Esq.
Jones, Gregg, Greehan &
Gerace, LLP
411 seventh Avenue
suite 1200
Pittsburgh, PA 15219
For H.T.: Erica N. Burns, Esq.
Richard Ducote, Esq.
4800 Liberty Avenue
Third Floor
Pittsburgh, PA 15224
For C.T.: Stephen D. colafella, Esq.
671 Third Street
Beaver, PA 15009
Larry J. Puntureri, Esq.
2102 Wilmington Road
New castle, PA 16105
OPINION PURSUANT TO Pa.R.A.P.1925(al
MOTTO, P.J. AUGUST 5, 2015
K.T., father of the child, C.T., has appealed the order of
June 16, 2015, wherein the court found c. T. to be a dep1~::ndent
child under the Juvenile Act, 42 Pa.C.A.A. §6301 et.seq.
The court found c.T. to be dependent on two separate
53RD
JUDICIAL
grounds. The first ground is that C.T. is dependent pursuant
DISTRICT ~. .
to section 6302 (ll-i ~ ~O y'effl,Gll'fA[i. s without proper parental care
.AWRENCE COUNTY
PENNSYLVANIA
20!5 AUG - 5 A 11: ll 5
HELEN I. MORGAH
o o ri ~- un r1 F~K
(.:-,· .·· Circulated 12/18/2015 03:16 PM
or corrtro l necessary for his physical, mental or emotional
health. The second ground is that C.T. is dependent pursuant
to 6302(6) in that C.T. has committed a specific act or acts of
habitual disobedience of the reasonable and lawful commands of
his parents, and who is ungovernable and found to be in need of
care, treatment or supervision.
The factual basis for finding C.T. to be dependent under
the Juvenile Act is that C.T., a child who is approximately 14~
years of age, repeatedly and consistently refuses to remain ,n
the phy~ical custody of his mother, H.T., despite the fact that
extensive custody proceedings have~ since October of 2013,
consistently and specifically ordered that he be in the primary
physical custody of H.T., including the order of the superior
court issued in April of 2015 wherein the superior court
spect f i ca l l y directed that C.T. be delivered by K.T. to the
physical custody of H.T. Each time that C.T. is brought to
H.T. he runs away, often times plac~ng himself ,n harm's way.
In the last custody order issued by this court on February 2,
2015, this court directed that if C.T. should run, he was to be
returned to H.T. and not to be returned to K.T., the reasons
for which appear ,n the Opinion and Order dated February 27,
2015, issued in the custody case K.T. 0. H.T., No. 11297 of
2006, C.A., Lawrence county, a copy of which Opinion is of
record 1n this case.
K.T. immediately appealed the custody order and sought a
stay. This court denied a stay. A stay was requested to be
53RO
JUDICIAL
DISTRICT issued by the super-i or court, which denied the stay and
~~'.LEO/ORIGINAL
.AWRENCE COUNTY
PENNSYLVANIA
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HELEN I. MORGAH
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specifically directed that K.T. deliver the child to H.T. on
April 3r 20156. when K.T., Father, delivered C.T. to the
residence of H.T., Mother, C.T. again left and walked, at night
in the rain, to the state police barracks, culminating 1n the
Lawrence county children and Youth initiating the dependency
proceedings. After dependency proceedings were initiated, K.T.
sought a further stay from the superior court which was again
denied. The appeal was argued before the superior court on
July 8, 2015 and a decision is pending.
FACTUAL AND PROCEDURAL HISTORY
The dependency proceeding emanates from the custody
proceedtngs at case No. 11297 of 2006, C.A. The parties have
engaged in continuous litigation since their separation in
2004; hcwever, the circumstances that have resulted in the
dependency proceedings began when the Honorable Thomas M.
Piccione of this court issued an opinion and order dated
October 1, 2013, which awarded sole legal and primary physical
custody to H.T. Although the court will begin this discussion
from th&t point, the court notes that the Opinion and order of
this court dated February 27, 2015 contains a continuous
·.
history preceding that date, which illustrates failed efforts
~f K.T. both in this court and in the court of common Pleas of.
westmor~land county, to suggest that H.T. and her father had
either ~hreatened or physically harmed K.T., all of which
allegations were found by various jurists to be unfounded. In
53RD
JUDICIAL
DISTRICT awarding primary ~hysica1 custody and sole. legal custody to
FIL ED IO RIG I H ,\ L
.AWRENCE COUNTY
PENNSYLVANIA 20l5 AUG - 5 A II: 4 ~
HELEN I. MORGA~{
F.·RO AHO Cl:.KHK1
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H.T., Judge Piccione concluded that if l<.T. was awarded
custody, the relationship of c.T. with H.T. would dissipate to
a point·of disrepair. Judge Piccione's Order of October 1,
2013 wa~ appealed by K.T. to the superior court of
Pennsylvania, which affirmed the October 1, 2013 order and its
opinion filed May 30, 2014.
Approximately one month after the October 1, 2013 custody
order, t.T. began refusing to spend any time with his mother,
H.T. Prior to these juvenile proceedings, C.T. had not been ,n
H.T. 's custody since December of 20131 despite the court
orders.·· Although these matters are set forth in more detail ,n
the att~ched opinion of February 27, 2015, essentially at any
time that C.T. was brought to H.T.'s residence, he would run,
at times placi~g himself in danger such as running out late at
niqht in his paj amas , jumping out of a moving vehicle on a cold
winter-'~- night and hiding behind a dumpster until he was found,
which incidents resulted iri the fiTing of a petition for
protecti-0n from abuse by K.T. on behalf of C.T. against H.T. ,n
the wes~moreland county court of common Pleas. After hearings
before the Honorable Megan Bilik-DeFazio, these petitions were
dismissed with Judge Bilik-DeFazio referring to this case as
one of the most tragic custody cases she had ever seen and one
of the ~ost tragic cases of parental alienation by K.T. That
judge found C.T. to be deliberate, that he knows what he 1s
doing a0d that he is manipulating. Judge Bilik-DeFazio also
found that the testimony of H.T. was c~edible, that H.T. had
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JUDICIAL
DISTRICT
never threatened c.~:, and that the explanation of H.T. as to
f:LED/ORIGINAL
AWRENCE COUNTY
PENNSYLVANIA 20!5 AUG - 5 /:;Li· 11: ~ 5
i iELEN I. MORGAN
?RO AND CLERK
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what occurred on January 1, 2014 when C.T. jumped out of her
moving vehicle was reasonable and that any testimony of C.T.
that he was fearful of H.T. was not credible. K.T. appealed
the decision of Judge Bilik-DeFazio and that decision was
affirmed by the superior court.
It is noteworthy that during the proceedings in
Westmoreland county, K.T. in passing through security denied
that he had any weapons on him. However, security discovered
in his briefcase a loaded Glock 9 mm firearm and a folding
knife with a 3% inch blade. K.T. was charged criminally as the
result of this conduct. what developed as the result of this
information was that K.T. had been carrying this loaded firearm
on custody exchanges with H.T.
During the time that K.T. appealed the decision of Judge
Piccione, C.T. remained physically with K.T. without any
authority whatsoever as the custody order gave primary custody
to H.T. Judge Piccione did not enforce the custody order while
it was on appeal. After the superior court affirmed the
custody order, proceedings were commenced to attempt to enforce
that order; however, Judge Piccione went on a medical leave
during this period of time and could not continue with the
case. The case was then assigned to visiting Judge Francis J.
Fornelli, who recused himself after the assignment because of
having some connection with an individual who was likely to be
a witness in the case. The case was then reassigned this
53RD
judge.
JUDICIAL
DISTRICT
F \LED I OR I GIN AL
zms AUG - 5 A 115 q s
.AWRENCE COUNTY
PENNSYLVANIA
HELE~ LMORGAH
IQRA AND CLER~.
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It should be noted that this case was originally assigned
to the Family court judge of this county, the Honorable John w.
Hodge, who recused himself as the result of a federal law suit
filed against him by K.T. The case was then reassigned to
senior Judge Eugene E. Fike, II, who recused himself because of
a federal lawsuit filed against him by H.T. when the case was
assigned to Judge Piccione, a federal lawsuit was filed by K.T.
against Judge Piccione, but Judge Piccione declined to recuse
himself.
At the time Judge Piccione issued his custody order in
October of 2013, C.T. had been in attendance at the Neshannock
Township school District in Lawrence county, Pennsylvania where
he had 2lways attended school, the district where H.T. 's
residence is located. when the next school year commenced
after C.T. had begun refusing to spend any time with H.T.,
K.T., without any legal authority to do so, enrolled C.T. in
the Hempfield school District in Westmoreland County, where
K.T. resides. K.T. has been found to be in contempt of court
for so doing.
The matters before this Court, after the Superior court
had affirmed the decision of Judge Piccione, were competing
petitions for modification filed by both H.T. and K.T., K.T.
seeking full custody of C.T. and H.T. seeking to modify the
custody order in a manner that would allow enforcement of the
order giving her primary custody. Extensive proceedings were
53RO
held before this court with the result that this court found
JUDICIAL
DISTRICT that thEre was no
-, .
basis for C.T. to have any fear of H.T.; that
FILED/ OR\G\HAL
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PENNSYLVANIA
2.0\5 ~UG -S A \\t ~S
h\[lt.~ \. r.MOR~f:.-H
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• • •
(
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,n reality C.T. has no fear of H.T. or of his maternal
grandfather and that C.T. expresses his fear only for the
purpose of fulfilling the wishes of K.T. that he have no
contact with H.T. The court further concluded that the conduct
of K.T. is alienating C.T. from H.T. (Trial court Opinion of
February 27, 2015, p. 83).
The purpose of including in Paragraph 16 of the custody
order a directive that C.T. not be permitted to be at the
residence designated at 130 Fireside Drive nor be permitted for
any reason to be placed in the custody of K.T. during the
"primary custody time of H.T. with the further direction that if
for any reason the child removes himself from the custody of
H.T. th~t he is to be returned to H.T. and not to K.T. or
anyone acting on behalf of K.T. is to address the fact that
ret urn i rrq C.T. to K.T. will only serve to continue was has
existed since December of 2013, that the orders of this court
and of the Superior court will continue to be ignored.
on Friday, April 3, 2015, the date that the superior court
ordered that C.T. be returned to H.T. by K.T., C.T. was dropped
off at The residence of H.T. by K.T. C.T. immediately walked
away frum the residence and in the evening hours and eventually
arrived at a barracks of the Pennsylvania State Police. C.T.
could net be returned to H.T. as he adamantly expressed that he
would not obey the court order and would continue to leave. As
a ~esult, Lawrence county children and Youth services (LCCYS)
was contacted. An oral ex parte order was obtained and C.T.
53RD
JUDICIAL
DISTRICT was placed in shelter care. On April 6, 2015 an ex parte order
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PENNSYLVANIA
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was obtained. That same day an application for shelter care
was filEd. After a hearing before Master Papa, a
recommendation was made that C.T. remain in shelter care. The
recommendation was approved by court order issued April 7,
2015.
A dependency petition was timely filed alleging dependency
pursuant to Section 6302(a)(l) and (6) of the Juvenile Act.
After hearing, the master recommended that C.T. be adjudicated
dependent . The recommendation was approved and entered as an
order on May 5, 2015. A disposition hearing was held on May 5,
2015 before the master who recommended that C.T. remain in
shelter care, which recommendation was also approved by the
court.
K.T. requested a de nova review before the court.
Following a de novo proceeding that court found C.T. to be
dependent and ordered C.T. to be placed in foster care. The
pending review proceedings are focused on whether C.T. should
be placed in a kinship foster home setting. The court has
indicated that a foster home neutral to both parties is
preferr~d, but may not be possible as potential and existing
foster parents are concerned that they may be the subject of a
1 awsui t by K. T. because of the contentiousness of the
litigation and the propensity for corollary suits.
K.T. filed a motion for this judge to recuse himself
because of the ruling made 1n the custody litigation that C.T.
not be returned to K.T. if he should run from H.T. The court
53RD
JUDICIAL
DISTRICT denied the recusal motion.
AWRENCE COUNTY
PENNSYLVANIA
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DISCUSSION
A dependent child is defined 1n pertinent part at 42
Pa.c.s.A. 6302 as a child who (1) is without proper parental
care or control, or other care or control necessary for its
physical, mental or emotional health; or (6) has committed a
specific act or acts of habitual disobedience of the reasonable
and lawful commands of hi s parent, and who is ungovernable and
found to be in need of care, treatment or supervision.
As to §6302(1), the court has found that C.T. is without
proper parental care or control as neither parent is able to or
willing to control him to the extent that he will remain in
compliance with court orders to be in the physical custody of
H.T. He clearly will not obey the directive of H.T. that he
remain in her custody as required by order of court. K.T. has
testified repeatedly that he directs C.T. to remain with H.T.
as required by the court order but that C.T. refuses to do so.
The court recognizes that in the case of In re: M.L., 562 Pa.
646, 757 A.2d 849 (2000), the supreme court held that a child,
whose non-custodial parent is ready, willing and able to
provide adequate care to the child, cannot be found to be
dependent under §6302(1). However, this court has found that
returning C.T. to K.T. will only promote the continued
alienating behavior and will never bring about compliance with
the custody order, but will only continue in perpetuity what
has existed since December of 2013. Thus, returning C.T. to
K.T. would only continue a circumstance that C.T. would remain
53RD
JUDICIAL
DISTRICT wi thout proper parental care or corrt ro ' necessary for his
AWRENCE COUNTY
PENNSYLVANIA
9
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physical, mental and emotional health, as what is necessary 1s
that the alienating behavior be addressed as well as his mental
and emotional needs. That is presently occurring in that while
in placement in a foster home, he is undergoing therapies for
bonding with H.T. and to address emotional trauma. This
treatment could not possibly be provided to him if he were to
be in the lawful physical custody of K.T.
Pursuant to §6302(6) a child may be found dependent where
he 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.
Here, it is clear that C.T. has committed specific act or
acts of habitual disobedience of the reasonable and lawful
commands of his parents. H.T. clearly commands that C.T.
remain in her custody as required by court order. Despite
these commands, C.T. habitually disobeys her. K.T. has
testified that he commands C.T. to obey the court order and
remain in the physical custody of H.T. but that C.T. will not
obey him. As to this issue that C.T. obey the court order and
remain in the physical custody of H.T., he is ungovernable and
not even the court is able to persuade him that he should not
disobey a court order. It is clear that the current
circumstances of C.T. are such that he is need of care and
treatment that can address the effects that prolonged custody
litigation has had upon him. That care and treatment plan is
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DISTRICT
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PENNSYLVANIA
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currently being developed for him through the juvenile court
procedure.
K.T. 's argument that C.T. cannot be considered to be
dependent since K.T. is ready, willing and able to provide
adequate care and C.T. will stay with him, does not apply to a
finding of dependency pursuant to §6302(6). In the case of In
re: K.A.D., 779 A.2d 540 (2001), father in appealed a
depende~cy finding relying upon In re: M.L., supra, for the
proposition that a child cannot be found dependent where there
is a non-custodial parent able to provide adequate care. In
K.A.~, the superior Court found that father's reliance upon In
re: M.L. was misplaced because that principle applied to a
dependency finding under §6302(1) and not to dependency
findings under §6302(5) and (6). The K.A.D. court noted that
the court in In re: M.L. was speaking solely to the §6302(1)
definition which clearly states the child must lack a parent
who can provide appropriate care to the child and child whose
non-custodial parent is ready, willing and able to provide such
care does not meet this definition. K.A~ concluded that In
re: M.L. did not apply to the dependency definition contained
1n §6302(6).
K.T. cites In the interest of Justin s., 543 A.2d 1192
(Pa.super. 1988) for the proposition that C.T. cannot be
adjudic&ted dependent when K.T. is a ready, willing and able
parent. The court agrees that this principle applies to
alleged dependency pursuant to §6302(a)(l), but disagrees that
53RD
JUDICIAL
DISTRICT it has any application to alleged dependency pursuant to
AWRENCE COUNTY
PENNSYLVANIA
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(
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§6302(6). In re: K.A.D., supra. As to §6302(a)(l), as noted
in Justin s., the Court must examine two discrete questions:
(1) Is the child at this moment without proper parental care or
control; and (2) if not, is such care and control immediately
available. Justin s., 375 Pa.super. at 99, 543 A.2d at 1199.
Here, both parents have admitted their inability to control
C.T. He adamantly refuses to obey either parent. This fact 1s
undisputed by all parties. Interestingly, if C.T refused to
attend ~chool as directed by his parents there would be little
que s t i or: as to lack of parental control and dependency. C.T. 's
refusal to obey the court order for no legitimate reason should
be equated with refusal to attend school. The fact that C.T.
will stay with K.T. ignores the central issue; that H.T. is the
custodial parent having primary physical custody and that C.T.
,
..
·:·.' does not have the option of deciding for himself whether he
will choose to comply with the custody orders. The issue of
control relates to the ability to control C.T. 's behavior and
bring about compliance with the court orders.
K.T. makes a similar assignment of error as to dependency
pursuant to §6302(a)(6) asserting that the court erred in
finding that C.T. is ungovernable. He is clearly ungovernable
as to hi s consistent and repeated conduct of running away from
H.T. The fact that he may be governable to other directives of
K.T. fails to acknowledge his lack of governability as to his
refusal to obey a court order. The Juvenile Act permits a
finding of dependency where the evidence establishes that the
53RD
JUDICIAL
DISTRICT
child is lacking a particular type of care necessary to meet
.AWRENCE COUNTY
PENNSYLVANIA 1 ')
1~
Circulated 12/18/2015 03:16 PM
his individual specific need. In re: R.R., 455 Pa.Super. l,
686 A.2d 1316 (1996). Here, the need 1s to address C.T.'s
conduct in continually running away from his custodial parent.
rn:.general, K.T. 's assignments of error assert that the
proper disposition of this matter is to simply place C.T. 1n
the custody of K.T. To do so would render the custody order
meaningless. If a child's uncontrollable recalcitrance to a
court order cannot· be a basis for a finding of dependency, then
every custody order is subject the consent of the child, as to
its enforceability.
c.t. 's illogical behavior establishes that he is in need
of assessment and counseling that can be provided only in the
context ·of a controlled environment. K.T. 's proposed solution
would only reward C.T. for his defiance and provide K.T. with
the achievement of his objectives by default.
K.T. further assigns error in the court r~lying on
findings in the concurrent custody proceeding. However, K.T.
does not identify what findings the court relied upon that were
not substantiated in the dependency record. The custody
opinion and order was entered of record without objection, and
was clearly relevant as it established the legal relationship
between the parties as to the child and the primary custodial
rights of H.T., as well as the basis for directing that the
child should not be returned to K.T. during H.T. 's custodial
time. The custody proceedings provided the basis for finding
that C.T. is habitually disobedient and lacks parental control
53RD
JUDICIAL
DISTRICT by running away from H.T. and putting himself in harm's way.
AWRENCE COUNTY
PENNSYLVANIA
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There is no error 1n considering prior litigation that
impacts upon the issues in a dependency proceeding. In the
case of In re:E.B., 83 A.3d 426 (Pa.Super. 2013), the court
considered that father had a stay-away order against the
child's older siblings due to reports of physical abuse, that
father ~as in-and-out of the criminal system and currently
serving probation, that he had two indicated reports of
physical abuse against the child's siblings and was facing
serious criminal charges for injuring the child's siblings.
The court rejected father's argument that the prior and pending
corol l ary proceedings did not provide evidence as to his
current ability to care for the child.
under either subsection of §6302, either (1) or (6), the
court has found that although K.T. is ready and willing, he is
not in~ position to immediately provide the proper care needed
by C.T. for his mental and emotional health as we are dealing
with a child who is exhibiting a behavioral problem, in that he
is continuing to run away from his custodial parent without any
basis or reason for so doing. To allow this circumstance to
continue whereby court orders continue to provide for H.T. to
have primary physical custody but are simply ignored would be
irresponsible. compliance with a court order should not be
optional.
The undersigned trial judge was requested by K.T. to
recuse himself on the theory that this court had already
decided the dependency issue in connection with the February
53RD
JUDICIAL
DISTRICT
27, 2015 custody order and therefore could not be expected to
A.WRENCE COUNTY
PENNSYLVANIA
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be impartial relative to addressing dependency in connection
with the dependency case brought under the Juvenile Act. The
court knows of no authority whereby a judge must recuse himself
because he has decided a corollary piece of litigation and then
1s in the position to address other aspect of that litigation
,n another procedure. For example, a judge hearing a
protection from abuse proceeding and making a finding that the
defendant violated the protection From Abuse Act and then
issuing a PFA order is not conflicted from later hearing a
complaint for indirect criminal contempt of court brought on
the all8gation that the defendant violated a provision of the
PFA order. similarly, in a divorce case, a judge could very
well make a finding in the divorce litigation that could impact
upon a 11arty's ability to obtain a support order in a related
domestic relations proceeding, but that judge would not be
conflicted from hearing that domestic relations proceeding even
though he may have made a previous ruling in the divorce case
that impacts upon the domestic relations proceeding. In any
event, €Ven if this case were assigned to another judge, that
judge would be bound by the fact that a custody determination
had bee~ made in the custody case to the extent that the
custody order would impact upon the dependency proceedings.
Finally, K.T. has raised objections to the placement of
C.T. 1n these dependency proceedings. C.T. was placed in
shelter care initially. Krause shelter is a licensed shelter
care facility. However, that placement was temporary pending
53RD
JUDICIAL
DISTR JCT efforts to find a suitable foster placement for C.T. C.T.
.AWRENCE COUNTY
PENNSYLVANIA
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frustrated the efforts for placement in that when he was
brought to a therapist for evaluation, he objected to the
therapi5t because he noticed a certification on the office wall
of the therapist that contained the name of a former associate
of the therapist who C.T. believed had some familiarity with
H.T., and thus the therapist was not permitted to evaluate C.T.
Additionally, placing C.T. in foster care has been problematic
because ·at least two foster parents have been located who
'.~ r
initially were willing to accept C.T. but then indicated their
reluctance to take C.T. because of the proclivity for corollary
1itigation to result from the relationship between the parties.
Presently, C.T. is in a foster placement with an acceptable
foster ·Family who has indicated they would like to have C.T.
removed because of the non-consent of K.T. to the placement.
Thus at present the court has directed all parties to submit
na~es of potential placements, including kinship placements, to
be investigated by LCCYS and to be evaluated at the next
dispositional hearing.
It is correct that LCCYS has advocated that a proper
foster placement should not be with individuals friendly with
or related to K.T. or H.T. as neutrality would benefit C.T. 's
contemp·1ated therapies. However, because of the conflicted
nature of the potential litigation that arises from this case,
kinship placement may be the only possible placement although
not the most desirable. That issue is scheduled to be
address~d on the next scheduled dispositional review hearing.
53RO
JUDICIAL
DISTRICT
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~ 'L FO I ORIGl~AL
_AWRENCE COUNTY
PENNSYLVANIA
20\5 I\UG - 5 A \~i6llS
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