C.S. v. L.C.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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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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J-S01006-18

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.
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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

omitted).

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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J-S01006-18

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.
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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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J-S01006-18

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.
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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

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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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J-S01006-18

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.
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 Circulated 04/25/2018 02:55 PM

Plaintiff
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Defendant

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

affirmed.

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 )

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