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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 Super. 2015) (unpublished 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 
J-A35043-15

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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 factfinding 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 
J-A35043-15

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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
20!5 AUG - 5 A 11: ll 5 

HELEN I. MORGAH 

o o ri ~- un r1 F~K 

to section 6302 (ll-i ~ ~O y'effl,Gll'fA[i. s without proper parental care 

~ .... 

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 

grounds. The first ground is that C.T. is dependent pursuant 

MOTTO, P.J. 

OPINION PURSUANT TO Pa.R.A.P.1925(al 

AUGUST 5, 2015 

Larry J. Puntureri, Esq. 

2102 Wilmington Road 

New castle, PA 16105 

Stephen D. colafella, Esq. 

671 Third Street 

Beaver, PA 15009 

Erica N. Burns, Esq. 

Richard Ducote, Esq. 

4800 Liberty Avenue 

Third Floor 

Pittsburgh, PA 15224 

Carolyn J. Flannery, Esq. 

1001 E. Washington Street 

New castle, PA 16101 

Richard B. Sandow, Esq. 

Stephanie T. Anderson, Esq. 

Jones, Gregg, Greehan & 

Gerace, LLP 

411 seventh Avenue 

suite 1200 

Pittsburgh, PA 15219 

For C.T.: 

For H.T.: 

For K. T': 

For Lawrence county children 

and Youth Services: 

APPEARANCES 

NO. 30 OF 2015, D.P. 

LAWRENCE COUNTY, PENNSYLVANIA 

IN THE COURT OF COMMON PLEAS 

( 

C.T. 

IN THE INTEREST OF: 

f 

\ 

.AWRENCE COUNTY 

PENNSYLVANIA 

53RD 

JUDICIAL 

DISTRICT 

Circulated 12/18/2015 03:16 PM
K.T. immediately appealed the custody order and sought a 

stay. This court denied a stay. A stay was requested to be 

issued by the super-i or court, which denied the stay and 

~~'.LEO/ORIGINAL 

ZOIS AUG - 5 A ij: 4 5 

HELEN I. MORGAH 

n'.")n x un r1 rRK 

2006, C.A., Lawrence county, a copy of which Opinion is of 

record 1n this case. 

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 

his parents, and who is ungovernable and found to be in need of 

care, treatment or supervision. 

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 

(.:- 

,· .·· 

.AWRENCE COUNTY 

PENNSYLVANIA 

53RO 

JUDICIAL 

DISTRICT 

Circulated 12/18/2015 03:16 PM
either ~hreatened or physically harmed K.T., all of which 

allegations were found by various jurists to be unfounded. In 

awarding primary ~hysica1 custody and sole. legal custody to 

FIL ED IO RIG I H ,\ L 

20l5 AUG - 5 A II: 4 ~ 

HELEN I. MORGA~{ 

F.·RO AHO Cl:.KHK1 

westmor~land county, to suggest that H.T. and her father had 

·. 

history preceding that date, which illustrates failed efforts 

~f K.T. both in this court and in the court of common Pleas of. 

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 

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 

FACTUAL AND PROCEDURAL HISTORY 

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. 

r-: 

' 

.AWRENCE COUNTY 

PENNSYLVANIA 

53RD 

JUDICIAL 

DISTRICT 

Circulated 12/18/2015 03:16 PM
i iELEN I. MORGAN 

?RO AND CLERK 

20!5 AUG - 5 /:; 11: ~ 5 

Li· 

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 

never threatened c.~:, and that the explanation of H.T. as to 

f:LED/ORIGINAL 

( 

AWRENCE COUNTY 

PENNSYLVANIA 

53RD 

JUDICIAL 

DISTRICT 

Circulated 12/18/2015 03:16 PM
F \LED I OR I GIN AL 

zms AUG - 5 A 115 q s 

HELE~ LMORGAH 

IQRA AND CLER~. 

judge. 

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 

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basis for C.T. to have any fear of H.T.; that 

FILED/ OR\G\HAL 

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that thEre was no 

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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 

held before this court with the result that this court found 

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. 

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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. 

was placed in shelter care. On April 6, 2015 an ex parte order 

( 

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denied the recusal motion. 

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 

court. 

shelter care, which recommendation was also approved by the 

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 

2015. 

recommendation was approved by court order issued April 7, 

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 

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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 

wi thout proper parental care or corrt ro ' necessary for his 

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, 

As to §6302(1), the court has found that C.T. is without 

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. 

care or control, or other care or control necessary for its 

A dependent child is defined 1n pertinent part at 42 

Pa.c.s.A. 6302 as a child who (1) is without proper parental 

DISCUSSION 

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treatment that can address the effects that prolonged custody 

litigation has had upon him. That care and treatment plan is 

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 

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 

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 

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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 

it has any application to alleged dependency pursuant to 

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 

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1 ') 

1~ 

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 

child is lacking a particular type of care necessary to meet 

be equated with refusal to attend school. The fact that C.T. 

(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 

in Justin s., the Court must examine two discrete questions: 

§6302(6). In re: K.A.D., supra. As to §6302(a)(l), as noted 

( 

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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 

by running away from H.T. and putting himself in harm's way. 

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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 

27, 2015 custody order and therefore could not be expected to 

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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 

efforts to find a suitable foster placement for C.T. C.T. 

{ 

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~ 'L FO I ORIGl~AL 

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address~d on the next scheduled dispositional review hearing. 

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 

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 

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