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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 C.S. , v. L.C. APPEAL OF: LACKAWANNA CHILDREN AND YOUTH : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA

No. 1392 MDA 2017 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

APPEAL OF: LACKAWANNA COUNTY CHILDREN AND YOUTH SERVICES : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

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 ,

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and stating that Father shall have primary physical custody of Child, subject to periods of partial physical custody by Child’s mothe r, 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 Notice s 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/ 2 7/17, at 1 4 (emphasis added) . 2 

### We will refer to the hearing s 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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1. While the [trial] [j] udge authorized the with drawal 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 eligi ble 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 que stioning 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 con tinued in the [Withdrawal] Order [,] despite [CYS] having no safety concerns [,] an d by stating in the [Withdrawal] Order that “All prior Order [s] that are not inconsistent with this Order shall remain in effect, [”] creating ambiguity?

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



### In dependency matters , we review the trial court’s order pursuant to an abuse of discretion standard of review . As such, we must accept the court’s findings of fact and credibility determinations if they are supported by the record, b ut 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 conten ds 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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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 a ctionable 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 i f 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 p reclude appellate review where issue was of i mportant public interest, capable of re petition , yet apt to elude appellate review); Commonwealth v. Bernhardt, 359 Pa. Super . 413, 519 A.2d 417, 420 (1986) (holding exception to mootness d octrine exists where (1) the question involved is ca pable 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 Opinio n, 9/ 2 7/17, at 22 - 23. We agree with the trial court’s analysis and determination, and thus incorporate it as though fully set forth herein. See id. Moreover, there is no merit to CYS’s claim that the circumstances here meet the repetition exception to the mootness rule. While the issue may

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be capable of repetition in the future (i.e. , in other cases, Lackawanna County Court of Common Pleas judges may potentially direct CYS to open a dependen cy 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 I

n 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 co urt, 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 Ch ild 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

_________________ ____________________ _______ 5 

### CYS 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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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 ci rcumstances precluding such efforts. [See id. § 671(a)(15).] J udge 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 th at “[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 Co urt Opinion, 9/ 2 7/17, at 15 - 16. We agree with the trial court’s analysis and determination , which is supported by the record, and therefore affirm on this basis as to this issue. See id.

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In its fourth issue, CYS argues that Judge Corbett abused her discretion in the fashion in which she conducted the dependency hearing, 6 

### which included not allowing CYS or Mother and Father an opportunity to present and question witnesses. See Brief for Appellant at 15 - 16. According to CYS, [b] y her actions, [] Judge [Corbett] is seeking evidence to keep [] [C]hild in custody, and not acting impartially with respect to [Mother and Father]. ... By her actions in taking over the [ dependency ] hearing, conducting questioning [of witnesses (i.e. , GAL Thiel ) ] , and finding for shelter care, without giving [CYS,] or [Mother and Father], the parties, an opportunity to testify, [] Judge [Corbett] is not acting as an impartial judge, but is focused on achieving the outcome she wants. This is not due pro cess. 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/ 2 7/17, 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 c ustody ; 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 th e “first adjudication hearing,” its Argument section only references the dependency hearing.

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grounds to keep temporary custo dy 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 e mergency 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 s helter care [P] etition because it had no ba sis to keep custody based on its investigation. Brief for Appellant at 17. The trial court addressed this claim i n 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 Tria l Court Opinion, 9/ 2 7/17, at 18 - 22. We agree with the trial court’s determination and analysis, and

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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 b e 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 “intens e

_________________ ____________________ _______ 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 alleg es the dependency of the child.”). In the instant case, Child was never adjudicated dependent.

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

### Further, at the adjudication hearing, the trial judge pointed out that Father’s custodial time would be under “intense supervision,” in response to which the attorney for CYS stated as follows: “Yes. And that intense supervision is gonna remain, Your Honor.” N.T., 8/31/17, at 21. However, the CYS attorney did not seek clarification of this phrase at that time. The Withdrawal Order is enforceable and not improper due to ambiguity. Based on the foregoing, we affirm the Dependency Order and the Withdrawal Order. Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/10/2018

_________________ ____________________ _______ 8 

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

VS. _Si L 

# CP; HKAAV N..4T'b' 

### Plaintiff iM'w."6.1C?,y1,6i7T OF COMMON PLEAS

1611 SE.: A , 9 2 :1 , IAA71 AWCANNTIONA-CFOAM1LUNTYY LAW CL-E.PK 

### L C 1, Fil.41El-Pc;c:bA!:,17:3iyi. 2009-F C-41245 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 

### ofthat 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. 1She1p and Mother was 

### grantedtemporary physical custody 

### of the minor child. (Orders, 05/13/13). There was 

### a 

### briefperiod 

### of approximately two (2) months where Mother was granted primary physical custody and Father had periods 

### ofpartial physical custody. (Order, 07/03/13). Thereafter in September 2013, Mother filed a 

### Protection from Abuse (hereinafter "PFA") Order 

### in Luzerne County. An investigation was being conducted in Luzerne County regarding allegations 

### of abuse 

### of the minor child by 

### Father's paramour Monty C. 

### ic Or 60/40 (hereinafter 

### "Father's paramour") 

### presumably y Luzeme County Children and 

### Youth Services. Subsequently, a review hearing was held in 

### the matter. Based on those allegations, this Court granted Mother primary physical custody 

### of the minor child and ordered Father to 

### have no contact with 

### the minor child 

### until the, investigation was completed. (Order, 09/17/13). In 2014, 

### the Honorable Judge Gibbons entered a Stipulated Order 

### wherein Father shall have supervised visits/reunification therapy 

### with the minor child 

### at the 

### Children's Service Center. (Order, 02/12/14). In September 2014, Father filed a Petition for Emergency Special Relief, 

### which was temporarily granted by the 

### Honorable Judge Gibbons and later withdrawn by 

### the Honorable 

### judge Saxtoneiwho ordered 

### Father to begin the 

### aforementioned reunification therapy. (Order, 09/02/14; Order, 09/10/14).3 In 2015, 

### Mother again made allegations 

### of abuse 

### of the'rninor Child by 

### Father and 

### Father was only allowed 

### to see the minor child 

### in a supervised setting. (Order, 06/11/15), In December 2016, this Court appointed 

### Attorney Corinne Thiel as 

### the Guardian 

### Ad Litem (hereinafter "GAL Thiel") after 

### Father's filing 

### of a 

### Petition for 

### Contempt .(Order, 12/01/16). Thereafter, this Court ordered both parties 

### to comply

3 Father averred that Mother was evicted from her residence because she.was living with nine people, that Mother was selling the minor child's medication., that Mother refused to contact the supervision agency, and that the minor child was being abuied. 2

### with scheduling the EOTC visits with the minor child. (Order, 01/05/17). 

### Then in 

### June at a Guardian Ad Litem Conference, the parties entered into a Stipulated Order 

### with GAL Thiel 

### and agreed that Mother shall have primary 

### physical custody subject to 

### Father's periods 

### of partial physical custody every other weekend. (Order, 06/16/17). Recently, Father filed a PFD. Petition and 

### Petition for Emergency Special 

### Reliefwith allegations that 

### Mother's paramour was abusing 

### the minor child.'(PFA 

### Petition, 06/22/17; Petition, 06/22/17).4 

### Both Petitions were denied. Thereafter, Lackawanna County Office 

### of Youth and Family Services (hereinafter "OYFS") 

### became involved because 

### ofthe minor child's allegations 

### of safety concerns in 

### Mother's home and 

### Father's home. After 

### the minor child's Children's Advocacy Center (hereinafter 

### "CAC") interview and OYFS recommendation, the Court allowed the parties to enter into a'Stipulated Order 

### wherein Mother would have 

### primary physical custody 

### of the minor child subject to 

### Father's periods 

### of supervised partial custody to occur at EOTC or 

### through GYPS provided 

### that 

### Mother's paramour have no contact with the minor child. (Order, 07/101/7).5 

### Additionally 

### this Court ordered that Father's 

### paramour shall have no contact with the minor child_ (Order 07/19/17). OYFS took 

### Emergency Protective Custody 

### of the 

### minor child on July 11, 2017 

### pursuant to this, 

### Court's request after Mother 

### stated she could 

### not take care 

### of the 

### minor child and this Court already detenriined that 

### Father could only have supervised 

### visits with the minor child. (Order, 07/11./17).6 OYFS 

### took shelter care 

### of the 

### minor child on 

### July 13, 2017. (Order, 07/13/17). 

### A dependency 

### petition was filed, 

### but this 

### Court held it in. abeyance

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

### of OYFS to allow Mother to confirm, whether she and the 

### minor child could live 

### with Maternal Grandmother. Thereafter, Mother came forward and stated ale( 

### Para elootr she was moving back in 

### with I - -_..Since Father and his 

### paramour were attending parenting classes and complying 

### with OYFS, this Court allowed the 

### minor child to be placed with. Father provided 

### that OYFS Bled a dependency and place 

### the family under intense supervision due to 

### the long history 

### of allegations 

### ofabuse and 

### Father's admission thereof. (Order, 08/02/17). This Court issued two Orders on August 31, 2017. The Order under the OYFS case allowed OYFS to 

### withdraw dependency and 

### that Father shall have primary physical custody 

### of the 

### minor child subject to 

### Mother's periods 

### ofpartial on a weekly regiment among other things. (Order, 08/31/17). 

### Under the Family Court Docket, this Court issued. an Order granting 

### Father primary physical custody subject to 

### Mother's partial physical custody. (Order, 08/31/17).7 On September 1, 2017, OYFS filed a 

### Notice 

### of Appeal 

### ofthe 

### August 2, 

### 2017 Order and Statement 

### of Matters Complained 

### of on Appeal. (Notice, 09/01/17).8 

### II. DISCUSSION A. 

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

### ofthejudicial process, or a case will be dismissed as moot. An issue can become 

### moot during 

### the pendency 

### of an appeal due to an intervening change 

### in the facts 

### ofthe case or 

### due to an 

### intervening change in the applicable law. in 

### that case, an opinion 

### ofthis Court 

### is rendered

7 Although the August 31, 2017 Orders were entered after the August 2, 2017, which is under appeal, it is important to note that the dependency was allowed to be withdrawn and therefore the issue is moot, OYFS filed two appeals in the above referenced case. However, the docket numbers and divisions are different Therefore, this Court will address the appeals separately. 

### 4advisory in nature. An issue before a court is 

### moot 

### if in ruling upon the issue the 

### court cannot enter an order that has any legal force or 

### effect" In re J./. f., 107 

### A.3d 799, 811 (Pa. Super. 2015). Ti 

### the case at 

### bard, there is no actual case or controversy. 

### Although a dependency petition was filed, the minor child was 

### never adjudicated dependent 

### and this Court allowed ()YTS to withdraw the dependency. B. 

### CUSTODY/DEPENDENCY Although OYIRS is not appealing the custody 

### provision 

### ofthe 

### August 2, 2107 Order, it is important to discus 

### both custody and dependency 

### to explain this 

### Court's Order. "The standard 

### of review for a trial 

### court's decision is abuse 

### of discretion." Ottolini v. 

### Barrett, 954 A.2d 610, 612 (Pa. Super. Ct. 2008). 

### "The fundamental consideration in any 

### child custody case is 

### the best interest 

### ofthe child." Ellerbe v. Hooks, 490 Pa. 

### 363, 

### 416 A.2d

5.12 (Pa. 1980). 

### "In determining minor child's custody, child's best interest and 

### permanent welfare must be decided, not in. relation to fixed standard, 

### but by determining 

### what is best for child under 

### all circumstances." Corn. ex rel. 

### Bottursv. Batturs, 60 A.2d 610, 611 (Pa. Super. 1948). Dependency requires a different approach. The hearing

### judge should not ask 

### what are 

### the childs [sic] 

### ['best interests] 

### but whether 

### the child is presently without proper care and 

### if so whether such care is immediately available.' In child dependency matters, we 

### must accept the facts as found 

### by the trial court unless they are not supported by 

### the record. 

### Although bound 

### by the facts, 

### we are 

### not bound by the 

### trial court's inferences, deductions, and conclusions therefrom; we 

### must exercise 

### our independent

### judgment in 

### reviewing the court's determination, as opposed to its findings 

### of fact, 

### and must order 

### whatever right 

### andjustice dictate. We review for abuse 

### ofdiscretion. Our scope 

### ofreview, accordingly, is 

### ofthe broadest possible nature. In re R.W.J., 826 _A...2c110, 12 

### (Pa Siiper. Ct. 2003). 

### "The Juvenile 

### Act authorizes state agencies and the courts to ensure 

### that parents meet certain legislatively determined irreducible 

### minimum standards 

### in executing 

### their parentalrights ".?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 

### of proper 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 

### ofthe child at risk, 

### including evidence 

### of the parent's, guardian's or other custodian's use 

### of alcohol or a controlled 

### substance that 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 

### often. years; (8) 

### has been formerly adjudicated dependent, and is 

### under the jurisdiction 

### of the court, subject to its conditions or placements and who commits an act which is defined as ungovernable in 

### paragraph (6); (9) has been 

### referred pursuant to section 6323 (relating to informal adjustment), and who commits an act 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 

### ofbirth 

### of the child and conduct 

### ofthe 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 record is replete 

### with allegations 

### of Father and/or 

### Father's paramour abusing the 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

### Father's filing 

### of a Petition for Emergency Special Relief, 

### which was temporarily granted and later withdrawn 

### in 2014. Thereafter 

### in June 2017, after a GAL Conference on 

### the matter, the parties agreed without the 

### Court's involvement 

### that Father 

### would increase his 

### time from supervised visitation to periods 

### ofunsupervised partial custody every other weekend. The Monday after 

### Father's first weekend 

### of unsupervised custody pursuant to that custody agreement, he came to .Court to file a Petition for Emergency Special 

### Relief and a 

### PFA Petition. Normally, this Court hears said petitions without the other side being 

### present However, this Court is well aware 

### of the history 

### of the case 

### and believed it was 

### necessary to 

### hear from both parties. At that time, Father disclosed recording the minor child 

### reporting that Mother's paramour abused him. However, this Court 

### listened to said recording and 

### Father's paramour was clearly interrogating the minor child 

### and trying to get the 

### minor child

to say certain things. The 

### minor child disclosed safety concerns with 

### Father's residence and 

### Mother's paramour to GAT, Thiel. This Court believed 

### it was necessary to contact OYFS, who 

### had the minor child interviewed that 

### the Children's Advocacy Center 

### (hereinafter "CAC"). After the 

### CAC interview, Mother agreed to not let her paramour have contact with 

### the minor child. 

### Furtbeunore, Father asked GAL Thiel 

### for supervised 

### visitation as he 

### felt supervision was necessary. OYES 

### Supervisor Megan 

### Sparer followed up 

### with GM,. 

### Thiel in an 

### email stating, "Hey Corinne, 

### Just to 

### touch base about ' the 

### stipulations to the custody 

### should 

### be No ,46116(5 ii0.ro,?-40v.r [sic] contact for [child] 

### with F V . Medication for child 

### to be given at Mother 

### and Father's home. [sic]. Father to attend 

### Anger Management and Parenting. Supervised visits for father, until he has set up Anger Management and Parenting. [sic]. 

### No Corporal Punishment [sic] to 

### be used by any and all parties or household members. 

### Mother needs to provide 

### proof of her

7Suboxone Program and screen for OYFS at their 

### request" (See attached email marked Exhibit A). This Court believed it was 

### in the best interest 

### of the minor child for Mother to have primary custody provided 

### that the 

### minor child have no contact with 

### Mother's paramour..This Court also determined 

### it was 

### in the 

### best interest for Father to only have supervised visitation. At that time, OYFS was clearly 

### in agreement 

### with Father only having supervised visitation. After 

### the July 10, 2017 Order, OYFS was contacted because Mother claimed the minor 

### child was not safe with her and left 

### him with Father. Testimony came 

### out in the OYFS Shelter Care hearing that despite 

### this Court's standing Order 

### that Father could only 

### have supervised visitation with the minor child, OYFS caseworker Mindy Hughes told Father it was fine for the minor child to go 

### home with Father and reside there. Father specifically testified, Now 

### I'll be honest, now 

### I went there 

### Tuesday after 

### we left here because they said we had court 

### at 9 a.m. 

### with you, 

### but I 

### wasn't sure 

### if we had to come or not, so the motherdropped [child] 

### off to 

### me here. I 

### went upstairs to CYS 

### and spoke to Mindy and Mindy said 

### just go 

### home to 

### your house, so I 

### asked Mindy 

### ifthat was okay he was with 

### me, and she agreed to that, she came back out 

### and said 

### that was fine, so I 

### took him back home to my house 

### and I waited, but then before we got to my house, 

### I went to the agency and I said, 

### I'm supposed to start my first class 

### today 10 to 12, 

### but I 

### have court, but 

### I have orders from CYS to take my son to 

### my house with me and 

### wait there [sic]. H.T.( 07113/17 p. 6). OYFS clearly told Father to violate an Order 

### ofthis Court This 

### Court is unaware 

### of any legal authority that allows OYFS to advise parties to violate Court Orders. OYFS did 

### not have the 

### right to place the minor child with Father 

### because this Court already determined 

### that Father could only 

### have supervised visitation. OYFS did take Emergency Protective Custody 

### because Father was not 

### a placement resource and Mother admittedly could 

### not take care 

### of the minor child at

8

### that time. (Order under DP number, 07/11/17). Despite 

### this Court having 

### heard the 

### temporary Petition for Emergency Special Relief, signing the Emergency Protective Order, Order, and this Court being in contact 

### with OYFS regarding the case, OYES scheduled 

### the Shelter Care hearing before 

### thelionorable Judge Harhut. After this Court was 

### advised that OYFS was attempting to withdraw the Shelter Care 

### snd allow Father to 

### have custody 

### ofthe minor child despite this. 

### Court's standing Order and determination that Father could only have supervised visitation with the minor child, this Court presided over the matter. 

### At that time, this Court was'not only well aware 

### of the history 

### of the case, but 

### that not even 

### a month prior, the minor child made allegations against Father and 

### Father's paramour and 

### Father's request to only have supervised visits at the time 

### ofthe stipulated order, therefore 

### the request to withdraw the shelter care was denied and this Court proceeded 

### with the hearing. During the hearing, OYFS solicitor Attorney 

### Joseph Price (hereinafter "OYFS Attorney") stated, "July 11, I apologize that Mother has 

### left the child 

### in the care 

### of father. Determination was 

### made that father is an inappropriate caretaker based on the 

### Court's involvement with father." (I-I.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 mother or father, I believe 

### it's in The 

### Court's discretion, however, at this 

### time I 

### believe The Court has determined 

### that it would 

### not be save [sic] 

### for the child to be 

### returned home to father at this time," 

## id During that hearing this Court 

### asked Mother, 

### "And at 

### that time supervised visits were ordered because [child] said that he was afraid, 

### that he was getting 

### bit

at father's house; is 

### that correct?" Id. at 4. Mother testified, "Yes." 

### Id This Court asked, "And he was afraid 

### ofhis 

### father's boyfriend as well; 

### is 

### that correct?" Id. 

### Mother replied, "Yes." Id. This Court asked, "And 

### then on July 10, 

### of this year, you 

### and -Fe1/44.1,e.f. entered a

9

### stipulated order. wherein o, fined' will have 

### petiods 

### of supervised physical custody through EOTC?" Id. Father testified, 

### "I asked.for 

### that, Your Honor, because I 

### didn't know with everything 

### that had transpired

. . I asked her 

### if it 

### would be best since CYS [sic] was involved already, 

### if I could get three months 

### of Children and 

### Youth supervised visits and 

### then three months with the agency 

### justso that they cad

see me with my son." Id. at 4-5. The. Court, "And you felt at 

### that time 

### that was important for you:to get these classes and everything 

### else?" Id. at 5. 

### Then Father 

### testified that he 

### just began his five-week parenting class with his paramour. Later in the hearing, 

### there was testimony that 

### Father would have his 

### paramour move out 

### ofthe residence 

### if the 

### minor child could live there. OYFS 

### Attorney stated, "And 

### judge, at this point, I believe he was referred 

### to as his fiance, 

### which does make me question whether or not the commiti tient to him leaving the 

### house is legitimate." Id. at 8. Also at the hearing, this Court asked "Well, 

### you have 

### a history 

### ofPFAS, which is one -thing, 

### there's a domestic violence issue, but you also 

### have a history 

### ofhitting [child]." Father testified, 

### "Yes." Id. 

### at 9'. The Court asked, 

### "Isn't that true?" 

### Id Father testified, "Yes; 

### yes." Id. The Court stated, "And mom says, and I applaud her coming forward 

### if she feels 

### that her household is unsafe 

### right now, to say 

### he's unsafe in 

### my household, and I cannot as 

### a matter 

### of law find that 

### he's safe in your household until you learn 

### how to get to 

### parent him properly. As 

### late

as last week you admitted to Corrine [sic] that 

### you'd slap 

### him around 

### if he calls you

a name." Id. Father stated, "I slap him around, I put 

### him over my 

### knee and spank 

### him with an open hand and 

### that's allowed in PA, 

### what I was told, 

### but CYS [sic] does 

### not agree to that, 

### that's what I was told. 

### It's allow [sic] 

### in PA state 

### law, by CYS [sic]

10

### doesn't agree to that, 

### that's all I ever did to [child] and 

### that's what I 

### admitted to Corrine [sic]." Id. at 9-10. The Court asked, "Well, to the 

### point where [child] 

### was afraid 

### ofyou 

### right?' Id. at 10. Mother stated, 

### "It's really Monty." Id. The Court stated, 

### "And 

### he's afraid 

### 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 boyfriend." Id. Further, this Court stated, "And 

### I don't feel comfortable right now until 

### F-0Aerhas earned' is stripes, do you understand?" 

### Father replies, "Yeah I agree." Id. at 11. Mother stated, "And I as a mother 

### don't want Money [sic] around nay son." Id. 

### The Court stated, "Well, there you go, so at this point he has'to remain in sheltercare [sic] 

### foster care -- 

### ?" Id. Mother asked, "But that 

### if he after [sic] he takes his parenting class will 

### be be able to live there?" Id. The Court: stated, "Yes, and 

### if you are breaking up 

### with your fiancé, 

### that's

an entirely different 'story, but right now I 

### can't do that, and in addition the fact 

### that 

### he's smokes 

### pot and smokes it around him." Id. at 11-2. Father stated, "All right. As 

### long as you know, he 

### doesn't' smoke it around him, but 

### that's what CYS 

## -." Id. 

### at 12. The Court stated, "His levels are coming down. Well, show us 

### proof

### of those things 

### and 

### that's a different story, okay, but right now I have to find that 

### mom under her own admission believes that 

### he's unsafe in her home because 

### of the husband that 

### she's living with, and The Court has found that 

### he was unsafe in 

### Dad's home, therefore, 

### a sheitercare [sic] is required and foster

care is 

### required." 

### Id The Court also stated, "Temporary until we 

### can get you get these things 

### moving and changed and I see change 

# - it is never my object to keep children away from their parents, you know, I want you to be involved. 

### We've long since decided, Mo

11that you are a good mother, okay? 

### It's riot done. 

### And let us see what the story is 

### with Monty, 

### and.if he shows 

### somethingdifferent to CYS, 

### then 

### that changes the circumstances." Id. Shelter care was gr-mted. As stated above, OYFS 

### first wanted to withdraw shelter care 

### then clearly stated that Father refers to his paramour as his fiance and OYFS does not believe Father is being 

### honest with having 

### his paramour leave the residence. 

### It is clear from the testimony that not only was 

### shelter care warranted, but that 

### both parties agreed with shelter care despite OYFS 

### not wanting
to provide safe shelter for 

### the-minorchild. At the dependency hearing on July 

### 24,2017, this Court held 

### off on adjudicating the 

### minor child dependent and 

### placed the minor child 

### with Mother after she testified that she would 

### move put 

### of her residence and keep the 

### minor child 

### away /4044..24 

### rvraelotAti from her husband. Mother 

### then came forward in 

### August 

### of 2017 and 

### stated that 

### she

was moving back in with 

### her paramour. At 

### that time, 

### Father and 

### Father's paramour had attended more than two parenting classes and were cooperating 

### with OYFS. Therefore, this 

### Cora felt comfortable placing the minor child with 

### Father under 

### the condition that OYFS file a dependency and place Father 

### under intense supervision. This Court believed 

### a dependency petition was warranted because the 

### minor child

was without proper parental care or control, which was based on the evidence 

### that Mother could not care for 

### the minor child because she determined 

### the minor chi Id

was not safe around her paramour and 

### Father's history 

### of abusing 

### the minor child 

### by admission. This is verified 

### by 'testimony at the July 24, 2017 -hearing. GAL Thiel testified, "From the 

### beginning 

### ofthis case this 

### whole ---the whole [sic.] issue has always been parent/child conflict with dad and 

### minor child." (1-1.T. 07/24/17, p. 16).

12GAL Thiel also testified, "Correct, father [sic] 

### has always been consistent with rue regarding his father. It has always 

### been a strained relationship, 

### I like father, we have a great 

### working relationship, he's.very- forthright, 

### he acknowledges 

### that he uses corporal punishment, that he 

### has difficult with [child's] behaVior, as well as morn 

### does." Id. at 19. Furthermore GAL 

### Thiel testified, "He [Father] talked openly about 

### using corporal punishment and slapping 

### him in the face when he says derogatory nr.enes and statements to dad regarding his relationship with another male. I think 

### that's a 

### point 

### of contention between 

### the two, so that 

### has always been consistent since 

### I've been involved. [Child] has always wanted to be with


### mom, and we were working on his relationship with 

### father." Id. at 19-20. GAL 

### Thiel stated, Well, 

### ifI'm asked for a recorame,ndation, my 

### recommendation is that I

### just don't iinderstand how we can- go from. June 22, a recommendation 

### of dad being supervised and 

### there's issues in the home, after a CAC interview and then 

### a few days 

### later mom says 

### I can't take care 

### of the child and 

### we're going to relinquish custody 

### back to 

### the dad, when that was the initial referral. To me, 

### that is more 

### of a 

### matter 

### of convenience than rather a matter 

### of protection and safety, 

### and I do have concerns. 

### There are a lot 

### ofissues that we 'need tO work on between 

### father and child, and my

### job is to 

# - well, all our job [sic] is to do 

### what's best and 

### maintain safety. I 

### don't think 

### there's been enough work Or enough services at aLl in this case to work on the issues 

### between dad and. child. Id. at 22. Additionally, caseworker Ivlindy Hughes testified at the. 

### August 31, 2017 

### hearing 

### that there

were ongoing concerns with Mother and Father and -they 

### were concerned 

### with Father's parenting and inappropriate discipline. Based on the 

### history of'the case, the 

### testimony at the hearings, and the evidence before the Court, this Court believes this fits under 

### the definition 

### ofdependency and gave OYFS grounds to file a 

### dependency petition. Furthermore, OYFS 

### Attorney stated at the Dependency Hearing on July 

### 24, 2017 after questions whether 

### the grandparents 

### could take 

### unship care 

### of the minor 

### child ar)d. GYFS 

### Attorney stated, "They both have, Your Honer, and for various reasons; namely, 

### that they are also 

### referred to for improper discipline; they were deemed inappropriate. .T. 07/24/17, p. 10), This Court is

13unclear 

### how the 

### minor child cannot be 

### placed with either grandmother because 

### of inappropriate discipline, 

### but can be placed with Father' who 

### has a history 

### of abusing the 

### minor child. OYFS either has to protect the minor child to 

### the full extent possible or not. 

### This Court was 

### not comfortable placing the minor child 

### with Father nntil he proved. himself. As previously stated, "When deteiruining whether a parent is providing a minor with 

### proper

care and 

### controL;the caretiker'S acts and ()Missions 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 826 A.2d 

### at 14 (Pa. Super. 2003). Cle' arly, neither parent was providing proper care and control in this case.

Tn addition, this. Court allowed OYFS to 

### withdraw the dependency 

### petition on 

### August 31, 2017 

### after Father and 

### Father's paramour completed p arenting classes and continued to cooperate 

### with DYE'S. The minor child was 

### never adjudicated dependent. Furthermore, on June 2, 2017, this. Court had a 

### meeting with 

### the Honorable Judge Jarbola, Director 

### of OYFS. Bill. BroWning (hereinafter 

### "Director Browning"), 

### Assistant Director 

### ofOYFS Carrie Browning 

### (hereine.ter "Assistant Director Browning") and 

### Chief 

### of Juvenile Probation Rich Clifford 

### regarding dependency actions. 

### At thattime, Director Browning and Assistant 

### Director Browning told 

### the Court to contact OYFS to file a dependency petition 

### ifthe 

### Court believes it is

c:413.eze and OYFS will 

### follow through with the dependency. However, when this Court requested a dependency to 

### be filed, OYFS 

### stated to the Court that 

### there

are no grounds. 

### The Court replied 

### that the minor child is homeless. Mother states her home is unsafe and this Court has determined 

### Father's custody had to 

### be supervised 

### by someone other than the 

### person with whom he lived.

14Therefore, OYFS' 

### position as to gratinds for 

### dependency was invalid and in fact directed Father to violate 

### this' Court's Custody Order. For the foregoing reason's, the Order 

### of Court 

### dated August 2, 2017 should be affinned. 

### M. MA.TTERS:COMPLATNED OF 

### ON APPEAL OYFS filed a Concise Statement 

### ofMatters Complained 

### of on. 

### Appeal on or 

### about September 1;2017, which.are listed 

### below and addreSsed in turn. A. 

### The 

### trial jUdie [sic 

### diced by 

### not allowing 

### any testimony by the 

### agency 

### at the

. 

### shelter care 

### bearing, including testimony 

### that would 

### have made the case eligible 

### for federal funding, to 

### the 

### agency's and county's 

### detriment. This 

### must be 

### determined 

### at the 

### first hearing, and cannot be 

### addressed later. See 42 U.S.C. 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 

### ofthis minor child. OYFS did not even want to proceed with the Shelter Care 

### hearing, they sought to withdraw the Shelter Care before a different

### judge knowing that this Court was fully involved in 

### the case. Additionally, 

### OYFS Attorney was clearly involved in 

### the Shelter Care hearing and participated numerous times. During the bearing, OYFS Attorney stated, "July 11,1 apologize 

### that Mother has left the child in 

### the care 

### of father. Detemaination was made that father is an inappropriate caretaker based on 

### the Court's involvement with 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 believe The Court haS determined 

### that 

### it would not be save [sic] for 

### the child to be returned 

### hone-to 

### father at this fnue." Id. This Court is not required to advise the attorneys on 

### how to proceed 

### in a case or require 

### that the case 

### be eligible 

### for funding. 

### IfOYFS had questions 

### of the witnesses or 

### wished to call witnesses 

### in the case, OYFS 'attorney should have requested to call witnesses during the 

### hearing. Lastly, this issue -is not relevant 

### because OYFS is only 

### appealing the August 2, 

## 0 tote( 2017!which has 

### no requirement for 

### shelter care and.is only 

### appealing -the reqUirement 

### offiling a dependency-.

- 

### For the 

### foregoing reasons, 

### the Order 

### of Court dated 

### August 2, 2017 should be affirmed.

- B. 

### The trial judge [sic]erred/and or [sic] 

### abused 

### her discretion by issuing an 

### Order in a 

### custody 

### matter requiring the agency to file 

### for dependency and place 

### the child 

### with 

### the father 

### ender intense supervision. See 

### Fallaro v. 

### Yeager, 364 

### PA. 

### Super. 408, 528 A.2d 222 (PA. 

### Super. 1986). "The Courts 

### must adhere to the procedures developed 

### for resolution 

### of various problems which arise concerning 

### the welfare 

### of children. 

### Absent a dependency petition, the court is 

### without jurisdiction to 

### make a 

### determination." 

### Fallaro v. Yeager, 528 A.2d 222, 230 (Pa. Super. 1987). The Court did 

### not determine the 

### minor child was dependent before a dependency-petition was even filed, as the 

### lower court did 

### in.Fallaro v. Yeager. Rather, 

### this Court ordered OYFS to file a dependency without placing 

### the 

### minor child in foster care 

### because this Court



### was concerned with the long 

### history 

### of allegations of abuse 

### of the minor child by

16Father. This Court is 

### well aware 

### ofthe 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 while respecting the rights and dignitY 

### of the family group." Lackawatma Coun Website (2617) available athttp://www.lackawann.acounty.org/index_php/departmentsagencies/hutnaaservices/children-and-youth-services. It is OYFS' s duty to 

### ensure 

### minor children are safe: The Court was requiring that in this matter. For 

### the foregoing reasons, 

### the Order 

### of Court dated August 2, 2017 should be affirmed. C. 

### The 

### trialjudge [sic] 

### erred and/or abused her"discretion 

### by conducting questioning of witnesses 

### at the 

### shelter care 

### and first adjudication hearing, instead of 

### allowing 

### the agency 

### and 

### other parties to call 

### witnesses, having 

### direct and cross-examination by 'counsel, 

### with clarification questions by the judge. [sic]. 

### The 

### conduct was 

### not compatible 

### with an 

### impartial 

### trier of 

### fact, as is expected 

### of 

### the judiciary. Under 

### Pennsylvania Rule 

### ofEvidence 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 entitled to. cross-examine the witness. (b) Examining. Where 

### the interest 

### of justice so requires, the court may examine a witness regardless 

### of who calls the witness. (c) Objections. A party 

### may object to the court's 

### calling or examining a 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 opportunity to 'make objections out 

### of the 

### presence of the jurY."Pa.R.E., Rule 614 (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 

### ofthe 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 

### ofthe 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

### Shelter Care-Petition 

### for lacli 

### of grounds 

### tokeep temporary custody of 

### the Child? A revieW 

### ofthe file shows that 

### OYFS's Petition for Emergency Custody is 

### fileduncler Docket -Number DP -99-2017 on July 12, 2017, 

### which is- attached hereto and marked Exhibit B. Therefore, 

### this issue is 

### a complete and 

### utter misrepresentation 

### ofthe facts: This Court is 

### not required to follow every 

### request by OYFS, especially 

### when the 

### minor child would clearly be unsafe 

### in'Father's residence. As 

### previously discussed, 

### not even 

### a month prior, the. minor 

### thud Made allegations against Father and Pather's'paramour. arid 

### Father's request to only 

### have supervisedvisits 

### at the time 

### ofthe stipulated order, 

### therefore the request 

### to withdraw the shelter care was denied. During the hearing,-OYFS Attorney stated, 

### "July 11, 1 apologize 

### that Mother has left the child 

### in the care 

### of father: Determination was made 

### that father is an inappropriate caretaker baser' on the 

### Court's involvement 

### with 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 mother or father, I believe 

### it's in The 

### Court's discretion, however, 

### at this time I believe The Court has determined that 

### it would 

### not be save [sic] for the child to be returned 

### home to father at this iime." Id. During that hearing this Court asked Mother, "And at 

### that time supervised visits

were 

### ordered because [child] said that he was afraid,- that he was getting 

### hit at 

### father's house.; is that correct?" Id. at 4. 

### Mother testified, "Yes." icZ This 

### Court asked, "And he Was afraid 

### of his father's boyfriend as well; is that correct?" 

### Id Mother replied, "Yes." Id. This Court asked, "And 

### then on July 10, 

### of this year, you

19and.ro,-11, 

### ex , entered a-stipulated order whereinfet-i-Lee ) will have periods 

### of supervised physical custody -till' -ought 

### tOTC?" Id. Father testified, 

### "I asked for 

### that, 

### Yaw 1:-Ionor,..beCanse 

### rdidn't know with 

### everythingthat had transpired

. 

### I asked 

### heiitit Would be best since CYS [sic] was. involved already, 

### if I could get three morith-s.of Children and Youth -supervised 

### visits and then three months 

### with agency

### just sb-ithat they 

### pet see me 

### with my 

### soh"/c. at 4-5. 

### The Court, 

### "And you

- felt at th-a.f 

### time.tfOIA* important for you: to get these classes 

### and everything 

### else?" -Id.:at 5..Later Father testified that he ju-'st 

### began his.five-week parenting class 

### with his paramour. 

### Later -in the hearing, there 

### was testimony that Father would have his parambur pag-ve out 

### ofthe residence 

### ifthe minor child could 

### live there. GYPS Attorney stated, And Judge, at this 

### point, I believe he was referred to as his fiancé, which does Make inc question whether or not 

### the c'ornmitment to him leaving the house -ii legit-if:nate." Id. at 8. Also 

### at the hearing, 

### this Court asked "'Well, you have

a 

### histoiy 

### ofPFAS, which is one thing, 

### there's a domestic violence issue, but you also have a hi'stofy 

### ofhitting [child]." 

### Father testified, "Yes." Id. 

### at 9. Tlae 

### Court asked, 

### "Isn't that true?" Id. Father testified, "Yes, yes.'? Id. 

### The Court stated, 

### "And mom says, and I applaud her coming forward 

### if she feels that her household is unsafe 

### right
now, to say 

### he's unsafe in my household, and cannot as a 

### matter of law find that hers safe in 

### your household until You 

### learn 

### how to get to 

### parent him properly. As late

as last 'week you admitted to 

### Conine [sic] 

### that you!ci slap 

### him around 

### if he calls you

a name." Id, 

### -Father stated, "I slap 

### him around, I 

### put him over my knee and spank

- him 

### with an open 

### hind and 

### that's allowed in 

### JA, what I was told, but CYS [sic] does
not agree 

### to that, 

### that's what 

### I was told. 

### It's allow [sic] in 

### PA state laW, 

### by CYS [sic]



### 20doesn't agree to that, 

### that's all 

### ever did to [cbildl Trid 

### that's what I 

### admitted to Corrine 

### [sit]." Yd. 

### -at9,10.The Court asked, 

### "Well, to the poirif where [child] 

### was afraid 

### of you right?" 

### Id at 10. Mother stated, 

### "Ifs really Monty." Id. 

### The Court stated, ."And 

### he's afraid 

### of -Monty." Id. 

### Mather stated, "And Frankie." 

## Id The Court asked, "And 

### who's 

### Frarilder Id. Mother testified, "My husband. Well, 

### it's going to 

### be my ex-hu.sband, but the reason 

### I said 

### itwas unsafe, [child], he 

### came to 

### talk to

me, him and: m 

### husband -don't 

### get along, so I 

### feel like 

### it's unsafe and 

### I feel 

### he's

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 yon understand?" Father replies, "Yeah I agreb." Id. 

### at 11 

### Mother stated, 

### "And I as a 

### mother ddn't want Money [sic] arOund 

### my sem" Id. The Court stated, 

### "Well, there 

### you go, so at this point 

### he has to remain in 

### sheltercare [sic] foster care 

### --T' Id. Mother asked, "But that 

### if he after [sicl he takes his parenting class 

### will he be able to live there?" 

### id The Court stated, "'Yes, and 

### ifyou are breaking up 

### with your fiancé, 

### that's an entirely:different story, but right 

### now I 

### can't do that, and in 

### addition the fact that 

### he's srnokes 

### pot anad smokes it around 

### him." 

### Id at I1-2. 

### Father stated, "All right. As Iong as you know, 

### he doesn't' smoke it 

### around him, 

### but 

### that's what CYS 

## -."

at 12. The Court stated, "His levels are coming down. Well, 

### show us 

### proof

### of those 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 

### ofthe husband that she's living with, and The Court has found 

### that he was 

### unsafe in 

### Dad's home, therefore; a 

### sheltercare [sic] is required and 

### foster care is 

### required." 

## Id The Court also stated, 

### "Temporary until 

### we can get 

### -.you get 

### then; things 

### moving and changed

21and 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 

### ifhe 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, residence. 

### It is clear from the testimony 

### that not only was 

### shelter care warranted, 

### but that both parties agreed with shelter care 

### despite OYES. not wanting to provide safe 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 judicial process, or-a case will be dismissed as moot. An 

### issue can become moot during, the.

### pendency of an'appeal due to an intervening change 

### in the facts 

### of the

22case or due to an intervening change in the applicable law. In 

### that case, an 

### opinion 

### of this Court is rendered advisory in. nature. An 

### issue before a court is 

### moot 

### if in ruling upon. the issue:thecoUrt cannot enter an order 

### thathas any legal 

### force or effect." 

### In

re 3:A., 107 A.,11-799,. 811 (Ph: 

### Super. 2015). In the case at hand, 

### there is no actual

case or controversy. Although a dependency petition was-file,id, the 

### minor child was

nearer adjudicated. 

### dependent atid this Court allowed OYES to 

### withdraw the dependency. 'OYFS 

### cannot base an appeal on something that may happen in. the future. 

### Furthermore:on JUne 2, 2017, this Court had 

### a meeting with.the Honorable Judge Jarbola, Director Browning, Assistant 

### Director Browning arid 

### Chief of Juvenile Probation Rich Clifford tegarding dependency actions. 

### At that time, DirectOr Browning and Assistant Director Browning suggested 

### that the Court contact OYFS to file a dependency 

### if the, Court believes 

### it is necessary 

### and OYFS will. 

### follow through with the dependency. However, when. this Court 

### requested a 

### dependencyto be filed, OYFS stated to the Court 

### that there are 

### no grounds. The Court replied that the minor child is homeless. Mother states her 

### home is unsafe and, this Court has determined 

### Father's custody 

### had to 

### be supervised 

### by someone other than the person with whom he lived. 

### Now for OYFS to say 

### that this situation 

### will

reoccur and escape 

### review is irrational, because this Court was doing exactly 

### what both Director. BrowniM g. and Assistant Director Browning suggested the Court to do 

### ifit felt OYFS involvement was necessary. For the foregoing reasons, the Order 

### of Court dated August 2, 2017 should 

### be affhTne,d

23IV. 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 

# )

24