J-S01006-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

C.S.,

v.

L.C.

APPEAL OF: LACKAWANNA 

CHILDREN AND YOUTH

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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

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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 mother, L.C. (hereinafter 

“Mother”).1 We affirm.

The trial court thoroughly set forth the factual background and 

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

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

14.

2, 3

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

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

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

from both Orders, simultaneously with Concise Statements of errors 

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

Court thereafter consolidated the appeals.

CYS now presents the following questions for our review:

____________________________________________

1 Concerning the Withdrawal Order, the trial court explained that “this [c]ourt 

allowed [CYS] to withdraw the dependency [P]etition ... after Father and 

Father’s paramour completed parenting classes and continued to cooperate 

with [CYS]. [] [C]hild was never adjudicated dependent.” Trial Court Opinion, 

9/27/17, at 14 (emphasis added).

2 We will refer to the hearings that the trial court conducted on these specified 

dates as follows: July 13, 2017 – hereinafter, “the shelter care hearing”; July 

24, 2017 – hereinafter, “the dependency hearing”; and August 31, 2017 –

hereinafter, the “adjudication hearing.”

 

3 Pursuant to the trial court’s directive in the Dependency Order, on August 

14, 2007, CYS filed a dependency Petition, in response to which the trial court 

scheduled the adjudication hearing. 
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1. While the [trial] [j]udge authorized the withdrawal of the 

Dependency Petition on August 31, 2017, whether the matter 

is not moot despite the withdrawal of the Dependency Petition?

2. Whether the trial judge erred and/or abused her discretion by 

issuing an Order in a [c]ustody matter[,] requiring [CYS] to file 

for dependency and to place [] [C]hild with [] Father under 

intense supervision? 

3. Whether the [trial] judge erred by not allowing any testimony 

by [CYS] at the shelter care hearing, including testimony that 

would have made the case eligible for federal funding, to 

[CYS’s] and [Lackawanna] [C]ounty[’s] detriment[?] This

must be determined at the first hearing, and cannot be 

addressed later, see 42 U.S.C. [§] 671[.]

4. Whether the trial judge erred and/or abused her discretion by 

conducting questioning of witnesses at the shelter care

[hearing] and first adjudication hearing, instead of allowing 

[CYS] and other parties to call witnesses, [and] having direct 

and cross[-]examination by counsel, with clarification 

questions by the [trial] judge? [CYS] contends that this 

conduct was not compatible with an impartial trier of fact, as is 

expected of the judiciary.

5. Whether the [trial] [j]udge abused her discretion by ordering 

[] [C]hild removed from his home[,] in the absence of a Petition 

for Emergency Custody[,] and by denying [CYS’s] request to 

withdraw the Shelter Care Petition for lack of grounds to keep 

temporary custody of [] [C]hild?

6. Whether the [trial] judge erred and/or abused her discretion in 

the ... [Withdrawal] Order by not specifically addressing 

whether [intense] supervision (which was not defined) should 

be continued in the [Withdrawal] Order[,] despite [CYS] having 

no safety concerns[,] and by stating in the [Withdrawal] Order 

that “All prior Order[s] that are not inconsistent with this Order 

shall remain in effect,[”] creating ambiguity?
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Brief for Appellant at 5 (issues renumbered, some citations omitted).

4

In dependency matters, we review the trial court’s order 

pursuant to an abuse of discretion standard of review. As such, 

we must accept the court’s findings of fact and credibility 

determinations if they are supported by the record, but we need 

not accept the court’s inferences or conclusions of law.

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

omitted).

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

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

Withdrawal Order approving the withdrawal of the dependency Petition. See

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

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

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

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

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

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

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

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

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

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

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

____________________________________________

4 We note that neither Mother/Father, nor the Guardian Ad Litem for Child, 

Corrine E. Thiel, Esquire (hereinafter, the “GAL” or “GAL Thiel”), have filed 

briefs in this appeal.
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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 actionable or 

reviewable. Plowman v. Plowman, 409 Pa. Super. 143, 597

A.2d 701, 705 (1991). If events occur to eliminate the claim or

controversy at any stage in the process, the case

becomes moot. Id. Even if a claim becomes moot, we may still

reach its merits if the issues raised in the case are

capable of repetition, yet likely to continually evade appellate

review. Id. See also In Re Fiori, 543 Pa. 592, 600 n. 4, 673

A.2d 905, 909 n.4 (1996) (holding death of patient did not

preclude appellate review where issue was of important public

interest, capable of repetition, yet apt to elude appellate

review); Commonwealth v. Bernhardt, 359 Pa. Super. 413,

519 A.2d 417, 420 (1986) (holding exception to mootness

doctrine exists where (1) the question involved is capable of

repetition but likely to evade review, or (2) the question involved

is one of public importance).

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

omitted).

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

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

dependency) are moot because Child was never adjudicated dependent and 

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

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

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

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

here meet the repetition exception to the mootness rule. While the issue may 
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be capable of repetition in the future (i.e., in other cases, Lackawanna County 

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

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

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

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

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

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

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

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

address all of its claims.

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

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

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

5

 

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

abused her discretion by failing to remember that she had sought 

and approved both an Emergency Custody Order and a Shelter 

Care Order[,] putting [Child] into temporary custody of [CYS], 

which placed this matter under the Juvenile Act[, 42 Pa.C.S.A. 

§ 6301 et seq.], and disregarded the procedures and safeguards 

of [the Juvenile] Act in ordering a change of custody by a 

[c]ustody Order. 

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

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

____________________________________________

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

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

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

stating that

in order for a court to have jurisdiction to find a child to be 

dependent, there must be a petition filed under the Juvenile Act 

which alleges the dependency of the child. Since no such petition 

was filed in this case, the court below had no jurisdiction to find 

[] child to be a dependent child.

 

Id. at 225.

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

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

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

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

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

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

id.

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

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

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

at 13-15. CYS asserts that
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[t]he sequence of events [at the shelter care hearing] shows that 

[] [J]udge [Corbett] did not want [CYS] to testify. [CYS’s] 

witness(es) would have testified to the recommendation to 

withdraw the [shelter care] Petition. This was not what [] Judge 

[Corbett] wanted to hear. [CYS] submit[s] that [] [J]udge

[Corbett] desired [] [C]hild to stay in temporary custody of [CYS], 

which meant foster care, and sought evidence from [Mother and 

Father] to secure that objective. This is at variance with the 

obligation of [] [J]udge [Corbett] to be impartial and to weigh the 

evidence in making a decision. In pertinent part here, that meant 

no testimony which would make the case eligible for federal 

funding, as required by 42 U.S.C. [§] 671 [(setting forth, inter 

alia, the requirements for a state plan for foster care/adoption to 

receive federal funding)]. The relevant portion of that statu[t]e 

required evidence to support a finding that reasonable efforts 

were made to prevent placement or that there were emergency 

circumstances precluding such efforts. [See id. § 671(a)(15).]

Judge Corbett was focused on keeping [] [C]hild in foster care, 

and was not focused on [CYS’s] funding.

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

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

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

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

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

In her Opinion, Judge Corbett concisely addressed this claim and 

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

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

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

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

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

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

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

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

[b]y her actions, [] Judge [Corbett] is seeking evidence to keep [] 

[C]hild in custody, and not acting impartially with respect to 

[Mother and Father]. ... By her actions in taking over the 

[dependency] hearing, conducting questioning [of witnesses (i.e., 

GAL Thiel)], and finding for shelter care, without giving [CYS,] or 

[Mother and Father], the parties, an opportunity to testify, [] 

Judge [Corbett] is not acting as an impartial judge, but is focused 

on achieving the outcome she wants. This is not due process. 

This is an abuse of discretion.

Id. at 16.

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

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

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

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

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

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

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

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

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

____________________________________________

6 Though CYS, in its corresponding issue in its Statement of Questions 

Presented section, purports to challenge Judge Corbett’s actions at the shelter 

care hearing and the “first adjudication hearing,” its Argument section only 

references the dependency hearing. 
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grounds to keep temporary custody of Child. See Brief for Appellant at 17-

18. CYS asserts as follows:

Under the Dependency Rules, a case is commenced by the filing 

of a [dependency] petition or emergency custody application 

(P[a].R.J.C.P. 1200(1)[,] (2)). Since there was an Emergency

Custody Order approved by Judge Corbett, there should have 

been a [p]etition/application with facts averred to support the 

requested relief. There is no application to support the removal 

of [] [C]hild from a parent’s home. While there is a Shelter Care

Petition, (a copy of which is attached to the [Trial Court’s] Opinion

as Exhibit “B”) ..., [CYS] contends that this [P]etition cannot 

substitute for the lack of the earlier petition. [CYS] sought to 

withdraw the shelter care [P]etition because it had no basis to 

keep custody based on its investigation.

Brief for Appellant at 17.

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

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

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

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

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

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

18-22. We agree with the trial court’s determination and analysis, and
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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 courtordered “intense supervision” of Father’s custodial time, which was ordered in 

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

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

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

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

reasonable understanding.” Id.

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

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

____________________________________________

7 As an addendum, we note that the cases CYS relies upon in support of its 

claim are distinguishable. See In the Interest of M.B., 514 A.2d 599, 602

(Pa. Super. 1986) (holding that the trial court erred in adjudicating the child 

dependent where no dependency petition had been filed and the matter was 

before the court based upon abuse allegations); In re A.L., 779 A.2d 1172, 

1175 (Pa. Super. 2001) (quoting Fallaro, supra, and stating that “in order 

for a court to have jurisdiction to find a child to be dependent, there must be 

a petition filed under the Juvenile Act which alleges the dependency of the 

child.”). In the instant case, Child was never adjudicated dependent.
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supervision,” it may file a petition seeking clarification from the trial court.8 

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

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

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

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

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

enforceable and not improper due to ambiguity.

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

Withdrawal Order.

Orders affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/10/2018

____________________________________________

8 Moreover, given Father’s admission to having previously physically abused

Child, as the trial court thoroughly detailed in its Opinion, we deem that the 

CYS supervisor was prudent in “interpret[ing] the term [intense supervision] 

to mean a daily caseworker visit to the home[.]” Brief for Appellant at 21.
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.: 9 2 A , 

: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 of that 

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

CORBETT, J. 

I FACTUAL AND PROCEDURAL HISTORY 

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

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

Dependency. 

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

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

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

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

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

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

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

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

I A conciliation conference was scheduled. Bowever, the file does not indicate what occurred at said 

conference. 2 It is important for this Court to note the history of abuse allegations in this case. 1 
She1p and Mother was grantedtemporary physical custody of the minor child. (Orders, 

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

granted primary physical custody and Father had periods of partial 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 Relief with 

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 of the 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 of Father, 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 of the 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 of abuse 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 of partial 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 of the 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 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 case or due to an 

intervening change in the applicable law. in that case, an opinion of this 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. 

4 
advisory 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 of the 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 of the 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 and justice dictate. We review for abuse of discretion. Our scope of review, 

accordingly, is of the 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 parental 
rights ".?n ref W., 578 A.2d 957-8 (Pa. Super. 1990). "Furthermore, when determining 

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

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

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

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

A dependent child is defined as, 

(1) is without proper parental care or control, subsistence, education as required by 

law, or other care or control necessary for his physical, mental, or emotional health, 

or morals. A determination that there is a lack 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 of the 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 of ten. 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 of birth of the child and conduct of the parent 

poses a risk to the health, safety or welfare of the child. 42 Pa.C.S.A. § 6302 (Test 

2017). 

This Court is very familiar with -the history of this case. As described above, 

the 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 of unsupervised 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 

7 
Suboxone 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 stand ing 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 mother dropped [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 if that 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 of this 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 of the 

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 of the 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 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 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 of the 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 of PFAS, which is one -thing, there's a domestic violence issue, but you also 

have a history of hitting [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 of you 

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 

11 
that 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 of this 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). 

12 
GAL 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, if I'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 

of issues 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 

of dependency 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 

13 
unclear 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 of OYFS 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 if the 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. 

14 
Therefore, 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 of Matters 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 of this 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. 

If OYFS 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 of filing 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 

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

litigation. 

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

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

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

Website (2617) available at 

http://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 trial judge [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 of Evidence 614, 

(a) Calling. Consistent with its function as an impartial arbiter, the court, with notice 

to the parties, may call a witness on its own or at a party's request. Each party is 

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 of the case. 

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

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

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

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

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

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

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

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

August 2, 2017. 

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

armed. 

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

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

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

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

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

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

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

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

Child? 

A revieW of the 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 

of the 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 supervised visits at the time 

of the 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 

19 
and.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 of the residence if the 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 of PFAS, which is one thing, there's a domestic violence issue, but you also 

have a hi'stofy of hitting [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] 

20 
doesn'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 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 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 of the 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 

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

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

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

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

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

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

does tot believe:Father is being honeSt with having his paramour leave the, 

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 

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case 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 

if it felt OYFS involvement was necessary. 

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

affhTne,d 

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IV. CONCLUSION. 006.r 

Based on. the foregoing this Court has issued. the August 2, 2017 placing the minor 

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

supervision. 

BY TECES COURT: 

coRiirr ) 

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