J.A21007/15

NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: MA.W., C.W., : IN THE SUPERIOR COURT OF AND M.W. : PENNSYLVANIA

:
: APPEAL OF: J.K., MOT HER :
: No. 840 EDA 2015

Appeal from the Orders Entered March 5, 2015 In the Court of Common Pleas of Carbon County Criminal Division No(s).: CP

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- DP

- 0000025

- 2014 CP

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- DP

- 0000027

- 2014 CP

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- DP

- 0000028

- 2014

BEFORE: ALLEN, MUNDY, and FITZGERALD, * JJ.

MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 14, 2015

Appellant, J.K. (“Mother”), ap peals from the orders entered March 5,

2015, 1 denying the petitions for dependency as to Ma.W., C.W., and M.W.

(“Children”) and directing that the Carbon County Office of Children and

Youth Services (“CYS”) be permitted to enter Children’s home to complete

* Former Justice specially assigned to the Superior Court.

1 We note Mother filed one notice of appeal from three orders. The Pennsylvania Rules of Appellate Procedure address the requisites for an appealable order and provide: “Every order shall be set forth on a separate document.” Pa.R.A.P. 301(b). This Court in Dong Yuan Chen v. Saidi , 100 A.3d 587 (Pa. Super. 2014), noted that “[t]aking one appeal from separate judgments is not acceptable practice and is discouraged.” Id. at 589 n.1 (citation omitted). The Saidi Court declined to find the procedural error fatal to the appeal because the trial court addressed the issues. Id. Similarly, we find the pro cedural error is not fatal in the case sub judice because the trial court addressed the issue. We have amended the caption accordingly.J.A21007/15

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the assessment required by 55 Pa. Code § 3490.232. 2 Mother argues there

was no probable cause to allow a government agency access to Children’s

home. 3 We affirm.

2 The code provides, inter alia , as follows when the agency receives a report alleging a need for general protective s ervices (“GPS”):

(a) The county agency shall be the sole civil agency responsible for receiving and assessing all reports alleging a need for general protective services. . . .

* * *

(f) The county agency shall see the child and visit the child’s home during the assessment period . The home visits shall occur as often as necessary to complete the assessment and insure the safety of the child. There shall be a least one home visit.

* * *

(h) The county agency may mak e unannounced home visits.

* * *

(j) The county agency shall initiate the appropriate court proceedings and assist the court during all stages of the court proceedings if the county agency determines that general protective services are in the best interest of a child and if an offer of an assessment, a home visit or services is refused by the parent

. 55 Pa. Code § 3490.232(a), (f), (h), (j) (emphases added). GPS in Section 6303 of the Child Protective Services Law (“CPSL”) includes “[ t] hose services and activities provided by each county agency for cases requiring protective services, as defined by the department in regulations.” 23 Pa.C.S. § 6303.

3 We note the issue is not moot based upon the denial of the dependency petitions.J.A21007/15

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We adopt the facts and procedural history of this case as set forth in

the trial court’s o pinion. Trial Ct. Op., 4/13/15, at 2

- 15. On March 5, 2015,

the court denied the petitions for dependency and ordered that CYS be

permitted to enter Children’s home. This timely appeal followed. Appellant

filed a court

- ordered 4 statement of errors compl ained of on appeal in each

case. Mother raises the following issue 5 for our review:

I t is well settled that the proper inquiry in a dependency adjudication follows a bifurcated analysis: “Is the child at this moment without proper parental care or control?; and if so, is such care or control immediately available?” Because the element of time is integral to the dependency adjudication, each petition in this instance necessarily implicates a different cause of action. Thus, technical res judicata cannot apply.

In re N.A. , 116 A.3d 1144, 1149 (Pa. Super. 2015) (footnote and citations omitt ed), appeal denied , ___ A.3d ___ Pa. 2015).

4 Appellant did not comply with Pa.R.A.P. 1925(b), which provides, inter alia , in a children’s fast track appeal, the concise statement of errors complained of on appeal shall be filed with the notice of appeal. Pa.R.A.P. 1925(b)(2)(i). We do not find this defect fatal to the appeal. See In re K.T.E.L. , 983 A.2d 745, 747 (Pa. Super. 2009) (holding failure to file 1925(b) statement concomitantly with a children’s fast track appeal is considered defective notice of appeal, the disposition of which is decided on a case by case basis).

5 We note Mother raised an additional issue on appeal.

When a government agency files multiple dependency petitions, involving three siblings residing in the same home with the sa me mother and father, all of the allegations in the petition and all of the evidence presented at the single hearing is identical as to each minor, no allegation or piece of evidence is peculiar to one child, and the Trial Court enters three identical Orde rs, disposing ofJ.A21007/15

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- When a government Agency presents evidence that the yard of a minor’s house is cluttered with mostly unidentified material, that an unnamed informant reported that the ho use was messy, had a boarded

- up window and might have had a hole in the wall, but presented no evidence that the house was unsafe or that [C]hildren were in danger and, in fact, testified that [CYS] had no concern for the safety of [C]hildren, does the [t] rial [c]ourt err in concluding that probable cause exists to believe that evidence of child abuse or endangerment may be found in the home?

Mother’s Brief at 5.

Mother argues that probable cause is required to permit CYS to access

her home pursuant to Ar ticle 1, Section 8 of the Pennsylvania Constitution.

Id. at 18. She avers there was no probable cause for a home inspection.

Id. Mother contends CYS can only inspect the home pursuant to 55 Pa.

Code § 3490.55(i) 6 when investigating a report of suspecte d child abuse.

three identical petitions, should an appeal from those three decisions be quashed for failing to file individual appeals?

Mother’s Brief at 5. We have resolved this issue. See note 1.

6 Section 3490.55 requires a home visit when the ag ency is investigating reports of suspected child abuse. Section 3490.55(i) provides:

(i) When conducting its investigation, the county agency shall visit the child’s home, at least once during the investigation period. The home visits shall occur as oft en as necessary to complete the investigation and to assure the safety of the child.

55 Pa. Code § 3490.55(i). The trial court found a home visit was required by 55 Pa. Code § 3490.232. Order, 3/5/15. In the case sub judice there were no allegations of child abuse in the petitions filed by CYS. Mother’s reliance on Section 3490.55(i) is of no moment. The Code provides for aJ.A21007/15

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Id. Mother claims that CYS “must allege and prove facts, ‘amounting to

probable cause to believe that an act of child abuse or neglect has

occurred and evidence relating to such abuse will be found in the home.’”

Id. at 19 (emphasis added ) (citing In re Pet. to Compel Cooperation

with Child Abuse Investigation , 875 A.2d 365, 377 (Pa. Super. 2005)).

Our review is governed by the following principles:

[T]he standard of review in dependency cases requires an appellate court to accept the fi ndings of fact and credibility determinations of the trial court if they are supported by the record, but does not require the appellate court to accept the lower court’s inferences or conclusions of law. Accordingly, we review for an abuse of discretion.

In re E.B. , 83 A.3d 426, 430 (Pa. Super. 2013) (citation omitted).

In In re Petition to Compel , the parents appealed an “order

compelling their cooperation with Susquehanna County Services for Children

and Youth (“C & Y”) for the scheduling and completio n of a ‘home visit’ of

their residence.” Id. 875 A.2d at 368. The trial court granted C & Y’s

petition notwithstanding the fact that there was no dependency petition

before the court. 7 Id. at 369. This Court opined:

home inspection when CYS receives a report of abuse and/or neglect. The issue of whether probable cause exists for the home insp ection pertains in either case. See In re Pet. to Compel , 875 A.2d at 377, 379.

7 In In re Petition to Compel , the home inspection had taken place. However, this Court declined to find the issues moot because “the issues before us are clearly capable of repetition, yet evading appellate review.” Id. at 370

- 71.J.A21007/15

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- [The a]ppellants’ first substantive argument is that the court lacked jurisdiction to enter its order because C & Y had not filed a dependency petition. [The a]ppellants’ position is that administrative regulations alone are insufficient to confer jurisdiction; and that in the absence of a petition filed pursuant to the Juvenile Act, 42 Pa.C.S.A. §§ 6301 et seq ., C & Y could not legally invoke the court’s jurisdiction. We disagree.

The legislature’s purpose in enacting the CPSL is stated in Section 6302(b):

It is the purpose of this chap ter to encourage more complete reporting of suspected child abuse; to the extent permitted by this chapter, to involve law enforcement agencies in responding to child abuse; and to establish in each county protective services for the purpose of investigati ng the reports swiftly and competently, providing protection for children from further abuse and providing rehabilitative services for children and parents involved so as to ensure the child’s well

- being and to preserve, stabilize and protect the integrity of family life wherever appropriate or to provide another alternative permanent family when the unity of the family cannot be maintained. It is also the purpose of this chapter to ensure that each county children and youth agency establish a program of p rotective services with procedures to assess risk of harm to a child and with the capabilities to respond adequately to meet the needs of the family and child who may be at risk and to prioritize the response and services to children most at risk.

23 Pa.C .S.A. § 6302(b).

The CPSL charges the county agencies with investigating each report of suspected child abuse:

Upon receipt of each report of suspected child abuse, the county agency shall immediately commence an appropriate investigation and see the chi ld immediately if emergency protective custody is required or has been or shall be taken or if it cannotJ.A21007/15

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- be determined from the report whether emergency protective custody is needed. Otherwise, the county agency shall commence an appropriate investigation and see the child within 24 hours of receipt of the report. The investigation shall include a determination of the risk of harm to the child or children if they continue to remain in the existing home environment, as well as a determination of the nature , extent and cause of any condition enumerated in the report and any action necessary to provide for the safety of the child or children.

23 Pa.C.S.A. § 6368(a). Our legislature has expressly authorized the Department of Public Welfare (“DPW”) to adopt w hatever regulations are necessary to implement the CPSL. 23 Pa.C.S.A. § 6348.

Title 55 of the Pennsylvania Administrative Code, Section 3490.55, states in relevant part: “When conducting its investigation, the county agency shall visit the child’s home
, at least once during the investigation period. The home visits shall occur as often as necessary to complete the investigation and to assure the safety of the child.” 55 Pa.Code § 3490.55(i).

* * *

As we interpret the statute and agenc y regulations, C & Y must file a verified petition alleging facts amounting to probable cause to believe that an act of child abuse or neglect has occurred and evidence relating to such abuse will be found in the home.

* * *

However, C & Y’s responsibilities under the DPW regulations and the CPSL to investigate each and every allegation of child abuse/neglect , including visiting the child’s home at least once during its investigation, do not trump an individual’s constitutional rights und er the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution.

Id. at 371

- 72, 377, 379 (emphases added).J.A21007/15

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In In re Petition to Compel , Judge Beck filed a concurring opinion

which was joined by Judge Ford

- Elliot and Judge Joyce. Both Judge Beck

and Judge Joyce also joined the majority opinion. Judge Beck opined:

I join the soundly reasoned majority opinion because it finds that the Fourth Amendment right to be free from unreasonable searches and seizures applies to actions of a soci al services agency seeking to investigate an anonymous complaint of child abuse. I write separately, however, to add two observations in this case.

First, I caution future parties and courts faced with this issue to consider that the purposes and goals underlying the activities of child protective agencies differ significantly from those of law enforcement generally. As a result, it would be unwise to apply the standard notion of probable cause in criminal law to cases such as these. While the Fourth A mendment certainly is applicable to these matters, we must not forget the very purpose for the Child Protective Services Law. Child Line and other services like it exist to encourage people to report incidents of potential danger to children. Likewise, w e impose upon certain professionals an affirmative duty to report conduct they believe may be harmful to a child. For these reasons, simply requiring an agency to show “probable cause” as it is defined in the criminal law is not enough. Instead, the natu re and context of each scenario must be considered.

What an agency knows and how it acquired its knowledge should not be subject to the same restrictions facing police seeking to secure a search warrant. For instance, an agency’s awareness of previous c onduct on the part of parents would be relevant, indeed vital, information to include in a request for a court

- ordered home visit. What constitutes probable cause in the child protective arena is far different from what constitutes probable cause in the c riminal law. Social services agencies should be held accountable for presenting sufficient reasons to warrant a home visit, but those same agencies should not be hampered from performing their duties because they have not satisfied search and seizure juri sprudence developedJ.A21007/15

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- in the context of purely criminal law . I urge the courts deciding these issues to accord careful consideration to the unique circumstances they present.

Id. at 380 (emphases added).

In the instant case, CYS filed dependency petitions , indicating its

efforts to visit Children’s home and requesting the court to allow CYS to visit

the home as part of its investigation. 8

Instantly, the trial court opined:

At the hearing on this petition, the caseworker, Alyssa Denardo, presented addit ional testimony regarding the condition of the home and her initial in

- school visits with [C]hildren that are the subject of these petitions. She also identified a number of photographs that she took during her first visit to the home. The photos showed the yard of the home with garbage strewn around, several rolls of used carpeting, and a general state of “clutteredness.” These photos were admitted as an exhibit, without objection. The caseworker also testified that [C]hildren have all been withdrawn f rom the Palmerton School District, 17 meaning there is no way for CYS to follow

- up with speaking to [C]hildren regarding the interior of the home.

* * *

The report to [CYS] was regarding the condition and cleanliness of the home. The pet itions detailed the condition of the exterior of the home, which included a boarded up window inside of the home, which was clearly visible from outside. The petitions included information from the caseworker’s interviews with [C]hildren. The petitions a lso identified the unwillingness of the natural parents to allow [CYS] into the home. This [c]ourt finds that this information, in and of itself, would be sufficient to justify the probable cause necessary for an order

8 We note that CYS did not seek the removal of Children from the home.J.A21007/15

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- permitting [CYS] to enter [Children’ s home] to conduct their investigation as required by the CPSL.

____________________

17 In this [c]ourt’s opinion, the fact that [C]hildren were removed from the Palmerton School District at a time when [CYS] wanted to question them about the home suggests “something to hide” relating to the condition of the home.

Trial Ct. Op. at 10

- 11, 12.

At the hearing, Marianne Grabarits, a caseworker supervisor with CYS

testified that when CYS receives a GPS report, the case

- worker is required,

inter al ia , “to complete a home assessment.” N.T., 1/30/15, at 9, 11. She

assigned the report to the caseworker, Ms. Denardo. Id. at 18.

Ms. Denardo testified regarding the report CYS received on November

13, 2014, indicating concern with the cleanliness of th e home, “holes in the

home and boarded up windows.” Id. at 25, 26. She interviewed Children at

school on November 20, 2014. Id. at 26, 27. C.W. ”told me that it is a little

dirty at the home, that dad does projects and doesn’t always finish them and

th at’s why it is dirty at the home.” Id. at 26. Ma.W. told her that the house

was “sort of dirty, that dad boarded up a window in front to have privacy

from the road.” Id. at 27. She also stated “that they had 13 cats [ 9 ] and

9 We note that Mother’s counsel asked whether Ms. Denardo was “aware that the 19 cats were outside cats from the farm up the road[.]” Id. at 55. She responded that she was not “aware of that.” Id.J.A21007/15

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three dogs.” Id. M.W. state d “it’s a little dirty in the house. She did say

there are no holes and the house is not boarded up.” Id.

Ms. Denardo went to the home on December 5, 2014, 10 and “saw that

the outside was cluttered and boarded up where it looked like it could have

been a window.” Id. at 28. She took six photographs and described them

to the court. Id. at 30. “There is a bunch of garbage, about three or four

garbage [sic] and it looks like maybe carpet rolled up.” Id. It was located

“towards the end of the driveway .” Id. The second photograph depicted

what looked to be “a barn of some kind.” Id. at 31. She stated she “took

the photo because of the materials that are out there, with it being dirty and

all the materials.” Id. The third photograph was of the home and it

depicted a trailer. Id. The fourth photograph showed “the trailer, the

home. And as you can see, here it’s boarded up.” Id. at 32. The fifth

photograph of the trailer “is the close up of the front entrance of the home.”

Id. at 32

- 33. She too k the photograph “[b]ecause of all the clutteredness

and the materials that are right outside of the home.” Id. at 33. The last

photograph shows “right here is where you step into the house, the porch,

and that is all the clutteredness.” Id.

She went t o the home again and Father told her “I am not letting

anyone in or under the government or bureaucracy of the government into

10 She attempted to go to the home on November 20, 2014, but could not find it. Id. at 27

- 28. She tried to go to the home on November 26th but was unable “to make it out there” d ue to inclement weather. Id. at 28.J.A21007/15

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my house and that is why I have that sign.” Id. at 35. The sign said “no

federal, state or agency [sic] allowed on this propert y without

documentation.” Id. at 36.

Ms. Denardo testified she called the Palmerton School District on

January 6, 2015. Id. at 37. C.W. had not been in school on January 2nd,

January 5th and January 6th. Id. She called Palmerton Junior High and was

t old Ma.W and M.W.’s were withdrawn from the school district. Id. CYS was

not asking for Children to be removed from the home. Id. at 43. CYS is

requesting that Children be adjudicated dependent so that the agency could

complete its evaluation. Id. “T here was a report that came in that children

come to school not clean.” Id. at 51.

The trial court denied the petition for dependency but found “in light of

the testimony and evidence presented at the hearing, probable cause was

shown to warrant an order directing that [CYS] shall be permitted to enter

[Children’s] home . . . .” Order, 3/5/15. We discern no abuse of discretion.

See In re E.B. , 83 A.3d at 430. Instantly, there was probable cause to

warrant an order for a home visit. See 55 Pa. Code § 3490.232; In re Pet.

to Compel , 875 A.2d at 374, 380. Accordingly, we affirm.

Orders affirmed.J.A21007/15

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/14/2015(4) of the W. children.

( :. 't_ r ' : was no longer subject to a 1 Separate petitions were filed involving four However, the oldest child (B.W.) has turned 18 and [FM-18-15] 1 It is this part of the Order that home of the subject children. Office of Children and Youth Services be permitted to enter the evidence presented for an order directing that the Carbon County this Court also stated in the order that there was sufficient However, for Dependency after conducting a hearing 1 thereon. Carbon County Office of Children and Youth Services' Petitions On March 5, 2015, this Court issued an Order denying the Matika, J. - April



### _ 1

_ 3 ~, 2015 MEMORANDUM OPINION Robert J. Magee, Esquire Mark E. Combi, Esquire County Counsel for Carbon Children & Youth Guardian ad Li tern for Ma. W. r 

### c.w. I & M.W. Counsel for J. K. , mother of Ma.W., C.W., & M.W. Kim M. Christie, Esquire IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA
JUVENILE

IN THE INTEREST OF
Ma.W. No. 25 DP 14

IN THE INTEREST OF 

## c.w. No. 27 DP 14

IN THE INTEREST OF M.W. No. 28 DP 14 Circulated 08/05/2015 03:29 PM[FM-18

- 15] 2 Children and Youth action. The hearings on the other three (3) children were consol i dated.

2 Dependency Petition of M.W.

3 Dependency Petition of c.w.

4 Dependency Petition of Ma.W. that the outside area of the home was "cluttered with random went to the family's home to investigate, where she reported On December 5, 2014, the caseworker in the front" 4 of the home. dirty" 2 to "dirty" 3 to "sort of dirty" with a "boarded up window of the state of the house, ranging from the home being "a little children at their respective schools, who gave varying accounts A caseworker for Children and Youth spoke to each of the about the conditions of the home where the children were living. received a report on November 13, 2014 which expressed concerns The Carbon County Office of Children and Youth Services

FACTUAL AND PRODECURAL BACKGROUND accordingly. to the Honorable Superior Court to dismiss Defendant's appeal Respectively, this Court recommends in the March 5, 2015 order. 1925(a), to expand upon the brief ruling and rationale set forth Procedure Appellate of Rule Pennsylvania with accordance memorandum opinion is offered to the Superior Court, in This appeals. the natural mother of the minors, J. K. I Circulated 08/05/2015 03:29 PM5 The caseworker also testified that in early January, she contacted the

Palmerton School District to speak to the ch i ldren again, as she had
p r ev i ous l y spoken to all three (3) of them in a school setting. The [FM-18-15] 3 petitions were filed on December 24, 2014. 5 dependency if the family continued to refuse to cooperate. The was informed that the agency would be filing petitions for refused to allow the caseworker into the home, at which time he J.W. once again investigate the inside of the residence. 22, 2014, the caseworker went to the home again to attempt to On December J. K. denied before hanging up on the caseworker. The caseworker asked for permission to check the home, which Children and Youth had no business being involved in the matter. explained the allegations to J.K., to which J.K. responded that The caseworker had visited the home and was denied entry. The caseworker explained that she which was answered by J. K. On December 8, 2014, the caseworker called the home phone, leave. J.W. refused and asked the caseworker to inside of the house. cleanliness of the home and requested permission to check the the regarding allegations the him of informed children, be. The caseworker approached J

. W. , the natural father of the objects" and there was a boarded up hole where a window used to Circulated 08/05/2015 03:29 PM[FM-18-15] 4 caseworker was i nformed that the children had all been withdrawn from the Palmerton Schoo l District in late December or early January.

6 All counsel submitted "letter briefs" to chambers of the undersigned, no n e of which were lodged in this matter, a nd therefore, do not appear in the record.

7 Order of Cou r t, March 5, 2015.

1) The Trial Court erred in determining that probable cause was shown so as to justify the intrusion into the home of J.K. by members of the Carbon County Office of Children and Youth to complete an assessment, when the only evidence presented was some pictures of a cluttered, non-dangerous yard, and a statement from some unidentified informant whose reliability is completely unknown that the house was issues: In this statement, Appellant J. K. raised two timely filed. Statement of Matters Complained of on Appeal, which was also Pennsylvania Rule of Appellate Procedure 1925(b} file a Concise to pursuant she, that directed Court this Thereafter, On March 13, 2015, J,K. filed an appeal to Superior Court. to conduct the necessary investigation. "shall be permittedu 7 to enter the home of the subject children was probable c a use to issue an order that Children and Youth 5, 2015 denying the Petition for Dependency, but finding there briefs 6 regarding the case, this Court issued an order on March the matter under advisement and allowing all parties to file After taking counsel, a hearing was held on January 30, 2015. After a continuance for the natural parents to obtain Circulated 08/05/2015 03:29 PM[FM-18-15] 5 8 23 Pa. C.S.A. §§ 6301 et seq.

9 55 Pa. Code§ 3490.232.

10 Id. at § 3490.232 (e).

11 Id. at § 3490.232 (f). child's home, at least once during the investigation period. conducting its investigation, the county agency shall visit the Another section mand a tes that "[w]hen assessment period." 11 agency shall see the child and visit the child's home during the assessment. 1 0 In the course of such an assessment, "(t]he county days within which to complete an ( 60) agency has sixty For example, the county requirements that must be fulfilled. ("CPSL")8 and Pennsylvania Administrative Code 9 have several Protective Services ( "GPS")
, the Child Protective Services Law Once a county agency receives a report for General DISCUSSION The Court will address these issues accordingly.

2) The Trial Court further erred, when, in the aftermath of dismissing the Petition for Dependency (the only matter then before the Court), the Court went on sua sponte, to Order J.K. to allow the Agency to enter her house and conduct an inspection, even though there was no surviving petition before the Court requesting any such relief. "messy", that there was a boarded up window, and that there "might have been a hole["] in some unidentified wall, and that the children when interviewed, appeared healthy, unharmed and clean; and Circulated 08/05/2015 03:29 PM[FM-18-15] 6 12 55 Pa. Code § 3490. 55 ( g)

.
1 3 Id. a t§ 3490.233(h)

14 Id. at§ 3490.232(j).

rs 55 Pa. Code§ 3490.7 3

. Office of Children and Youth Services, to determine what the responsibility of the county agency, such as the Carbon County Accordingly, it would appear to be the child is at risk." rs investigation, and the county is unable to determine whether the child abuse refuses to cooperate with the county agency in an to petition the court if the "subject of the report of suspected portion of the PA Administrative Code requires the county agency Further, another visit, or services are refused by the parents. "appropriate court proceedings" are when an assessment, a home what on elaborate not does statute the However, [t]he county agency shall initiate the appropriate court proceedings and assist the court during all stages of the court proceedings if the county agency determines that the general protective services are in the best interest of a child and if an of fer of an assessment, a home visit, or services is refused by the parents. 14 visits

. 13 Finally: law also permits the county agency to make unannounced home the investigation and to assure the safety of the child." 12 The The home visits shall occur as often as necessary to complete Circulated 08/05/2015 03:29 PM[FM-18-15] 7 Pennsylvani a 's

of 8 Section I, and/or Article Amendment a home visit, the rights of the alleged abusers under the Fourth applicable language of the pertinent Pennsylvania laws required County Services for Children and Youth that because the The Superior Court rejected the argument of Susquehanna the child abuse allegations." Id. at 369. to submit to a home visit as part of C&Y' s investigation into trial court in that matter was "whether appellants were required at 368. The S u perior Court found that the only issue before the investigate their home based on a referral from Child Line. Id. to Youth and Children for Services County Susquehanna abuse" based upon the refusal of alleged abusers to allow the presented with a "petition to compel cooperation with child that case, the Susquehanna County Court of Common Pleas was In 875 A.2d 365 (Pa. Super. Ct. 2005). Abuse Investigation. this issue was In re: Petition to Compel Cooperation with Child

The one case this Court found to be guiding on into a home. where a county children and youth agency has been denied entry Pennsylvania case law is surprisingly light in matters matter. proper petitions are and file them before the court hearing the Circulated 08/05/2015 03:29 PM[FM-18-15] 8 The Superior Court found that the petition Id. at 378. visit. the home, and the caseworker was required to complete a home neglect, the parents had refused to allow the caseworker into alleged, inter alia, that the referral was made for medical

In that case before the Superior Court, the Petition added). Id. at 3 77 ( emphasis such abuse will be found in the home. " child abuse or neglect has occurred and evidence relating to facts amounting to probable cause to believe that an act of Therefore, \\C & Y must file a verified petition alleging supra, at 376

- 77. Petition to Compel, the regulations written to implement it." Fourth Amendment and Article I, Section 8 apply to the CPSL and . and hold that the agree with the federal courts' analysis Court wrote that al though these were not binding authority, =we The Superior Family Servs., 240 F.Supp.2d 731 (N.D. Ohio 2003). (3d Cir. 1989); See also Walsh v. Erie County Dept. of Job and Cty. County Soc. Servs. for Children and Youth, 891 F.2d 1087 See Good vs. Dauphin Court for the Northern District of Ohio. both the Third Circuit Court of Appeals and the U.S. District determination, the Superior Court reviewed federal cases from In reaching this Id. at 374. constitution do not apply. Circulated 08/05/2015 03:29 PMand conditions of the house in which the children were residing, [FM-18-15]
9 Services receiving an anonymous report regarding the cleanliness based upon the Carbon County Office of Children and Youth In the instant matter, the dependency petitions were filed In Interest of J.M., 652 A.2d 877 1 880-81 (Pa. Super. Ct. 1995). See also In re M.K., 636 A.2d 198, 201 (Pa. Super. Ct. 1994) [t] he standard of review which this Court employs in dependency cases is broad. However, the scope of our review is limited in a fundamental manner by our inability to nullify the fact-finding of the lower court. We accord great weight to this function of the hearing judge because he is in the position to observe and rule upon the credibility of the witnesses and the parties who appear before him. Relying on this unique posture, we will not overrule his findings if they are supported by competent evidence." this, the Superior Court has stated: determination in a General Protective Services matter such as court's trial the challenges appellant an When I. Probable Cause a formal petition for dependency." Id. at 379. issuance of a search warrant for appellants' home, and/or filing further investigation to collect additional facts to support the that petition, the county agency had several options \\including Id. The court went on to say that after filing search warrant. did not acknowledge sufficient facts to merit the issuance of a Circulated 08/05/2015 03:29 PM[FM-18-15] 10 number of photographs that she took during her first visit to She also identified a that are the subject of these petitions. of the home and her initial in-school visits with the children Denardo, presented additional testimony regarding the condition At the hearing on this petition, the caseworker, Alyssa by the father. attempt to conduct the in-home assessment, and was again refused via telephone, the caseworker went back to the home to again home by the father in person on that occasion and by the mother window as previously indicated. After being denied entry to the "cluttered", and that the home did in fact have a boarded up the home and found the outside to be to inspect went As part of the investigation, a caseworker comparable language. each of the children regarding the home being "dirty" or some Off ice of Children and Youth Services contain statements from As stated above, the petitions filed by the Carbon County itself. Here, the issue is the condition of the home found in the home. aver that evidence of the issue the report was based on will be stated above, the Superior Court has held that the petition must along with corroborating statements from the children. As Circulated 08/05/2015 03:29 PM16 N. T. 1/30/15 P. 29-34.

17 In this Court's opinion, the fact that the children were removed from the Palmerton School District at a time when the Carbon County Office of Children and Youth Services wanted to question them about the home suggests "something to hide" relating to the condition of the home. [FM-18-15] 11 Thus, this information is distinguishable from the information when this Court was making its determinations on the matter. testimony and evidence at the time of the hearing on the matter information was provided by way of any additional Here, Petition to Compel, supra, at 378. must allege those facts. sufficient for a search warrant, saying that the petition itself information provided to the Superior Court in a brief that was Services for Children and Youth that there was additional Superior Court rejected the argument made by Susquehanna County This Court notes that in the Petition to Compel case, the to the children regarding the interior of the home. Office of Children and Youth Services to follow-up with speaking District 17

, meaning there is now no way for the Carbon County the children have all been withdrawn from the Palmerton School The caseworker also testified that exhibit, without objection. These photos were admitted as an state of "clut teredness". 16 strewn around, several rolls of used carpeting, and a general

The photos showed the yard of the home with garbage the home. Circulated 08/05/2015 03:29 PM[FM-18-15] 12 investigation as required by the CPSL. Services to enter the home of the W's to conduct their permitting the Carbon County Office of Children and Youth sufficient to justify the probable cause necessary for an order would be in and of itself, finds that this information, This Court Office of Children and Youth Services into the home. unwillingness of the natural parents to allow the Carbon County the identified also petitions The children. the with petitions included information from the caseworker's interviews of the home, which was clearly visible from outside. The exterior of the home, which included a boarded up window inside The petitions detailed the condition of the of the home. and Youth Services was regarding the condition and cleanliness

The report to the Carbon County Office of Children to exist. finds that there was sufficient information for probable cause based on the facts averred in the petitions, this Court still In the alternative, if the probable cause can only be found Petition to Compel case. provided in the brief submitted to the Superior Court in the Circulated 08/05/2015 03:29 PM[FM-18-15]
13 can draw from the Superior Court's opinions in supporting the Turning to the matter sub judice, this Court finds that it violation of the parents' due process rights. Id.

This resulted, in the Superior Court's opinion, in a 997. Id. at against the children's placement into state custody. 11 with notice or an opportunity to present testimony or argue court found troubling was that the parties "were not presented the Superior Court in support of their decisions, the issue the In Brooks-Gall and in each of the three (3) cases cited by Super. Ct. 2003) (emphasis added). 840 A.2d 993, 996 (Pa. or following the required procedures. 11 altered custody orders without providing the necessary hearings which a court has sua sponte adjudicated children dependent or decisions in cases where we have reversed trial court orders in Protection from Abuse hearing, stated "we are instructed by our custody following a removing children from their parents' Superior Court, when dealing with a trial court sua sponte In Brooks-Gall v. Gall, the Court can draw from in this matter. on point relating to this matter, there are similar cases this Again, while there does not appear to be case law directly II. Appellant's Claim of a "Bua Sponte" Act by this Court Circulated 08/05/2015 03:29 PMu As stated above, the ambiguity in the statutory language as to what

constitutes an "appropriate court proceeding" is part of the issue this Court had to decide. Although the petitions filed were formally called "Petitions for Dependency", the testimony at the hearing on these petitio n s show that the inten d ed goal of the Carbon County Office of Children and Youth Services

was me r ely for this Court to order Appellant to cooperate with the agency. At one point, counsel for Children and Youth stated "We are just asking for cooperation from the parents. we are not asking to remove these kids from the home. We wouldn't have even filed the dependency petition if the parents were cooperative in the first place. 11 (N.T. 1/30/15 P. 63). Counsel later reiterated their intent in filing the petition, saying "[s]o the agency is just look i ng for cooperat i on from the parents. I believe in other cases like this, Your Honor has continued the matter, ordered the parents to cooperate, and then we can dismiss the dependency at the end of it. Again,

we are just looking for cooperation so we can close this out." Id. at 64. When further questioned by this Court as to whether a formal petition for dependency was the proper vehicle for this request, counsel for Children and Youth stated "the way the regulations are set up, I believe this is our avenue or means of relief to complete our investigation. If we are unable to get into the home to comp l ete the invest i gation, that would mean we would have safety concerns, meaning that we would need to file a dependency [FM-18-15] 14 Here, Appellant was presented with notice and custody matter. the judge determined the children were being used as pawns in a example, the parents went before the trial court for a PFA, and In Brooks-Gall, for differentiated from cases like Brooks

- Gall. feels this instant matter can be this Court Further, permit Children and Youth into the home. 1 0 were brought before this Court to compel the homeowners to Similarly, petitions conduct a home visit, and were refused. received a report of potential abuse or neglect, attempted to Compel, the Carbon County Office of Children and Youth Services Just as in Petition to ruling that is now up for appeal. Circulated 08/05/2015 03:29 PMpetition in order to remedy those concerns. That is my understanding of the

way that this works and that is why we filed the petitions." Id. at 67.

19 Petitions for Dependency (P. 3) (emphasis added). [FM-18-15) 15 Dependency, along with the testimony of the caseworker, show The Petitions for opportunity to argue against such an order. from the dependency that Appellant did not have notice or This was not, in this Court's opinion, a matter so separate filing these Petitions for Dependency. need to conduct such an investigation, and their reason for with the mother and informed the parents of both the Office's attempts to visit the home and her phone call where she spoke condition of the home, along with the caseworkers two (2) Office of Children and Youth Services' main concern was with the specifically put Appellant on notice that the Carbon County as listed above, reasons for the petitions being filed, The II 19 places the heal th, safety, or welfare at risk. evidence of conduct by the parent, guardian, or custodian that there is a lack of proper parental care may be based upon Petitions for Dependency reads in part "a determination that The box checked on the Services' attempts to enter the home. dependency and the Carbon County Office of Children and Youth both to regards with testimony, present to opportunity Circulated 08/05/2015 03:29 PM[FM-18-15] 16 had the opportunity to defend it. Court, the goal of which was properly noticed to Appellant, who Children and Youth Services was the same as that issued by this

The ultimate goal sought by the Carbon County Office of action. sufficient probable cause, is not an erroneous, sua sponte, based on enter the home to complete their investigation, County Off ice of Children and Youth Services be permitted to adjudicate the children dependent, ordering that the Carbon feels that while there may not have been sufficient evidence to at the substance of the Petitions for Dependency, this Court Therefore, in looking to the intent and language of the CPSL. the basis for a possible Adjudication of Dependency, is contrary of the home, when the alleged conditions of the home may form and Youth Services not being able to investigate the conditions The Carbon County Office of Children they filed these actions. Office of Children and Youth Services was attempting to do when that Appellant was clearly aware of what the Carbon County Circulated 08/05/2015 03:29 PM[FM-18-15]
17 7

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### ~ ~- Jo~. Matika, J. Appellant's home be affirmed. Office of Children and Youth Services be permitted to enter that the March 5, 2015 Orders directing that the Carbon County Based upon the foregoing, this Court respectfully recommends CONCLUSION Circulated 08/05/2015 03:29 PM