J-S01006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 C.S.,                                      : IN THE SUPERIOR COURT OF
                                            : PENNSYLVANIA
               v.                           :
                                            :
 L.C.                                       :
                                            :
                                            :
 APPEAL OF: LACKAWANNA                      :      No. 1392 MDA 2017
 CHILDREN AND YOUTH

                 Appeal from the Order Entered August 2, 2017
             in the Court of Common Pleas of Lackawanna County,
                     Civil Division at No(s): 2009-FC-41245

 IN THE INTEREST OF: C.S., A MINOR          :   IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                                            :
                                            :
                                            :
                                            :
 APPEAL OF: LACKAWANNA COUNTY               :
 CHILDREN AND YOUTH SERVICES                :        No. 1450 MDA 2017

                Appeal from the Order Entered August 31, 2017
             in the Court of Common Pleas of Lackawanna County,
                Civil Division at No(s): CP-35-DP-0000099-2017

BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                               FILED MAY 10, 2018

        In these consolidated appeals, Lackawanna County Children and Youth

Services (“CYS” or “OYFS”) appeals from the Order (hereinafter, the

“Dependency Order”) directing CYS to file a dependency petition concerning

the minor male child, C.S. (hereinafter “Child” – born in March 2008), and

place Child in the custody of his biological father, C.J.S. (hereinafter “Father”),

under intense supervision. CYS also appeals a subsequent Order (hereinafter,

the “Withdrawal Order”) allowing CYS to withdraw its dependency Petition,
J-S01006-18


and stating that Father shall have primary physical custody of Child, subject

to periods of partial physical custody by Child’s mother, L.C. (hereinafter

“Mother”).1 We affirm.

        The trial court thoroughly set forth the factual background and

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

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

14.2,   3



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

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

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

from both Orders, simultaneously with Concise Statements of errors

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

Court thereafter consolidated the appeals.

        CYS now presents the following questions for our review:



____________________________________________


1 Concerning the Withdrawal Order, the trial court explained that “this [c]ourt
allowed [CYS] to withdraw the dependency [P]etition … after Father and
Father’s paramour completed parenting classes and continued to cooperate
with [CYS]. [] [C]hild was never adjudicated dependent.” Trial Court Opinion,
9/27/17, at 14 (emphasis added).

2We will refer to the hearings that the trial court conducted on these specified
dates as follows: July 13, 2017 – hereinafter, “the shelter care hearing”; July
24, 2017 – hereinafter, “the dependency hearing”; and August 31, 2017 –
hereinafter, the “adjudication hearing.”

3 Pursuant to the trial court’s directive in the Dependency Order, on August
14, 2007, CYS filed a dependency Petition, in response to which the trial court
scheduled the adjudication hearing.
                                           -2-
J-S01006-18


     1. While the [trial] [j]udge authorized the withdrawal of the
        Dependency Petition on August 31, 2017, whether the matter
        is not moot despite the withdrawal of the Dependency Petition?

     2. Whether the trial judge erred and/or abused her discretion by
        issuing an Order in a [c]ustody matter[,] requiring [CYS] to file
        for dependency and to place [] [C]hild with [] Father under
        intense supervision?

     3. Whether the [trial] judge erred by not allowing any testimony
        by [CYS] at the shelter care hearing, including testimony that
        would have made the case eligible for federal funding, to
        [CYS’s] and [Lackawanna] [C]ounty[’s] detriment[?] This
        must be determined at the first hearing, and cannot be
        addressed later, see 42 U.S.C. [§] 671[.]

     4. Whether the trial judge erred and/or abused her discretion by
        conducting questioning of witnesses at the shelter care
        [hearing] and first adjudication hearing, instead of allowing
        [CYS] and other parties to call witnesses, [and] having direct
        and cross[-]examination by counsel, with clarification
        questions by the [trial] judge? [CYS] contends that this
        conduct was not compatible with an impartial trier of fact, as is
        expected of the judiciary.

     5. Whether the [trial] [j]udge abused her discretion by ordering
        [] [C]hild removed from his home[,] in the absence of a Petition
        for Emergency Custody[,] and by denying [CYS’s] request to
        withdraw the Shelter Care Petition for lack of grounds to keep
        temporary custody of [] [C]hild?

     6. Whether the [trial] judge erred and/or abused her discretion in
        the … [Withdrawal] Order by not specifically addressing
        whether [intense] supervision (which was not defined) should
        be continued in the [Withdrawal] Order[,] despite [CYS] having
        no safety concerns[,] and by stating in the [Withdrawal] Order
        that “All prior Order[s] that are not inconsistent with this Order
        shall remain in effect,[”] creating ambiguity?




                                     -3-
J-S01006-18


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

             In dependency matters, we review the trial court’s order
       pursuant to an abuse of discretion standard of review. As such,
       we must accept the court’s findings of fact and credibility
       determinations if they are supported by the record, but we need
       not accept the court’s inferences or conclusions of law.

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

omitted).

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

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

Withdrawal Order approving the withdrawal of the dependency Petition. See

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

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

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

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

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

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

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

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

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

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

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


____________________________________________


4 We note that neither Mother/Father, nor the Guardian Ad Litem for Child,
Corrine E. Thiel, Esquire (hereinafter, the “GAL” or “GAL Thiel”), have filed
briefs in this appeal.
                                           -4-
J-S01006-18


and provide immediate services to children by a custody order.”        Brief for

Appellant at 19.

      This Court has discussed the mootness rule and the repetition exception

as follows:

      Generally, an actual claim or controversy must be present at all
      stages of the judicial process for the case to be actionable or
      reviewable. Plowman v. Plowman, 409 Pa. Super. 143, 597
      A.2d 701, 705 (1991). If events occur to eliminate the claim or
      controversy at any stage in the process, the case
      becomes moot. Id. Even if a claim becomes moot, we may still
      reach its merits if the issues raised in the case are
      capable of repetition, yet likely to continually evade appellate
      review. Id. See also In Re Fiori, 543 Pa. 592, 600 n. 4, 673
      A.2d 905, 909 n.4 (1996) (holding death of patient did not
      preclude appellate review where issue was of important public
      interest, capable of repetition, yet apt to elude appellate
      review); Commonwealth v. Bernhardt, 359 Pa. Super. 413,
      519 A.2d 417, 420 (1986) (holding exception to mootness
      doctrine exists where (1) the question involved is capable of
      repetition but likely to evade review, or (2) the question involved
      is one of public importance).

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

omitted).

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

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

dependency) are moot because Child was never adjudicated dependent and

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

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

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

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

here meet the repetition exception to the mootness rule. While the issue may

                                     -5-
J-S01006-18


be capable of repetition in the future (i.e., in other cases, Lackawanna County

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

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

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

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

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

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

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

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

address all of its claims.

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

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

file for dependency and place Child with Father under intense supervision.5

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

       abused her discretion by failing to remember that she had sought
       and approved both an Emergency Custody Order and a Shelter
       Care Order[,] putting [Child] into temporary custody of [CYS],
       which placed this matter under the Juvenile Act[, 42 Pa.C.S.A.
       § 6301 et seq.], and disregarded the procedures and safeguards
       of [the Juvenile] Act in ordering a change of custody by a
       [c]ustody Order.

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

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


____________________________________________


5CYS clarifies that it is not appealing the trial court’s placement of Child with
Father. See Brief for Appellant at 10; see also Rule 1925(b) Concise
Statement, 9/15/17, ¶ 2.
                                           -6-
J-S01006-18


Juvenile Act process [] existed, and nothing had been filed to bring the matter

back to custody court.”). In support of its claim, CYS cites this Court’s decision

in Fallaro v. Yeager, 528 A.2d 222 (Pa. Super. 1987).

      In Fallaro, the matter was initially before the trial court on cross-

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

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

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

stating that

      in order for a court to have jurisdiction to find a child to be
      dependent, there must be a petition filed under the Juvenile Act
      which alleges the dependency of the child. Since no such petition
      was filed in this case, the court below had no jurisdiction to find
      [] child to be a dependent child.

Id. at 225.

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

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

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

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

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

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

id.

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

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

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

at 13-15. CYS asserts that

                                      -7-
J-S01006-18


      [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.




                                     -8-
J-S01006-18


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

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

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

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

       [b]y her actions, [] Judge [Corbett] is seeking evidence to keep []
       [C]hild in custody, and not acting impartially with respect to
       [Mother and Father]. … By her actions in taking over the
       [dependency] hearing, conducting questioning [of witnesses (i.e.,
       GAL Thiel)], and finding for shelter care, without giving [CYS,] or
       [Mother and Father], the parties, an opportunity to testify, []
       Judge [Corbett] is not acting as an impartial judge, but is focused
       on achieving the outcome she wants. This is not due process.
       This is an abuse of discretion.

Id. at 16.

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

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

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

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

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

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

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

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

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



____________________________________________


6 Though CYS, in its corresponding issue in its Statement of Questions
Presented section, purports to challenge Judge Corbett’s actions at the shelter
care hearing and the “first adjudication hearing,” its Argument section only
references the dependency hearing.
                                           -9-
J-S01006-18


grounds to keep temporary custody of Child. See Brief for Appellant at 17-

18. CYS asserts as follows:

      Under the Dependency Rules, a case is commenced by the filing
      of a [dependency] petition or emergency custody application
      (P[a].R.J.C.P. 1200(1)[,] (2)). Since there was an Emergency
      Custody Order approved by Judge Corbett, there should have
      been a [p]etition/application with facts averred to support the
      requested relief. There is no application to support the removal
      of [] [C]hild from a parent’s home. While there is a Shelter Care
      Petition, (a copy of which is attached to the [Trial Court’s] Opinion
      as Exhibit “B”) …, [CYS] contends that this [P]etition cannot
      substitute for the lack of the earlier petition. [CYS] sought to
      withdraw the shelter care [P]etition because it had no basis to
      keep custody based on its investigation.

Brief for Appellant at 17.

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

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

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

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

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

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

18-22.   We agree with the trial court’s determination and analysis, and




                                      - 10 -
J-S01006-18


therefore affirm on this basis as to this issue. See id.7

       In its sixth and final issue, CYS argues that the trial judge erred insofar

as the Withdrawal Order, which approved the withdrawal of the dependency

Petition and stated that “[a]ll prior Order[s] that are not inconsistent with this

Order shall remain in effect[,]” was ambiguous and thus cannot be enforced.

See Brief for Appellant at 21-22. Specifically, CYS asserts that the Withdrawal

Order was improperly ambiguous for failing to clarify whether the court-

ordered “intense supervision” of Father’s custodial time, which was ordered in

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

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

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

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

reasonable understanding.” Id.

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

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




____________________________________________


7 As an addendum, we note that the cases CYS relies upon in support of its
claim are distinguishable. See In the Interest of M.B., 514 A.2d 599, 602
(Pa. Super. 1986) (holding that the trial court erred in adjudicating the child
dependent where no dependency petition had been filed and the matter was
before the court based upon abuse allegations); In re A.L., 779 A.2d 1172,
1175 (Pa. Super. 2001) (quoting Fallaro, supra, and stating that “in order
for a court to have jurisdiction to find a child to be dependent, there must be
a petition filed under the Juvenile Act which alleges the dependency of the
child.”). In the instant case, Child was never adjudicated dependent.


                                          - 11 -
J-S01006-18


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

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

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

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

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

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

enforceable and not improper due to ambiguity.

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

Withdrawal Order.

       Orders affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/10/2018




____________________________________________


8 Moreover, given Father’s admission to having previously physically abused
Child, as the trial court thoroughly detailed in its Opinion, we deem that the
CYS supervisor was prudent in “interpret[ing] the term [intense supervision]
to mean a daily caseworker visit to the home[.]” Brief for Appellant at 21.
                                          - 12 -
                                                                                                      Circulated 04/25/2018 02:55 PM




             Plaintiff
                         _Si              L    CP;
                                                HKAAV          N..4T'b'
                                                                          iM'w."6.1C?,y1,6i7T   OF COMMON PLEAS

                                              1611   SE.: 9   2 :1   ,A , IAA71
VS.                                                                                   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
                                               custody               of the minor child. (Orders,
She1p and Mother was grantedtemporary physical

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

granted primary physical custody and Father had periods
                                                        of partial physical custody. (Order,

                                                      a Protection from Abuse (hereinafter
07/03/13). Thereafter in September 2013, Mother filed
                                                     being conducted in Luzerne County
"PFA") Order in Luzerne County. An investigation was

regarding allegations of abuse of the minor child by Father's paramour Monty C.
                                        60/40
                                ic Or
(hereinafter "Father's paramour")  presumably y Luzeme County Children and Youth

                                                   in the matter. Based on those allegations,
 Services. Subsequently, a review hearing was held
                                                    of the minor child and ordered Father to
 this Court granted Mother primary physical custody
                                                               was completed. (Order,
 have no contact with the minor child until the, investigation
                                                 entered a Stipulated Order wherein Father
 09/17/13). In 2014, the Honorable Judge Gibbons
                                                    with the minor child at the Children's
 shall have supervised visits/reunification therapy
                                                 2014, Father filed a Petition for Emergency
 Service Center. (Order, 02/12/14). In September
                                                by the Honorable Judge Gibbons                   and later
  Special Relief, which was temporarily granted
                                                       Father to begin the aforementioned
  withdrawn by the Honorable judge Saxtoneiwho ordered
                                                   09/10/14).3 In 2015, Mother again made
  reunification therapy. (Order, 09/02/14; Order,
                                                     and Father was only allowed to see the
  allegations of abuse of the'rninor Child by Father

  minor child in a supervised setting. (Order, 06/11/15),
                                                           Corinne Thiel as the
           In December 2016, this Court appointed Attorney
                                                          after Father's filing of a Petition for
  Guardian Ad Litem (hereinafter "GAL Thiel")
                                                      ordered both parties to comply
  Contempt .(Order, 12/01/16). Thereafter, this Court



                                                      residence because she.was living with nine people, that
     Father averred that Mother was evicted from her
                                                     that Mother refused to contact the supervision agency, and
   3
   Mother was selling the minor child's medication.,
   that the minor child was being abuied.
                                                         2
                                                              01/05/17). Then in June at a
with scheduling the EOTC visits with the minor child. (Order,
                                                       a Stipulated Order with GAL Thiel
Guardian Ad Litem Conference, the parties entered into
                                                                   to Father's periods of
and agreed that Mother shall have primary physical custody subject
                                                      06/16/17).
partial physical custody every other weekend. (Order,
                                                            for Emergency Special Relief with
        Recently, Father filed a PFD. Petition and Petition

allegations that Mother's paramour was abusing the
                                                   minor child.'(PFA Petition, 06/22/17;

                                                   Thereafter, Lackawanna County Office of
 Petition, 06/22/17).4 Both Petitions were denied.
                                                    became involved because of the minor
 Youth and Family Services (hereinafter "OYFS")
                                                         and Father's home. After the minor
 child's allegations of safety concerns in Mother's home
                                                 "CAC")                 interview and OYFS
 child's Children's Advocacy Center (hereinafter
                                               to enter into a'Stipulated Order wherein
 recommendation, the Court allowed the parties
                                            of the minor                   child subject to Father's periods
 Mother would have primary physical custody
                                                                           GYPS provided that Mother's
  of supervised partial custody to occur at EOTC or through
                                                 (Order, 07/101/7).5 Additionally this Court
  paramour have no contact with the minor child.
                                                       with the minor child_ (Order 07/19/17).
  ordered that Father's paramour shall have no contact

           OYFS took Emergency Protective Custody
                                                  of the minor child on July 11, 2017

                                                                  she could not take care of the minor
  pursuant to this, Court's request after Mother stated
                                                Father could only have supervised                     visits with
  child and this Court already detenriined that
                                                          care of the minor child on July                       13,
  the minor child. (Order, 07/11./17).6 OYFS took shelter
                                                  was filed, but this Court held it in. abeyance
  2017. (Order, 07/13/17). A dependency petition

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

                                                            came forward and stated
could live with Maternal Grandmother. Thereafter, Mother
                            ale( Para elootr
she was moving back in with I -     -_..Since Father and his paramour were attending

                                                Court allowed the minor child to
parenting classes and complying with OYFS, this
                                                 dependency and place the family
be placed with. Father provided that OYFS Bled a

under intense supervision due to the long history
                                                             of allegations of abuse and Father's

                                                        two Orders on August 31,
admission thereof. (Order, 08/02/17). This Court issued
                                            OYFS to withdraw dependency and
2017. The Order under the OYFS case allowed
                                                   the minor child subject to
that Father shall have primary physical custody of
                                                  among other things. (Order,
 Mother's periods of partial on a weekly regiment
                                           this Court issued. an Order granting
 08/31/17). Under the Family Court Docket,
                                                     partial physical custody. (Order,
 Father primary physical custody subject to Mother's

 08/31/17).7
                                                                                     2, 2017 Order
              On September    1,   2017, OYFS filed a Notice of Appeal of the August

                                            Appeal. (Notice, 09/01/17).8
  and Statement of Matters Complained of on

  II.         DISCUSSION

       A.     MOOT
                                                              must exist at all stages of the judicial
            "As a general rule, an actual case or controversy
                                                    issue can become moot during the
  process, or a case will be dismissed as moot. An
                                                        in the facts of the case or due to an
  pendency of an appeal due to an intervening change
                                                    case, an opinion of this Court is rendered
  intervening change in the applicable law. in that


                                                  entered after the August 2, 2017, which is under
                                                                                                     appeal, it is
   7Although the August 31, 2017 Orders were                             and  therefore the issue is moot,
                                               allowed to be withdrawn
   important to note that the dependency was                                                               are
                     appeals  in the above referenced  case. However, the docket numbers and divisions
    OYFS filed two
                                                    appeals separately.
   different Therefore, this Court will address the
                                                            4
                                            is moot if in ruling upon the issue the court
advisory in nature. An issue before a court
                                                          In re J./.f., 107 A.3d 799, 811 (Pa.
cannot enter an order that has any legal force or effect"
                                               actual case or controversy. Although a
Super. 2015). Ti the case at bard, there is no
                                               was never    adjudicated dependent and this
dependency petition was filed, the minor child

Court allowed ()YTS to withdraw the dependency.

       B.         CUSTODY/DEPENDENCY
                                         custody provision of the August 2, 2107 Order, it
     Although OYIRS is not appealing the

                                           dependency to explain this Court's Order.
 is important to discus both custody and
                                                  decision is abuse of discretion." Ottolini v.
      "The standard of review for a trial court's
                                                                                       in any
                                          Ct. 2008). "The fundamental consideration
 Barrett, 954 A.2d 610, 612 (Pa. Super.
                                                        Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d
 child custody case is the best interest of the child."
                                                                   best interest and permanent
                 "In determining minor child's custody, child's
  5.12 (Pa. 1980).

                                               fixed standard, but by determining what is best
  welfare must be decided, not in. relation to
                                                                                        (Pa.
                                            ex rel. Bottursv. Batturs, 60 A.2d 610, 611
  for child under all circumstances." Corn.

  Super. 1948).

            Dependency requires a different approach.
                                                     are the childs [sic] ['best interests] but
            The hearing judge should not ask what
                                                            care and if so whether such care is
            whether the child is presently without proper
                                                           matters, we must accept the facts as
            immediately available.' In child dependency
            found by the trial court unless they are
                                                     not supported by the record. Although bound
                                                         court's inferences, deductions, and
            by the facts, we are not bound by the trial
                                                            independent judgment in reviewing the
             conclusions therefrom; we must exercise our
             court's determination, as opposed to its
                                                      findings of fact, and must order whatever
                                                             of discretion. Our scope of review,
             right and justice dictate. We review for abuse
                                                              In re R.W.J., 826 _A...2c110, 12 (Pa
             accordingly, is of the broadest possible nature.
             Siiper. Ct. 2003).
                                                and the courts to ensure that parents meet
   "The Juvenile Act authorizes state agencies
                                                minimum standards in executing their parental
   certain legislatively determined irreducible
rights ".?n ref W., 578 A.2d       957-8 (Pa. Super. 1990). "Furthermore, when determining

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

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

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

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

        A dependent child is defined as,

        (1) is without proper parental care or control, subsistence, education as required by
        law, or other care or control necessary for his physical, mental, or emotional health,
        or morals. A determination that there is a lack ofproper parental care or control may
        be based upon evidence of conduct by the parent, guardian or other custodian that
        places the health, safety or welfare of the child at risk, including evidence of the
                                                                                               that
        parent's, guardian's or other custodian's use of alcohol or a controlled substance
        places the health, safety or welfare of the child at risk;  (2) has been  placed for care or
        adoption in violation of law; (3) has been abandoned by his parents, guardian, or
        other custodian; (4) is without a parent, guardian, or legal custodian; (5) while
        subject to compulsory school attendance is habitually and without justification truant
         from school; (6) has committed a specific act or acts of habitual disobedience
                                                                                             of the
         reasonable and lawful commands of his parent, guardian or other custodian and
                                                                                                who
         is ungovernable and found to'be in need of care, treatment or supervision; (7) has
         committed a delinquent act or crime, other than a summary offense, while under the
         age of ten. years; (8) has been formerly adjudicated dependent, and is under the
                                                                                                  an
         jurisdiction of the court, subject to its conditions or placements and who commits
          act which is defined as ungovernable in paragraph (6); (9) has been referred
                                                                                                act
          pursuant to section 6323 (relating to informal adjustment), and who commits an
          which is defined as ungovernable in paragraph (6); or (10) is     born to a parent whose
         parental rights with regard to another child have been involuntarily terminated under
          23 Pa.C.S. § 2511 (relating to grounds for involuntary termination) within
                                                                                          three
          years immediately preceding the date of birth of the child and conduct of the
                                                                                             parent
          poses a risk to the health, safety or welfare of the child. 42 Pa.C.S.A. § 6302 (Test
          2017).

         This Court is very familiar with -the history of this case. As described above,
                                                                                   the
 the record is replete with allegations of Father and/or Father's paramour abusing

  minor child. Mother has hail primary physical custody of the minor child subject to

  Father's periods of sup Dr dsed partial custody to occur at specific agencies since

  September 2013 to June 2017, except for a period of seven (7) days pursuant
                                                                              to
                                                            which was temporarily granted
Father's filing of a Petition for Emergency Special Relief,
                                                2017, after a GAL Conference on the
and later withdrawn in 2014. Thereafter in June
                                                           that Father would increase his
matter, the parties agreed without the Court's involvement
                                                             partial custody every other
time from supervised visitation to periods of unsupervised

weekend. The Monday after Father's first weekend
                                                     of unsupervised custody pursuant to that

                                                        for Emergency Special Relief and a
custody agreement, he came to .Court to file a Petition
                                              petitions without the other side being present
PFA Petition. Normally, this Court hears said

However, this Court is well aware of the history
                                                 of the case and believed it was necessary to

                                                        recording the minor child reporting
 hear from both parties. At that time, Father disclosed
                                                  this Court listened to said recording and
 that Mother's paramour abused him. However,
                                                         child and trying to get the minor child
 Father's paramour was clearly interrogating the minor
                                                  safety concerns with Father's residence and
 to say certain things. The minor child disclosed

  Mother's paramour to GAT, Thiel.
                                                         OYFS, who had the minor child
         This Court believed it was necessary to contact
                                                   (hereinafter "CAC"). After the CAC
  interviewed that the Children's Advocacy Center
                                                   have contact with the minor child.
  interview, Mother agreed to not let her paramour
                                                           visitation as he felt supervision was
  Furtbeunore, Father asked GAL Thiel for supervised
                                                followed up with GM,. Thiel in an email stating,
  necessary. OYES Supervisor Megan Sparer
                                                   the stipulations to the custody should be No
  "Hey Corinne, Just to touch base about   '



                                   ,46116(5 ii0.ro,?-40v.r
                                                     for child to be given at Mother and Father's
   [sic] contact for [child] with F V . Medication
                                                  and Parenting. Supervised visits for father,
   home. [sic]. Father to attend Anger Management
                                                       [sic]. No Corporal Punishment [sic] to
   until he has set up Anger Management and Parenting.
                                                        Mother     needs to provide proof of her
   be used by any and all parties or household members.


                                                  7
                                     at their request" (See attached email
Suboxone Program and screen for OYFS
                                          was in the best interest of the minor child
marked Exhibit A). This Court believed it
                                              that the minor child have no contact
for Mother to have primary custody provided
                                          determined it was in the best interest for
 with Mother's paramour..This Court also
                                             At that time, OYFS was clearly in
Father to only have supervised visitation.
                                                  visitation.
 agreement with Father only having supervised
                                             was contacted because Mother claimed
         After the July 10, 2017 Order, OYFS
                                                                                   out
                                          and left him with Father. Testimony came
 the minor child was not safe with her
                                                                                   Father
                                         despite this Court's stand ing Order that
 in the OYFS Shelter Care hearing that
                                                                                   Mindy
                                         with the minor child, OYFS caseworker
 could only have supervised visitation
                                         minor child to go home with Father and
                                                                                   reside
  Hughes told Father it was fine for the

  there. Father specifically testified,
                                                         Tuesday after we left here because they
                  Now I'll be honest, now I went there
                                                         but I wasn't sure if we had to come or
                  said we had court at 9 a.m. with you,
                                                          to me here. I went upstairs to CYS and
                  not, so the mother dropped [child] off
                                                        go home to your house, so I asked
                  spoke to Mindy and Mindy said just
                                                             and she agreed to that, she came
                  Mindy if that was okay he was with me,
                                                              him back home to my house and I
                  back out and said that was fine, so I took
                                                         house, I went to the agency and I said,
                  waited, but then before we got to my
                                                               10 to 12, but I have court, but I
                  I'm supposed to start my first class today house with me and wait there
                                                      son to my
                   have orders from CYS to take my
                   [sic]. H.T.( 07113/17 p. 6).

                                           Order of this Court This Court is unaware
                                                                                     of any
   OYFS clearly told Father to violate an
                                                                                     did not
         authority that allows OYFS  to advise parties to violate Court Orders. OYFS
   legal
                                                                                  determined
                                           with Father because this Court already
   have the right to place the minor child
                                          visitation.
   that Father could only have supervised
                                               Custody because Father was not a
          OYFS did take Emergency Protective
                                                                                    at
              resource and Mother admittedly could not take care of the minor child
    placement

                                                     8
                                              Despite this Court having heard the
that time. (Order under DP number, 07/11/17).
                                            Relief, signing the Emergency Protective Order,
temporary Petition for Emergency Special
                                                                                       the
                                             OYFS regarding the case, OYES scheduled
 Order, and this Court being in contact with
                                              Judge Harhut. After this Court was advised that
Shelter Care hearing before thelionorable
                                     Shelter Care snd allow Father to have custody of
                                                                                      the
 OYFS was attempting to withdraw the
                                                  and determination that Father could only
 minor child despite this. Court's standing Order
                                            child, this Court presided over the matter. At that
 have supervised visitation with the minor

 time, this Court was'not only well aware
                                          of the history of the case, but that not even a month

                                                 Father and Father's paramour and Father's
 prior, the minor child made allegations against
                                           the time of the stipulated order, therefore the
 request to only have supervised visits at
                                                   and this Court proceeded with the hearing.
 request to withdraw the shelter care was denied
                                                     Joseph Price (hereinafter "OYFS
         During the hearing, OYFS solicitor Attorney
                                                Mother has left the child in the care of father.
  Attorney") stated, "July 11, I apologize that
                                          an inappropriate caretaker based on the
                                                                                     Court's
  Determination was made that father is
                                               p. 2). He further stated, "At this time I believe
  involvement with father." (I-I.T. 07/13/17,
                                                   or not The Court wishes to take statements
  the Court has made a determination, whether
                                                Court's discretion, however, at this time I believe
   from mother or father, I believe it's in The
                                                                                                  to
                                                 be save [sic] for the child to be returned home
   The Court has determined that it would not
                                                 this Court asked Mother, "And at that time
   father at this time," id During that hearing
                                             [child] said that he was afraid, that he was
                                                                                          getting bit
    supervised visits were ordered because
                                                  Mother testified, "Yes." Id This Court asked,
   at father's house; is that correct?" Id. at 4.
                                                    as well; is that correct?" Id. Mother replied,
   "And he was afraid of his father's boyfriend
                                                                                                entered a
                                               on July 10, of this year, you and -Fe1/44.1,e.f.
   "Yes." Id. This Court asked, "And then


                                                     9
                                                                    physical custody
stipulated order. wherein o, fined' will have petiods of supervised
                                                             Honor, because I
through EOTC?" Id. Father testified, "I asked.for that, Your

didn't know with everything that had transpired    .    .   I asked her if it would be best

                                                           months of Children and
since CYS [sic] was involved already, if I could get three

Youth supervised visits and then three months with the agency
                                                              justso that they cad

                                                           at that time that was
see me with my son." Id. at 4-5. The. Court, "And you felt
                                                             Id. at 5. Then Father
important for you:to get these classes and everything else?"
                                                                 his paramour.
 testified that he just began his five-week parenting class with
                                                               would have his
         Later in the hearing, there was testimony that Father
                                                             live there. OYFS
 paramour move out of the residence if the minor child could
                                                              referred to as his fiance,
 Attorney stated, "And judge, at this point, I believe he was
                                                        tient to him leaving the
 which does make me question whether or not the commiti
                                                                 asked "Well, you have a
 house is legitimate." Id. at 8. Also at the hearing, this Court
                                                          violence issue, but you also
 history of PFAS, which is one -thing, there's a domestic
                                                               Id. at          The Court asked,
  have a history of hitting [child]." Father testified, "Yes."
                                                                         9'.


                                                                            "And mom
  "Isn't that true?" Id Father testified, "Yes; yes." Id. The Court stated,

  says, and I applaud her coming forward if she feels that
                                                           her household is unsafe right

                                                             matter of law find that
  now, to say he's unsafe in my household, and I cannot as a
                                                                                  properly. As late
  he's safe in your household until you learn how to get to parent him
                                                        slap him around            if he calls you
  as last week you admitted to Corrine [sic] that you'd

  a name." Id. Father stated, "I slap him around, I put
                                                        him over my knee and spank

                                                       I was told, but CYS [sic] does
  him with an open hand and that's allowed in PA, what
                                                                     state law, by CYS [sic]
   not agree to that, that's what I was told. It's allow [sic] in PA


                                                   10
                                                                                   to Corrine
doesn't agree to that, that's all I ever did to [child] and that's what I admitted
                                                                [child] was afraid of you
[sic]." Id. at 9-10. The Court asked, "Well, to the point where
                                                                                  he's afraid
right?' Id. at 10. Mother stated, "It's really Monty." Id. The Court stated, "And

 of Monty." Id. Mother stated, "And Frankie." Id. The Court asked, "And who's Frankie?"
                                 i e Pitoftl           ere( *Jo. Mo'A1
 Id. Mother testified, "My husband7Well, it's going to be my ex-husband, but I - the reason

 I said it was unsafe, [child], he came; to talk to me, him and my husband
                                                                           don't get along, so I

 feel like it' snnsafe and I feel he's more safer [sic] with his father, but
                                                                             not with the

                                                                           right now until
 boyfriend." Id. Further, this Court stated, "And I don't feel comfortable

            earned' is stripes, do you understand?" Father replies, "Yeah I agree." Id. at 11.
F-0Aerhas
                                                                           Id. The Court
 Mother stated, "And I as a mother don't want Money [sic] around nay son."
                                                                                [sic] foster care --
  stated, "Well, there you go, so at this point he has'to remain in sheltercare
                                                                                will be be able to
  ?" Id. Mother asked, "But that if he after [sic] he takes his parenting class
                                                                    up with your fiancé, that's
  live there?" Id. The Court: stated, "Yes, and if you are breaking
                                                                                   fact that he's
  an entirely different 'story, but right now I can't do that, and in addition the
                                                                         right. As long as you
  smokes pot and smokes it around him." Id. at 11-2. Father stated, "All

  know, he doesn't' smoke it around him, but that's what CYS        -." Id.   at 12. The Court stated,

                                                                   and that's a different
  "His levels are coming down. Well, show us proof of those things
                                                                             believes that
  story, okay, but right now I have to find that mom under her own admission
                                                                                    The Court has
  he's unsafe in her home because of the husband that she's living with, and
                                                                            required and foster
  found that he was unsafe in Dad's home, therefore, a sheitercare [sic] is
                                                                        get          you get these
   care is required." Id The Court also stated, "Temporary until we can

   things moving and changed and I see change      - it is never my object to keep children away
                                                                  long since decided, Mo
   from their parents, you know, I want you to be involved. We've


                                                   11
                                                          us see what the story is with
that you are a good mother, okay? It's riot done. And let

Monty, and.if he shows somethingdifferent to CYS,
                                                  then that changes the

                                                        above, OYFS first wanted to
circumstances." Id. Shelter care was gr-mted. As stated
                                                             to his paramour as his
withdraw shelter care then clearly stated that Father refers
                                                        with having his paramour
fiance and OYFS does not believe Father is being honest
                                                             only was shelter care
leave the residence. It is clear from the testimony that not
                                                           despite OYFS not wanting
 warranted, but that both parties agreed with shelter care

 to provide safe shelter for the-minorchild.
                                                               held off on
         At the dependency hearing on July 24,2017, this Court
                                                       minor child with Mother after
 adjudicating the minor child dependent and placed the
                                                        and keep the minor child away
 she testified that she would move put of her residence
                      /4044..24    rvraelotAti
                                                      of 2017 and stated that she
 from her husband. Mother then came forward in August
                                                            and Father's paramour
 was moving back in with her paramour. At that time, Father
                                                        cooperating with OYFS.
  had attended more than two parenting classes and were
                                                          child with Father under the
  Therefore, this Cora felt comfortable placing the minor
                                                         under intense supervision.
  condition that OYFS file a dependency and place Father
                                                              because the minor child
  This Court believed a dependency petition was warranted
                                                     was based on the evidence that
  was without proper parental care or control, which
                                                    she determined the minor chi Id
  Mother could not care for the minor child because
                                                         of abusing the minor child by
   was not safe around her paramour and Father's history
                                                         24, 2017 -hearing. GAL Thiel
   admission. This is verified by 'testimony at the July
                                                          ---the whole [sic.] issue has
   testified, "From the beginning of this case this whole
                                                        child."              07/24/17, p. 16).
   always been parent/child conflict with dad and minor
                                                                   (1-1.T.




                                                  12
                                                            been consistent with rue regarding
GAL Thiel also testified, "Correct, father [sic] has always
                                                               father, we have a great working
his father. It has always been a strained relationship, I like
                                                                  corporal punishment, that he
relationship, he's.very- forthright, he acknowledges that he uses
                                                              Id. at 19. Furthermore GAL
has difficult with [child's] behaVior, as well as morn does."
                                                                 punishment and slapping
Thiel testified, "He [Father] talked openly about using corporal
                                                               to dad regarding his
him in the face when he says derogatory nr.enes and statements

relationship with another male. I think that's a point
                                                       of contention between the two, so that

                                                     [Child] has always wanted to be with
has always been consistent since I've been involved.
                                                             Id. at 19-20. GAL Thiel stated,
mom, and we were working on his relationship with father."

         Well, if I'm asked for a recorame,ndation, my
                                                         recommendation is that I just don't
                                                                           of dad being supervised
         iinderstand how we can- go from. June 22, a recommendation
                                                                   and then a few days later mom
         and there's issues in the home, after a CAC interview
                                                               to relinquish custody back to the
         says I can't take care of the child and we're going
         dad, when that was the initial referral. To me,
                                                          that is more of a matter of convenience
                                                                do have concerns. There are a lot
         than rather a matter of protection and safety, and I                            -
                                                                          and my job is to well,
          of issues that we 'need tO work on between father and child,
                                                              safety. I don't think there's been
          all our job [sic] is to do what's best and maintain
                                                                to work on the issues between dad
          enough work Or enough services at aLl in this case
          and. child. Id. at 22.

                                                    at the. August 31, 2017 hearing    that there
  Additionally, caseworker Ivlindy Hughes testified
                                                      -they were concerned with Father's
  were ongoing concerns with Mother and Father and
                                                       history of'the case, the testimony at the
  parenting and inappropriate discipline. Based on the
                                                    Court believes this fits under the definition
  hearings, and the evidence before the Court, this
                                                                petition. Furthermore, OYFS
  of dependency and gave OYFS grounds to file a dependency
                                                   July 24, 2017 after questions whether the
   Attorney stated at the Dependency Hearing on
                                                             ar)d. GYFS   Attorney stated, "They
   grandparents could take unship care of the minor child
                                                           that they are also referred to for
   both have, Your Honer, and for various reasons; namely,
                                                               .T. 07/24/17, p. 10), This Court is
   improper discipline; they were deemed inappropriate.

                                                  13
                                                                     because of
unclear how the minor child cannot be placed with either grandmother
                                                             has a history of abusing the
inappropriate discipline, but can be placed with Father' who
                                                        to the full extent possible or not.
minor child. OYFS either has to protect the minor child
                                                       with Father nntil he proved. himself.
This Court was not comfortable placing the minor child
                                                          is providing a minor with proper
As previously stated, "When deteiruining whether a parent
                                                                   equally. The parental
care and controL;the caretiker'S acts and ()Missions should -weigh
                                                          a child; rather, there exists a duty
.duty extends beyond mere restraint from actively abusing
                                                    inflict." In re           826 A.2d at 14 (Pa.
.to protect the child from the harm that others may

                                                       proper care and control in this case.
 Super. 2003). Cle' arly, neither parent was providing
                                                                                 petition on
              Tn   addition, this. Court allowed OYFS to withdraw the dependency
                                                              p arenting classes and
 August 31, 2017 after Father and Father's paramour completed
                                                        never adjudicated dependent.
 continued to cooperate with DYE'S. The minor child was
                                                                      with the Honorable
              Furthermore, on June 2, 2017, this. Court had a meeting
                                                               "Director      Browning"),
  Judge Jarbola, Director of OYFS. Bill. BroWning (hereinafter
                                                          "Assistant Director
  Assistant Director of OYFS Carrie Browning (hereine.ter
                                                  Clifford regarding dependency
  Browning") and Chief of Juvenile Probation Rich
                                                        Director Browning told the
  actions. At thattime, Director Browning and Assistant
                                                         the Court believes it is
  Court to contact OYFS to file a dependency petition if
                                                                        However, when
  c:413.eze
                      and OYFS will follow through with the dependency.

                                                      stated to the Court that there
  this Court requested a dependency to be filed, OYFS
                                                                       Mother states her
   are no grounds. The Court replied that the minor child is homeless.
                                                         custody had to be supervised
   home is unsafe and this Court has determined Father's

   by someone other than the person with whom he lived.


                                                      14
                                                                           and in fact
       Therefore, OYFS' position as to gratinds for dependency was invalid

directed Father to violate this' Court's Custody Order.
                                                                           should be
       For the foregoing reason's, the Order of Court dated August 2, 2017

affinned.

    M.        MA.TTERS:COMPLATNED OF ON APPEAL
                                                            on. Appeal on or about
    OYFS filed a Concise Statement of Matters Complained of

                                                       in turn.
September 1;2017, which.are listed below and addreSsed

                             [sic diced by not allowing any testimony by the agency
                                                                                         at the
               trial jUdie
                                                                                                  .

    A. The
                                                                   made the case eligible
         shelter care bearing, including testimony that would have
                                                                      This must be
         for federal funding, to the agency's and county's detriment.
                                                                  later. See 42 U.S.C.
         determined at the first hearing, and cannot be addressed

         671. [sic]

               This' clearly shows the motivation behind this- appeal.
                                                                       The federal funding for the

            agency is clearly more important than the safety and welfare
                                                                         of this minor child.

                                                                    hearing, they sought to
            OYFS did not even want to proceed with the Shelter Care
                                                                       that this Court was fully
            withdraw the Shelter Care before a different judge knowing

            involved in the case.
                                                                        Shelter Care hearing
                Additionally, OYFS Attorney was clearly involved in the
                                                                      Attorney stated, "July
            and participated numerous times. During the bearing, OYFS

            11,1 apologize that Mother has left the child in the care
                                                                      of father. Detemaination was

                                                                        Court's involvement with
            made that father is an inappropriate caretaker based on the

             father." (H.T. 07/13/17, p. 2). He further stated, "At this
                                                                         time I believe the Court has

             made a determination, whether or not The Court
                                                            wishes to take statements from



                                                    15
 mother or father, `1 believe it's in The
                                            Court's discretion, however, at this time I
                                                                                      be
         The  Court haS determined  that it would not be save [sic] for the child to
 believe
                                                                                  the
                                        Id. This Court is not required to advise
 returned hone-to father at this fnue."
                                                                             for funding.
                                   case or require that the case be eligible
  attorneys on how to proceed in a
                                              wished to call witnesses in the case,
  If OYFS had questions of the witnesses or
                                          to call witnesses during the hearing.
  OYFS 'attorney should have requested
                                                 OYFS is only appealing the August 2,
    Lastly, this issue -is not relevant because
      0 tote(                               shelter care and.is only appealing -the
  2017!which has no requirement for

  reqUirement of filing a dependency-.
                                                                                            be
        -   For the foregoing reasons, the Order
                                                 of Court dated August 2, 2017 should

   affirmed.   -



                                                                            an
                                  or [sic] abused her discretion by issuing
B. The trial judge [sic]erred/and
                                              agency to file for dependency and           place
    Order in a custody matter requiring the
                                            supervision. See Fallaro v. Yeager, 364
    the child with the father ender intense

    PA. Super. 408, 528 A.2d 222 (PA.
                                      Super. 1986).

                                          procedures developed for resolution of
           "The Courts must adhere to the
                                            the welfare of children. Absent a
    various problems which arise concerning
                                                 jurisdiction to make a determination."
     dependency petition, the court is without
                                              (Pa. Super. 1987). The Court did not
     Fallaro v. Yeager, 528 A.2d 222, 230
                                                  before a dependency-petition was even
     determine the minor child was dependent
                                               v. Yeager. Rather, this Court
                                                                             ordered OYFS to
      filed, as the lower court did in.Fallaro
                                                                                      Court
                                              minor child in foster care because this
      file a dependency without placing the
                                                                                        by
       was concerned with the long history
                                             of allegations of abuse of the minor child


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

 litigation.

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

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

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

  Website (2617) available at

  http://www.lackawann.acounty.org/index_php/departmentsagencies/hutnaa-
                                                                           children are
  services/children-and-youth-services. It is OYFS' s duty to ensure minor

  safe: The Court was requiring that in this matter.
                                                                         2, 2017 should be
           For the foregoing reasons, the Order of Court dated August

  affirmed.

C. The   trial judge [sic] erred and/or abused her"discretion by conducting

   questioning of witnesses at the shelter care and first adjudication
                                                                       hearing,

                                                                       having direct
   instead of allowing the agency and other parties to call witnesses,
                                                                   by the judge.
   and cross-examination by 'counsel, with clarification questions

   [sic]. The conduct was not compatible with an       impartial trier of fact, as is

   expected of the judiciary.

         Under Pennsylvania Rule of Evidence 614,

   (a) Calling. Consistent with its function as an impartial
                                                              arbiter, the court, with notice
       to the parties, may call a witness on its own or at a party's
                                                                     request. Each party is
                                                                         the interest of
       entitled to. cross-examine the witness. (b) Examining. Where
       justice so requires, the court may examine a witness regardless
                                                                           of who calls the
                                                            court's calling or examining a
       witness. (c) Objections. A party may object to the
        witness when given notice that the witness will be called or
                                                                        when the witness is
        eXamined. When requested to do so, the court must give the
                                                                        objecting party an
                                                                                      Rule 614
        opportunity to 'make objections out of the presence of the jurY."Pa.R.E.,
         (West 2017).


                                           17
     -A review ofthe July 24, 2017 transcript will show that the attorneys for the

  minor child and the par.ents were qtiestioning this. Court about thecase because they

  werenot rriade aware offacts by OYFS. This Court was not going to testify about

  the facts-Of the ease, therefore GM, Thiel testified about her knowledge of the case.

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

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

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

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

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

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

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

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

   August 2, 2017.

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

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

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

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

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

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

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

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




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

Child?
                                                                       Custody is
         A revieW of the file shows that OYFS's Petition for Emergency
                                                  2017, which is- attached hereto
fileduncler Docket-Number DP -99-2017 on July 12,
                                                          and utter misrepresentation
and marked Exhibit B. Therefore, this issue is a complete

of the facts:

         This Court is not required to follow every request
                                                            by OYFS, especially when

                                                                As previously
 the minor child would clearly be unsafe in'Father's residence.
                                                    Made allegations against Father
 discussed, not even a month prior, the. minor thud
                                                           supervised visits at the time
 and Pather's'paramour. arid Father's request to only have
                                                                  shelter care was denied.
 of the stipulated order, therefore the request to withdraw the
                                                            apologize that Mother has left
 During the hearing,-OYFS Attorney stated, "July 11,
                                                        1


                                                         that father is an inappropriate
 the child in the care of father: Determination was made
                                                           (H.T. 07/13/17, p. 2). He
 caretaker baser' on the Court's involvement with father."
                                                             a determination, whether or
  further stated, "At this time I believe the Court has made
                                                      or father, I believe it's in The
  not The Court wishes to take statements from mother
                                                          Court has determined that it
  Court's discretion, however, at this time I believe The

  would not be save [sic] for the child to be returned
                                                       home to father at this iime." Id.

                                                    at that time supervised visits
  During that hearing this Court asked Mother, "And
                                                         that he was getting hit at
  were ordered because [child] said that he was afraid,-
                                                                 "Yes." icZ This Court
  father's house.; is that correct?" Id. at 4. Mother testified,
                                                       as well; is that correct?" Id
   asked, "And he Was afraid of his father's boyfriend
                                                          on July 10, of this year,      you
   Mother replied, "Yes." Id. This Court asked, "And then


                                          19
                                                                  ) will have periods     of
    and.ro,-11, ex , entered a -stipulated order whereinfet-i-Lee

    supervised physical custody-till'-ought tOTC?" Id. Father testified,
                                                                         "I asked for that,

                                                                                        I asked
    Yaw 1:-Ionor,..beCanse rdidn't know with everythingthat had transpired
                                                                                    .




                         best since CYS [sic] was. involved already, if I could get
                                                                                    three
    heiitit Would be
    morith-s.of Children and Youth -supervised visits and then
                                                               three months with

                                                                 The Court, "And you
    agency just sb-ithat they pet see me with my soh"/c. at 4-5.
                                                               classes and everything else?"
-   felt at th-a.f time.tfOIA* important for you: to get these
                                                                         parenting class with
    -Id.:at 5..Later Father testified that he ju-'st began his.five-week

     his paramour. Later -in the hearing, there was testimony
                                                              that Father would have his

     parambur pag-ve out of the residence if the minor child could
                                                                   live there. GYPS

                                                                 referred to as his fiancé,
     Attorney stated, And Judge, at this point, I believe he was
                                                                  to him leaving the
     which does Make inc question whether or not the c'ornmitment

     house -ii legit-if:nate." Id. at 8. Also at the hearing, this Court
                                                                         asked "'Well, you have

                                                                                          also
      a histoiy   of PFAS, which is one thing, there's a domestic violence issue, but you
                                                                              Tlae Court asked,
      have a hi'stofy of hitting [child]." Father testified, "Yes." Id. at 9.
                                                                          stated, "And mom
      "Isn't that true?" Id. Father testified, "Yes, yes.'? Id. The Court

      says, and I applaud her coming forward      if she feels that her household is unsafe right
                                                             a matter of law find that
      now, to say he's unsafe in my household, and cannot as
                                                             to parent him properly. As late
      hers safe in your household until You learn how to get

      as last 'week you admitted to Conine [sic] that you!ci
                                                             slap him around if he calls you

                                                                      my knee and spank
      a name." Id, -Father stated, "I slap him around, I put him over
                                                                                                  -




                                                                  I was told, but CYS [sic] does
      him with an open hind and that's allowed in JA, what

       not agree to that, that's what I was told. It's allow [sic]
                                                                   in PA state laW, by CYS [sic]



                                                20
                                                      Trid that's what I admitted to
doesn't agree to that, that's all ever did to [cbildl
                                                    to the poirif where [child] was
Corrine [sit]." Yd. -at9,10.The Court asked, "Well,

afraid of you right?" Id at 10. Mother stated,        "Ifs really Monty." Id. The Court
                                                        "And Frankie."          Id   The Court
stated, ."And he's afraid of-Monty." Id. Mather stated,
                                                  "My husband. Well,              it's going to
asked, "And who's Frarilder Id. Mother testified,

                               the reason I said itwas unsafe, [child], he came to talk
                                                                                        to
be my ex-hu.sband, but
                                                   like it's unsafe and I feel he's
me, him and: m husband -don't get along, so I feel

 more safer [sic] with his   fathei-",   but not with the boyfriend" Id Further, this Court

 stated, "And I don't feel comfortable right now until
                                                               r     has earned his stripes, do

                                                  Id. at 11 Mother stated, "And I as a
 yon understand?" Father replies, "Yeah I agreb."
                                              Id. The Court stated, "Well, there
 mother ddn't want Money [sic] arOund my sem"
                                                          [sic] foster care --T' Id.
 you go, so at this point he has to remain in sheltercare
                                                    his parenting class will he be able to
 Mother asked, "But that if he after [sicl he takes
                                                      if you   are breaking up with your fiancé,
  live there?" id The Court stated, "'Yes, and

  that's an entirely:different story, but right now I
                                                      can't do that, and in addition the fact

                                                          at I1-2. Father stated, "All right.
  that he's srnokes pot anad smokes it around him." Id

                          he doesn't' smoke it around him, but that's what CYS            -."
  As Iong as you know,
                                                        Well, show us proof of those
  at 12. The Court stated, "His levels are coming down.

   things and that's a different story, okay, but right
                                                        now I have to find that mom under

   he own admission believes that he's unsafe in her
                                                     home because of the husband that

                                                      he was unsafe in Dad's home,
   she's living with, and The Court has found that
                                                         care is required." Id The Court
   therefore; a sheltercare [sic] is required and foster
                                                  get then; things moving and changed
   also stated, "Temporary until we can get -.you


                                                 21
 and I see change -- it:is never my object to keep -children 'away from their parents,

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

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

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

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

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

  does tot believe:Father is being honeSt with having his paramour leave the,
                                                                                      but
  residence. It is clear from the testimony that not only was shelter care warranted,
                                                                                  safe
  that both parties agreed with shelter care despite OYES. not wanting to provide

  shelter for the miner chiid..OYFS' statement that there were no grounds for shelter

  care is not. supported' by the record.

      'Furthermore, this issue is not relevant. OYTS is not appealing the shelter care

  requirement. OYFS is only appealing the requirement that a dependency be filed

   Under the August 2, 2017 Order.

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

   affirmed.

E. While the judge [sic} authorized the withdrawal of the
                                                          Dependency petition [sic]

   on August 31, 2017, the issue is not moot because the agency believes
                                                                         the

   situation will reoccur and escape review. 'Whether the matter is not moot

   despite the withdrawal of the Dependency Petition?

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

                                                                               moot
   judicial process, or -a case will be dismissed as moot. An issue can become

    during, the. pendency of an'appeal due to an intervening change
                                                                    in the facts   of the


                                            22
                                                       law. In that case, an opinion of
case or due to an intervening change in the applicable
                                                            a court is moot if in ruling
this Court is rendered advisory in. nature. An issue before

upon. the issue:thecoUrt cannot enter an order thathas
                                                       any legal force or effect." In

                                                            at hand, there is no actual
re 3:A., 107 A.,11-799,. 811 (Ph: Super. 2015). In the case
                                                                 the minor child was
case or controversy. Although a dependency petition was-file,id,
                                                           to withdraw the
nearer adjudicated. dependent atid this Court allowed OYES
                                                          may happen in. the
dependency. 'OYFS cannot base an appeal on something that

 future.
                                                                    Honorable
     Furthermore:on JUne 2, 2017, this Court had a meeting with.the
                                                               arid Chief of
 Judge Jarbola, Director Browning, Assistant Director Browning
                                                       actions. At that time,
 Juvenile Probation Rich Clifford tegarding dependency
                                                   suggested that the Court contact
 DirectOr Browning and Assistant Director Browning
                                                                  and OYFS will.
 OYFS to file a dependency if the, Court believes it is necessary
                                                         Court requested a
 follow through with the dependency. However, when. this
                                                                 no grounds. The
  dependencyto be filed, OYFS stated to the Court that there are
                                                         states her home is unsafe and,
  Court replied that the minor child is homeless. Mother
                                                       supervised by someone other
  this Court has determined Father's custody had to be
                                                   to say that this situation will
  than the person with whom he lived. Now for OYFS
                                                              was doing exactly what
  reoccur and escape review is irrational, because this Court
                                                            suggested the Court to do
  both Director. BrowniM g. and Assistant Director Browning

   if it felt OYFS involvement was necessary.
       For the foregoing reasons, the Order of Court dated
                                                           August 2, 2017 should be

   affhTne,d



                                          23
   IV.      CONCLUSION.                                                 006.r
         Based on. the foregoing this Court has issued. the August 2, 2017 placing the minor

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

supervision.



                                       BY TECES COURT:




                                               coRiirr              )




                                                24
