J.A21007/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN THE INTEREST OF: MA.W., C.W.,            :     IN THE SUPERIOR COURT OF
AND M.W.                                    :          PENNSYLVANIA
                                            :
                                            :
APPEAL OF: J.K., MOTHER                     :
                                            :     No. 840 EDA 2015

                 Appeal from the Orders Entered March 5, 2015
                In the Court of Common Pleas of Carbon County
               Criminal Division No(s).: CP-13-DP-0000025-2014
                                         CP-13-DP-0000027-2014
                                         CP-13-DP-0000028-2014

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

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

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

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

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

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



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


the assessment required by 55 Pa. Code § 3490.232.2 Mother argues there

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

home.3 We affirm.


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

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

                                 *    *    *

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

                                 *    *    *

        (h) The county agency may make unannounced home visits.

                                 *    *    *

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

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


3
  We note the issue is not moot based upon the denial of the dependency
petitions.



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J.A21007/15


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

the trial court’s opinion. Trial Ct. Op., 4/13/15, at 2-15. On March 5, 2015,

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

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

filed a court-ordered4 statement of errors complained of on appeal in each

case. Mother raises the following issue5 for our review:




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

In re N.A., 116 A.3d 1144, 1149 (Pa. Super. 2015) (footnote and citations
omitted), appeal denied, ___ A.3d ___ Pa. 2015).
4
  Appellant did not comply with Pa.R.A.P. 1925(b), which provides, inter alia,
in a children’s fast track appeal, the concise statement of errors complained
of on appeal shall be filed with the notice of appeal. Pa.R.A.P. 1925(b)(2)(i).
We do not find this defect fatal to the appeal. See In re K.T.E.L., 983 A.2d
745, 747 (Pa. Super. 2009) (holding failure to file 1925(b) statement
concomitantly with a children’s fast track appeal is considered defective
notice of appeal, the disposition of which is decided on a case by case basis).
5
    We note Mother raised an additional issue on appeal.

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



                                       -3-
J.A21007/15


            When a government Agency presents evidence that the
         yard of a minor’s house is cluttered with mostly
         unidentified material, that an unnamed informant reported
         that the house was messy, had a boarded-up window and
         might have had a hole in the wall, but presented no
         evidence that the house was unsafe or that [C]hildren
         were in danger and, in fact, testified that [CYS] had no
         concern for the safety of [C]hildren, does the [t]rial [c]ourt
         err in concluding that probable cause exists to believe that
         evidence of child abuse or endangerment may be found in
         the home?

Mother’s Brief at 5.

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

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

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

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

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



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

Mother’s Brief at 5. We have resolved this issue. See note 1.
6
  Section 3490.55 requires a home visit when the agency is investigating
reports of suspected child abuse. Section 3490.55(i) provides:

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

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



                                     -4-
J.A21007/15


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

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

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

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

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

      Our review is governed by the following principles:

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

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

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

compelling their cooperation with Susquehanna County Services for Children

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

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

petition notwithstanding the fact that there was no dependency petition

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



home inspection when CYS receives a report of abuse and/or neglect. The
issue of whether probable cause exists for the home inspection pertains in
either case. See In re Pet. to Compel, 875 A.2d at 377, 379.
7
  In In re Petition to Compel, the home inspection had taken place.
However, this Court declined to find the issues moot because “the issues
before us are clearly capable of repetition, yet evading appellate review.”
Id. at 370-71.




                                     -5-
J.A21007/15


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

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

          It is the purpose of this chapter to encourage more
          complete reporting of suspected child abuse; to the
          extent permitted by this chapter, to involve law
          enforcement agencies in responding to child abuse;
          and to establish in each county protective services
          for the purpose of investigating the reports swiftly
          and competently, providing protection for children
          from further abuse and providing rehabilitative
          services for children and parents involved so as to
          ensure the child’s well-being and to preserve,
          stabilize and protect the integrity of family life
          wherever appropriate or to provide another
          alternative permanent family when the unity of the
          family cannot be maintained. It is also the purpose
          of this chapter to ensure that each county children
          and youth agency establish a program of protective
          services with procedures to assess risk of harm to a
          child and with the capabilities to respond adequately
          to meet the needs of the family and child who may
          be at risk and to prioritize the response and services
          to children most at risk.

       23 Pa.C.S.A. § 6302(b).

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

          Upon receipt of each report of suspected child abuse,
          the county agency shall immediately commence an
          appropriate investigation and see the child
          immediately if emergency protective custody is
          required or has been or shall be taken or if it cannot


                                  -6-
J.A21007/15


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

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

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

                                *    *    *

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

                                *    *    *

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

Id. at 371-72, 377, 379 (emphases added).


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J.A21007/15


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

which was joined by Judge Ford-Elliot and Judge Joyce.         Both Judge Beck

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

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

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

           What an agency knows and how it acquired its
        knowledge should not be subject to the same restrictions
        facing police seeking to secure a search warrant. For
        instance, an agency’s awareness of previous conduct on
        the part of parents would be relevant, indeed vital,
        information to include in a request for a court-ordered
        home visit. What constitutes probable cause in the
        child protective arena is far different from what
        constitutes probable cause in the criminal law. Social
        services agencies should be held accountable for
        presenting sufficient reasons to warrant a home visit, but
        those same agencies should not be hampered from
        performing their duties because they have not
        satisfied search and seizure jurisprudence developed


                                     -8-
J.A21007/15


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

Id. at 380 (emphases added).

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

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

the home as part of its investigation.8

        Instantly, the trial court opined:

              At the hearing on this petition, the caseworker, Alyssa
           Denardo, presented additional testimony regarding the
           condition of the home and her initial in-school visits with
           [C]hildren that are the subject of these petitions. She also
           identified a number of photographs that she took during
           her first visit to the home. The photos showed the yard of
           the home with garbage strewn around, several rolls of
           used carpeting, and a general state of “clutteredness.”
           These photos were admitted as an exhibit, without
           objection. The caseworker also testified that [C]hildren
           have all been withdrawn from the Palmerton School
           District,17 meaning there is no way for CYS to follow-up
           with speaking to [C]hildren regarding the interior of the
           home.

                                    *     *   *

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

8
    We note that CYS did not seek the removal of Children from the home.



                                        -9-
J.A21007/15


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

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

Trial Ct. Op. at 10-11, 12.

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

testified that when CYS receives a GPS report, the case-worker is required,

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

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

      Ms. Denardo testified regarding the report CYS received on November

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

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

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

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

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

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

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



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




                                    - 10 -
J.A21007/15


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

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

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

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

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

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

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

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

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

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

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

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

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

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

Id. at 32-33. She took the photograph “[b]ecause of all the clutteredness

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

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

and that is all the clutteredness.” Id.

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

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

10
   She attempted to go to the home on November 20, 2014, but could not
find it. Id. at 27-28. She tried to go to the home on November 26th but
was unable “to make it out there” due to inclement weather. Id. at 28.



                                    - 11 -
J.A21007/15


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

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

documentation.” Id. at 36.

      Ms. Denardo testified she called the Palmerton School District on

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

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

told Ma.W and M.W.’s were withdrawn from the school district. Id. CYS was

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

requesting that Children be adjudicated dependent so that the agency could

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

come to school not clean.” Id. at 51.

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

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

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

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

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

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

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

      Orders affirmed.




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J.A21007/15



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/14/2015




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IN THE COURT OF COMMON PLEAS OF CARBON COUNTY,            PENNSYLVANIA
                          JUVENILE

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

IN THE INTEREST OF
      c.w.                                   No.   27 DP 14

IN THE INTEREST    OF
     M.W.                                    No.   28 DP 14


Kim M. Christie, Esquire                     Counsel    for  Carbon  County
                                             Children & Youth
Mark E. Combi, Esquire                       Guardian ad Li tern for Ma. W. r
                                             c.w. I & M.W.
Robert J.    Magee, Esquire                  Counsel for J. K. , mother of
                                             Ma.W., C.W., & M.W.

                                MEMORANDUM   OPINION

Matika, J. - April      _1_3~,   2015

      On March 5,       2015,    this Court issued an Order denying the

Carbon County Office of Children and Youth Services' Petitions

for Dependency after conducting a hearing1 thereon.                       However,

this Court also stated in the order that there was sufficient

evidence presented for an order directing that the Carbon County

Office of Children and Youth Services be permitted to enter the

home of the subject children.           It is this part of the Order that



1  Separate petitions were filed involving four (4) of the W. children.
                                                              (      r':
                                                                     :.   't_

However, the oldest child (B.W.) has turned 18 and was no longer subject to a
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J. K.   I     the   natural     mother   of    the    minors,    appeals.            This

memorandum          opinion     is   offered    to     the   Superior      Court,        in

accordance          with    Pennsylvania       Rule    of    Appellate       Procedure

1925(a), to expand upon the brief ruling and rationale set forth

in the March 5, 2015 order.              Respectively, this Court recommends

to the Honorable Superior Court to dismiss Defendant's appeal

accordingly.

                       FACTUAL AND PRODECURAL BACKGROUND

            The Carbon County Office of          Children and Youth            Services

received a report on November 13,               2014 which expressed concerns

about the conditions of the home where the children were living.

A   caseworker        for     Children   and   Youth    spoke   to   each       of     the

children at their respective schools, who gave varying accounts

of the state of the house, ranging from the home being "a little

dirty" 2 to "dirty"3 to "sort of dirty" with a "boarded up window

in the front"4 of the home.              On December 5, 2014, the caseworker

went        to the family's home to investigate, where she reported

that the outside area of the home was                    "cluttered with random



Children and Youth action. The hearings on the other three (3) children were
consolidated.
2 Dependency Petition of M.W.
3 Dependency Petition of c.w.
4 Dependency Petition of Ma.W.

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objects" and there was a boarded up hole where a window used to

be.        The caseworker approached J . W. ,              the natural father of the

children,         informed      him        of     the     allegations      regarding           the

cleanliness of             the home and requested permission to check the

inside of the house.                J.W.     refused and asked the caseworker to

leave.

          On December 8,       2014,       the caseworker called the home phone,

which was answered by J. K.                     The caseworker explained that she

had visited          the    home    and was           denied    entry.     The     caseworker

explained the allegations to J.K.,                       to which J.K.      responded that

Children and Youth had no business being involved in the matter.

The caseworker asked for permission to check the home,                                     which

J.   K.    denied before hanging up on the caseworker.                           On December

22,       2014,   the caseworker went to the home again to attempt to

investigate          the    inside     of       the    residence.        J.W.     once     again

refused to allow the caseworker into the home,                           at which time he

was       informed    that    the     agency would             be   filing petitions           for

dependency if the family continued to refuse to cooperate.                                     The

petitions were filed on December 24, 2014.5


5 The caseworker also testified that in early January, she contacted the
Palmerton School District to speak to the children again, as she had
previously spoken to all three (3) of them in a school setting.      The
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        After      a    continuance         for    the     natural       parents        to    obtain

counsel, a hearing was held on January 30, 2015.                                    After taking

the matter under advisement and allowing all                                 parties to file

briefs6      regarding the case,              this Court issued an order on March

5,   2015 denying the Petition for Dependency, but finding there

was probable cause              to issue an order that Children and Youth

"shall be permittedu7              to enter the home of the subject children

to conduct the necessary investigation.

        On March 13,          2015,    J,K.    filed an appeal to Superior Court.

Thereafter,            this     Court       directed         that       she,        pursuant         to

Pennsylvania Rule of Appellate Procedure 1925(b}                                file a Concise

Statement of Matters Complained of                         on Appeal, which was also

timely      filed.         In this       statement, Appellant               J. K.     raised       two

issues:

            1) The Trial Court erred in determining that probable
               cause was shown so as to justify the intrusion into
               the home of J.K. by members of the Carbon County
               Office   of  Children  and   Youth  to   complete  an
               assessment, when the only evidence presented was some
               pictures of a cluttered, non-dangerous yard, and a
               statement from some unidentified informant whose
               reliability is completely unknown that the house was

caseworker      was informed     that   the    children     had all    been   withdrawn     from the
Palmerton     School District     in late    December or early       January.
6 All   counsel    submitted    "letter    briefs"      to chambers    of the undersigned,        none
of which      were   lodged   in this     matter,     and therefore,       do not    appear    in the
record.
7 Order    of Court,    March 5, 2015.
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                "messy", that there was a boarded up window, and that
                there "might have been a hole["] in some unidentified
                wall, and that the children when interviewed, appeared
                healthy, unharmed and clean; and

            2) The Trial Court further erred, when, in the aftermath
               of dismissing the Petition for Dependency (the only
               matter then before the Court), the Court went on sua
               sponte, to Order J.K. to allow the Agency to enter her
               house and conduct an inspection, even though there was
               no surviving petition before the Court requesting any
               such relief.

The Court will address these issues accordingly.

                                          DISCUSSION

         Once     a    county     agency         receives      a   report   for     General

Protective Services             ( "GPS") ,    the Child Protective Services Law

    ("CPSL")8   and     Pennsylvania         Administrative        Code9    have    several

requirements that must be fulfilled.                           For example, the county

agency      has       sixty     ( 60)     days        within   which   to   complete         an

assessment.10          In the course of such an assessment, "(t]he county

agency shall see the child and visit the child's home during the

assessment        period."11            Another       section mandates      that     "[w]hen

conducting its investigation, the county agency shall visit the

child's home,          at     least once during            the investigation period.


8 23 Pa. C.S.A. §§ 6301 et seq.
9 55 Pa. Code§ 3490.232.
10 Id. at § 3490.232 (e).
11 Id. at § 3490.232 (f).
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 The home visits shall occur as often as necessary to complete

 the investigation and to assure the safety of the child."12                       The

 law also permits           the   county agency     to   make   unannounced home

visits .13    Finally:

         [t]he county agency shall initiate the appropriate
        court proceedings and assist the court during all
        stages of the court proceedings if the county agency
        determines that the general protective services are in
        the best interest of a child and if an of fer of an
        assessment, a home visit, or services is refused by
        the parents.14

        However,      the     statute    does     not     elaborate      on      what

 "appropriate court proceedings" are when an assessment, a home

visit, or services are refused by the parents.                  Further, another

portion of the PA Administrative Code requires the county agency

to petition the court if the "subject of the report of suspected

child abuse refuses to cooperate with the county agency in an

investigation, and the county is unable to determine whether the

child    is   at   risk."rs       Accordingly, it    would appear to be the

responsibility of the county agency,              such as the Carbon County

Office of Children and Youth Services, to determine what                           the



12 55 Pa. Code § 3490. 55 (g) .
13 Id. at§ 3490.233(h)
14 Id. at§  3490.232(j).
rs 55 Pa. Code§   3490.73.
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proper petitions are and file them before the court hearing the

matter.

        Pennsylvania         case     law       is        surprisingly       light       in      matters

where a county children and youth agency has been denied entry

into a home.           The one case this Court found to be guiding on

this issue was In            re:    Petition          to Compel Cooperation               with     Child

Abuse    Investigation.             875 A.2d 365                (Pa.    Super. Ct.       2005).         In

that    case,     the Susquehanna County Court of                            Common        Pleas was

presented       with     a    "petition to                compel       cooperation with            child

abuse" based upon the refusal of alleged abusers to allow the

Susquehanna        County          Services               for     Children       and       Youth        to

investigate their home based on a referral from Child Line.                                           Id.

at 368.        The Superior Court found that the only issue before the

trial court in that matter was "whether appellants were required

to submit to a home visit as part of C&Y' s investigation into

the child abuse allegations."                       Id.    at 369.

        The    Superior Court          rejected             the    argument      of     Susquehanna

County        Services       for    Children              and     Youth     that      because         the

applicable language of the pertinent Pennsylvania laws required

a home visit, the rights of the alleged abusers under the Fourth

Amendment        and/or       Article          I,         Section       8   of     Pennsylvania's

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constitution                      do        not        apply.                 Id.          at      374.                In         reaching             this

determination,                          the       Superior              Court              reviewed                  federal             cases         from

both       the         Third            Circuit             Court            of     Appeals               and         the         U.S.        District

Court       for            the        Northern            District                of        Ohio.          See Good vs.                         Dauphin

Cty.       County                Soc.          Servs.          for       Children                 and      Youth,                 891     F.2d         1087

 (3d     Cir.          1989);            See also               Walsh v.                Erie            County          Dept.            of     Job and

Family          Servs.,               240       F.Supp.2d               731         (N.D.         Ohio      2003).                  The Superior

Court       wrote            that           al though             these           were          not      binding               authority,                =we

agree       with            the        federal           courts'              analysis                           .     and        hold        that       the

Fourth          Amendment                 and         Article           I,        Section               8 apply              to    the        CPSL and

the      regulations                     written             to      implement                   it."           Petition                 to      Compel,

supra,          at     376-77.

          Therefore,                     \\C      &    Y must            file          a        verified               petition               alleging

facts       amounting                     to       probable              cause              to        believe               that         an      act      of

child       abuse                or      neglect             has        occurred                 and       evidence                 relating              to

such       abuse            will          be       found          in      the          home. "             Id.          at        3 77        ( emphasis

added).                In        that          case      before              the        Superior             Court,                the        Petition

alleged,               inter            alia,           that           the        referral                was          made         for         medical

neglect,              the         parents              had        refused              to        allow       the             caseworker                into

the      home,             and        the         caseworker                 was        required                to       complete                a     home

visit.               Id.     at        378.           The      Superior                Court            found          that        the        petition

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did not acknowledge             sufficient   facts    to merit       the issuance         of   a

search warrant.           Id.    The court went on to say that after filing

that petition, the county agency had several options \\including

further investigation to collect additional facts to support the

issuance of a search warrant for appellants' home, and/or filing

a formal petition for dependency."                  Id. at 379.

        I.      Probable    Cause

        When        an     appellant     challenges            the     trial          court's

determination in a General Protective Services matter such as

this, the Superior Court has stated:

         [t] he standard of review which this Court employs in
        dependency cases is broad. However, the scope of our
        review is limited in a fundamental manner by our
        inability to nullify the fact-finding of the lower
        court. We accord great weight to this function of the
        hearing judge because he is in the position to observe
        and rule upon the credibility of the witnesses and the
        parties who appear before him.   Relying on this unique
        posture, we will not overrule his findings if they are
        supported by competent evidence."

In re M.K., 636 A.2d 198,              201   (Pa.    Super. Ct.      1994)         See also

In Interest of J.M., 652 A.2d 8771                880-81 (Pa. Super. Ct. 1995).

        In the instant matter, the dependency petitions were filed

based        upon   the   Carbon    County       Office   of    Children        and     Youth

Services receiving an anonymous report regarding the cleanliness

and conditions of the house in which the children were residing,
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along       with   corroborating   statements     from    the    children.          As

stated above, the Superior Court has held that the petition must

aver that evidence of the issue the report was based on will be

found in the home.        Here, the issue is the condition of the home

itself.

       As stated above, the petitions filed by the Carbon County

Off ice of      Children and Youth Services contain statements from

each of the children regarding the home being "dirty" or some

comparable language.        As part of the investigation, a caseworker

went    to     inspect    the   home   and      found    the    outside      to     be

"cluttered", and that the home did in fact have a boarded up

window as previously indicated.             After being denied entry to the

home by the father in person on that occasion and by the mother

via telephone, the caseworker went back to                 the home to again

attempt to conduct the in-home assessment, and was again refused

by the father.

       At    the hearing on     this petition,      the caseworker, Alyssa

Denardo, presented additional testimony regarding the condition

of the home and her initial in-school visits with the children

that are the subject of these petitions.                She also identified a

number of photographs that she took during her first visit to

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 the home.              The photos showed the yard of the home with garbage

 strewn around, several rolls of used carpeting, and a general

 state of              "clutteredness".16        These photos were admitted as an

exhibit, without objection.                      The caseworker also testified that

 the children have all been withdrawn from the Palmerton School

District17,             meaning there is now no way for the Carbon County

Office of Children and Youth Services to follow-up with speaking

to the children regarding the interior of the home.

             This Court notes that in the Petition                 to Compel case,         the

Superior Court rejected the argument made by Susquehanna County

Services           for        Children   and    Youth     that   there   was      additional

information provided to the Superior Court in a brief that was

sufficient for a search warrant, saying that the petition itself

must allege those facts.                       Petition    to Compel,    supra,     at    378.

Here,          any       additional      information      was    provided      by   way     of

testimony and evidence at the time of the hearing on the matter

when         this Court was making              its   determinations on the matter.

Thus, this information is distinguishable from the information



16   N. T.   1/30/15     P.   29-34.
17 In this Court's opinion, the fact that the children were removed from the
Palmerton School District at a time when the Carbon County Office of Children
and Youth Services wanted to question them about the home suggests "something
to hide" relating to the condition of the home.
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provided       in    the    brief       submitted      to   the    Superior       Court     in    the

Petition to Compel case.

        In the alternative, if the probable cause can only be found

based on the facts averred in the petitions, this Court still

finds that there was sufficient information for probable cause

to exist.           The report to the Carbon County Office of Children

and Youth Services was regarding the condition and cleanliness

of   the    home.           The   petitions         detailed       the        condition     of    the

exterior of the home, which included a boarded up window inside

of   the    home,         which    was     clearly visible              from    outside.          The

petitions included information from the caseworker's interviews

with     the        children.            The     petitions             also     identified        the

unwillingness of the natural parents to allow the Carbon County

Office of Children and Youth Services into the home.                                  This Court

finds      that      this     information,            in    and    of     itself,      would       be

sufficient to justify the probable cause necessary for an order

permitting          the    Carbon       County      Office        of    Children      and     Youth

Services       to     enter       the     home    of       the    W's     to     conduct      their

investigation as required by the CPSL.




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         II.   Appellant's     Claim of a "Bua Sponte" Act by this Court

        Again, while there does not appear to be case law directly

on point relating to this matter, there are similar cases this

Court can draw from in this matter.                In Brooks-Gall v. Gall, the

Superior       Court,   when    dealing with       a   trial    court     sua     sponte

removing       children      from    their    parents'     custody      following         a

Protection from Abuse hearing, stated "we are instructed by our

decisions in cases where we have reversed trial court orders in

which a court has sua sponte adjudicated children dependent or

altered custody orders without providing the necessary hearings

or     following the required procedures. 11             840 A.2d 993,        996      (Pa.

Super. Ct. 2003)        (emphasis added).

        In Brooks-Gall and in each of the three (3)                  cases cited by

the Superior Court in support of their decisions, the issue the

court found troubling was that the parties "were not presented

with     notice or      an opportunity        to present    testimony or argue

against the children's placement into state custody. 11                          Id.     at

997.       This   resulted,     in   the     Superior Court's        opinion,       in    a

violation of the parents' due process rights.                  Id.

        Turning to the matter sub judice, this Court finds that it

can draw from the Superior Court's opinions in supporting the

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ruling        that      is    now     up    for     appeal.           Just      as    in    Petition         to

 Compel, the Carbon County Office of Children and Youth Services

received a report of potential abuse or neglect, attempted to

conduct a home visit, and were refused.                                      Similarly, petitions

were      brought        before        this      Court       to     compel      the      homeowners          to

permit Children and Youth into the home.10

         Further,         this      Court        feels       this      instant        matter        can      be

differentiated from cases like Brooks-Gall.                                    In Brooks-Gall,             for

example, the parents went before the trial court for a PFA, and

the judge determined the children were being used as pawns in a

custody matter.                Here, Appellant was presented with notice and



u    As stated       above,      the ambiguity         in the statutory          language        as to what
constitutes       an "appropriate         court proceeding"        is part of the issue this Court
had to decide.          Although the petitions            filed    were formally       called      "Petitions
for Dependency",          the testimony        at the hearing         on these petitions show that
the intended goal of the Carbon County Office of Children                             and Youth Services
was merely for this             Court to order Appellant             to cooperate       with the agency.
At one point,        counsel      for Children      and Youth stated         "Weare just asking for
cooperation       from the parents.            we are not asking         to remove these kids from
the home.        We wouldn't       have even filed       the dependency petition             if the parents
were cooperative         in the first        place.            11
                                                                    (N.T. 1/30/15 P. 63).             Counsel
later    reiterated      their     intent   in filing     the petition,       saying "[s]o the agency
is just      looking for cooperation from the parents.                     I believe        in other      cases
like    this,     Your Honor has continued                the matter,       ordered       the parents         to
cooperate,       and then we can dismiss             the dependency at the end of it.                   Again,
we are just        looking     for cooperation         so we can close       this     out."       Id. at 64.
When further        questioned        by this    Court as to whether           a formal petition            for
dependency was the proper vehicle                 for this      request,    counsel     for Children        and
Youth stated         "the way the regulations              are set up, I believe                this   is our
avenue or means of relief              to complete our investigation.               If we are unable to
get into the home to complete                  the investigation,         that    would mean we would
have safety         concerns,       meaning     that     we would need to file                 a dependency
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opportunity             to       present      testimony,         with         regards        to          both

dependency and the                 Carbon County Office of Children and Youth

Services' attempts to enter the home.                             The box checked on the

Petitions for Dependency reads                        in part         "a   determination that

there      is     a    lack of        proper parental            care may         be     based           upon

evidence of conduct by the parent, guardian, or custodian that

places      the       heal th,     safety,     or    welfare     at     risk.                II   19      The

reasons         for      the      petitions         being      filed,      as      listed              above,

specifically put                 Appellant     on    notice      that      the     Carbon              County

Office of Children and Youth Services' main concern was with the

condition         of     the      home,      along    with      the     caseworkers           two         (2)

attempts to visit the home and her phone call where she spoke

with the mother and informed the parents of both the Office's

need     to conduct              such an     investigation, and                 their reason              for

filing these Petitions for Dependency.

         This was not,            in this Court's opinion, a matter so separate

from      the     dependency          that    Appellant         did     not      have     notice           or

opportunity to argue against such an order.                                   The Petitions for

Dependency,           along with          the testimony of            the caseworker, show


petition in order to remedy those concerns. That is my understanding of the
way that this works and that is why we filed the petitions." Id. at 67.
19 Petitions for Dependency (P. 3) (emphasis added).
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that    Appellant      was   clearly     aware     of      what   the   Carbon      County

Office of Children and Youth Services was attempting to do when

they filed these actions.             The Carbon County Office of Children

and Youth Services not being able to investigate the conditions

of the home,      when the alleged conditions of the home may form

the basis for a possible Adjudication of Dependency, is contrary

to the intent and language of the CPSL.                      Therefore, in looking

at   the substance of the Petitions for Dependency, this Court

feels that while there may not have been sufficient evidence to

adjudicate      the    children   dependent,         ordering      that     the     Carbon

County Off ice of Children and Youth Services be permitted to

enter     the   home    to    complete       their        investigation,       based      on

sufficient probable          cause,     is   not     an    erroneous,     sua     sponte,

action.    The ultimate goal sought by the Carbon County Office of

Children and Youth Services was the same as that issued by this

Court, the goal of which was properly noticed to Appellant, who

had the opportunity to defend it.




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                                                CONCLUSION

         Based       upon   the    foregoing,       this     Court     respectfully          recommends

that     the        March   5,    2015    Orders     directing         that     the    Carbon         County

Office         of    Children       and    Youth      Services         be     permitted         to           enter

Appellant's           home be affirmed.



                                                                     BY THE COURT:

                                                                      ~~-
                                                                 Jo~.                 Matika, J.




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