J-A35043-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: C.T. a minor,                 :     IN THE SUPERIOR COURT OF
                                                  :           PENNSYLVANIA
                                                  :
                                                  :
                                                  :
                                                  :
APPEAL OF: K.T.,                                  :           No. 1076 WDA 2015

                       Appeal from the Order June 16, 2015
                in the Court of Common Pleas of Lawrence County,
                         Civil Division, No. 30 of 2015 D.P.

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                             FILED JANUARY 06, 2016

        K.T. (“Father”) appeals from the Order adjudicating C.T. (born

2/10/01) (hereinafter “Child”) dependent and placing Child in foster care.1

We affirm.

        The   trial   court   set   forth   the   relevant   factual   and   procedural

background in its Opinion, which we adopt for purposes of this appeal. See

Trial Court Opinion, 8/5/15, at 3-8.2

        Father filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.

1925(a)(2)(i) Concise Statement of Errors Complained of on Appeal.

        On appeal, Father raises the following issues for our review:


1
    Child’s mother, H.T. (“Mother”), is not a party to this appeal.
2
 A more thorough and extensive factual and procedural history of this case
can be found in the trial court’s February 27, 2015 Opinion, addressing the
basis for its Custody Order. See Trial Court Opinion, 2/27/15, at 2-62. We
also note that this Court affirmed the trial court’s February 27, 2015 Custody
Order. See K.T. v. H.T., 454 WDA 2015 (Pa. Super. 2015) (unpublished
memorandum).
J-A35043-15


      I.     Whether the trial court committed an error of law
             adjudicating [C]hild dependent under 42 Pa.C.S.[A.]
             § 6301(1)[,] and removing him from the home[,] when
             there was a ready, willing and able parent?

      II.    Whether the trial court committed an error of law in finding
             that Lawrence County Children and Youth Services
             [“LCCYS”] proved by clear and convincing evidence that
             [C]hild was dependent under 42 Pa.C.S.[A.] § 6302(6)[,]
             by finding that [C]hild was ungovernable by Father?

      III.   Whether the trial court committed an error of law in
             relying on findings [it made] in the concurrent custody
             proceeding [during its adjudication of] the dependency
             matter[,] when a different evidentiary standard applied?

      IV.    Whether the trial court [erred] in finding that it was in the
             best interest of [C]hild to be removed from the home of
             Father where [C]hild was thriving; by finding that
             permitting [C]hild to remain in the home of Father would
             be contrary to [C]hild’s welfare when no effort was made
             to investigate the appropriateness of kinship placement;
             when the court determined that foster care was the least
             restrictive placement and by punishing [C]hild for refusing
             to live with Mother by first placing [C]hild in a juvenile
             detention center and then by placing [C]hild in distant
             foster care?

      V.     Whether the trial court committed an error in finding that a
             bonding assessment, trauma evaluation and therapy were
             necessary to achieve the permanency plan of “return to
             parent or guardian[,]” when there were no reasonable
             efforts made by [LCCYS,] and nothing in the plan for
             Father to complete to remediate the need for placement?

      VI.    Whether the trial [judge] committed an error by refusing
             to recuse [him]self from the dependency matter when the
             February 27, 2015 custody [O]rder pre-determined the
             dependency matter, as the trial court prohibited LCCYS or
             any agency or law enforcement agency from returning
             [C]hild to Father?

Father’s Brief at 8-9 (issues renumbered for ease of disposition).



                                   -2-
J-A35043-15


      As Father’s first two issues pertain to the trial court’s adjudication of

Child as dependent, we will address them together. In his first issue, Father

contends that LCCYS failed to establish by clear and convincing evidence

that Father lacks care, custody and control of Child.      Id. at 18.   Father

claims that prior to the dependency hearing, while in Father’s care, Child

was a straight “A” student, had friends, was involved in student government,

attended boy scouts, regularly attended church, and was “thriving.” Id. at

19. Father contends that Child only experienced difficulty in his relationship

with Mother, and that during the fifteen months prior to Child’s entry into

the juvenile system, Mother made no attempt to communicate with Child.

Id. at 19-20.

      Father argues that, in adjudicating Child dependent, the trial court

erred by using its prior finding, made in the custody proceedings, that Father

would promote the continued alienation of Child from Mother.        Id. at 20.

Father asserts that, by including in the Custody Order the provision that

Child was not to be returned to Father if Child ran away from Mother during

her custodial periods, the trial court effectively adjudicated Child as

dependent without the safeguards provided in the Juvenile Act, 42 Pa.C.S.A.

§§ 6301-6375. Father’s Brief at 22.

      In his second issue, Father contends that Child is not “ungovernable.”

Id. at 23. Father asserts that the trial court erred by requiring that Child

obey the Custody Order because only Father and Mother, and not Child, are



                                  -3-
J-A35043-15


parties to the Custody Order. Id. at 24. Father claims that the trial court

impermissibly shifted the burden of compliance with the Custody Order to

Child,    and   thereafter   used   Child’s   non-compliance   as   an   improper

justification for determining that Child is dependent. Id.

         Father also argues that Child does not meet the definition of a

“dependent” child under 42 Pa.C.S.A. § 6302(6).           Father’s Brief at 25.

Father contends that, to be “dependent” under section 6302(6), Child must

disobey the lawful commands of his parents and be ungovernable and in

need of care, treatment or supervision. Id. Father asserts that Child does

not meet this standard because there is no evidence that (1) Mother has

made any reasonable attempts to control Child; or (2) that Child is in need

of care, treatment or supervision. Id. at 26. Father claims that, because

Mother could not persuade Child to come with her in the custody case, she is

using the dependency proceedings to accomplish her goal of keeping Child

away from Father.        Id.    Father argues that the trial court’s concern

regarding the adverse effect on Child from his parents’ constant custody

litigation is not a basis for a dependency finding. Id. at 27. Father contends

that the trial court is improperly using the dependency proceedings to punish

Child and Father. Id.

               The standard of review which this Court employs in cases
         of dependency is broad. However, the scope of 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


                                    -4-
J-A35043-15


      parties who appear before him.          Relying upon his unique
      posture, we will not overrule his findings if they are supported by
      competent evidence.

In re B.B., 745 A.2d 620, 622 (Pa. Super. 1999) (citations omitted). We

review a trial court’s adjudication of dependency for an abuse of discretion.

In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).

      Dependency proceedings are governed by the Juvenile Act.               The

Juvenile Act, in furtherance of its goal of preserving family unity whenever

possible, requires clear and convincing evidence of dependency before the

trial court can intervene in the relationship between a parent and child. In

re R.R., 686 A.2d 1316, 1317 (Pa. Super. 1996); see also 42 Pa.C.S.A.

§ 6301(b).    Clear and convincing evidence has been defined as testimony

that is “so clear, direct, weighty, and convincing as to enable the trier of fact

to come to a clear determination, without hesitancy, of the truth of the

precise facts at issue.” In re A.B., 63 A.3d 345, 349 (Pa. Super. 2013).

      The Juvenile Act does not necessarily require proof that a parent is

“unfit” before a child can be adjudicated dependent. Indeed, pursuant to the

Juvenile Act, a “dependent child” includes a child who “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.” 42

Pa.C.S.A. § 6302(6).     Thus, pursuant to section 6302, a child may be

adjudged dependent regardless of parental fitness.



                                   -5-
J-A35043-15


      In its Opinion, the trial court addressed Father’s first two issues, set

forth the relevant law, and determined that they lack merit. See Trial Court

Opinion, 8/5/15, at 10-14. Based on the sound reasoning of the trial court,

we conclude that Child’s dependency under section 6302(6) was established

by clear and convincing evidence, and affirm on this basis as to Father’s first

two issues. See id.3

      In his third issue, Father contends that, because the trial court found

in the custody proceedings, using the lesser preponderance of the evidence

and best interest standards, that Father is a fit and proper parent, the trial

court was precluded from finding in the dependency proceedings, under the

higher, clear and convincing standard, that Father was unfit to care for




3
   Because the clear and convincing evidence supported a finding of
dependency under section 6302(6), we need not address Father’s claims
with regard to section 6302(1). In any event, as noted above, parental
fitness is not a prerequisite to a dependency adjudication.


                                  -6-
J-A35043-15


Child.4   Father’s Brief at 32; see also id. at 20, 21, 22-23, 38 (wherein

Father makes this same argument).          Father asserts that the evidence

presented at the custody trial was incorporated into the dependency

proceedings, including evidence regarding Father’s ability to be a ready,

willing and able parent, and that no additional evidence regarding Father’s

fitness was presented at the dependency proceedings. Id. at 19, 32. Father

claims that the trial court made extensive findings of fact in the custody

case, and that LCCYS adopted those findings as its evidence in the

dependency proceedings.      Id. at 33.   Father argues that the evidence of

record establishes that Child has proper parental care and control when he is

with Father.    Id. at 34.    Father contends that there is no clear and

convincing evidence that (1) Child is habitually disobedient; (2) has an

underlying psychological issue; or (3) is in need of care and treatment that

cannot be offered outside of the dependency setting.     Id.   Father asserts

that the trial court erred by adopting its findings from the concurrent

4
  Father misunderstands the relationship between two evidentiary standards
at issue in this case. A “preponderance of the evidence” standard merely
requires that the evidence in favor of a proposition is of “greater weight”
than the evidence in opposition. See Ferri v. Ferri, 854 A.2d 600, 603 (Pa.
Super. 2004) (stating that “to tip a scale slightly is the criteria or
requirement for preponderance of the evidence.”) (citation and internal
quotation marks omitted). In contrast, a “clear and convincing” evidentiary
standard is a more difficult burden to meet, and requires evidence that is “so
clear, direct, weighty, and convincing as to enable the trier of fact to come
to a clear determination, without hesitancy, of the truth of the precise facts
at issue.” In re A.B., 63 A.3d at 349. That a particular body of evidence
may satisfy the easier “preponderance of the evidence” standard does not
necessarily mean that the same body of evidence can or will satisfy the
more demanding “clear and convincing” evidence standard.


                                  -7-
J-A35043-15


custody matter, and relying on such findings as a basis for its adjudication of

dependency. Id. at 34-35.

      In its Opinion, the trial court addressed Father’s third issue, set forth

the relevant law, and determined that it lacks merit.          See Trial Court

Opinion, 8/5/15, at 13-14. We concur with the reasoning of the trial court

and affirm on this basis as to Father’s third issue. See id.

      As Father’s fourth and fifth issues pertain to the trial court’s

dispositional ruling, we will address them together.      In his fourth issue,

Father challenges the trial court’s characterization of Child’s behavior as

dangerous, and claims that Child was never in harm’s way. Father’s Brief at

36. Father argues that, at the initial disposition hearing, LCCYS presented

no evidence regarding alternative dispositions for Child, and ignored the

family and friends who came forward during the dependency proceedings to

offer themselves as placement alternatives. Id. at 36. Father contends that

Child’s placement at Krause Youth Center was inappropriate, and that the

only appropriate placement for Child was with Father.      Id. at 38.   Father

claims that LCCYS made no effort to determine an appropriate placement for

Child, or whether, with services, he could remain with Father or Mother. Id.

Father argues that, as a result of his federal habeas corpus lawsuit, Child

was removed from Krause Youth Shelter and Child’s placement was changed

to foster care.   Id. at 39.   Father asserts that the trial court’s decisions

regarding placement of Child were not designed to serve Child’s best



                                  -8-
J-A35043-15


interests, and were instead designed to punish Child until he goes with

Mother. Id. at 41.5

      In his fifth issue, Father contends that the trial court created a

situation where there was nothing that Father could do to prevent Child from

being adjudicated dependent or eliminate the need for his placement. Id. at

28. Father asserts that the trial court abused its discretion by finding that

Child needs trauma therapy and bonding assessments, and by ratifying a

dispositional plan that precludes reunification with Father. Id. at 32.6

      A dependency hearing is a two-stage process.       As noted above, the

first stage requires the trial court to determine by clear and convincing

evidence whether the child is dependent pursuant to the standards set forth

in section 6302. See In re A.B., 63 A.3d at 349. If the trial court finds that

the child is dependent, it may move to the second stage, in which it must

make an appropriate disposition based upon an inquiry into the best

5
  Father additionally contends that Child’s subsequent placement with a
foster family in Crawford County was inappropriate, and was not in Child’s
best interest. Father’s Brief at 40. Father also contends that Child’s current
placement with Father’s cousins is inappropriate. Id. at 41. However, these
events occurred subsequent to the entry of the June 16, 2015 Order from
which Father appeals, and are not part of the record on appeal. Accordingly,
we cannot consider them. See Pa.R.A.P. 1921, note (stating that “[a]n
appellate court may consider only the facts which have been duly certified in
the record on appeal.”).

6
 Father also references hearings conducted on July 2, 2015, and August 10,
2015, and efforts made by LCCYS to unify Child and Father subsequent to
the June 16, 2015 Order from which Father appeals. See Father’s Brief at
29-31. However, because these events occurred subsequent to the entry of
the June 16, 2015 Order, they are not part of the record on appeal.
Accordingly, we cannot consider them. See Pa.R.A.P. 1921, note.


                                  -9-
J-A35043-15


interests of the child. See In re L.C., II, 900 A.2d 378, 381 (Pa. Super.

2006).

      Regarding the placement of a child who has been adjudicated

dependent, this Court has explained:

      [w]hen a child is adjudicated dependent, the child’s proper
      placement turns on what is in the child’s best ‘interest, not on
      what the parent wants or which goals the parent has achieved.
      See In re Sweeney, 393 Pa. Super. 437, 574 A.2d 690, 691
      (1990) (noting that “[o]nce a child is adjudicated dependent. . .
      the issues of custody and continuation of foster care are
      determined by the child’s best interests"). Moreover, although
      preserving the unity of the family is a purpose of the Act,
      another purpose is to “provide for the care, protection, safety,
      and wholesome mental and physical development of children
      coming within the provisions of this chapter.”        42 Pa.C.S.
      § 6301(b)(1.1). Indeed, “[t]he relationship of parent and child
      is a status and not a property right, and one in which the state
      has an interest to protect the best interest of the child.” In re
      E.F.V., 315 Pa.Super. 246, 461 A.2d 1263, 1267 (1983).

In re K.C., 903 A.2d 12, 14-15 (Pa. Super. 2006).

            The Juvenile Act grants juvenile courts broad discretion
      when determining an appropriate disposition. ... We will disturb
      a [trial] court’s disposition only upon a showing of a manifest
      abuse of discretion.

Interest of C.A.G., 89 A.3d 704, 709 (Pa. Super. 2014) (citations omitted).

      In its Opinion, the trial court addressed Father’s arguments, and

thoroughly stated its reasons, based on competent evidence of record, for its

dispositional determination that placement in foster care was in Child’s best

interest. See Trial Court Opinion, 8/5/15, at 9-14. We discern no manifest

abuse of discretion by the trial court, and affirm on this basis as to Father’s

fourth and fifth issues. See id.


                                   - 10 -
J-A35043-15


         To the extent that Father contends that the trial court erred by

determining, as part of its disposition, that a bonding assessment and

trauma      evaluation   should   be   conducted,   we   conclude    that   such

determination is amply supported by the record. Given Child’s repeated and

defiant refusal to stay in Mother’s custody, or to follow Father’s directive to

do so, an assessment of Child’s relationships with his parents was

appropriate. See Trial Court Opinion, 8/5/14, at 4, 7. Additionally, given

the bitterly contentious custody proceedings between Child’s parents, which

have extended continuously since 2004 and have included allegations of

physical harm and parental alienation, a trauma evaluation of Child was also

appropriate. See id. at 3-4 (referencing one jurist’s lamentation that this

case is “one of the most tragic custody cases she had ever seen and one of

the most tragic cases of parental alienation by [Father].”); see also Father’s

Brief at 32 (wherein Father concedes that “this case stems from protracted

and contentious custody litigation” and that “Mother and Father have been

arguing about custody of [Child] for nearly 11 years.”).       Accordingly, we

discern no abuse of discretion by the trial court in ordering these services for

Child.

         In his final issue, Father contends that President Judge Dominick Motto

(“President Judge Motto”) prejudged the dependency matter by ruling, in the

custody case, that law enforcement was prohibited from returning Child to

Father if Child ran away during Mother’s custodial time. Father’s Brief at 43.



                                   - 11 -
J-A35043-15


Father asserts that the effect of this provision was that if Child ran away

from Mother, he would be adjudicated dependent.               Id. at 43-44.     Father

claims that President Judge Motto knew that Child would not stay with

Mother, and therefore “created a situation” where Father was no longer a

ready, willing and able parent.”          Id. at 43.    Father contends that, by

prejudging the dependency matter and engaging in actions designed to

punish Child, President Judge Motto’s actions raise the appearance of

impropriety.    Id. at 42. Father asserts that President Judge Motto should

have recused himself, pursuant to Father’s Motion for recusal, and another

judge from outside Lawrence County should have been appointed to hear

the case.7     Id.    Father argues that President Judge Motto’s February 27,

2015 Custody Order and supporting Opinion reflect his “impression of Father

as   conniving,      underhanded,   and    determined    to    undermine      [Child’s]

relationship with Mother.” Id. at 46. Father contends that “there was an

obvious and absolute appearance of impropriety” and President Judge Motto

erred by denying Father’s Motion to recuse. Id. at 48.

      Our standard of review of a trial court’s determination not to recuse

from hearing a case is exceptionally deferential.        See Commonwealth v.

Bonds, 890 A.2d 414, 418 (Pa. Super. 2005).                   Our trial judges are

“honorable, fair and competent,” and although we employ an abuse of

7
  Father notes that President Judge Motto is the fifth judge assigned to this
case, and that two of the prior judges assigned to this case recused
themselves when suit was filed against them by Mother or Father. Father’s
Brief at 43.


                                    - 12 -
J-A35043-15


discretion standard, we do so recognizing that the judge himself is best

qualified to gauge his ability to preside impartially.           Id. (citation omitted).

Accordingly, a party seeking to compel a judge’s disqualification must

“produce evidence establishing bias, prejudice or unfairness which raises a

substantial   doubt   as   to   the    jurist’s   ability   to    preside   impartially.”

Commonwealth v. Abu-Jamal, 720 A.2d 79, 89 (Pa. 1998) (citations

omitted).

      In light of the high burden placed on Father by our standard of review,

as well as our review of the record and the trial court’s well-reasoned

explanation, we conclude that Father has failed to produce evidence

establishing bias, prejudice or unfairness which raises a substantial doubt as

to President Judge Motto’s ability to preside impartially.            See id.    To the

contrary, given the extensive evidence of Child’s ongoing course of defiance,

Child’s difficulties in his relationship with Mother, Father’s efforts to alienate

Child from Mother, and the element of contentiousness that has pervaded

this case from its inception, we conclude that President Judge Motto

assessed the dependency Petition in an impartial manner, and fashioned an

appropriate dispositional Order that was designed to serve Child’s best

interests. See Trial Court Opinion, 8/5/15, at 9-14; see also id. at 14-15

(wherein President Judge Motto addressed his decision to deny Father’s

Motion to recuse). Accordingly, we find no merit to Father’s argument that




                                      - 13 -
J-A35043-15


President Judge Motto’s action raised an appearance of impropriety, or that

he erred by declining to recuse himself from this case.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/6/2016




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                                           \                                           (    Circulated 12/18/2015 03:16 PM




                      IN THE INTEREST OF:                                    IN THE COURT OF COMMON PLEAS
                      C.T.                                                   LAWRENCE COUNTY, PENNSYLVANIA
                                                                             NO. 30 OF 2015, D.P.
                                                                  APPEARANCES
                      For Lawrence county children                            Carolyn J. Flannery, Esq.
                      and Youth Services:                                     1001 E. Washington Street
                                                                              New castle, PA 16101
                      For K. T':                                              Richard B. Sandow, Esq.
                                                                              Stephanie T. Anderson, Esq.
                                                                              Jones, Gregg, Greehan &
                                                                                   Gerace, LLP
                                                                              411 seventh Avenue
                                                                              suite 1200
                                                                              Pittsburgh, PA 15219
                      For H.T.:                                               Erica N. Burns, Esq.
                                                                              Richard Ducote, Esq.
                                                                              4800 Liberty Avenue
                                                                              Third Floor
                                                                              Pittsburgh, PA 15224

                      For C.T.:                                                Stephen D. colafella, Esq.
                                                                               671 Third Street
                                                                               Beaver, PA 15009
                                                                               Larry J. Puntureri, Esq.
                                                                               2102 Wilmington Road
                                                                               New castle, PA 16105


                                      OPINION PURSUANT TO Pa.R.A.P.1925(al
                      MOTTO, P.J.                                                          AUGUST 5,      2015


                             K.T.,    father of the child, C.T., has appealed the order                          of
                      June 16, 2015, wherein the court found c. T. to be a dep1~::ndent
                      child under the Juvenile Act, 42 Pa.C.A.A. §6301 et.seq.
                             The court found c.T. to be dependent on two separate
      53RD
    JUDICIAL
                      grounds.       The first ground is that C.T. is dependent pursuant
    DISTRICT                             ~. .
                      to section 6302 (ll-i ~ ~O y'effl,Gll'fA[i. s without proper parental care
.AWRENCE     COUNTY
 PENNSYLVANIA
                                                20!5 AUG - 5 A 11: ll 5
                                                  HELEN I. MORGAH
                                                   o o ri   ~-   un r1 F~K
                                                                                 (.:-,·   .··   Circulated 12/18/2015 03:16 PM




                       or corrtro l necessary for his physical, mental or emotional
                       health.     The second ground is that C.T. is dependent pursuant
                       to 6302(6) in that C.T. has committed a specific act or acts of
                       habitual disobedience of the reasonable and lawful commands of
                       his parents, and who is ungovernable and found to be in need of
                       care, treatment or supervision.
                               The factual basis for finding C.T. to be dependent under
                       the Juvenile Act is that C.T., a child who is approximately 14~
                       years of age, repeatedly and consistently refuses to remain ,n
                       the phy~ical custody of his mother, H.T., despite the fact that
                       extensive    custody proceedings have~ since October of 2013,
                       consistently and specifically ordered that he be in the primary
                       physical custody of H.T., including the order of the superior
                       court issued in April of 2015 wherein the superior court
                       spect f i ca l l y directed that C.T. be delivered by K.T. to the
                       physical custody of H.T.          Each time that C.T. is brought to
                       H.T. he runs away, often times plac~ng himself ,n harm's way.
                       In the last custody order issued by this court on February 2,
                       2015, this court directed that if C.T. should run, he was to be
                       returned to H.T. and not to be returned to K.T., the reasons
                       for which appear ,n the Opinion and Order dated February 27,
                       2015, issued in the custody case K.T. 0. H.T., No. 11297 of
                       2006, C.A., Lawrence county, a copy of which Opinion is of
                       record 1n this case.
                               K.T. immediately appealed the custody order and sought a
                       stay.     This court denied a stay.             A   stay was requested to be
       53RO

    JUDICIAL
    DISTRICT           issued by the super-i or court, which denied the stay and
                                              ~~'.LEO/ORIGINAL
.AWRENCE      COUNTY
 PENNSYLVANIA
                                             ZOIS AUG - 5 A ij: 4 5

                                               HELEN I. MORGAH
                                                n'.")n   x un r1 rRK
                                                                      r-:

                                                                      '        Circulated 12/18/2015 03:16 PM



                    specifically directed that K.T. deliver the child to H.T. on
                    April 3r   20156.    when K.T., Father, delivered C.T. to the
                    residence of H.T., Mother, C.T. again left and walked, at night
                    in the rain, to the state police barracks, culminating 1n the
                    Lawrence county children and Youth initiating the dependency
                    proceedings.    After dependency proceedings were initiated, K.T.
                    sought a further stay from the superior court which was again
                    denied.    The appeal was argued before the superior court on
                    July 8, 2015 and a decision is pending.


                                         FACTUAL AND PROCEDURAL HISTORY
                           The dependency proceeding emanates from the custody
                    proceedtngs at case No. 11297 of 2006, C.A.             The parties have
                    engaged in continuous litigation since their separation in
                    2004; hcwever, the circumstances that have resulted in the
                    dependency proceedings began when the Honorable Thomas M.
                    Piccione of this court issued an opinion and order dated
                    October 1, 2013, which awarded sole legal and primary physical
                    custody to H.T.      Although the court will begin this discussion
                    from th&t point, the court notes that the Opinion and order of
                    this   court dated February 27, 2015 contains a continuous
                                                                 ·.
                    history preceding that date, which illustrates failed efforts
                    ~f K.T.    both in this court and in the court of common Pleas of.
                    westmor~land   county, to suggest that H.T. and her father had
                    either ~hreatened or physically harmed K.T., all            of which
                    allegations were found by various jurists to be unfounded.                    In
      53RD
    JUDICIAL
    DISTRICT        awarding primary ~hysica1 custody and sole. legal custody to
                                     FIL ED IO RIG I H ,\ L
.AWRENCE   COUNTY
  PENNSYLVANIA                          20l5 AUG - 5 A II: 4 ~

                                          HELEN I. MORGA~{
                                          F.·RO AHO Cl:.KHK1
                                                                               (     Circulated 12/18/2015 03:16 PM




                    H.T., Judge Piccione concluded that if l<.T. was awarded
                    custody, the relationship of c.T. with H.T. would dissipate to
                    a point·of   disrepair.      Judge Piccione's Order of October 1,
                    2013 wa~ appealed by K.T. to the superior court of
                    Pennsylvania, which affirmed the October 1, 2013 order and its
                    opinion filed May 30, 2014.
                           Approximately one month after the October 1, 2013 custody
                    order, t.T. began refusing to spend any time with his mother,
                    H.T.    Prior to these juvenile proceedings, C.T. had not been ,n
                    H.T. 's custody since December of 20131                 despite the court
                    orders.·· Although these matters are set forth in more detail ,n
                    the att~ched opinion of February 27, 2015, essentially at any
                    time that C.T. was brought to H.T.'s residence, he would run,
                    at times placi~g himself in danger such as running out late at
                    niqht in his paj amas , jumping out of a moving vehicle on a cold
                    winter-'~- night and hiding behind a dumpster until he was found,
                    which incidents resulted iri the fiTing of a petition for
                    protecti-0n from abuse by K.T. on behalf of C.T. against                      H.T. ,n
                    the wes~moreland county court of common Pleas.                   After hearings
                    before the Honorable Megan Bilik-DeFazio, these petitions were
                    dismissed with Judge Bilik-DeFazio               referring to this case as
                    one of the most tragic custody cases she had ever seen and one
                    of the ~ost tragic cases of parental alienation by K.T.                         That
                    judge found C.T. to be deliberate, that he knows what he 1s
                    doing a0d that he is manipulating. Judge Bilik-DeFazio also
                    found that the testimony of H.T. was c~edible, that H.T. had
      53RD
   JUDICIAL
   DISTRICT
                    never threatened   c.~:, and that the explanation of                  H.T. as to
                                                f:LED/ORIGINAL
AWRENCE    COUNTY
 PENNSYLVANIA                                 20!5 AUG - 5 /:;Li· 11: ~ 5

                                                i iELEN I. MORGAN
                                                  ?RO AND CLERK
                                                                                 Circulated 12/18/2015 03:16 PM




                     what occurred on January 1, 2014 when C.T. jumped out of her
                     moving vehicle was reasonable and that any testimony of C.T.
                     that he was fearful of H.T. was not credible.              K.T. appealed
                     the decision of Judge Bilik-DeFazio and that decision was
                     affirmed by the superior court.
                             It is noteworthy that during the proceedings in
                     Westmoreland county, K.T. in passing through security denied
                     that he had any weapons on him.             However, security discovered
                     in his briefcase a loaded Glock         9     mm firearm and a folding
                     knife with a 3% inch blade.         K.T. was charged criminally as the
                     result of this conduct.       what developed as the result of this
                     information was that K.T. had been carrying this loaded firearm
                     on custody exchanges with H.T.
                             During the time that K.T. appealed the decision of Judge
                     Piccione, C.T. remained physically with K.T. without any
                     authority whatsoever as the custody order gave primary custody
                     to H.T.     Judge Piccione did not enforce the custody order while
                     it was on appeal.     After the superior court affirmed the
                     custody order, proceedings were commenced to attempt to enforce
                     that order; however, Judge Piccione went on a medical leave
                     during this period of time and could not continue with the
                     case.     The case was then assigned to visiting Judge Francis J.
                     Fornelli, who recused himself after the assignment because of
                     having some connection with an individual who was likely to be
                     a witness in the case.      The case was then reassigned this

      53RD
                     judge.
    JUDICIAL
    DISTRICT
                                            F \LED I OR I GIN AL

                                          zms AUG - 5   A 115 q s
.AWRENCE    COUNTY
  PENNSYLVANIA




                                            HELE~ LMORGAH
                                            IQRA AND CLER~.
                                                                                           Circulated 12/18/2015 03:16 PM




                             It should be noted that this case was originally assigned
                     to the Family court judge of this county, the Honorable John                              w.
                     Hodge, who recused himself as the result of a federal law suit
                     filed against him by K.T.                      The case was then reassigned to
                     senior Judge Eugene E. Fike, II, who recused himself because of
                     a federal lawsuit filed against him by H.T.                       when the case was
                     assigned to Judge Piccione, a federal lawsuit was filed by K.T.
                     against Judge Piccione, but Judge Piccione declined to recuse
                     himself.
                             At the time Judge Piccione issued his custody order in
                     October of 2013, C.T. had been in attendance at the Neshannock
                     Township school District in Lawrence county, Pennsylvania where
                     he had 2lways attended school, the district where H.T. 's
                     residence is located.                when the next school year commenced
                     after C.T. had begun refusing to spend any time with H.T.,
                     K.T.,    without any legal authority to do so, enrolled C.T. in
                     the Hempfield school District in Westmoreland County, where
                     K.T. resides.     K.T. has been found to be in contempt of court
                     for so doing.
                             The matters before this Court, after the Superior court
                     had affirmed the decision of Judge Piccione, were competing
                     petitions for modification filed by both H.T. and K.T., K.T.
                     seeking full custody of C.T. and H.T. seeking to modify the
                     custody order in a manner that would allow enforcement of the
                     order giving her primary custody.                        Extensive proceedings were

      53RO
                     held before this court with the result that this court found
    JUDICIAL
    DISTRICT         that thEre was    no
                                        -, .
                                             basis for               C.T.   to have any fear of H.T.; that
                                           FILED/ OR\G\HAL
.AWRENCE    COUNTY
  PENNSYLVANIA
                                         2.0\5 ~UG -S A \\t ~S

                                            h\[lt.~ \. r.MOR~f:.-H
                                            1,.   .   _   r , rRK
                                                          •   • •
                                                                      (
                                                                      \
                                                                             Circulated 12/18/2015 03:16 PM




                     ,n reality C.T. has no fear of H.T. or of his maternal
                     grandfather and that C.T. expresses his fear only for the
                     purpose of fulfilling the wishes of K.T. that he have no
                     contact with H.T.   The court further concluded that the conduct
                     of K.T. is alienating C.T. from H.T.          (Trial court Opinion of
                     February 27, 2015, p. 83).
                          The purpose of including in Paragraph 16 of the custody
                     order a directive that C.T. not be permitted to be at the
                     residence designated at 130 Fireside Drive nor be permitted for
                     any reason to be placed in the custody of K.T. during the
                     "primary custody time of H.T. with the further direction that if
                     for any reason the child removes himself from the custody of
                     H.T. th~t he is to be returned to H.T. and not to K.T. or
                     anyone acting on behalf of K.T. is to address the fact that
                     ret urn i rrq C.T. to K.T. will only serve to continue was has
                     existed since December of 2013, that the orders of this court
                     and of the Superior court will continue to be ignored.
                          on Friday, April 3, 2015, the date that the superior court
                     ordered that C.T. be returned to H.T. by K.T., C.T. was dropped
                     off at The residence of H.T. by K.T.          C.T. immediately walked
                     away frum the residence and in the evening hours and eventually
                     arrived at a barracks of the Pennsylvania State Police.               C.T.
                     could net be returned to H.T. as he adamantly expressed that he
                     would not obey the court order and would continue to leave.                  As
                     a ~esult,   Lawrence county children and Youth services (LCCYS)
                     was contacted.    An oral ex parte order was obtained and C.T.
      53RD
    JUDICIAL
    DISTRICT         was placed in shelter care.    On       April 6, 2015 an ex parte order

.AWRENCE    COUNTY
  PENNSYLVANIA
                                                         7
                                                                            Circulated 12/18/2015 03:16 PM




                      was obtained.       That same day an application for shelter care
                      was filEd.       After a hearing before Master Papa, a
                      recommendation was made that C.T. remain in shelter care.              The
                      recommendation was approved by court order issued April 7,
                      2015.
                              A dependency petition was timely filed alleging dependency
                      pursuant to Section 6302(a)(l) and (6) of the Juvenile Act.
                      After hearing, the master recommended that C.T. be adjudicated
                      dependent .      The recommendation was approved and entered as an
                      order on May 5, 2015.       A disposition hearing was held on May 5,
                      2015 before the master who recommended that C.T. remain in
                      shelter care, which recommendation was also approved by the
                      court.
                               K.T.   requested a de nova review before the court.
                      Following a de novo proceeding that court found C.T. to be
                      dependent and ordered C.T. to be placed in foster care.             The
                      pending review proceedings are focused on whether C.T. should
                      be placed in a kinship foster home setting.        The court has
                      indicated that a foster home neutral to both parties is
                      preferr~d, but may not be possible as potential and existing
                      foster parents are concerned that they may be the subject of a
                      1 awsui t by K. T. because of the contentiousness of the
                      litigation and the propensity for corollary suits.
                               K.T. filed a motion for this judge to recuse himself
                      because of the ruling made 1n the custody litigation that C.T.
                      not be returned to K.T. if he should run from H.T. The court
      53RD
   JUDICIAL
   DISTRICT           denied the recusal motion.

AWRENCE      COUNTY
 PENNSYLVANIA
                                                           8
                                                                         Circulated 12/18/2015 03:16 PM




                                                 DISCUSSION
                            A dependent child is defined 1n pertinent part at 42
                     Pa.c.s.A. 6302 as a child who (1) is without proper parental
                     care or control, or other care or control necessary for its
                     physical, mental or emotional health; or (6) has committed a
                     specific act or acts of habitual disobedience of the reasonable
                     and lawful commands of hi s parent, and who is ungovernable and
                     found to be in need of care, treatment or supervision.
                            As to §6302(1), the court has found that C.T. is without
                     proper parental care or control as neither parent is able to or
                     willing to control him to the extent that he will remain in
                     compliance with court orders to be in the physical custody of
                     H.T.    He clearly will not obey the directive of H.T. that he
                     remain in her custody as required by order of court.        K.T. has
                     testified repeatedly that he directs C.T. to remain with H.T.
                     as required by the court order but that C.T. refuses to do so.
                     The court recognizes that in the case of In re: M.L., 562 Pa.
                     646, 757 A.2d 849 (2000), the supreme court held that a child,
                     whose non-custodial parent is ready, willing and able to
                     provide adequate care to the child, cannot be found to be
                     dependent under §6302(1).    However, this court has found that
                     returning C.T. to K.T. will only promote the continued
                     alienating behavior and will never bring about compliance with
                     the custody order, but will only continue in perpetuity what
                     has existed since December of 2013.      Thus, returning C.T. to
                     K.T. would only continue a circumstance that C.T. would remain
      53RD
   JUDICIAL
    DISTRICT         wi thout proper parental care or corrt ro ' necessary for his

AWRENCE     COUNTY
 PENNSYLVANIA
                                                      9
                                                                (       Circulated 12/18/2015 03:16 PM




                    physical, mental and emotional health, as what is necessary 1s
                    that the alienating behavior be addressed as well as his mental
                    and emotional needs.     That is presently occurring in that while
                    in placement in a foster home, he is undergoing therapies for
                    bonding with H.T. and to address emotional trauma.       This
                    treatment could not possibly be provided to him if he were to
                    be in the lawful physical custody of K.T.
                         Pursuant to §6302(6) a child may be found dependent where
                    he 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.
                         Here, it is clear that C.T. has committed specific act or
                    acts of habitual disobedience of the reasonable and lawful
                    commands of his parents.     H.T. clearly commands that C.T.
                    remain in her custody as required by court order.      Despite
                    these commands, C.T. habitually disobeys her.     K.T. has
                    testified that he commands C.T. to obey the court order and
                    remain in the physical custody of H.T. but that C.T. will not
                    obey him.   As to this issue that C.T. obey the court order and
                    remain in the physical custody of H.T., he is ungovernable and
                    not even the court is able to persuade him that he should not
                    disobey a court order.     It is clear that the current
                    circumstances of C.T. are such that he is need of care and
                    treatment that can address the effects that prolonged custody
                    litigation has had upon him.     That care and treatment plan is
     53RD
   JUDICIAL
   DISTRICT




~WRENCE    COUNTY
 PENNSYLVANIA
                                                      10
                                                                               Circulated 12/18/2015 03:16 PM



                     currently being developed for him through the juvenile court
                     procedure.
                           K.T. 's argument that C.T. cannot be considered to be
                     dependent since K.T. is ready, willing and able to provide
                     adequate care and C.T. will stay with him, does not apply to a
                     finding of dependency pursuant to §6302(6).            In the case of In
                     re:   K.A.D., 779 A.2d 540 (2001), father in appealed a
                     depende~cy finding relying upon In re:            M.L., supra, for the
                     proposition     that a child cannot be found dependent where there
                     is a non-custodial         parent able to provide adequate care.         In
                     K.A.~,       the superior Court found that father's reliance upon In
                     re:   M.L. was misplaced because that principle applied to a
                     dependency finding under §6302(1) and not to dependency
                     findings under §6302(5) and (6).            The K.A.D. court noted that
                     the court      in In re:     M.L. was speaking solely to the §6302(1)
                     definition     which clearly states the child must lack a parent
                     who can provide appropriate care to the child and child whose
                     non-custodial parent is ready, willing and able to provide such
                     care does not meet this definition.            K.A~ concluded that In
                     re:   M.L. did not apply to the dependency definition contained
                     1n §6302(6).
                           K.T.     cites In the interest of Justin s., 543 A.2d 1192
                     (Pa.super.      1988) for the proposition that C.T. cannot be
                     adjudic&ted dependent when K.T. is a ready, willing and able
                     parent.       The court agrees that this principle applies to
                     alleged dependency pursuant to §6302(a)(l), but disagrees that
      53RD
   JUDICIAL
    DISTRICT         it has any application to alleged dependency pursuant to

AWRENCE     COUNTY
 PENNSYLVANIA
                                                            11
                                                                      (
                                                                              Circulated 12/18/2015 03:16 PM



                      §6302(6).    In re: K.A.D., supra.       As to §6302(a)(l), as noted
                      in Justin s., the Court must examine two discrete questions:
                      (1) Is the child at this moment without proper parental care or

                      control;    and (2) if not, is such care and control immediately
                      available.     Justin s., 375 Pa.super. at 99, 543 A.2d at 1199.
                      Here, both parents have admitted their inability to control
                      C.T.   He adamantly refuses to obey either parent.          This fact 1s
                      undisputed by all parties.     Interestingly, if C.T refused to
                      attend ~chool as directed by his parents there would be little
                      que s t i or: as to lack of parental control and dependency.          C.T. 's
                      refusal to obey the court order for no legitimate reason should
                      be equated with refusal to attend school.           The fact that C.T.
                      will stay with K.T. ignores the central issue; that H.T. is the
                      custodial parent having primary physical custody and that C.T.
      ,
 ..
·:·.'                 does not have the option of deciding for himself whether he
                      will choose to comply with the custody orders.          The issue of
                      control relates to the ability to control C.T. 's behavior and
                      bring about compliance with the court orders.
                             K.T. makes a similar assignment of error as to dependency
                      pursuant to §6302(a)(6) asserting that the court erred in
                      finding that C.T. is ungovernable.         He is clearly ungovernable
                      as to hi s consistent and repeated conduct of running away from
                      H.T.   The fact that he may be governable to other directives of
                      K.T. fails to acknowledge his lack of governability as to his
                      refusal to obey a court order.       The Juvenile Act permits a
                      finding of dependency where the evidence establishes that the
            53RD
          JUDICIAL
          DISTRICT
                      child is lacking a particular type of care necessary to meet

 .AWRENCE    COUNTY
   PENNSYLVANIA                                         1 ')
                                                        1~
                                                                               Circulated 12/18/2015 03:16 PM




                    his individual specific need.           In re: R.R., 455 Pa.Super. l,
                    686 A.2d 1316 (1996).            Here, the need 1s to address C.T.'s
                    conduct in continually running away from his custodial parent.
                            rn:.general,   K.T. 's     assignments of error assert that the
                    proper disposition of this matter is to simply place C.T. 1n
                    the custody of K.T.        To do so would render the custody order
                    meaningless.       If a child's uncontrollable recalcitrance to a
                    court order cannot· be a basis for a finding of dependency, then
                    every custody order is subject the consent of the child, as to
                    its enforceability.
                            c.t. 's illogical behavior establishes that he is in need
                    of assessment and counseling that can be provided only in the
                    context ·of a controlled environment.           K.T. 's proposed solution
                    would only reward C.T. for his defiance and provide K.T. with
                    the achievement of his objectives by default.
                            K.T. further assigns error in the court r~lying on
                    findings in the concurrent custody proceeding.            However, K.T.
                    does not identify what findings the court relied upon that were
                    not substantiated in the dependency record.            The custody
                    opinion and order was entered of record without objection, and
                    was clearly relevant as it established the legal relationship
                    between the parties as to the child and the primary custodial
                    rights of H.T., as well as the basis for directing that the
                    child should not be returned to K.T. during H.T. 's custodial
                    time.     The custody proceedings provided the basis for finding
                    that    C.T.   is habitually disobedient and lacks parental control
      53RD
   JUDICIAL
   DISTRICT         by running away from H.T. and putting himself in harm's way.

AWRENCE    COUNTY
 PENNSYLVANIA
                                                             13
                                                                         Circulated 12/18/2015 03:16 PM



                         There is no error 1n considering prior litigation that
                     impacts upon the issues in a dependency proceeding.       In the
                     case of In re:E.B., 83 A.3d 426 (Pa.Super. 2013), the court
                     considered that father had a stay-away order against the
                     child's older siblings due to reports of physical abuse, that
                     father ~as in-and-out of the criminal system and currently
                     serving probation, that he had two indicated reports of
                     physical abuse against the     child's siblings and was facing
                     serious criminal charges for injuring the child's siblings.
                     The court rejected father's argument that the prior and pending
                     corol l ary proceedings did not provide evidence as to his
                     current ability to care for the child.
                          under either subsection of §6302, either (1) or (6), the
                     court has found that although K.T. is ready and willing, he is
                     not in~     position to immediately provide the proper care needed
                     by C.T. for his mental and emotional health as we are dealing
                     with a child who is exhibiting a behavioral problem, in that he
                     is continuing to run away from his custodial parent without any
                     basis or reason for so doing.     To allow this circumstance to
                     continue whereby court orders continue to provide for H.T. to
                     have primary physical custody but are simply ignored would be
                     irresponsible.     compliance with a court order should not be
                     optional.
                          The undersigned trial judge was requested by K.T. to
                     recuse himself on the theory that this court had already
                     decided the dependency issue in connection with the February
     53RD
   JUDICIAL
   DISTRICT
                     27, 2015 custody order and therefore could not be expected to

A.WRENCE    COUNTY
PENNSYLVANIA
                                                       14
                                                                 {
                                                                        Circulated 12/18/2015 03:16 PM




                     be impartial relative to addressing dependency in connection
                     with the dependency case brought under the Juvenile Act.           The
                     court knows of no authority whereby a judge must recuse himself
                     because he has decided a corollary piece of litigation and then
                     1s in the position to address other aspect of that litigation
                     ,n another procedure.     For example, a judge hearing a
                     protection from abuse proceeding and making a finding that the
                     defendant violated the protection From Abuse Act and then
                     issuing a PFA order is not conflicted from later hearing a
                     complaint for indirect criminal contempt of court brought on
                     the all8gation that the defendant violated a provision of the
                     PFA order.   similarly, in a divorce case, a judge could very
                     well make a finding in the divorce litigation that could impact
                     upon a 11arty's ability to obtain a support order in a related
                     domestic relations proceeding, but that judge would not be
                     conflicted from hearing that domestic relations proceeding even
                     though he may have made a previous ruling in the divorce case
                     that impacts upon the domestic relations proceeding.        In any
                     event, €Ven if this case were assigned to another judge, that
                     judge would be bound by the fact that a custody determination
                     had bee~ made in the custody case to the extent that the
                     custody order would impact upon the dependency proceedings.
                          Finally, K.T. has raised objections to the placement of
                     C.T. 1n these dependency proceedings.     C.T. was placed in
                     shelter care initially.     Krause shelter is a licensed shelter
                     care facility.   However, that placement was temporary pending
      53RD
    JUDICIAL
    DISTR    JCT     efforts to find a suitable foster placement for C.T.        C.T.

.AWRENCE    COUNTY
  PENNSYLVANIA
                                                       15
                 \'
                                                                                 Circulated 12/18/2015 03:16 PM




                      frustrated the efforts for placement in that when he was
                      brought to a therapist for evaluation, he objected to the
                      therapi5t because he noticed a certification on the office wall
                      of the therapist that contained the name of a former associate
                      of the therapist who C.T. believed had some familiarity with
                      H.T., and thus the therapist was not permitted to evaluate C.T.
                      Additionally, placing C.T. in foster care has been problematic
                      because ·at least two foster parents have been located who
             '.~ r
                      initially were willing to accept C.T. but then indicated their
                      reluctance to take C.T. because of the proclivity for corollary
                      1itigation to result from the relationship between the parties.
                      Presently, C.T.   is in a foster placement with an acceptable
                      foster ·Family who has indicated they would like to have C.T.
                      removed because of the non-consent of K.T. to the placement.
                      Thus at present the court has directed all parties to submit
                      na~es of potential placements, including kinship placements, to
                      be investigated by LCCYS and to be evaluated at the next
                      dispositional hearing.
                           It is correct that LCCYS has advocated that a proper
                      foster placement should not be with individuals friendly with
                      or related to K.T. or H.T. as neutrality would benefit C.T. 's
                      contemp·1ated therapies.            However, because of the conflicted
                      nature of the potential litigation that arises from this case,
                      kinship placement may be the only possible placement although
                      not the most desirable.             That issue is scheduled to be
                      address~d on the next scheduled dispositional review hearing.
      53RO
    JUDICIAL
    DISTRICT
                                         -
                                        --
                                              ~ 'L FO I ORIGl~AL
_AWRENCE    COUNTY
  PENNSYLVANIA
                                             20\5 I\UG - 5 A \~i6llS

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