In the Interest of: C.T., a minor, Appeal of: K.T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 Super. 2015) (unpublished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).

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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).

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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

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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

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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.

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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.

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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.

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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

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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.

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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.

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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.

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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.

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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

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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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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

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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

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o o ri ~- un r1 F~K

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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

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DISTRICT issued by the super-i or court, which denied the stay and

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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

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DISTRICT awarding primary ~hysica1 custody and sole. legal custody to

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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

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never threatened c.~:, and that the explanation of H.T. as to

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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

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judge.

JUDICIAL

DISTRICT

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PENNSYLVANIA

HELE~ LMORGAH

IQRA AND CLER~.

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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

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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

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,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.

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JUDICIAL

DISTRICT was placed in shelter care. On April 6, 2015 an ex parte order

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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.

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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

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PENNSYLVANIA

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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

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DISTRICT

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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

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PENNSYLVANIA

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§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

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JUDICIAL

DISTRICT by running away from H.T. and putting himself in harm's way.

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PENNSYLVANIA

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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

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JUDICIAL

DISTRICT

27, 2015 custody order and therefore could not be expected to

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PENNSYLVANIA

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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.

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PENNSYLVANIA

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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

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~ 'L FO I ORIGl~AL

_AWRENCE COUNTY

PENNSYLVANIA

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