The opinion
J-A07042-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.Z., A MINOR, IN THE SUPERIOR COURT OF
DATE OF BIRTH 2/18/2010 PENNSYLVANIA
APPEAL OF: Y.Z.
No. 1038 WDA 2015
Appeal from the Order June 4, 2015
In the Court of Common Pleas of Allegheny County
Family Court at No(s): CP-02-DP-0000147-2015
IN THE INTEREST OF: A.Z., A MINOR, IN THE SUPERIOR COURT OF
DATE OF BIRTH 2/18/2010 PENNSYLVANIA
APPEAL OF: Y.Z.
No. 1082 WDA 2015
Appeal from the Order July 6, 2015
In the Court of Common Pleas of Allegheny County
Family Court at No(s): CP-02-DP-0000147-2015
FID: 02-FN-093066-2010
BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED APRIL 25, 2016
J-A07042-16
Appellant Y.Z. (“Mother”) appeals from the orders entered in the
Allegheny County Court of Common Pleas on June 4, 20151 and on July 6,
2015.2 We affirm.
The relevant facts and procedural history of this appeal are as follows.
Mother and Child’s natural father (“Father”) were married twice. Child was
born on February 18, 2010, during the couple’s second marriage, and Father
filed a complaint for divorce and custody on July 17, 2013. Mother obtained
a Protection From Abuse Order (“PFA”) against Father on July 19, 2013.
On June 17, 2014, Father filed a complaint for partial custody, which
Mother opposed, claiming Father was a gambling addict, drug user and
pornography viewer.3 On June 30, 2014, the court awarded Father partial
physical custody of Child. On August 5, 2014, Father filed a complaint for
primary custody, which Mother opposed by filing a motion to limit Father’s
custody to supervised visits, alleging he was grooming Child for sexual
abuse. Mother attempted to file another PFA against Father. On January
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1
This order adjudicated minor A.Z. (“Child”) dependent and gave primary
physical custody of Child to Mother. The appeal is docketed at 1038 WDA
2015.
2
This order gave primary physical custody of Child to Father, and the appeal
is docketed at 1082 WDA 2015. The appeals were consolidated.
3
Results of Father’s consequential drug tests were negative. Mother’s later
accusations that Father was viewing child pornography led to a search of his
computer, which did not show any child pornography.
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15, 2015, Mother requested that the court limit Father’s time alleging sexual
abuse, and the court denied the request.
On January 23, 2015, Children, Youth and Families (“CYF”) filed a
dependency petition which alleged there had been several reports of sexual
maltreatment of Child, which Child denied, and that the continuing
examinations, which did not show signs of abuse, placed pressure on Child
and presented a concern for his ability to function in the family.4
On February 19, 2015, the court continued the dependency petition for
a hearing scheduled on April 30, 2015. On March 19, 2015, Child’s guardian
ad litem (“GAL”) filed a motion for supervised visitation with Father due to
allegations of sexual abuse, which the court denied the next day.
On March 23, 2015, CYS filed an application for emergency protective
custody, and the court ordered Father to undergo a psychological risk
assessment and ordered Child to be evaluated by the Center for Traumatic
Stress.
On April 7, 2015, CYS filed another petition for dependency, which
alleged 7 reports were made to CYS, the last of which was by Mother’s
therapist, who said Mother played a cellphone recording of Child singing,
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4
Mother continued to take Child to the hospital and told workers on two
occasions that Child told her Father had put a flashlight or similar object in
his “tushy.” Examinations revealed a very small abrasion that was
consistent with constipation, diarrhea, or poor hygiene. None of the
examinations revealed signs of sexual abuse.
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then saying he did not want to see his father because he sprays him in the
face and he doesn’t like it.
The court conducted a hearing. Child’s teacher, Melissa Sevimli,
testified Child told her that Father “asks me to put his pee pee in my
mouth,” then told the teacher Mother “is going to be so happy because she
really likes it when I tell people this. And she said that I only have to tell
people a little bit longer.” N.T., 5/21/2015, at 115-116. She also testified
that Child had a good relationship with Father, who came into the school
sometimes, that Mother would often say inappropriate things about Father
while dropping Child off at school, and that Mother seemed to think the
school was conspiring against her. She testified that Child seemed happier
after spending time with Father and more withdrawn after spending time
with Mother. Id. at 115-156.
Dr. Annie Preis testified that Child had disclosed to her sexual abuse,
but she did not think Child was being abused by Father. Rather, she thought
that Child wanted to please his parents. Dr. Preis did not think Child was in
any danger if permitted to be alone with Father. N.T., 5/21/2015, at 50-
113.
Psychologist Anthony McGroarty testified that Mother believed Father
was abusing Child but opined that he had concerns Mother’s interpretation of
certain behaviors as sexualized gave rise to fear of sexual abuse. He
thought Mother could be experiencing delusion, misperceptions, or could be
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expressing the influence of emotions overriding reality. N.T., 6/4/2015, at
66-67. He also testified that Mother had an unusual reaction when Child did
not disclose Father’s alleged abuse at an interview; she was panicked
instead of relieved. Id. at 70.
Other teachers and doctors testified, and there was a recording of
Father asking Child why he was saying all of these bad things about him
when they were not true. The Child responded that he wanted to make
Mother happy.
On June 4, 2015, after the hearing, the court adjudicated Child
dependent, granted legal custody to CYS, granted physical custody to
Mother, granted Father visitation, ordered all parties to go to therapy, and
ordered Child to be registered for summer camp.
On July 3, 2015, CYS filed another “Shelter Care Application” petition,
alleging Mother had again taken Child to hospital, and was subjecting Child
to ongoing emotional turmoil. On July 6, 2015, after a shelter care hearing,
the court granted CYS’s petition and amended the shelter care order such
that Father now had physical custody of Child and Mother had supervised
visitation. The court ordered evaluations of all parties.
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Mother filed timely notices of appeal to both orders,5 and both Mother
and the trial court complied with Pa.R.A.P. 1925.6
Mother raises the following issues for our review:
I. WHETHER THE [TRIAL] COURT ERRED AS A MATTER OF
LAW AND ABUSED ITS DISCRETION IN FINDING THAT
THERE WAS CLEAR AND CONVINCING EVIDENCE TO
ADJUDICATE THE CHILD DEPENDENT PURSUANT TO 42
PA.C.S. § 6302(1)?
II. WHETHER THE [TRIAL] COURT ERRED AS A MATTER OF
LAW AND ABUSED ITS DISCRETION IN ADJUDICATING
THE CHILD DEPENDENT WHEN MOTHER IS A READY,
WILLING, AND ABLE PARENT?
III. WHETHER THE [TRIAL] COURT ERRED AS A MATTER
OF LAW AND ABUSED ITS DISCRETION IN FINDING THAT
[CYF] USED REASONABLE EFFORTS TO PREVENT THE
NECESSITY OF PLACEMENT OUTSIDE OF THE CHILD’S
HOME WITH MOTHER, IN FINDING THAT IT WAS IN THE
BEST INTEREST OF THE CHILD TO REMOVE THE CHILD
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5
Mother filed a notice of appeal of the June 4, 2015 order on July 6, 2015,
which was a Monday; thus, the appeal was timely. See 1 Pa.C.S. § 1908
(“Whenever the last day of any such period shall fall on Saturday or Sunday,
…such day shall be omitted from the computation.”). Mother filed a notice of
appeal of the July 6, 2015 order on July 21, 2015.
6
On July 6, 2015, Mother filed a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(a)(i) and (b) regarding her appeal of
the June 4, 2015 order. Regarding her appeal of the July 6, 2015 order,
Mother filed a Pa.R.A.P. 1925(b) statement on July 17, 2015 and an
amended Pa.R.A.P. 1925(b) statement on August 3, 2015. On August 5,
2015, the trial court issued a Pa.R.A.P. 1925(a) opinion (“Pa.R.A.P. 1925(a)
Opinion # 1”) to address Mother’s Pa.R.A.P. 1925(b) statement regarding
the June 4, 2015 appeal. On August 25, 2015, the trial court issued another
Pa.R.A.P. 1925(a) opinion (“Pa.R.A.P. 1925(a) Opinion # 2”) to address
Mother’s Pa.R.A.P. 1925(b) statement and her amended statement regarding
the July 6, 2015 order.
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FROM MOTHER’S HOME AND IT WAS CONTRARY TO THE
WELFARE OF THE CHILD TO REMAIN IN MOTHER’S HOME?
IV. WHETHER THE [TRIAL] COURT ERRED AS A MATTER
OF LAW AND ABUSED ITS DISCRETION IN FINDING THAT
THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE
SHELTER CARE APPLICATION AND IN MODIFYING THE
CHILD’S PLACEMENT AND PLACING THE CHILD WITH
FATHER?
V. WHETHER THE [TRIAL] COURT ERRED AS A MATTER OF
LAW AND ABUSED ITS DISCRETION IN NOT PROCEEDING
UNDER RULE 1606 OF THE RULES OF JUVENILE
PROCEDURE, MODIFICATION OF A DEPENDENT CHILD’S
PLACEMENT AND INSTEAD IN OPERATING UNDER THE
EMERGENCY CARE AND SHELTER CARE PROVISIONS OF
THE RULES OF JUVENILE PROCEDURE?
VI. WHETHER THE [TRIAL] COURT ERRED AS A MATTER
OF LAW AND ABUSED ITS DISCRETION IN FAILING TO
USE THE CLEAR NECESSITY STANDARD BEFORE
REMOVING THE DEPENDENT CHILD FROM MOTHER’S
HOME?
Mother’s Brief at 8-9.7
In her first two issues, Mother challenges the court’s discretion in
adjudicating Child dependent. She claims that she is a ready, willing, and
able parent, and that this should have been a custody case as opposed to a
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7
Elliot J. Schuchardt, Esq. filed an amicus brief in support of Mother. An
interested party may file an amicus curiae brief concerning questions before
an appellate court, however, he must accept the case before the court and
cannot inject new issues into a case which have not been presented by the
parties. See All. Home of Carlisle, PA v. Bd. of Assessment Appeals,
919 A.2d 206, 228 (Pa.2007). The amicus brief forwards similar arguments
to those offered by Mother. To the extent the amicus brief injects new
issues, which have not been presented by the parties, we will not address
those arguments.
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dependency case. She claims that failure to comply with court-ordered
therapy does not warrant a finding of dependency by clear and convincing
evidence, and that the trial court erred by adjudicating Child dependent. We
disagree.
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 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 N.A., 116 A.3d 1144, 1148 (Pa.Super.2015), appeal denied, 117 A.3d
298 (Pa.2015) (quoting In the Matter of C.R.S., 696 A.2d 840, 843
(Pa.Super.1997)).
To adjudicate a child dependent, a court must abide by the following
statute:
§ 6341. Adjudication
(a) General rule.--After hearing the evidence on the
petition the court shall make and file its findings as to
whether the child is a dependent child. … If the court finds
that the child is not a dependent child or that the
allegations of delinquency have not been established it
shall dismiss the petition and order the child discharged
from any detention or other restriction theretofore ordered
in the proceeding….
* * *
(c) Finding of dependency.--If the court finds from clear
and convincing evidence that the child is dependent, the
court shall proceed immediately or at a postponed hearing,
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which shall occur not later than 20 days after adjudication
if the child has been removed from his home, to make a
proper disposition of the case.
42 Pa.C.S. § 6341.
A dependent child is defined statutorily as one who:
(1) is without proper parental care or control, subsistence,
education as required by law, or other care or control
necessary for his physical, mental, or emotional health, or
morals. A determination that there is a lack of proper
parental care or control may be based upon evidence of
conduct by the parent, guardian or other custodian that
places the health, safety or welfare of the child at risk,
including evidence of the parent’s, guardian’s or other
custodian’s use of alcohol or a controlled substance that
places the health, safety or welfare of the child at risk[.]
42 Pa.C.S. § 6302.
Further, we observe:
A determination that there is a lack of proper parental care
or control may be based upon evidence of conduct by the
parent, guardian, or other custodian that places the health,
safety or welfare of the child at risk. The question of
whether a child is lacking proper parental care and control
so as to be a dependent child encompasses two discrete
questions: whether the child presently is without proper
care and control, and if so, whether such care and control
are immediately available.
In re M.W., 842 A.2d 425, 428 (Pa.Super.2004) (internal quotations and
citations omitted).
If a court finds by clear and convincing evidence that a child is
dependent, a court may
make an appropriate disposition of the child to
protect the child’s physical, mental and moral
welfare, including allowing the child to remain with
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the parents subject to supervision, transferring
temporary legal custody to a relative or a private or
public agency, or transferring custody to the juvenile
court of another state. 42 Pa.C.S.[] § 6341(a).
In re E.B., 898 A.2d 1108, 1112-13 (Pa.Super.2006) (citation omitted).
Here, in adjudicating Child dependent, the trial court reasoned:
In this case, I found that CYF met its burden of showing by
clear and convincing evidence that Child’s welfare was at
risk based on the conduct of Mother. I found that the
repeated emergency room visits and forensic examinations
were placing unwarranted and damaging psychological
stress on Child and that this was compounded by the
failure of either parent to get Child into therapy. Because
Child was not receiving individual therapy so that we could
get to the truth of what was occurring in his life, there was
no way to know if the allegations being made had any
basis. We could not determine based on the examinations
alone, whether the disclosures made by Child were real,
were imagined, or were procured by Mother.
Notably, despite making allegations of very serious abuse
being perpetrated on Child, Mother did not engage a
therapist for Child and, in fact, declined to seek therapy for
the child after her pediatrician, Dr. Lidia Comini-Turzai,
suggested it. (6/4/2015 TR p. 12, 17).
Dr. McGroarty’s testimony was especially illuminating to
me, when he referred to the Child as “one of the most
oppositional children we’ve had in the office ever actually.”
(6/4/2015 TR p. 60). With his range of experience,
examining children from extremely dysfunctional families,
this testimony was quite convincing that Child was not
being appropriately parented. Dr. McGroarty’s testimony
regarding Mother’s atypical reaction to being told that
Child did not disclose abuse during the AFA interview was,
likewise, illuminative as to Mother’s state of mind.
(6/4/2015 TR p. 69 -70)[.]
Dr. Preis’s testimony was also especially compelling. She
expressed her concern that the Child was being placed
under an immense amount of pressure, that he was
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conflicted and that the parents did not set any limits on
him. (5/21/15 TR p. 53-56)[.] She also testified regarding
her review of the Three Rivers Adoption Council report as
follows: “I think that there are real concerns that the
allegations are not real, that [Child] is trying to please the
parents.” (5/21/15 TR p. 61)[.]
I found, based on all of the testimony and evidence
presented to me, that Child was without proper parental
care or control.
…Here, I found that Child’s intellectual and moral well-
being was indeed in jeopardy.
I agreed with CYF that first, the repeated medical
examinations and interviews, as well as the numerous PFA
filings, threatened Child’s mental safety and that, second,
the Parties’ inability to find a solution did so, too. Every
professional who testified noted Child’s comfort with his
Father, but also noted Child’s conflicted feelings. All the
evidence before me pointed to a child who loved and felt
safe with both parents but who was being torn apart by
Mother’s suspicions regarding Father and her conduct
arising from those suspicions, as well as the parties’
inability to find a way to cope with the issues at hand.
Father may have made some inappropriate parenting
decisions; hence the referral to therapy, but no evidence
sustained a finding that there was sexual maltreatment by
Father.
Despite finding [Child] to be a dependent child on June 4,
2015, I did not remove him from Mother’s custody, nor
from Father’s care. I found the adjudication necessary for
the reasons asserted by CYF. These parents failed to get
Child the therapeutic help he needed without CYF
involvement. Mother’s conduct placed the Child in
jeopardy, and that conduct was escalating. Transferring
legal custody to CYF and continuing Agency involvement is
the only way to ensure that the escalation of the sexual
abuse allegations stops and the parents would continue to
get Child the help he needs.
As Child was without proper parental care and was being
placed at risk by that lack of proper care, it was proper to
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adjudicate him dependent. That adjudication should be
affirmed.
Pa.R.A.P. 1925(a) Opinion # 1 at 12-14. The trial court’s findings are
supported by competent evidence, and it properly determined Child was
presently without proper care and control. Further, because Mother was
habitually taking Child to the hospital to be examined and refusing to get
him therapy, and because Father was being investigated by Childline for
possible sexual abuse of Child, the trial court properly determined that such
proper care and control was not immediately available. Thus, Mother’s first
two issues merit no relief.
In her remaining issues, Mother argues the court erred in removing
Child from Mother and placing Child with Father. She avers Child should
have only been removed from her if it was clearly necessary for his well-
being and that this could not have been found unless the record had
demonstrated that every reasonable effort had been made to keep the
family together. She claims that placing Child with Father is inappropriate in
light of disclosures of abuse, especially when no professionals advocated for
Child’s placement with Father. Further, she claims the trial court should have
proceeded under Juvenile Rule 1606, Modification of a Dependent Child’s
placement and that the court erred by proceeding under Rule 1240.
Mother’s issues merit no relief.
As discussed previously, the court properly adjudicated Child
dependent.
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If the court concludes that a child is dependent, then, and
only then, can it proceed to address custody issues and
make a disposition of the case consistent with the best
interests of the child. 42 Pa.C.S.[] §§ 6341(a) & (c),
6351(a); see In re A.E., 722 A.2d 213, 215
(Pa.Super.1998) (citing Helsel v. Blair County Children
& Youth Servs., 519 A.2d 456, 461 ([Pa.Super.]1986) for
the proposition that “a dependency determination is a
prerequisite to a disposition of the custody issue”); In re
Michael Y., 530 A.2d 115, 118 ([Pa.Super.]1987) (stating
that an adjudication of dependency and a disposition based
on best interests of the child represent a two-stage
process).
In re L.C., II, 900 A.2d 378, 381 (Pa.Super.2006).
The disposition of a child adjudicated dependent is governed by section
6351 of the Juvenile Act, which provides, in relevant part:
(a) General rule.--If the child is found to be a dependent
child the court may make any of the following orders of
disposition best suited to the safety, protection and
physical, mental, and moral welfare of the child:
(1) Permit the child to remain with his parents,
guardian, or other custodian, subject to conditions and
limitations as the court prescribes, including supervision
as directed by the court for the protection of the child.
(2) Subject to conditions and limitations as the court
prescribes transfer temporary legal custody to any of
the following:
(i) Any individual resident within or without this
Commonwealth, including any relative, who, after
study by the probation officer or other person or
agency designated by the court, is found by the
court to be qualified to receive and care for the child.
(ii) An agency or other private organization licensed
or otherwise authorized by law to receive and
provide care for the child.
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(iii) A public agency authorized by law to receive and
provide care for the child.
(2.1) Subject to conditions and limitations as the court
prescribes, transfer permanent legal custody to an
individual resident in or outside this Commonwealth,
including any relative, who, after study by the probation
officer or other person or agency designated by the
court, is found by the court to be qualified to receive
and care for the child. A court order under this
paragraph may set forth the temporary visitation rights
of the parents. The court shall refer issues related to
support and continuing visitation by the parent to the
section of the court of common pleas that regularly
determines support and visitation.
42 Pa.C.S. § 6351(a).
Additionally, the trial court is required to make the following
preplacement findings:
(b) Required preplacement findings.-- Prior to entering
any order of disposition under subsection (a) that would
remove a dependent child from his home, the court shall
enter findings on the record or in the order of court as
follows:
(1) that continuation of the child in his home would be
contrary to the welfare, safety, or health of the child;
(2) whether reasonable efforts were made prior to the
placement of the child to prevent or eliminate the need
for removal of the child from his home, if the child has
remained in his home pending such disposition; or
(3) if preventive services were not offered due to the
necessity for an emergency placement, whether such
lack of services was reasonable under the
circumstances; or
(4) if the court has previously determined…that
reasonable efforts were not made to prevent the initial
removal of the child from his home, whether reasonable
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efforts are under way to make it possible for the child to
return home; or
(5) if the child has a sibling who is subject to removal
from his home, whether reasonable efforts were made
prior to the placement of the child to place the siblings
together or whether such joint placement is contrary to
the safety or well-being of the child or sibling.
The court shall not enter findings under paragraph (2), (3)
or (4) if the court previously determined that aggravated
circumstances exist and no new or additional reasonable
efforts to prevent or eliminate the need for removing the
child from the home or to preserve and reunify the family
are required.
42 Pa.C.S. § 6351(b).
Regarding whether a child should be removed from parental custody,
this Court has stated:
The law is clear that a child should be removed from her
parent’s custody and placed in the custody of a state
agency only upon a showing that removal is clearly
necessary for the child’s well-being. In addition, this
[C]ourt had held that clear necessity for removal is not
shown until the hearing court determines that alternative
services that would enable the child to remain with her
family are unfeasible.
In addition, this Court has stated: “It is not for this Court,
but for the trial court as fact finder, to determine whether
a child’s removal from her family was clearly necessary.”
In re S.S., 651 A.2d 174, 177 ([Pa.Super.]1994).
In re A.B., 63 A.3d 345, 349-50 (Pa.Super.2013) (some internal citations
omitted).
At each review hearing for a dependent child who has been
removed from the parental home, the court must consider
the following, statutorily-mandated factors:
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the continuing necessity for and appropriateness of
the placement; the extent of compliance with the
service plan developed for the child; the extent of
progress made towards alleviating the circumstances
which necessitated the original placement; the
appropriateness and feasibility of the current
placement goal for the child; and, a likely date by
which the goal for the child might be achieved.
In re J.H., 788 A.2d 1006, 1008 (Pa.Super.2001) (citing
42 Pa.C.S.A. § 6351(f)) (other citations omitted). Matters
of custody and placement for a dependent child must be
decided under the standard of the child's best interests,
not those of his or her parents. G.P.-R, supra at 973.
When the child welfare agency has made reasonable
efforts to return a foster child to his or her biological
parent, but those efforts have failed, then the agency must
redirect its efforts towards placing the child in an adoptive
home. Id.
In re N.C., 909 A.2d 818, 823 (Pa.Super.2006) (emphasis in original).
Mother claims that CYS and the trial court erred by failing to abide by
the following regulation:
§ 1606. Modification of Dependent Child’s
Placement.
A. County agency’s duties.
1) Emergencies.
a) Only in an emergency when a judge cannot be
reached, a child may be placed temporarily in a
shelter care facility or other appropriate care.
b) The county agency immediately shall notify the
court and all parties of any change made due to the
emergency.
c) The county agency shall file a motion or
stipulation for modification of the dispositional order
by the next business day of the child’s placement in
a shelter care facility or other appropriate care.
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2) Non-emergent cases. In all other cases, the county
agency shall seek approval of the court for a change in
the child’s placement prior to the removal of the child
from the placement by the filing of a motion or a
stipulation for modification of the dispositional order.
B. Contents of the motion. The motion for modification of
the dispositional order shall include:
1) the specific reasons for the necessity of change to
the order;
2) the proposed placement;
3) the current location of the child;
4) the manner in which any educational, health care,
and disability needs of the child will be addressed;
5) an averment as to whether each party concurs or
objects to the proposal, including the child's wishes if
ascertainable; and
6) the signatures of all the parties.
C. Objections. If a party objects to proposed modification
of the dispositional order, the objections shall be filed no
later than three days after the filing of the motion for
modification of the child’s placement.
D. Court's duties. Once the county agency has requested
approval from the court to modify a child’s placement or
after an emergency change in placement has already taken
place, the court may:
1) schedule a prompt hearing to determine whether
there will be a modification of the child’s placement;
2) enter an appropriate order to modify the child’s
placement; or
3) enter an order denying the motion.
237 Pa. Code § 1606.
Instead of filing a motion for modification, CYS filed a shelter care
application.
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Rule 1240. Shelter Care Application
A. Filings. A shelter care application may be oral or in
writing. If oral, within twenty-four hours of exercising
protective custody pursuant to Rule 1210, the county
agency shall file a written shelter care application.
B. Application contents. Every shelter care application
shall set forth:
(1) the name of the applicant;
(2) the name, date of birth, and address of the child, if
known;
(3) the name and address of the child’s guardian, or if
unknown, the name and address of the nearest adult
relative;
(4) the date that the child was taken into custody;
(5) a concise statement of facts in support of the
allegation of dependency;
(6) a statement detailing family finding efforts and:
(a) the reasonable efforts made to prevent
placements; and
(b) why there are no less restrictive alternatives
available;
(7) a verification by the applicant that the facts set
forth in the petition are true and correct to the
applicant’s personal knowledge, information, or belief,
and that any false statements are subject to the
penalties of the Crimes Code, 18 Pa.C.S. § 4904,
relating to unsworn falsification to authorities;
(8) the signature of the applicant and the date of the
execution of the application; and
(9) the whereabouts of the child unless the county
agency has determined it would pose a risk to the
safety of the child or the guardian, or disclosure is
prohibited by the court.
Pa.R.J.C.P. 1240.
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Here, the trial court properly adjudicated Child dependent, gave
primary physical custody of Child to Mother, and ordered all parties to go to
therapy on June 4, 2015. On July 3, 2015, after Mother took Child again to
the hospital alleging sexual abuse, CYS filed an emergency custody
authorization and a shelter care application, and the court placed Child with
a relative until the shelter hearing. In granting the petition, after a shelter
care hearing, and placing Child with Father, the trial court reasoned:
Mother complains…that I did not follow the directives of
Rule 1606 concerning changing the placement of Child.
Child was removed on an emergency basis and placed with
Mother’s cousin. Child could have remained there until the
Childline investigations were concluded but for Cousin’s
refusal to continue that custodial arrangement. One of the
goals of the Act is to avoid unnecessary trauma to
children. Once the cousin was no longer a viable option, I
chose not to cause additional trauma to Child by placing
him with a stranger. I, instead, placed him with Father,
who I am convinced poses no danger to Child.
Mother argues it was error to operate under the
emergency care and shelter provisions. I disagree. Child
is at a formative time in his life. He is being subjected to
repeated anal examinations by strangers and being
subjected to the unfounded belief that one of his parents is
evil. As this behavior was continuing to escalate despite
all efforts, emergency removal was not only appropriate
but necessary to protect Child from further harm.
* * *
The open Childline investigation of Father is one which was
instituted as a result of Mother, yet again, taking Child to
the emergency room on June 29, 2015 and alleging sexual
abuse. This Childline [investigation] is based on allegations
no different than the others which have previously resulted
in the investigations being closed as unfounded.
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Because the only reason CYF opposed placement with
Father was the existence of an uninvestigated Childline
(7/6/2015 TR. p 39, 43), I found placement with Father,
with services in place, to be the most appropriate course of
action. I requested that the Childline investigations be
expedited. (7/6/2015 TR. p 43, 81, 82)[.]
Mother complains that I ordered her custody to be
supervised. At the hearing, she objected to the supervision
because she has not been accused of sexually abusing the
Child. She misunderstands that the primary purpose of the
supervision is to supervise the communications between
herself and Child. (7/6/2015 TR. p 127-128)[.] Mother is
corrupting this Child and the only way to stop that abuse is
to prevent her from making suggestions to him.
Mother also stated her belief that the “whole basis” of the
July 2, 2015 Childline [investigation] was that it stated
that there had been ten emergency room visits, when in
fact there had only been five. (7/6/2015 TR. p 59-62, 93-
95)[.] This demonstrates that she completely lacks
understanding of the harm she is causing Child[.]
Mother is using repetitive accusations of abuse to keep
Child from Father, whether she is consciously aware of it
or not. As there is no evidence that Father has abused
Child and Father has numerous services to observe and
assist him, placement with Father was the least traumatic
step I could take.
I cannot speculate on the cause of or the treatment for
what I believe to be Mother’s issues. It is my sincere hope
that she gets the appropriate therapy and treatment to
allow more time with her Child. But my role is to protect
that Child in the least intrusive and traumatic way I can.
To that end, I removed Child from Mother and placed Child
with Father.
* * *
I adjudicated Child dependent because I found him to be
at risk by being without proper parental care. By
continuing to escalate her unfounded allegations, I found
Mother was placing Child in imminent danger of harm. It
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was, therefore, proper to remove him from her care. As
Father poses no threat to Child’s safety, placement with
him was appropriate. As it turns out, Child has already
greatly benefited from that placement. My decision should
be affirmed.
Pa.R.A.P. 1925(a) Opinion # 2 at 13-14, 18-20.
After listening to CYS’s recommendations as well as testimony from
Mother and Father, the court decided Father should have physical custody
and Mother should have supervised visitation.
The court considered the appropriateness of the current placement
with Mother and determined it was detrimental to Child. The court noted
Mother had not complied with taking Child for evaluations and that she was
still taking him to the emergency room and alleging sexual abuse. Efforts to
keep Child with Mother failed, and it was in the best interest of Child to
remain with Father, who provided a stable environment. See In re N.C.,
supra.
The trial court complied with the mandates of the Juvenile Act in order
to protect the best interest of Child. Further, it found it was clearly
necessary to remove Child from Mother to protect Child. Competent
evidence supports the court’s findings, and the court did not abuse its
discretion.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/25/2016
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