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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________


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,

____________________________________________


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

____________________________________________


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
____________________________________________


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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