In Re Sharpe ( 1977 )

HOFFMAN, Judge:

This is an appeal from a finding that James Sharpe, Jr. is a deprived child. Appellant contends that there was insufficient evidence to support that finding.¹ We affirm the order of the lower court.

On February 19, 1976, appellant brought her 28 month old son, James, to St. Christopher’s Hospital in Philadelphia, for treatment of a skin rash. After an examination by Dr. Rose Schneier, a resident in pediatrics, the child was admitted to the hospital for treatment. Dr. Schneier’s initial examination revealed that the child’s legs, arms, and abdomen were bright red with dry, flaky skin and scattered lesions. His legs were also puffy as a result of the rash. The child had an abrasion and some oozing blood at the urethra meatus.² The doctor further testified that the child exhibited remarkably poor hygiene. His hair was matted and dirty; his body was generally dirty and had a bad odor. The skin condition was diagnosed as chemical dermatitis. The child’s filthy condition was considered a possible contributing element to the child’s dermatitis with his own urine acting as the irritant.

During the child’s three week stay at St. Christopher’s Hospital, he underwent a variety of tests, one of which was a radiographic bone survey. The x-ray revealed diffuse undermineralization of the skeleton. This lack of minerals in the skeleton results in increased susceptibility to bone trauma. After determining that no bone disease was present, the doctor recommended a balanced diet accompanied by physical exercise.³ The x-rays also revealed two healing fractures involving the base of the second and third metacarpals⁴ in the right and left hands. As a result of these x-rays, the doctor contacted the Family Resources Center to report the case of suspected child abuse or neglect.

Dr. Schneier administered the Denver Developmental Test to James Sharpe. This is a standardized test used to assess the development of a child in social, verbal, fine motor and gross motor areas. Although James was 28 months old, he had only achieved the social and verbal level of a child less than one year old. Consistent with the results of this test the doctor noted that the child did not verbalize with words when he entered the hospital, but made distinctive, grunting sounds to indicate his desires. The two major causes of such a developmental lag are lack of intrinsic intellectual ability and social deprivation. Based upon the child’s social and verbal progress in the hospital during his three week stay, Dr. Schneier stated her opinion that social deprivation played a significant part in the poor results of the Denver Test.

A social worker also testified on behalf of the Department of Public Welfare (DPW). The social worker, Mrs. Cardinale, stated that she visited Mrs. Sharpe, by appointment, in her home on February 26, 1976. She stated that the home was clean and well organized. Mrs. Cardinale asked Mrs. Sharpe if she could recall when and where James had sustained an injury to his hands which could have caused the fractures. Mrs. Sharpe replied that the child had fallen out of his crib two months earlier, and bruised his hand. The mother stated that the bruise only remained for a couple of hours, then disappeared. They did not seek any treatment for the injury, nor was any treatment ever given for the fractures. When Mrs. Cardinale asked Mrs. Sharpe why she had not sought medical care for the child such as immunizations, Mrs. Sharpe replied that she did not have time.

At the end of his stay in the hospital, James was temporarily committed to a foster home. On March 1, 1976, DPW filed a petition to have James declared a deprived child. At the close of the hearing the lower court made a finding of deprivation. The court then scheduled a disposition hearing for the following week to allow DPW time to prepare a plan for the child.

At the second hearing, Mrs. Cardinale stated that the best plan would be to have the child attend the Ken-Crest Center. This Center provides a day program in which a prescriptive plan is prepared for each child. The Ken-Crest program contains a home management component which includes staff meetings with families on a weekly basis to discuss the child and develop programs for him. Transportation and hot lunches are provided. A vacancy in the program was scheduled to occur in early April. The lower court ordered that James remain in the temporary custody of DPW until the opening in the program occurred, at which time he was to be returned to his mother.

Appellant challenges the sufficiency of the evidence to support a finding of deprivation. In examining a child custody case, the scope of our review is quite broad, and while we cannot nullify the fact-finding of the hearing judge, we are not bound by a finding which has no competent evidence to support it. Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (filed March 29, 1976). “While it is true that the question of credibility in juvenile cases, as in all other cases, is for the judge hearing the case to decide, Commonwealth ex rel. Meta v. Cinello, 218 Pa.Super. 371, 280 A.2d 420 (1971), the record of the proceeding before the juvenile court must be legally and factually adequate to sustain the findings of fact and the order of the court. A record lacking such legal or factual basis requires á reversal. See In re Weintraub, 166 Pa.Super. 342, 71 A.2d 823 (1950).” Helman Appeals, 230 Pa.Super. 484, 491-492, 327 A.2d 163, 167.(1974).

The Juvenile Act⁵ defines a deprived child as one who: “(i) 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; . . . ” The Commonwealth must prove deprivation; and the standard of proof is mandated by the statute: “If the court finds from clear and convincing evidence that the child is deprived, the court shall proceed immediately or at a postponed hearing to make a proper disposition of the case.”⁶ Thus, the court may not take a child from the parents against their will except upon a showing by clear and convincing evidence that the child is deprived. As stated in Rinker Appeal, 180 Pa.Super. 143, 148, 117 A.2d 780, 783 (1955), “[i]t is a serious matter for the long arm of the state to reach into a home and snatch a child from its mother. It is a power which a government dedicated to freedom for the individual should exercise with extreme care, and only where the evidence clearly establishes its necessity. Yet, of course, there are cases where such authority must be exercised for the protection and welfare of children.”

The lower court found clear and convincing evidence that James Sharpe was deprived. A review of all the evidence indicates that it was correct. The child exhibited severe chemical dermatitis upon his admission to St. Christopher’s Hospital and his own filthy condition was a possible cause. He also had an unexplained abrasion and oozing blood at the urethra meatus. X-rays revealed two healing fractures of the base metacarpals of both the right and left hands of the child. Appellant offered no plausible explanation for the cause of these injuries or for her failure to seek treatment for them. The x-rays further revealed an under-mineralization of the child’s skeleton. Treatment consisted of providing the child with good nutrition and freedom of movement.

Additionally, the child could not communicate with words and his social and verbal developmental level was equivalent to that of a child of less than one year of age, whereas his chronological age was 28 months. In the doctor’s opinion, this lag was a result of social deprivation. Appellant offered no explanation for the child’s developmental lag. She stated that she did not think it unusual that her 28-month-old son could not talk. It is clear that the evidence at trial amply supports the lower court’s finding of deprivation.

After the finding of deprivation, the lower court proceeded to a disposition hearing the following week. The Juvenile Act provides that once a finding of deprivation has been made, “the court may make any of the following orders of disposition best suited to the 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. . . . ”⁷ Case law makes it clear that at a disposition hearing, after a finding of deprivation, the court should appraise the evidence according to the disposition best suited to the child’s needs. Matter of De Savage, 241 Pa.Super. 174, 360 A.2d 237 (1976); Stapleton v. Dauphin Co. Child Care Service, 228 Pa.Super. 371, 324 A.2d 562 (1974).

In the instant case, the lower court determined that the child should remain with his mother, provided that he enter the Ken-Crest Center day care program. The lower court indicated that Mrs. Sharpe could not immediately regain custody of her child because she needed expert assistance to enable her to learn how to care properly for James. In this program specialists in child care and development will work with James and appellant. The staff will endeavor to teach appellant how to care for James. The Center will also provide an individualized prescriptive program for James to enable him to develop more quickly. The lower court clearly considered the needs of the child in its placement order.

Order affirmed.⁸

PRICE, J., concurs in the result. SPAETH, J., files a concurring and dissenting opinion in which CERCONE, J., joins.

1 . Appellant also contends that the Juvenile Act of December 6, 1972, P.L. 1464, No. 333, § 2; 11 P.S. § 50-102(4), is unconstitutional. Because appellant did not raise this issue in the lower court, we will not consider it on appeal. Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975).

2 . The opening of the urethra on the penis.

3 . Lack of mobility is a cause of undermineralization.

4 . Metacarpal bones are those that separate the wrist from the fingers.

5 . The Juvenile Act, Act of Dec. 6, 1972, P.L. 1464, No. 333, § 2, eff. in 60 days; 11 P.S. § 50-102.

6 . The Juvenile Act, supra; 11 P.S. § 50-320(c).

7 . The Juvenile Act, supra; 11 P.S. § 50-321(a)(l).

8 . We affirm only that part of the lower court’s order which held that James Sharpe is a deprived child.