DocketNumber： 1913
Citation Numbers： 402 A.2d 1037, 265 Pa. Super. 605, 1979 Pa. Super. LEXIS 2163
Judges： Jacobs, Hoffman, Cer-Cone, Price, Van Voort, Spaeth, Hester
Filed Date： 5/4/1979
Status： Precedential
Modified Date： 11/13/2024
This is an appeal from an order of the Common Pleas Court of Lehigh County adjudicating Paul and Edward Kunkle deprived; removing them from their home; and giving custody to the Lehigh County Children’s Bureau.
The Deprivation Hearing was held on May 16, 1977, and on May 25, 1977, the court adjudicated Paul and Edward Kunkle deprived and placed them in custody of the Lehigh County Children’s Bureau. This appeal followed.
Appellants’ first contention is that the evidence presented below was insufficient to sustain a finding of deprivation within the meaning of the Juvenile Act, December 6, 1972, P.L. 1464 # 333, § 1, 11 P.S. § 50-101, et seq.
In order to adjudicate Paul and Edward Kunkle “deprived”, the hearing judge had to find from “clear and convincing” evidence that the children were “without proper parental care or control, subsistence, education as required by law, or other care or control necessary for [their] physical, mental or emotional health or morals.” The Juvenile Act, supra, at § 50-320(c), § 50-102(4)(i).
In reviewing the disposition below, we must always give great weight to the operation of the trial court, who has had an opportunity to observe and hear witnesses and thus judge credibility; in addition, talking to the children involved. Clair Appeal, 219 Pa. Super. 436, 281 A.2d 726 (1971). But, granting that we cannot substitute ourselves as fact finder in place of the hearing judge, we are not bound by a finding which has no competent evidence to support it. Commonwealth ex rel. Morales v. Morales, 222 Pa.Super. 373, 294 A.2d 782 (1972).
A review of the record indicates that there was more than sufficient credible evidence to sustain the finding that the Kunkle children were “deprived”. In support of his adjudication, the court initially stated:
The presence of innumerable animals and their accompanying odors, the constant smell of urine and the stench arising from open garbage all over the kitchen and floor caused Allentown Police Juvenile Officer Joan Hausman*608 and others to characterize this home a health hazard. The apartment is also cluttered and disarrayed by the presence of clothing, dirty pots and dishes and open food. A general absence of scrubbing, vacuuming and cleaning inure to the detriment of the occupants. (Lower Court Opinion, pages 2 and 3)
The Kunkles were no strangers to the Lehigh County Children’s Bureau. Two of their older children had been removed from the home prior to this proceeding. Dianne Avila was the case worker assigned to work with the Kunkles since January, 1977. She went to the Kunkle apartment on April 20, April 22 and April 25, 1977. Her function was to pick up an older daughter, Geraldine, and remove her for placement in other surroundings. She testified that the home was in a deplorable condition; dishes, clothing, garbage all over the place plus a terrible odor (T. 4, 5). She further stated:
Q And you are saying you could smell it from the first floor?
A Yes.
Q All right. What happened then?
A I went up to the apartment and Mrs. Kunkle was out on the balcony and I asked if we could go inside and she said yes, and we went in through the kitchen. The kitchen was in complete disarray. It appeared as if every dish and pot and pan had been used and had just been left. There was no attempt to wash the dishes or clean up the aftermath of the meal preparation for quite a few days. It was just piled up everywhere and there were bags of garbage sitting around; pots; dirty pots sitting on the stove. They appeared to have been sitting there—
Q Was this true of the kitchen or were there any other rooms — did you look at the bedrooms in the apartment, for instance?
A Yes. I looked at the entire apartment.
Q What were the bedrooms like? Will you tell us about that?
*609 A Well, there was clutter throughout the entire apartment; clothing strewn everywhere. Mrs. Kunkle was in the process of cleaning out one closet in one bedroom and that may have accounted for some of the clutter in that particular bedroom. There was a urine odor coming from the bedrooms and also a urine odor coming from the bathroom. (T. 7)
Q All right. And you say that was from the bathrooms and bedrooms.
A Right. It smelled as if perhaps someone had been wetting the bed and the bed was soaked with urine. I think that’s where the odor was coming from.
Q Did you observe that, too, that the bed was soaked?
A No, I did not observe that.
Q You smelled it.
A Yes.
Q All right. What about clothing? Did you see any clothing around?
A The clothing was just sort of strewn around. There was a nail between the living room and dining room where some of the clothing was hung up. The apartment was just totally wrecked from my observation. (T. 8)
Mrs. Avila returned on April 29, 1977 and found the odor still bad; the kitchen cleaned up; things put away; fairly neat but there had been no scrubbing and a vacuum had not been used. The place really was not clean (T. 9). On May 11th, the odor was still present (T. 10). Avila returned May 11th after she had encouraged the Kunkles to get their dwelling “really cleaned up” for the case worker to make her final observation of the living conditions prior to the hearing in the court below (T. 11). She found that the conditions had deteriorated.
Susan Hackman, case worker for the Lehigh County Children’s Bureau, visited the Kunkle home on seven occasions during March, 1977. She was the case worker for the Eltz family. Two of the Eltz boys were regularly truant from school and they usually went to the Kunkle home in spite of
Q What was Mrs. Kunkle’s condition when you visited the home?
A One time in particular, Mrs. Kunkle was drinking and—
Q What time of the day was that?
A This was approximately 2:00 o’clock in the afternoon. Jimmy had run away from his foster home and I went there to find him and he had just run out the back door. Later I was over at the Eltz home and Mrs. Kunkle was down the street next to the Eltz apartment with her daughter and at that point she looked to me to be inebriated.
Q Why do you say that? What’s the basis for your opinion on that?
A Well, she was still drinking.
Q What do you mean she was drinking, Mrs. Hackman?
A Okay. She was drinking from a quart bottle of beer.
Q Yes. With a glass or just—
A No, just from a bottle.
Q In the street?
A It was in an alleyway between the apartments and this was two hours after I had seen her drinking in her home.
Q What was she drinking on that occasion the two hours before?
A Beer.
Q Again, out of the bottle?
A I don’t specifically recall whether it was out of the bottle or not.
Q What else was she doing that made you form the opinion she was inebriated?
A She was laughing. Her face was very flushed and she was slurring words. (T. 26, 27)
“Geraldine and Franklin and Eddie were not in school that day. I read the Riot Act to Mrs. Kunkle. She seemed to be unconcerned about the fact that the children were truant from school and I warned her about harboring the Eltz’s children in the apartment, and allowing them while they were there from school that day — ” (T. 30)
Officer Hausman returned to the Kunkle apartment on April 12, 1977, again in search of the Eltz boys. Again she located them there. She observed the kitchen and when requested to describe it, she responded:
“Garbage all over the kitchen floor. James had to wade through it to get into the apartment to get Dale. There was silver, a stack of silver, silverware, eating utensils that had not been washed, unwashed dishes and it was about that high (indicating). That’s the only way I can describe it.
Q You’re describing what, about a foot high and two feet long?
A Yes, that much.
Q Stacked up, table ware?
A Right, and there was—
Q And that was all unwashed and dirty?
A Oh, yes, it was a mess.
Q Where was that?
A In the kitchen sink, at the kitchen sink.
Q What else did you observe in the kitchen that day? You said, you mean you had difficulty walking in that kitchen?
A I wouldn’t even go in.
Q But you could see that people couldn’t even walk through it.
*612 A I stood right at the door. James had to wade through it to get in to get Dale out.
Q Was there open garbage there?
A Yes.
Q On the floor.
A Yes. (T. 32, 33)
On April 12, 1977, the police picked up Paul and Franklin Kunkle; they were under the influence of glue sniffing and were returned to their home (T. 32).
The school records disclosed that for Paul Kunkle in the 1976-1977 school year, he had been absent 14 days out of 160 days; four absences were excused. For Edward, he was absent 23 days out of 160; 11 absences were excused.
Rosie Ann Good and Mary Ann Hall, the school teachers of Paul and Edward, testified that the boys did have a peculiar odor about them and were poorly dressed and were physically dirty. These matters were discussed with the mother and the boys. Some improvement was noted for a short time thereafter but the conditions soon reappeared. Their shirts were visibly dirty, the pants were soiled but the most distinct thing in the mind of one teacher was the odor (T. 21). Edward’s teacher described him as: “physically he is not a very well kept young man.” (T. 22). Both boys were described as very good students. There was also testimony that the children were not receiving adequate medical and dental attention and treatment.
During an interview with the court, the boys testified that they have a cupcake for breakfast, no milk, no lunch (T. 49-51); that Paul shines shoes in many of the bar rooms in the area of his home; generally from 5:00 to 8:00 P.M. daily. He earns approximately $50 per week, one-half of which he gives to his mother (T. 57).
The Kunkles did not testify, nor did they introduce any testimony in their behalf.
At the conclusion of the testimony, the court suggested that counsel and the court pay an immediate visit to the Kunkle residence. Permission was refused by the Kunkles.
“I would like to comment that I feel that both children have lived under relatively adverse conditions and perhaps the biggest being a total lack of parental care up until this time. I will admit they have survived very well but I do not feel it is the responsibility of an eight year old and an eleven year old to take care of their own clothing, to give themselves the entire aura of parental care that should be coming from their parents and, at such time that the parents can prove that they can afford these two youngsters this control, which would include the maintenance of the home, that I would have no objection to them being in the household at that time, but right now they receive absolutely no guidance or control within their home situation.” (T. 36-37).
In Interest of LaRue, 244 Pa.Super. 218, 231, 366 A.2d 1271, 1277 (1976), this court stated:
“It is not to preserve a mere social form, or a convention from the past, but to provide our children a place of shelter and love, so that they may grow in freedom and strength. The measure of a family’s vitality is its ability to perform this function.”
The hearing court correctly evaluated this situation as follows:
Our province is to determine whether there is clear and convincing evidence that these children are deprived and, if so, whether it is necessary to separate them from their parents. Interest of LaRue, supra.
“[S]tate interference with a parent-child relationship is a most serious intrusion . . . such an intrusion is properly tolerated only in cases in which the Commonwealth sustains a very strict burden of proof. On the other hand, the state certainly has an interest in seeing that minimal standards of care are maintained for the children of this Commonwealth.” Matter of DeSavage, 241 Pa.Super. 174, 183, 360 A.2d 237, 241 (1976).
*614 Parents owe some duty to their children, yet Edward and Paul received virtually no parental care or supervision and their existence is within a structure formed by themselves. The Children’s Bureau has repeatedly attempted to assist this family to no avail. The effect of this void which was seen in Geraldine and Franklin has visited itself on Paul and Edward. We need hot wait until their heads are submerged before rescue efforts are employed. See: Id. and In re Clouse, 244 Pa.Super. 396, 368 A.2d 780 (1976). We are desirous of trying to preserve the family unit wherever it retains sufficient vitality.
However, the only vitality displayed in these hearings was that of two endearing juveniles who reached out for parental care, security and guidance and find a vacuum. The Kunkles promises have been empty, yet their children’s lives need not be. To return these youngsters to their parents at this time would represent a great disservice to them.
The allegations that these children are deprived having been substantiated by clear and convincing evidence by representatives of the School District of the City of Allentown, the police, the Children’s Bureau and the court appointed guardian ad litem for the children and it being obvious that the parents are currently unwilling or unable to parent these children, we concluded that Paul Kunkle and Edward Kunkle are without proper parental care or control, subsistence and education as required by law or other care or control necessary for their physical, mental or emotional health or morals and that it was and is necessary to separate and remove them from their parents and place them in foster care. (Opinion, pages 7 and 8).
The record more than substantiates both the evaluation and conclusion.
Appellants have raised and argue for additional grounds in support of reversal. They are devoid of merit.
We affirm.