DocketNumber: 439 and 525
Judges: Spaeth, Hoffman, Van Voort
Filed Date: 3/21/1980
Status: Precedential
Modified Date: 10/19/2024
This appeal arises from an order granting custody of appellant’s daughter to the Butler County Children and Youth Agency.
Appellant’s eleven year old son testified to several incidents of sexual abuse, as follows. When appellant was out of the house his stepfather had sodomized him and his sister, and had forced them to have intercourse with each other. His stepfather warned him that if he told appellant about the incidents, he would be spanked. He did not tell appellant, but when he “couldn’t stand it any longer,” did tell his natural father and the authorities. His stepfather also showed him nude photographs of appellant. At the hearing the Commonwealth introduced three photographs, two of which the son identified as ones the stepfather had shown him. The son also testified that on one occasion his sister tried to get into his bed without clothes but was discovered by appellant, who became angry. The son said he loved his stepfather but understood that he was sworn to tell what actually occurred.
Police Sergeant Dalcamo testified that appellant’s son told him that within the previous year appellant’s husband had sodomized him and his sister, and had shown him nude photographs of appellant in a bed. Acting on information from appellant’s son, Sergeant Dalcamo obtained a search warrant. In executing the warrant, he found the photo
Appellant testified that she had been married to her present husband for a year. It was her third marriage; her children resulted from her first marriage. Appellant said that she left her children alone with their stepfather when she went to play bingo or went to the hospital for medication to relieve bad headaches. Although she said that she went to the hospital only “a couple times,” she also said that she had headaches “quite a bit.” In any event, according to appellant never did any member of her family report to her any incident of sexual abuse by her husband, nor did she ever discover marks or vaginal irritation on her daughter, whom she bathed daily. One night, after sending her children to bed, she did hear noises that prompted her to go to her daughter’s bedroom. There she discovered her daughter and her son, who had left his bedroom. She said that when she appeared, the children “jumped out of the bed and starting zipping their pants up . .” Upon inquiry, both denied that they had been doing anything, whereupon she spanked them and put them both back to bed. She said that she did not investigate the incident further since she wanted to believe the children. Appellant admitted that she had allowed her husband to take four nude photographs of her, for their personal use, and that she kept them, even though her husband wanted them destroyed, until they disappeared from her possession. Appellant described her home as a “very small” two bedroom residence. She said that her son had been in his father’s custody and had been living in her home for only four weeks before the dependency petition was filed, and that for at least part of this four week period, the son’s father had also been living there, in addition to herself, her present husband, and the children. Finally, appellant stated that if her present husband were released from jail, where at the time of the hearing he was
Nancy Keffalas, the caseworker who filed the dependency petition, testified, over the objection of appellant’s counsel, that school records showed that appellant’s daughter had moved ten times within the two and a half year period between September 1976 and February 1979. During the 1976-77 school year,
Eric Timko, who became the foster parent of appellant’s daughter after she was removed from appellant’s home on March 22, testified that he had not spoken with the daughter concerning incidents of sexual abuse. He testified that one evening, however, when he was tucking the daughter in bed, she jumped up and said, “What are you doing?” The next morning, the daughter told her foster mother that “Dad scared me last night . . . . He pulled the covers back
Appellant’s daughter did not testify at the hearing, but a stipulation was entered that had she been called, she would
The master found that appellant’s daughter was dependent and abused “in that the evidence presented indicates that [she was] involved in sexual intercourse and unnatural sex acts.” The lower court, without taking additional evidence, adopted the master’s findings, adjudicated the daughter dependent, and ordered a dispositional hearing to be held within twenty days. On April 26, a dispositional hearing was held before the master at which a caseworker for the Child Abuse Division of the Children and Youth Agency of Butler County recommended that appellant’s daughter be placed in foster care, giving the following reasons. Both of appellant’s children had previously been in the care of child protective agencies in California and in adjoining Armstrong County. During the school year prior to the incidents of sexual abuse, appellant’s daughter had missed approximately thirty-three of one hundred twenty-two school days; most of her absences were unexcused. Also, a psychiatric evaluation of the daughter showed that she needed to be placed in a structured environment with established guidelines and constant monitoring in order to counteract a hyperkinetic syndrome to which the daughter was susceptible. Appellant's home did not provide a structured environment; indeed, her home was such as to promote the syndrome. In addition, the daughter needed regular doses of medication. The caseworker admitted, however, that special training was not needed to treat the syndrome. A social summary was introduced into evidence, as well as a psychological evaluation and psychiatric and physical examination reports on the daughter.
Appellant testified that she had been living at her present address in Butler County for several months; that she had seen her daughter once since the adjudicatory hearing and had tried to make contact with Children’s Services several times; that she thought her daughter “was doing pretty
On this evidence the master recommended that appellant’s daughter be placed in a foster home until further order of the court; that the daughter attend counseling until released by the Butler County Children and Youth Agency; that appellant and her first husband also attend counseling; that a reasonable visitation structure be established; that a firm plan to return the daughter to her parents be established within thirty days by the Children and Youth Agency; that appellant and her first husband meet with the Domestic Relations Director to establish a care and maintenance agreement while the daughter was in foster care; and that the case be reviewed prior to the 1979-80 school year. The master believed that these recommendations were in the best interests of appellant’s daughter. The lower court, without taking additional evidence, explicitly adopted all of the master’s findings and recommendations, except the recommendation that a firm plan to return the daughter to her parents be established within thirty days.
Following the entry of the court’s order, appellant moved for a rehearing on the dependency petition, citing the dismissal of the criminal charges against her present husband alleging sexual abuse of her children. On May 7, 1979, the lower court denied the motion.
In reviewing this record, it will be convenient to consider, first, the propriety of the order adjudicating appellant’s daughter dependent, and second, the propriety of the dispo
1
Appellant argues that the Commonwealth failed to prove by clear and convincing evidence that her daughter was dependent. The Commonwealth’s evidence of sexual misconduct committed by her husband, appellant claims, did not show that her daughter was dependent because such evidence did not show that appellant knew or should have known of her husband’s actions.
In making this argument, appellant confuses criminal and tort law, where the state of mind of the defendant is often central to the inquiry, with the principles that obtain in a dependency proceeding. The Juvenile Act defines a dependent child as one who “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. . . . ” 42 Pa.C.S.A. § 6302 (1979 Pamphlet).
In the present case, the Commonwealth’s evidence showed that appellant’s husband had sexually abused her daughter.
Appellant also argues that the lower court could not find her daughter dependent because the stepfather, “the person who had been responsible for the acts recited in the dependency petition,” was incarcerated at the time. This argument fails to address one of the two concerns just mentioned-appellant’s ability to care for the emotional scars her daughter has already suffered. It also ignores the temporary nature of the stepfather’s incarceration. At the time of the adjudicatory hearing, the stepfather was awaiting trial on the charges of having sexually abused the children. As noted above, in determining whether appellant's daughter was dependent, the lower court was required to consider the sort of parental care she would receive if returned to appellant. The lower court therefore had to consider the possibility that the stepfather would be released from jail, for example, upon posting bail, and that upon his release he would resume living with appellant and her children.
Appellant also argues that the master and the lower court improperly considered the messy condition of her home. Assuming, without deciding, that evidence concerning the condition of appellant’s home was improperly admitted at the adjudicatory hearing because appellant was not given adequate notice in the dependency petition that her abilities as a homemaker would be an issue at the hearing, cf. In re DelSignore, 249 Pa.Super. 149, 375 A.2d 803 (1977); In re Sharpe, 248 Pa.Super. 74, 81, 374 A.2d 1323, 1326 (1977) (SPAETH, J., concurring and dissenting), and further assuming that appellant has not waived her argument by failing to make timely objection to the introduction of the evidence at the hearing, the record nevertheless shows that the master and lower court found appellant’s daughter to be
2
In making his recommendation to the lower court, the master stated that it was “in the best interests of the [daughter] to be placed in foster care with counseling to be participated in by the parents and that reasonable visitation be established and a firm plan to return the children to be established.” (Emphasis added.) Appellant argues that this was an incorrect standard of proof, and that the dispositional order must therefore be set aside.
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. E.g., In re Pernishek, supra; In re Whittle, supra; 42 Pa.C.S.A. § 6301(b)(3) (1979 Pamphlet). In addition, this court 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 re Pernishek, supra; In re Whittle, supra.
At the time of the dispositional hearing, appellant’s husband was incarcerated. Although, as just discussed, the fact of his incarceration could not be controlling on the issue of the dependency of appellant’s daughter, it assumed greater importance during the dispositional phase of the proceedings. Neither appellant nor anyone else could expose the daughter to appellant’s husband while he was in jail. Consequently, if there was to be a showing of clear necessity to remove the daughter from appellant’s custody, so long as her husband was in jail the showing had to be based on some evidence other than evidence of his sexual abuse of the daughter.
The record, however, discloses no such other evidence. The caseworker who testified for the Commonwealth stated that the daughter was susceptible to hyperkinetic syndrome;
The Commonwealth’s failure to prove at the dispositional hearing that the daughter’s removal from appellant’s custody was clearly necessary, however, does not automatically entitle appellant to relief. We need not blind ourselves to representations in the record and in the parties’ briefs that subsequent to the dispositional hearing the district attorney nol pros’d the criminal charges against appellant’s husband
The order adjudicating appellant’s daughter dependent is affirmed, and the case remanded for further hearing.
. Appellant claims to be appealing from three orders of the court below: an order adjudicating her daughter dependent; a second order granting custody of her daughter to the Butler County Children and Youth Services; and a third order denying appellant’s motion for a rehearing. She has filed two separate appeals, which have been consolidated. The first appeal, filed May 7, 1979, is purportedly taken from the adjudicatory and dispositional orders. The second appeal, filed June 6, 1979, is taken from the order denying a rehearing.
Appellant cannot appeal from the order adjudicating her daughter dependent, as that order is interlocutory. In re C.A.M., 264 Pa.Super. 300, 399 A.2d 786 (1979). Also, serious question exists concerning appellant’s ability to appeal from the order denying a rehearing. Although a former statute guaranteed the right to a rehearing on a final order placing a dependent child whenever a change in circumstances took place which in the opinion of the child’s parent warranted the revocation or modification of the final order, the Juvenile Court Law, Act of June 2, 1933, P.L. 1433, § 16, as amended, 11 P.S. § 258, this statute was repealed by the Juvenile Act, Act of Dec. 6, 1972, P.L. 1464, No. 333, § 40, 11 P.S. §§ 50-101 et seq. (The Juvenile Act has itself been repealed by the Act of April 28, 1978, P.L. 202, No. 53, § 2(a) [1460], 42 P.S. § 20002, and substantially reenacted as 42 Pa.C.S.A. §§ 6301 et seq.) The present Juvenile Act does not explicitly guarantee a right to a rehearing on a final order placing a dependent child. The Act does allow for a rehearing before a judge in cases, such as the present one, where the dependency hearing is initially held before a master, 42 Pa.C.S.A. § 6305(d) (1979 Pamphlet), but an order denying a rehearing before a judge does not end the litigation or dispose of the entire case. In re C.A.M., supra. Nor would an appeal lie if we were to consider appellant’s motion for a rehearing as being made pursuant to Pa.R.A.P. 1701(b)(3). Fingles v. Green, 269 Pa.Super. 131, 409 A.2d 99 (1979); Provident National Bank v. Rooklin, 250 Pa.Super. 194, 378 A.2d 893 (1977).
Appellant, however, could and did file a timely appeal from the lower court’s dispositional order. That appeal preserves all issues arising from both the adjudicatory and dispositional proceedings. In re C.A.M., supra. Moreover, appellant’s argument that the lower court abused its discretion by not granting her motion for rehearing may be considered without deciding whether appellant could appeal from the order denying rehearing, because when considered, it is found to be without merit since appellant did not state in her motion that if a rehearing were granted, she would present evidence not already presented.
It should be noted that the lower court not only adjudicated appellant’s daughter dependent, but also her son. On this appeal, however, appellant seeks only her daughter’s return. Appellant
Finally, it should be noted that appellant’s daughter has been represented by separate counsel during the proceedings below and on appeal.
. This may be a mistake. Testimony at the dispositional hearing indicates that Mrs. Keffalas may have meant to say that appellant’s daughter missed thirty-three days during the 1978-79 school year. See Text infra.
. The summary, evaluation, and reports have not been included in the record on this appeal.
. The Juvenile Act also provides eight other definitions of “dependent child,” none of which, however, is applicable here.
. Appellant does not argue that the testimony of her son, who was the Commonwealth’s key witness concerning sexual abuse by the stepfather, was incredible and should have been discounted by the lower court. However, since the matter implicates our ability to review matters that appellant has raised on appeal, it may be noted that the master’s report is somewhat informal, being in narrative form, and that the lower court has not provided us with a comprehensive and detailed explanation of its order adjudicating appellant’s daughter dependent. E. g., In re LaRue, supra; In re Clouse, supra; In re Kunkel, 265 Pa.Super. 605, 402 A.2d 1037 (1979) (SPAETH, J„ concurring and dissenting). Nevertheless, the record is sufficiently complete to permit us to identify the evidence that the master and lower court found credible, and to fulfill our responsibility of conducting an independent review of the merits of the case. Thus, a remand for specific findings of fact and an opinion is unnecessary. See In re Pernishek, supra.
. Appellant’s statement at the dispositional hearing that she did not believe that the attacks had occurred may explain her willingness to return to her husband. This disbelief, however, may prevent appellant from providing the degree of understanding and sympathy her daughter needs.
. It might be argued that because the district attorney nol pros’d the criminal charges against appellant’s husband, we should view the record as though it showed that appellant’s husband had not sexually abused the children. To take such a view of the record, however, would be a mistake. Despite the nol pros, the fact remains that appellant’s son testified that appellant’s husband had sexually abused him and his sister, and that the master believed this testimony. In a proceeding involving the custody of a child, the scope of our review is broad. In re Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977); In re Clouse, supra; Clair Appeal, 219 Pa.Super. 436, 281 A.2d 726 (1971). However, on issues of credibility, we must necessarily defer to the finder of fact, who has seen the witnesses. Id. Consequently, so far as this proceeding is concerned, we must view the record as showing sexual abuse, even while recognizing that so far as the criminal law is concerned, appellant’s husband is no longer charged with such abuse, and even when so charged, was presumably innocent of committing it.