In Interest of Jones

429 A.2d 671, 286 Pa. Super. 574, 1981 Pa. Super. LEXIS 2621

• Court: Superior Court of Pennsylvania
• Decided: May 8, 1981
• Docket: 123
• Status: Published

Opinions

CAVANAUGH, Judge:

The dispute in this case concerns the custody of two children, Tina and Jameeda Jones.¹ In 1976 the children were adjudicated dependent pursuant to a petition by the Child Welfare Services and were removed from their mother’s custody with direction that they were to remain in placement pending further disposition. Both girls were placed with their maternal aunt, Ernestine Taylor. The mother continued to maintain regular contact with the children since their placement. At the same time she underwent psychiatric care and counselling. Considering herself rehabilitated and competent to care for her children, the mother petitioned for a hearing in order to regain custody. A dispositional hearing² was held and the lower court con-eluded that the best interests of the children would not be served by an award of custody to the mother. We reverse and remand.

The question before us is whether a parent in a dispositional hearing has a constitutional right under the due process clause to confront and cross-examine adverse witnesses. We hold that the parent has such a right and that the procedure followed by the lower court did not adequately comport with the mandates of due process.

A review of the record reveals that but for the adverse resolution of one factual issue, all parties would have favored, and the lower court would have ordered, the return of the children to the mother, if not immediately, then through a period of extended visitation to facilitate readjustment. This key factual issue was whether the mother was continuing her involvement in a lesbian relationship with a male impersonator, Aznif Smith.

The record is replete with testimony as to the harmful influence Smith has had on the children and their mother. At the time of the removal of the children from the mother’s custody by the Child Welfare Service Aznif Smith was living with the mother. According to testimony Smith assumed the alias “Hendren Bower” and it was believed that the mother and Smith were “married” in November or December of 1975. In December of 1975 the mother, while well advanced in pregnancy, was pushed down a flight of stairs by Smith. Soon after, on December 11, Kevin was born. Smith was adjudicated delinquent and came under the supervision of the Juvenile Court. According to the children’s maternal grandmother, the children, especially Jameeda, became emotionally disturbed by the mother’s relationship with Smith. Although the children wanted to return to their mother’s custody, they were fearful that Smith would be there. During the judge’s interview with the children it was determined that they preferred to visit with the mother before going back to her permanently so that they would be certain that Smith was not there.

The mother maintained that she had not seen Smith for approximately two years and had no idea of her whereabouts. However, counsel for the Children and Youth Services called Ernestine Taylor, the children’s maternal aunt with whom the girls had resided since their removal from the mother’s home. Mrs. Taylor testified that she had been getting reports from an unnamed source that the relationship between the mother and Smith was continuing.

The judge permitted this testimony over objection despite Mrs. Taylor’s refusal to name the source of these reports. As a result of this information the social worker for Children and Youth Services stated to the court that, although she had intended to recommend that the girls be placed in the mother’s custody, in view of Mrs. Taylor’s testimony, she recommended further investigation. A hearing was scheduled so that the unnamed witness could be examined. Mrs. Taylor stated that the person would only appear if permitted to remain anonymous.

A second hearing was held at which time the trial judge overruled the objections raised by appellant’s counsel and permitted the anonymous witness, Mr. C., to testify in camera in the absence of appellant.³ The children’s attorney, the Children and Youth Services caseworker, the Children and Youth Services attorney and the mother’s attorney were present at this hearing. At the hearing the identity of Mr. C. and his relationship to the mother was revealed.⁴ However, the witness’s identity was not revealed to the appellant. Mr. C.’s testimony was that the appellant and Smith continued to maintain a relationship and that the relationship was at times violent. At a third hearing appellant presented rebuttal testimony. The trial judge, however, found against the mother and stated:

The Court upon the early reports of Child Welfare Services was completely willing to begin a transition of the children from the home of the maternal aunt to that of the mother, but the continuing investigation and the very strong credible in-court, under oath testimony from Mr. C. subject to intensive cross examination by plaintiff’s lawyer, convinced this court beyond any doubt that a very disruptive influence is present in the life of the mother.

Custody of the children was awarded to the Child Welfare Services.

On appeal the mother argues that the proceedings below did not adequately protect her right to due process because she has a right to personally confront the witness presenting evidence contrary to her interests. She claims that the fact that her attorney learned of Mr. C.’s identity and had an opportunity to cross-examine him—absent her own knowledge of Mr. C.’s identity—is insufficient protection of her constitutional rights.

The facts of this case raise a difficult question as to the nature of the parent’s right to due process in a dispositional hearing. The answer to this question is most troublesome in that it involves the delicate determination of when the integrity of the family may be sacrificed in an effort to protect its individual members.

The proceedings in the lower court were governed by the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq.

In adopting the “Juvenile Act” the legislature stated that the Act shall be interpreted and construed as to effectuate certain purposes:

(1) To preserve the unity of the family whenever possible and to provide for the care, protection, and wholesome mental and physical development of children coming within the provisions of this chapter.

(3) To achieve the foregoing purposes in a family environment whenever possible, separating the child from parents only when necessary for his welfare or in the interests of public safety.

(4) To provide means through which the provisions of this chapter are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights recognized and enforced.

42 Pa.C.S. § 6301. Only with these purposes in mind can we properly address the issue before us. As this court stated in Interest of LaRue, 244 Pa.Super. 218, 222, 366 A.2d 1271, 1273 (1976), “The fundamental principle, from which all other principles in custody cases derive, is that a child grow up as part of its natural family.”

I

Appellant’s assertion that she has a right to confront and cross-examine adverse witnesses at a dispositional hearing is novel. Unlike the right of a criminal defendant to confrontation, it is established that such rights are not universally applicable to all hearings. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). In Wolff v. McDonnell, supra, the United States Supreme Court stated:

Rules of procedure may be shaped by consideration of the risk of error. In re Winship, 397 U.S. 358, 368, 90 S.Ct. 1068, 1074, 25 L.Ed. 368 (1970) (Harlan, J., concurring); Arnett v. Kennedy, supra, 416 U.S. at 171, 194 S.Ct. at 1652 (White, J., concurring in part and dissenting in part), and should also be shaped by the consequences which will follow their adoption.

418 U.S. at 567, 94 S.Ct. at 2980, 41 L.Ed.2d at 957. Thus appellant’s claim of right must be examined by employing this analysis.

In a case such as this, where the parent’s right to custody hinges on the factual determination of the child’s best interest, the risk of error cannot be overstated. As the Supreme Court stated in Goldberg v. Kelly, 397 U.S. 254, 268, 90 S.Ct. 1011, 1021, 25 L.Ed. 287, 299 (1970), “In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” (citations omitted). In Goldberg, the court held that before public assistance payments are terminated due process requires that an evidentia-ry hearing be held. The evidentiary hearing must afford the welfare recipient the opportunity to confront and cross-examine the witnesses relied on by the Department. Earlier in Greene v. McElroy, 360 U.S. 474, 496-97, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377, 1390-91, the Supreme Court underscored the importance of confrontation where questions of fact are to be determined:

Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. (Emphasis added).

Consistent with the language of Goldberg and Greene, this court has held that “[tjhe right of a litigant to in-court presentation of evidence is essential to due process[.j”. Wood v. Tucker, 231 Pa.Super. 461, 463, 332 A.2d 191, 192 (1974). Wood v. Tucker involved a child custody dispute between the father and the maternal grandparents. There we held that the lower court had denied the grandparents due process by considering “ex parte” reports from former employees of the father’s present wife and from a social agency that investigated the adequacy of the father’s home. Wood v. Tucker is one of a long line of child custody cases which have held that a violation of the right to confrontation and cross examination occurs when the court considers matters not of record in reaching its decision. As we stated in Com. ex rel. Oncay v. Oncay, 153 Pa.Super. 569, 570, 34 A.2d 839 (1943):

We must point out again, however, that reports of investigators, agents and doctors cannot be received in evidence, or considered by the court in a contested case. . . . The investigators, agents, doctors, etc., must themselves be produced, sworn and examined as witnesses and be subject to cross examination, just as all other witnesses (citations omitted).

See also Interest of LaRue, supra, 244 Pa.Super. at 238 n. 4, 366 A.2d at 1281 n. 4, (Hoffman, J. dissenting); Com. ex rel. Mathis v. Cooper, 188 Pa.Super. 113, 146 A.2d 158 (1958); Com. ex rel. Balick v. Balick, 172 Pa.Super. 196, 92 A.2d 703 (1952).

It may be argued that unlike the situation in Wood v. Tucker where the reports considered by the court were not even of record, the procedures employed in taking the testimony of Mr. C. sufficiently protected the interests of appellant so as to minimize the risk of error. Appellees assert that Mr. C.’s testimony was not ex parte affidavit; that he testified under oath on the record, and before the judge who had a full opportunity to make a determination as to the witness’s credibility. Also he was cross-examined by appellant’s counsel. While we agree that, short of disclosing Mr. C.’s identity, the lower court did all it could to ensure that appellant’s interests were protected, appellant was denied the most important cross-examination tool: knowledge of the witness’s identity and with it any bias which could prompt the witness to testify as he did. Thus appellant was precluded from questioning Mr. C. to determine whether his testimony was “motivated by malice, vindictiveness, intolerance, prejudice, or jealousy.” Greene v. McElroy, supra.

That the court found “nothing adverse in the witness’ demeanor, no attempt to be punitive or vicious” does nothing to aid in this inquiry. In order to determine the credibility of this witness and the value of his testimony, the party adversely affected by his testimony must be informed of his identity and thus be given the opportunity to bring forth any possible bias motivating the damaging testimony.

In its opinion the lower court stated that the procedure it employed permitted it to make a comprehensive and searching inquiry in the face of Mr. C.’s refusal to testify if his identity were to be revealed to the appellant. The question that must be answered, then, is whether the possible consequence of not having Mr. C’s testimony justifies the absence of the opportunity to confront the witness.

Thus we must consider the “consequences which will follow” if we were to hold that due process requires that the parents be afforded confrontation rights at dispositional hearings.

Turning once again to the facts of this case, it is not disputed that there exists a strong possibility that the children would be harmed by further association with Aznif Smith. It is also not disputed that absent the disturbing influence of Smith the children enjoy a good and loving relationship with their mother. As noted above, prior to learning of Mr. C.’s allegations the Children and Youth Services caseworker had intended to recommend that custody of the children be returned to the mother. Also the hearing judge had been willing to begin a gradual return of the children to appellant. Thus the information furnished by Mr. C. was critical to the court’s final determination.

Evidence of such importance must be subjected to close scrutiny so that the proper disposition is made. Appellees argue that the best interests of the children should not be sacrificed in order to protect the rights of the parents. We agree that the utmost concern is for the children’s welfare. It is for this reason that nothing short of the “comprehensive and searching inquiry' into the facts” mandated by decisions of this court will be acceptable. See In re Clouse, 244 Pa.Super. 396, 368 A.2d 780 (1976); Commonwealth ex rel. Grillo v. Shuster, 226 Pa.Super. 229, 312 A.2d 58 (1973). The right to confrontation asserted by the mother is a claim of real constitutional substance. However, the rights of the parent to due process in a situation such as this are intimately intertwined with the best interest of the child or children. It may be argued that without the opportunity for in camera disclosure, Mr. C. would not have testified and as a result the children would have been returned to a damaging environment. An equally possible consequence, however, is that by relying upon Mr. C.’s testimony, absent an adequate opportunity to test his truthfulness, the court could deprive the parent of custody of her children where such deprivation is not warranted. In so doing, the children would suffer the deprivation no less than the mother.

We hold, therefore, that after considering the risk of error and the consequences which will follow the procedure adopted by the lower court, the mother has been deprived of due process.

II

The second question we must address is whether the Juvenile Act authorizes the procedures followed by the lower court. 42 Pa.C.S.A. § 6341(d) is the pertinent section and it provides as follows:

(d) Evidence on issue of disposition.—In disposition hearings under subsections (b) and (c) all evidence helpful in determining the questions presented, including oral and written reports, may be received by the court and relied upon to the extent of its probative value even though not otherwise competent in the hearing on the petition. The parties or their counsel shall be afforded an opportunity to examine and controvert written reports so received and to cross-examine individuals making the reports. Sources of information given in confidence need not be disclosed.

Except for § 6341(d) the Juvenile Act is silent on the rules of evidence to be applied. As has been observed, however, in § 6341(d) “there is an indication that traditional rules are to apply with some relaxation after an adjudication on the merits has been made.” Anderson Appeal, 227 Pa.Super. 439, 447, 313 A.2d 260, 264 (1973) (Spaeth, J. dissenting). The question before us, then, is whether the Act contemplates a relaxation such as that permitted by the court below.

Initially we note that in construing a statute, sections of the statute must be construed with reference to the entire statute and not alone. Keitt v. Ross, 17 Pa.Cmwlth. 183, 331 A.2d 582 (1975). 1 Pa.C.S.A. § 1922. The court must determine legislative intent from the totality of a statute and render an interpretation which gives effect to all of its provisions. Wolfe v. Commonwealth, Department of Transportation, Bureau of Traffic Safety, 24 Pa.Cmwlth. 261, 355 A.2d 600 (1976). 1 Pa.C.S.A. § 1921(a).

Appellees contend that the Act does not require that confidential informants testify in person or that all parties be present at dispositional hearings. Appellees state that the requirements of the Act are satisfied if a party’s counsel is present and afforded an opportunity to controvert written reports and cross-examine witnesses. § 6341(d) states in part: “The parties or their counsel shall be afforded an opportunity to examine and controvert written reports so received and to cross-examine individuals making reports.” Contrary to appellees’ argument, this language does not address the situation where an anonymous informant refuses to testify in person. Rather, the language codifies a long line of cases condemning the practice in the trial courts of relying on extra-judicial reports without taking testimony and without giving the parties an opportunity to cross-examine the individual who made up the report and/or to present rebuttal testimony. See e. g. Rummel v. Rummel, supra; Wood v. Tucker, supra.

Because the situation before us does not involve written reports, support for appellee’s position that the Act does not require the confrontation of witnesses at a dispositional hearing must be found in other language within § 6341(d).

Initially § 6341(d) states: “In disposition hearings under subsections (b) and (c) all evidence helpful in determining the questions presented, including oral and written reports, may be received by the court and relied upon to the extent of its probative value even though not otherwise competent in the hearing on the petition.” To interpret this language as permitting evidence to be introduced despite the fact that its admission violates the constitutional rights of a party is to give far too expansive a reading to the phrase “otherwise competent”. Certainly the situation may arise where, although the rules of evidence do not permit testimony to be received by the court, such testimony would be properly admitted under § 6341(d). However, that situation does not arise where, as here, the reception of the evidence violates due process.

Finally, § 6341(d) states, “Sources of information given in confidence need not be disclosed.” Indeed this language is troublesome and may be read to support appellees’ argument that the procedure followed by the lower court was authorized by the statute. As the discussion in part one of this opinion indicates, nondisclosure of the identity of Mr. C. deprived the appellant of an opportunity to cross-examine the informant. Since we hold that in the instant case the mother had a right under the due process clause to confront and cross-examine the informant, in so far as the statute permits otherwise, it is unconstitutional. We so hold mindful of the fact that a presumption of constitutionality is accorded to legislative enactments and they will not be declared unconstitutional unless they clearly, palpably, and plainly violate the Constitution. Driscoll v. Plymouth Township, 13 Pa.Cmwlth. 404, 320 A.2d 444 (1974). 1 Pa. C.S.A. § 1921(a). The statement that sources of information need not be disclosed is, in fact, clearly, palpably, and plainly violative of the Constitution in its unqualified allowance of testimony into evidence regardless of the opportunity provided to test the veracity and reliability of the declarant.

As a final note, the arguments raised by appellees as to the admissibility of the testimony of Ernestine Taylor must be addressed. As set forth above, Ernestine Taylor testified that she had learned from an unnamed source that the association between the mother and Aznif Smith was continuing. In view of our holding that the reception into evidence of Mr. C.’s testimony violated the due process rights of the appellant, it can hardly be argued that Mr. C.’s testimony can be admitted indirectly through the hearsay testimony of Ms. Taylor. Whether § 6341(d) permits the introduction of hearsay evidence in dispositional hearings we do not decide. However, we do hold that where the reception of hearsay evidence would deprive the parent of an opportunity to confront and cross-examine a witness, such evidence may not be admitted.

Case reversed and remanded for a new dispositional hearing.

Reversed and remanded.

HESTER, J., files dissenting opinion.

1 . Although the caption in this case includes the name of Kevin Jones, Kevin was not a party to this action. Following his birth Kevin was immediately placed in a foster home and has never been in his mother’s custody.

2 . The appellant refers to the hearing in the lower court as a “Rehearing of the Dispositional Order of June 9, 1976”. By that order Children and Youth Services were given permission to place Tina and Jameeda with their maternal aunt, Ernestine Taylor. Because a finding of dependency had already been made, there can be no dispute but that the rehearing, which is the subject of this appeal, was a dispositional hearing. This distinction is significant.

At the initial finding of dependency the required proof must be clear and convincing. “It 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 the children.” Rinker Appeal, 180 Pa.Super 143, 148, 117 A.2d 780, 783 (1955). Because the hearing in the instant case was dispositional, this burden is lessened. As this Court explained in Stapleton v. Dauphin County Child Care Service, 228 Pa.Super. 371, 387, 324 A.2d 562, 571 (1974): “This is so because the reasons for the standard [of clear and convincing] ... no longer exist. The family, which the standard is designed to protect, has already been wrenched apart; the unity that was being protected has been destroyed. The Commonwealth no longer appears as a party in a contest between the State and the parents but rather as an arbitrator, who is required to decide only what is in the best interests of the child.” See also Matter of DeSavage, 241 Pa.Super. 174, 360 A.2d 237 (1976).

3 . The notes of testimony were lost before they were transcribed. Pursuant to Pa.R.A.P., Rule 1926, counsel have filed a stipulation as to the material portions of Mr. C’s testimony.

4 . The identity of Mr. C., however, does appear of record in the stipulation by counsel of the material portions of Mr. C’s testimony. Also the brief filed on behalf of the children by Child Advocacy Legal Aid disclose the identity of Mr. C.