Matter of George

414 A.2d 1063, 272 Pa. Super. 173, 1979 Pa. Super. LEXIS 3197

• Court: Superior Court of Pennsylvania
• Decided: November 16, 1979
• Docket: 1490
• Status: Published

Opinions

LIPEZ, Judge:

This is an appeal by a mother from an order declaring her four children dependent children. The order provides that three of the children, Leonna, Lisa, and Hollie, may remain in their mother’s custody, subject to “protective supervision” by the Lycoming County Children’s Services Agency for the period of one year, but directs that the fourth child, Bobby, be placed in the agency’s custody for placement in an approved foster home.

One cannot read this record without concluding that Judge Raup was acutely sensitive to the needs of these children and was anxious to meet their needs. However, the legislature long ago decided that the purpose of the “Juvenile Act” was “to preserve the unity of the family whenever possible”¹ and that a finding of dependency, must be based on “clear and convincing evidence.”² This requires the fact finder to use a greater degree of certitude in making a dependency determination than one based on preponderance of evidence. There will perhaps be occasions under this stricter standard when children will suffer because of the need for the intervention of government (and this may be one of those cases), but the legislature has decided (wisely, I believe) that the interest of society on the whole is better served by requiring a higher standard of proof³ before allowing such intrusion by government. I agree therefore with Judge Spaeth’s analysis that as to Leonna and Lisa, the proof does not quite measure up to the “clear and convincing” standard.

I agree also that the standard for adjudication of dependency as to Bobbie and Hollie was met. I disagree, however, with his conclusion that Judge Raup’s opinion was not sufficiently comprehensive to justify the removal of Bobby from the family. He reviewed in considerable detail Bobby’s school record, his actions in school, the report of the school psychologist.⁴ While not exhaustive (and I know of no such requirement), it was sufficiently comprehensive enabling us to fulfill our responsibility of broad review.

Small wonder then that Judge Raup concluded: “Bobby, because of his particular acute emotional problems was considered to need a prolonged period in foster care. He was placed in the custody of the agency for placement in a foster home.” It was clear to him, as it is to me, that Bobby could not reasonably receive in his home situation, where the needs of the other three children were met at most marginally, the services and attention that his intellectual and emotional difficulties required.⁵ There was indeed present the clear necessity for Bobby’s separation from his mother and family.⁶

Accordingly, the order of the lower court declaring Leonna and Lisa dependent is reversed; otherwise, the order is affirmed.

SPAETH, J., files a concurring and dissenting opinion. PRICE, J., files a concurring and dissenting statement.

1 . 42 Pa.C.S. § 6301(b)(1) (formerly 11 P.S. § 50-101).

2 . 42 Pa.C.S. § 6341(c) (formerly 11 P.S. § 50-320).

3 . “[A] standard of proof represents an attempt to instruct the fact finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, 378 (1970). Concurring opinion of Justice Harlan.

4 . In his opinion Judge Raup stated:

“Bobby was age seven at the time of the hearing and was a first grade student. He had missed eighteen and one-half of one hundred twenty-three days. School officials had observed that Bobby was functioning far below his ability. He seemed distracted in school, continually daydreaming. He displayed emotional problems manifested by “extra crying, extra fussing when he was apparently under any of the normal pressures that school puts on children. He was referred to Dr. Jacqueline Sallada, the school psychologist for the Intermediate Unit. The following is an excerpt from the testimony of Dr. Sallada as she discusses her interview with Bobby: (Dr. Sallada’s testimony is substantially set forth in Judge Spaeth’s Opinion at page 1065 ante). Judge Raup also had before him the school principal’s testimony, who stated, (as appears in Judge Spaeth’s Opinion, post, p. 1067) “it was Bobby for whom ‘it’s critical we get some help.’ ” Bobby was tested by the school psychologist who reported Bobby had intellectual and emotional difficulties.”

5 . The fact that Hollie was not separated from the family would not be justification for refusal to separate Bobby.

6 . It may not be amiss to point out that such transfer of legal custody is “temporary.” See 42 Pa.C.S.A. § 6351(a)(2).