Matter of Mark T.

442 A.2d 1179, 296 Pa. Super. 533, 1982 Pa. Super. LEXIS 3685

• Court: Superior Court of Pennsylvania
• Decided: March 19, 1982
• Docket: 616
• Status: Published

Opinions

HOFFMAN, Judge:

Appellant contends that the lower court erred in finding her minor son “dependent” as defined in the Juvenile Act.¹ We agree and, accordingly, vacate the orders of the lower court and remand for proceedings consistent with this opinion.

Mark, the subject of this appeal, was born to appellant and her husband, on May 19, 1972. Following his parent’s divorce, Mark remained in the custody of appellant in Pennsylvania, while his father settled in Florida. After a pattern of unexcused absences from school, the Clinton County Children and Youth Social Services Agency (CYS) filed a petition on October 6, 1980, alleging that Mark was without proper parental care or control and requesting that he be adjudicated dependent. The lower court held a series of hearings and found that although Mark’s physical needs were being adequately met and a close mother-son relationship had developed, appellant’s bizarre behavior² could very well have serious long-range detrimental effects upon Mark and declared him dependent. A disposition hearing was held, 42 Pa.C.S.A. § 6351, and the lower court awarded custody to CYS.³ This appeal followed.

A “dependent child” is defined under the Juvenile Act as a child “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. “The question ‘Is the child without proper parental care or control?’, includes two questions: ‘Is the child at this moment without proper parental care or control?’, and if so, ‘Is such care or control immediately available ?’.” In the Interest of LaRue, 244 Pa.Superior Ct. 218, 233, 366 A.2d 1271, 1278 (1976). Accord In the Interest of Theresa E., 287 Pa.Superior Ct. 162, 178, 429 A.2d 1150, 1158 (1981); In the Interest of Black, 273 Pa.Superior Ct. 536, 543, 417 A.2d 1178, 1182 (1980). A finding of dependency must be supported by evidence that is clear and convincing. 42 Pa.C.S.A. § 6341(c); In the Interest of Pernishek, 268 Pa.Superior Ct. 447, 457, 408 A.2d 872, 877 (1979).

The lower court relied solely upon evidence relating to Mark’s relationship with appellant in adjudicating him dependent. We find such evidence by itself insufficient to support a finding of dependency. Assuming, arguendo, that the lower court correctly found Mark was without proper parental control at the time of the hearing, he could “not be adjudicated dependent unless there [was] clear and convincing evidence that such care [was] not immediately available.” In re: A.E.M., 288 Pa.Superior Ct. 284, 288, 431 A.2d 1049, 1052 (1981) (emphasis added). To make such an adjudication, the lower court was required to determine whether Mark’s father was capable of rendering the requisite care and control for the child—a determination which cannot be made on the record before us. The lower court did not consider the availability of the father before adjudicating the child dependent, despite the express purpose of the Juvenile Act to provide care and protection for children “in a family environment whenever possible, separating the child from parents only when necessary for his welfare or in the interests of public safety.” 42 Pa.C.S.A. § 6301(b)(3). See also In the Interest of Pernishek, supra; In the Interest of LaRue, supra. Accordingly, because the record is insufficient, we must vacate the orders of the lower court and remand the case for further proceedings. The lower court shall direct an investigation of the father’s home and consider the results of such an investigation before making its adjudication. “Additionally, the court should consider obtaining disinterested testimony from neighbors, social workers, and/or psychological experts before making its adjudication.” In re: A.E.M., supra, 288 Pa.Super. at 289, 431 A.2d at 1052. After the hearing, the lower court shall enter an appropriate order and prepare an opinion with specific findings of fact. Id.

Orders vacated and case remanded for further proceedings consistent with this opinion.

BECK, J., files a concurring opinion.

1 . Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. § 6301 et seq.

2 . Dr. Richard R. Mays of the Divine Providence Community Medical Health Center described appellant’s condition as schizophrenia that ■ is no longer in remission.

3 . In an independent action, the lower court subsequently awarded the father custody of the child. That award is not before this Court, and we express no opinion on its propriety.