In the Interest of Cheryl RHINE. Appeal of Richard and Cheryl RHINE, Natural Parents.
Superior Court of Pennsylvania
Argued Aug. 31, 1981. Filed Feb. 11, 1983. Petition for Allowance of Appeal Denied June 2, 1983.
456 A.2d 608
BECK, Judge
Marc Drier, Pittsburgh, for appellee.
Before WICKERSHAM, WIEAND and BECK, JJ.
BECK, Judge:
Richard and Cheryl Rhine (“Appellants“) appeal orders of the Court of Common Pleas of Allegheny County, dated April 16, 1980, and January 21, 1981, which indefinitely suspended Appellants’ visitation with their natural daughter, Cheryl Ann Rhine, born May 19, 1978. We reverse and remand.
On February 7, 1979, CYS placed Cheryl Ann with a foster family. In conjunction with the foster home placement Appellants and Cheryl Ann participated in a parent training program pursuant to which Appellants had weekly, supervised contact with Cheryl Ann.
In August of 1979 Cheryl Ann‘s foster mother reported to CYS that after visiting with Appellants, Cheryl Ann suffered from severe diarrhea, acted very aggressively toward her foster family, failed to maintain eye contact, and exhibited self-destructive behavior including banging her head and pulling out her hair. Thereafter, on the recommendation of a panel of CYS consultants, Appellants were permitted supervised visits with Cheryl Ann only one hour per month from September of 1979 through January of 1980.
Appellants were last permitted to visit Cheryl Ann on January 24, 1980. On April 2, 1980, the court of common pleas held the first of a series of evidentiary hearings concerning Cheryl Ann‘s welfare in relation to the discontinuance of Appellants’ visitation. At the April 2 hearing the trial judge ruled that he had been presented with insufficient evidence to decide the matter properly. Accordingly, the parties were afforded two weeks within which to secure necessary witnesses.
Again, at a hearing conducted on April 16, 1980, and at hearings on September 3, 1980, and December 31, 1980, the trial judge refrained from issuing an explicit order regarding the discontinuance of Appellants’ visitation and extend
On appeal to this Court Appellants question the guidelines by which the trial judge terminated their visitation with Cheryl Ann. Appellants argue (1) that the applicable standard of evidence is “clear and convincing“; (2) that the proper test for terminating visitation is “clear necessity,” and (3) that the trial court lacked competent evidence to terminate Appellants’ visitation.
Appellants first contend that because the instant controversy involves the child‘s natural parents and the state, the appropriate standard is clear and convincing evidence. An implicit corollary to Appellants’ contention is that the state carries the burden of proof in such a dispute.
In Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), the Court, by a unanimous vote of the participating Justices, declared: “The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to ‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.‘” Id., at 423, 99 S.Ct. at 1807, quoting In re Winship, 397 U.S. 358, 370, 90 S.Ct. 1068, 1075, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring). Addington teaches that, in any given proceeding, the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants.
While Pennsylvania courts have not heretofore analyzed the private interests affected by state opposition to parental visitation, recent court decisions have recognized that in custody disputes pitting a child‘s natural parents against the state, the private parental interest is legislatively protected. Ellerbe v. Hooks, 490 Pa. 363, 366-67, 416 A.2d 512, 513 (1980); In re Hernandez, 249 Pa.Super.Ct. 274, 279-80, 376 A.2d 648, 650-51 (1977). Since the considerations controlling custody disputes “apply with equal force to matters involving visitation,” Morris v. Morris, 271 Pa.Super.Ct. 19, 29, 412 A.2d 139, 144 (1979), an examination of custody disputes between parents and the state is instructive in resolving the present visitation controversy.
Where the state opposes parents in custody matters our Legislature has established clear guidelines and procedures. Here either the
The determination of custody under the Juvenile Act is a bipartite proceeding. In re C.A.M., 264 Pa.Super.Ct. 300, 399 A.2d 786 (1979). Initially, an adjudicatory hearing is held to ascertain whether the child is dependent. At this stage of the proceeding “‘[t]he burden of proof [is] on the party asking that the child be taken from its parents, and ... the evidence must be “clear and convincing.“‘” In re George, 272 Pa.Super.Ct. 173, 184, 414 A.2d 1063, 1069 (1979) (Spaeth, J., concurring and dissenting) (quoting In re LaRue, 244 Pa.Super.Ct. 218, 228, 366 A.2d 1271, 1276 (1976);
If the child is found dependent, the second, or dispositional, stage of the proceeding commences. The court conducts an evidentiary hearing to discovery the “disposition best suited to the protection and physical, mental, and moral welfare of the child ....”
Thus the situations in which the state may intervene are limited, and its burden is very heavy. These restrictions derive from the convictions that the family is one of our most important institutions, that a child‘s best interest is served by being raised within the family, and that the
In the present controversy the state has already removed Cheryl Ann from Appellants’ custody. Nevertheless, the loss of custody does not eradicate Appellants’ legislatively protected interest in Cheryl Ann. Consistent with its declared purpose to maintain the family, the Juvenile Act permits legal custody of a dependent child to be transferred only temporarily from the child‘s natural parents to a state agency and thereby safeguards continued parental interest in the child as a preclude to the eventual reunification of the family.
As for the gravity of the threatened loss to Appellants, here the state has not merely assumed legal custody of Cheryl Ann but has further attenuated familial bonds by preventing parental visitation.2 Such a radical disruption of the familial relationship not only imposes upon Appellants a prolonged, indefinite loss3 of a particularly important pri
Therefore, we hold, as did the trial judge,6 that because the present state action threatens either a prolonged, indefinite or a permanent loss of a substantial private interest, the state must prove that its action was predicated upon clear and convincing evidence.7
Appellants next assert that the denial of parental visitation must be occasioned by clear necessity.
In the dispositional stage of a proceeding under the Juvenile Act the court may place a dependent child in the custody of the persons or agency “best suited to the protec
Consequently,
In the instant case we must ascertain the proper test for allowing or disallowing visitation as part of the child‘s disposition under the Juvenile Act. The Act does not contain any references to visitation, and ipso facto, does not
In disputes between custodial and non-custodial parents “courts rarely deny non-custodial, natural parents the opportunity to visit their children.” Spells v. Spells, 250 Pa.Super.Ct. 168, 175, 378 A.2d 879, 883 (1977); Lewis. “[E]xcept in unusual circumstances the estrangement of a child from either parent will not be sanctioned ....” Pamela J.K., 277 Pa.Super. at 593, 419 A.2d at 1309. “Visitation has been limited or denied only where the parent has been shown to suffer from severe mental or moral deficiencies that constitute a grave threat to the child.” Lewis, 271 Pa.Super. at 522, 414 A.2d at 376; Commonwealth ex rel. Peterson v. Hayes, 252 Pa.Super.Ct. 487, 381 A.2d 1311 (1977).
The same concern underlies visitation controversies between custodial and non-custodial parents and those between the state and non-custodial parents, namely, the non-custodial parents’ efforts to maintain contact with their natural children. Consequently, we hold, as did the trial judge, that the “grave threat to the child” standard applies to both types of visitation disputes.
However, mindful of the Juvenile Act‘s deference for parents and keenly aware of the disparity in resources between parents and the state, see, e.g., In re S.M.S., we further hold that, consistent with the Act‘s “clear necessity” custody test, parents whose visitation is opposed by the state constitute a grave threat to their child only where
Unlike a custodial parent, the state can offer many alternatives to a parent seeking visitation. Inter alia, the state can provide, as it did in the instant case, counseling services and a supervised, neutral setting10 within which parental visitation may occur.11 Unless the state demonstrates with clear and convincing evidence that even supervised visitation would severely endanger the child, the court must deny the complete foreclosure of parental visitation as being contrary to the Act‘s goal of family preservation.
Finally, Appellants contend that the trial court‘s termination of parental visitation was not supported by competent evidence, i.e., that the court‘s decision was not based upon clear and convincing, competent evidence of a grave threat to the child.
“In cases of child custody and visitation our scope of review is broad and requires independent examination of the evidence before reaching our conclusion.” Spells, 250 Pa.Super. at 175, 378 A.2d at 883; Pamela J.K. “While we cannot nullify the fact-finding function of the hearing judge, we are not bound by a finding that has no competent evidence to support it .... In addition, we are not bound by deductions or inferences made by the lower court from the facts as found.” Miller v. Miller, 269 Pa.Super.Ct. 83, 87-88, 409 A.2d 74, 77 (1979) (emphasis added), allocatur denied, December 10, 1979.
The CYS conferences were attended by CYS caseworker Debra Kerr, Family and Children Services caseworker Martha McGinnis, staff of the Begin Again Parent Training Program, and by CYS consultants Drs. Reinhart, Goetz, and Ragins.13 Ms. Kerr further stated that on the recommendation of Drs. Reinhart, Goetz, and Ragins, Appellants’ visits with Cheryl Ann were restricted to one hour per month from September of 1979 to January of 1980, and were thereafter terminated.
On cross-examination by Appellants’ attorney Ms. Kerr responded that Drs. Reinhart, Goetz, and Ragins whose professional opinions formed the basis for limiting, then eliminating, parental visitation, had neither observed nor participated in any visits between Cheryl Ann and Appellants. Speaking as a witness for CYS, Dr. Reinhart, director of the Division of Behavioral Sciences at Children‘s Hospital and consultant to the Begin Again Parent Training Program, explained that the foundation for his opinion on visitation was his examination of unspecified records submitted to him by CYS.
Accordingly, arguing the impossibility of meaningful cross-examination without access to said records, Appel
In contrast, Martha McGinnis, caseworker for Family and Children Services and counselor to Appellants,14 testified that she had taken part in Appellants’ supervised, one-hour November visit with Cheryl Ann at CYS facilities and had not witnessed any emotional or destructive behavior by Cheryl Ann.
Moreover, Ms. McGinnis asserted that Appellants had noticeably improved their stability, maintaining an established residence for nine months as of the hearing date. She also cited Appellants’ cooperation in counseling sessions.
In concluding the April 2 hearing, the judge stated: “I am going to continue the case two weeks [until April 16, 1980]. I want you [CYS] to bring the foster mother in, and other persons who might be knowledgeable about the effects on the child of these visits. At that time we will make an order.”
At the April 16, 1980, hearing Cheryl Ann‘s foster mother, Mrs. Brandenstein, testified for CYS that Cheryl Ann first exhibited behavioral problems after Appellants’ August, 1979, visit with Cheryl Ann. Mrs. Brandenstein enumerated Cheryl Ann‘s problems as “diarrhea, no eye contact, anger, ... hit herself, and pulled hair out ..., was very distraught ....” From September of 1979 through
Also appearing for CYS, Trudi Fricenda, coordinator of the Begin Again Parent Training Program, explained that Appellants had participated in two ten-week parent education programs during which Appellants had weekly, supervised, two-hour visits with Cheryl Ann. Ms. Fricenda commented that between the first and second education programs Appellants showed progress in parenting skills “in terms of picking up [Cheryl Ann‘s] shoes, in terms of sharing of the parental tasks at hand.” In addition, Ms. Fricenda reported having had telephone conversations with Mrs. Brandenstein from the period August 3, 1979, through October 3, 1979, wherein Mrs. Brandenstein stated that Cheryl Ann was having severe reactions to Appellants’ visits. However, asked whether Appellants’ visits with Cheryl Ann should be continued or discontinued, Ms. Fricenda declined to offer an opinion because she had not been “involved with the Rhines” and lacked “direct experience.”
Finally, Martha McGinnis of Family and Children Services again opined on Appellants’ behalf that limited visits of one, supervised hour per month would not endanger Cheryl Ann and would enable Appellants to form a relationship with their child.
At the close of the hearing the judge ordered the case continued until September 3, 1980, to allow CYS to have Cheryl Ann evaluated and to permit Cheryl Ann to “stabilize, develop, and get those strengths necessary to deal with these kinds of separations and problems.” In effect, the judge‘s order sanctioned the termination of visitation unilaterally imposed by CYS in January of 1980 and perpetuated
Having ruled that this case concerns an important, legislatively protected, private interest, we have also held that the state must adduce clear and convincing evidence of a clear necessity for indefinitely restricting or entirely terminating Appellants’ interest in Cheryl Ann. Regarding the quality of evidence admissible at a dispositional hearing under the Juvenile Act,
In the present case CYS caseworker Debra Kerr maintained that CYS ended Appellants’ visitation on the advice of CYS consultants. Testifying for the CYS consultants, Dr. Reinhart admitted that he had met neither Cheryl Ann nor Appellants and that Cheryl Ann had not been tested. Dr. Reinhart further stated that his opinion was based upon written reports which he had not prepared and which were not offered into evidence. Therefore, Appellants’ attorney was effectively precluded from examining and controverting the reports and from cross-examining the persons who compiled the reports.
The sole firsthand witness to Cheryl Ann‘s behavioral problems was Mrs. Brandenstein, the foster mother. While Mrs. Brandenstein had direct knowledge of Cheryl Ann‘s behavior and was available for cross-examination by Appellants’ counsel, Mrs. Brandenstein was not qualified as an expert to testify as to the cause of Cheryl Ann‘s conduct
The only other witness who testified from actual experience with Cheryl Ann was Martha McGinnis of Family and Children Services. As a family counselor to Appellants, Ms. McGinnis stated that Appellants had progressed toward stabilization of their home life and that Appellants and Cheryl Ann had interacted appropriately during a supervised, one-hour November visit which Ms. McGinnis attended. Ms. McGinnis added that she did not observe any behavioral problems on the part of Cheryl Ann at the November visit.
Accordingly, we hold that as of the hearing of April 16, 1980, the trial court did not have before it competent evidence to terminate parental visitation. To hold otherwise would permit a finding of clear and convincing evidence where competent evidence is lacking. Such a complete disregard of evidentiary rules would subvert the clear necessity test and circumvent the Act‘s protection of the strong parental interest in a natural child.
At the hearing on September 3, 1980, CYS caseworker Debra Lear asserted the Appellants had relocated to a new apartment in July of 1980 and that she had interviewed Appellants in their new home twice during the month of August. Ms. Lear reported that during the second August meeting Appellants told her that Appellant Richard Rhine occasionally suffered from violent, epileptic seizures.
Appellant Richard Rhine testified that his seizures were being treated by medication prescribed by his doctor and that, to the best of his knowledge, he had suffered a nonviolent seizure in July of 1980. On direct examination Appellant Cheryl Rhine stated that during her three-year
The principal witness at the September hearing was Vivian T. Harway, Ph.D., a clinical psychologist and director of Consultation and Education for the Pittsburgh Child Guidance Center. Dr. Harway explained that in addition to reviewing records from Children‘s Hospital, the Parental Stress Center, and CYS consultants Drs. Reinhart and Goetz, she spent two and one-half hours with Cheryl Ann and her foster parents. Cheryl Ann, then 26 months old, was given the Stanford-Binet intelligence test. Based upon her personal evaluation of Cheryl Ann, Dr. Harway concluded that Cheryl Ann was currently unable to deal properly with separations and probably would remain cognitively unable to handle separations until the age of seven or eight. Nevertheless, on direct examination Dr. Harway opined that there would be no harm in controlled supervised visits [of one hour per month] .... I think it would be better if there were controlled visits with the parents learning how to cope with it. There will be consequences of the visits, but if the foster parents are helped to cope with the consequences, it would be the same thing as [Cheryl Ann‘s] going to a preschool or being left with a sitter or all other things which will be separation experiences. [Cheryl Ann] has to learn to cope with this. She is now at the point that she is demanding exclusivity. She has to learn reality doesn‘t give anybody exclusivity over anyone else.
On cross-examination Dr. Harway admitted that she had never met Appellants. Consequently, Dr. Harway‘s evaluations of Cheryl Ann‘s adverse reaction to separations concerned Cheryl Ann‘s reactions to the presence or absence of her foster parents, not the presence or absence of her natural parents, i.e., Appellants. When asked by Appellants’ counsel whether Cheryl Ann‘s “conduct, the anxiety and tension,” resulted from “contact with the natural par
In concluding the hearing the trial judge continued the case to December 31, 1980, so that both Appellants could receive mental health evaluations and Appellant Richard Rhine could obtain a complete medical examination. Additionally, Cheryl Ann‘s foster parents were instructed to participate in a parenting program. The judge explained that the continuation was “to give every opportunity possible, and have as much done to determine whether visitation is appropriate.” Despite the judge‘s expressed concern for Appellants’ interest in visiting Cheryl Ann, the effect of the judge‘s action was to prolong the suspension of parental visitation for a period totalling more than eleven months from the initial CYS termination of visitation.
Although the judge continued the case from September 3, 1980, to December 31, 1980, CYS caseworker Debra Lear began the December hearing by requesting a continuance so that CYS could produce a witness, Dr. Siewers, who had conducted therapy sessions with Cheryl Ann and her foster family. Protesting the requested continuance, Appellants’ attorney countered that CYS had ample notice of the December hearing and thus had an adequate opportunity to obtain its witness. Furthermore, Appellants’ attorney stated that Dr. Siewers’ testimony was not material to the issue of Appellants’ visitation with Cheryl Ann since Dr. Siewers had only worked with Cheryl Ann and the foster family and had never met Appellants or evaluated their interaction with Cheryl Ann.
At the December hearing Mrs. Brandenstein, Cheryl Ann‘s foster mother, testified that since Cheryl Ann and the foster family had attended therapy sessions, Cheryl Ann was “much more pleasant.” Nonetheless, Mrs. Brandenstein confessed that the foster family “had a lot of difficulty when [Cheryl Ann was being] toilet trained ... because her behavior ... seemed abnormal.” Asked to depict Che
Questioned by the judge as to whether she thought Cheryl Ann could tolerate resumed parental visitation, Mrs. Bradenstein responded in the affirmative, adding that Cheryl Ann was “doing much better with strangers.”
Family and Children Services caseworker Martha McGinnis explained to the court that Appellants had moved to improved accommodations in a housing project which also afforded an opportunity for Appellants to interact with the children of other families living in the housing development. Specifically, Ms. McGinnis stated that Appellants “have friends that have children all age levels, a new baby, which Cheryl [Appellant — natural mother] does babysitting for quite often ....” Additionally, Ms. McGinnis discussed several kinds of counseling groups in which Appellants, particularly the natural mother, participated.
The case was continued to January 21, 1981, to allow Dr. Siewers to testify on behalf of CYS.
Appearing as the only witness at the January 21, 1981, hearing was Christiane Siewers, M.D., a pediatrician and child psychiatrist, who evaluated Cheryl Ann on the basis of two interviews. The first interview occurred in December of 1980 and was attended by Cheryl Ann and Mrs. Brandenstein. The second interview occurred in January of 1981 and was attended by Cheryl Ann and the entire foster family. Dr. Siewers stated that Cheryl Ann related very well to all members of the foster family.
Despite never having met Appellants and never having observed or discussed Cheryl Ann‘s reaction to Appellants, Dr. Siewers offered a “recommendation as to the possibility of reinstituting visitation” between Cheryl Ann and Appellants. Dr. Siewers opined that looking at Cheryl [Ann] and ... looking at the record, ... [there was] not really ... any advantage for Cheryl [Ann], herself — for visiting with her [natural] parents. .... Again, I have to go back to the records. What I know is not firsthand, but from what I read there, there were just severe emotional upsets over separations or having seen the natural parents ....
Requested to suggest a suitable time for resuming parental visitation, Dr. Siewers answered that Cheryl Ann would probably benefit from contact with Appellants when she reached adolescence.
Noting the severity of Dr. Siewers’ recommendation, the trial judge explained that the law is going in one of two directions; either you rehabilitate the family and make it possible to have this child back, quickly, or you take the other very drastic step and terminate parental rights .... I think we‘re, almost, obligated to make some attempt, if the child is, apparently, strong enough to — not being totally destroyed by attempted visitation. Time is important.
Accordingly, Dr. Siewers recanted and suggested that visitation could be resumed when Cheryl Ann acquired enough verbal skills to handle the reunion, at approximately four years of age. Furthermore, Dr. Siewers acknowledged the court‘s concern over Cheryl Ann‘s increasing “psycho
At the end of Dr. Siewers’ testimony the judge concluded the hearing by stating, “[W]e‘ll continue the termination of the visitation. I don‘t see that we should come back here in any given time, ... but I would suggest that it, probably, wouldn‘t make sense to have a review of this case in less than a year ....” This decision of the court of common pleas prompted a second appeal by the natural parents.
Having ruled that the evidence accumulated as of the April 16, 1980, hearing did not satisfy the evidentiary standard for suspending parental visitation, we now consider whether the additional evidence adduced at the hearings of September 3, 1980, December 31, 1980, and January 21, 1981, was clear and convincing evidence of a clear necessity to terminate visitation.
Drs. Harway and Siewers testified that they had reviewed records of Cheryl Ann‘s behavioral history. The records were not submitted into evidence, and thus Appellants’ counsel did not have an adequate opportunity for cross-examination on the substance of the undisclosed records. See
Both doctors agreed that Cheryl Ann could not deal with separations. Stating that Cheryl Ann should be desensitized to separations by exposure to preschool and baby-sitters, Dr. Harway asserted that “there would be no harm in controlled supervised visits [of one hour per month]” between Cheryl Ann and Appellants if the foster parents dealt properly with the visits. Dr. Siewers affirmed the need for contact between Cheryl Ann and Appellants if the purpose of the court proceedings was to reunite the natural family at a future date.
Neither doctor interviewed Appellants or observed Cheryl Ann interact with Appellants. Nor did either doctor cite any action or inaction by Appellants as the cause of Cheryl Ann‘s behavioral difficulties. On cross-examination Dr. Harway was asked whether Cheryl Ann‘s inappropriate conduct was caused by contact with Appellants or by the existence of two sets of parents (the natural parents and the foster parents). This question presented the central issue of the case, i.e., whether or not Appellants constitute a grave threat to Cheryl Ann and whether there is a visitation format which will protect both Cheryl Ann‘s well-being and Appellants’ interest in establishing and maintaining a relationship with their child. However, Dr. Harway failed to answer the question posed.
Cheryl Ann‘s foster mother, Mrs. Brandenstein, testified that since entering therapy Cheryl Ann was more easily handled. But Mrs. Brandenstein recounted severe behavioral problems on the part of Cheryl Ann when the foster family attempted to toilet-train the child. There was no attempt to relate Cheryl Ann‘s difficult conduct to Appellants as, in fact, Appellants had been prevented from visiting Cheryl Ann for several months before this behavior occurred. Mrs. Brandenstein declared that in her opinion
Family and Children Services caseworker Martha McGinnis explained that Appellants were leading a more stabilized home life and had increased associations with children of various ages who lived in the vicinity of their new residence. Ms. McGinnis cited Appellant Cheryl Rhine‘s participation in several counseling programs and her frequent baby-sitting for a neighborhood child.
With respect to Appellant Richard Rhine‘s health disorder, no conclusive evidence was offered to prove that during a supervised visit Cheryl Ann would be endangered by Appellant‘s epileptic seizures. There was no evidence of Appellant‘s having suffered a seizure or having harmed Cheryl Ann during any of Appellant‘s visits with Cheryl Ann. Appellant stated that he was under a physician‘s care and was taking medicine to control the epilepsy.
This protracted case presented many difficulties. The trial judge throughout showed great concern about, and sensitivity toward, the welfare of Cheryl Ann. However, we find that the aggregate evidence attained through the five delineated hearings does not rise to the level of clear and convincing, competent evidence of a grave threat to Cheryl Ann.16
Accordingly, we reverse the aforementioned orders of the Court of Common Pleas of Allegheny County which terminated parental visitation. Relinquishing jurisdiction in this
WICKERSHAM, J., concurs in result.
WIEAND, J., files a concurring and dissenting opinion.
WIEAND, Judge, concurring and dissenting:
I concur in the majority‘s decision to remand for further proceedings. However, I do so because the lapse of time commands that another hearing be held and not because I find error in the trial court‘s determination of January 21, 1981.
The court‘s order of April 16, 1980 is moot. This order denied to appellants the right of visitation with their child, who had been previously adjudicated dependent, until September 3, 1980. That date has now passed, and the court‘s order has been superseded by an order of January 21, 1981. This later order, entered after three separate hearings, deferred future visitations until further order of the court. The later order is properly the subject of appellate review; but no good purpose can be served by reviewing and/or reversing the earlier order.
The “clear and convincing evidence” standard of proof has been imposed by the Supreme Court of the United States upon proceedings to terminate rights of parents to their natural children. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). The standard for adjudicating a child dependent is also “clear and convincing evidence.”
I am unable to agree with the writer of the lead opinion that the record discloses a lack of competent evidence to support the hearing court‘s determination that immediate visitations would have been gravely detrimental to the child. There clearly was competent evidence to support such a finding. The credibility and weight of that evidence were for the trier of the facts. I would accept the finding of the hearing judge, who saw and heard the witnesses and concluded that “the child would be in serious emotional and physical danger in the custody of the parents, and even visitation at this time would be seriously detrimental to the child.”
Were it not for the fact that nearly two years have passed since the order which deferred the parents’ right to visit their child was entered, I would simply affirm the hearing court‘s order. However, the passage of time suggests most strongly that additional evidence is now required and that appellants’ asserted rights of visitation be recon