In the Interest of A.V.
525 A.2d 778
Pa.
1987
Check Treatment

*1 CAVANAUGH, Before JOHNSON, WIEAND and JJ. PER CURIAM:

Order Affirmed.

WIEAND, J., dissenting files a opinion.

WIEAND, Judge, dissenting: The majority permits mother, is separated who now from her to be deprived custody of her son and young daughter because of physical abuse commit- ted the mother’s upon husband one of the children. My review of the record fails to disclose that the children are dependent or that the mother has done or has failed to do anything requires which that her children taken from given to another. husband, W.V., T.V., are the and her appellant, 11, 1982, children. J.V. was born June two parents 31, 1983, A.V., 1983. On October April born A.V. was old, Dr. Elias taken her mother to then six months *2 a suffering the child was from fever Alsabti because Believing might the child be problems. respiratory a chest Dr. Alsabti ordered suffering pneumonia, from cage. of the The revealed various fractures rib x-ray. x-ray abuse, Dr. Alsabti ordered a com- possible child Suspecting fractured of These disclosed three plete x-rays. x-rays set femur, a fractured left stages healing; in ribs various old; radius, a fractured four to six weeks approximately tibia, old; and, of the three months fractures about about old. four weeks these Dr. contacted findings,

After he had made Alsabti Bureau and informed County the Westmoreland Children’s thereof that A.V. had sustained seven representative a the result of separate fractures he believed which dependency proceedings pur- The Bureau initiated abuse. Act, seq., suant to the Juvenile 42 Pa.C.S. 6301 et and the § 26, 1975, 438, Act of P.L. 11 Child Abuse November P.S. 2201 et seq. § Law defines child abuse as Child Protective Services

follows: physical injury explained or mental which is not

[S]erious accidental, being the available medical as or history sexual or exploitation, physical abuse sexual or serious neglect, age, of a child under 18 if the years injury, or has caused the acts or neglect abuse omissions parents person responsible of the child’s or a for the welfare, child’s or in the same any residing individual child, paramour parent home as the or a of the child’s however, provided, physi no child shall be deemed to be. good or for the sole reason he is in cally mentally abused being by spiritual faith furnished treatment means in tenets and through alone accordance with the prayer religious a church or denom practices recognized practitioner ination accredited thereof or is by duly 182 specified medical

provided practice treatment in the beliefs, solely grounds or on religious environmen beyond tal factors which are control of person responsible inadequate the child’s welfare such as income, housing, furnishings, clothing and medical care. 1975, 26, 3, Act of November 11 P.S. 2203. The § § provides, pertinent part, Juvenile Act that a dependent parental child is a child who “is without proper care or control, subsistence, required law, education as or other necessary mental, care or control for his physical, or emo health, tional 42 morals.” Pa.C.S. 6302. Under this § (1) child statutory provision, a is deemed if dependent care, is presently (2) without such In Yeager, care is re immediately available. 309 Pa.Su 491, 495, Jackson, per. (1983); 455 A.2d 719 302 369, 373, 448 (1982); A.2d E., Theresa Pa.Super. 162, 178, *3 Black, In re (1981); 543, 536, 273 Pa.Super. 1178, 417 A.2d (1980). 1182 “The law is clear that a child should be removed from parent’s custody and placed [his her] the custody a state agency only upon showing that clearly removal is the necessary well-being. for child’s In addition, this court has held clear necessity removal is not until shown the hearing court determines alter native services that would enable child to remain with K.B., her family In re are unfeasible.” 380, 276 Pa.Super. 393, 508, 419 Breisch, re (1980). A.2d 515 In See: 290 404, 413, 815, Pa.Super. (1981). 434 A.2d 820 our Although scope broad, is review it is restricted our inability nullify factfinding responsibility In re trial court. Barclay, 417, 425, 321 Pa.Super. 468 A.2d 778, W.D., (1983); In re Frank 782 510, Pa.Super. 517, 315 708, Black, In re (1983); 462 A.2d 711 supra, 273 Pa.Super.. 543, Neal, re Custody 1182; at A.2d In 417 at 260 151, 152-153, Pa.Super. 1057, 393 A.2d (1978). 1058 “We great accord weight to this function of the hearing judge because he is in position observe and rule upon credibility of the witnesses the parties appear who

183 W.D., at supra Pa.Super. 315 In re Frank him.” before Therefore, will not overrule 711. we 517, A.2d at 462 evi competent supported by as are long they so findings preserving family Id. policy Because of the dence. depend finding of abuse and/or possible, a whenever unity In evidence. convincing” on “clear must be based ency 876, H., 329 Pa.Super. 453, 456, 478 A.2d 878 re Leslie 315, 311, 473 A.2d (1984); In re Haynes, Pa.Super. 326 supra, Pa.Super. 321 at Barclay, In re 1365, (1983); 1366 W.D., supra, 315 In re Frank 780; 422, 468 A.2d at In re 711; 313 Long, 516, A.2d at Pa.Su Pa.Super. at 462 supra; In re Yeager, 403, (1983); 47, 51, 405 459 A.2d per. Jackson, 373, A.2d at supra, re Pa.Super. 301 at 448 In 537, 1179, T., 533, 442 A.2d In re Mark 1089; Pa.Super. 296 Breisch, 409, at 434 supra, In re (1982); Pa.Super. 290 1180 109, 114, 437 A.2d H.B., In re 818; Pa.Super. 293 A.2d at A.E.M., J.J.M., S.L.M., 288 Pa.Su re In 1229, (1981); 1232 E., In re Theresa 1049, (1981); 284, 288, 431 A.2d 1051 per. 1155; In re S.M.S. 172, at 429 A.2d at supra, Pa.Super. 287 In 1369 (1981); 14599-A, 9, 17, 1365, 424 A.2d Pa.Super. 284 1182; Black, 542, A.2d at supra, re 273 at 417 Pa.Super. 872, Pernishek, 447, 458, 408 A.2d 878 Pa.Super. 268 312, 316, A.2d Whittle, 397 In re (1979); Pa.Super. 263 LaRue, 244 218, 228, 366 (1979); 1226 6341(c). (1976); requires A.2d Pa.C.S. § unambiguous that is so direct and “testimony that there be fact come to a sure determina as to enable the trier of at of the exact facts tion, conjecture, of the truth without W.D., issue.” In re Frank (citations omitted). at 711 *4 her infant the concedes that

Although appellant-mother father, challenges she the child’s daughter by was abused finding by that she was an abuser hearing the court’s by use of the term “abuser omission. The trial court’s an inno- The that inappropriate. omission” was connotation by child abuse prevent an to parent duty cent has absolute branded an parent and that the will be parent’s spouse the such abuse is failing prevent to by omission” “abuser hold, decided cases. Those cases not consistent with the rather, parent duty that a has a to her protect or parent abuse when the from another’s knows or should being know that the child is abused such person. other Barclay, supra, was case in which a had mother her had inflicting corporal been aware that husband her small children had punishment upon nothing but done to punishment. them from excessive protect con- Court children had been depend- cluded the both abused and the ent. Crucial to court’s determination was the admission the mother that she had known her husband had abused children that she nevertheless had to refused leave home in he Pa.Super. which resided. Id. 321 at K.B., supra, at re There, 781. In is also illustrative. initially a mother who had been unaware of the fact that her husband had been her sexually abusing testi- daughter fied, becoming charges aware against her after husband, that if her husband were to released from jail, be she would resume cohabitation with him. Id. 276 419 A.2d 508. The Court concluded that the child dependent, as was the mother had demonstrated that she voluntarily would and knowingly expose again her child to the same sexual abuse which to the mother’s husband had previously subjected the child. Because the mother had unwillingness demonstrated an her provide child with the taking care by precautions to prevent fur- assault, ther the child was dependent. determined Finally, case S.M.S., mother had knowledge actual that her eleven old son being month was abused physically father; however, the child's she took absolutely steps no protect her from such son abuse. Therefore, the child was found to be See also: Cardwell, Commonwealth v. 515 A.2d (1986). In the case, instant the evidence does not show that appellant knew should have known that A.V. being physically. abused Although there evidence appel- herself lant had been abused there was no evidence that she had ever observed him manifest abusive *5 The several daughter. bruises which tendencies toward explained on the child had to had been appellant observed suspected and she had not that the mother’s the satisfaction father.1 physically by T.V.’s child had been abused under the circumstances of this case failure to detect abuse did not failed to exercise proper parental that she had imply fact, once or that A.V. was T.V. care A.V. injuries, of the true nature of A.V.’s she apprised had been willing capa- she was and affirmatively demonstrated taking A.V. with care providing by ble further abuse These steps prevent by precautions to W.V. of cohabitation her included a discontinuation with husband. Alsabti, the family pediatrician, Dr. Elias testified that him in his on by separate had seen office three A.V. always appeared “healthy and that she had occasions care of.” He also testified that T.V. was “very well-taken of her child. With to the child’s protective” respect well you Dr. Alsabti testified that children real- injuries, “[w]ith something.” tell unless ly you expect can not Rashid, relies Dr. majority upon testimony by not radiologist, that A.V.’s fractures could have been caused of a truck or her brother’s dropping toy falling her. This evidence tended to show that A.V. upon appellant dispute. had been fact which does not abused—a however, fact, appellant does not establish that knew that her their child. abusing Appellant husband was trained, Dr. testified that unless medically not Alsabti abuse, looking signs one anticipated and was for her child’s would explanations given appellant bruises seemed The evidence also entirely have reasonable. her child’s she showed that when T.V. detected bruises immediately Appellant’s called her mother for advice. call, mother upon receiving testified that she went arrived, she daughter’s apartment and that when and did not to be crying excessively appear occasion, 1. On A.V.’s bruises had resulted when one T.V. was told that accidentally toy she was struck with a truck her brother. On occasion, another A.V.’s bruise had been caused T.V. was told that falling lying her brothers’ on her while she was on the floor. serious, Because the did seem hurt. bruises neither necessary deemed it hospital. woman take A.V. to the *6 was also that testimony neither T.V. nor her mother impairment had ever observed of the child’s movements them sufficient to alert to bones broken or other injury. Dr. Alsabti and several physicians Even other who saw the during period when manifestations thereof would detectable failed to of diagnose have been a case physical The evidence was undisputed diagnosis abuse. that the of a in a fracture child is non-ambulatory difficult best. reasons, of For all these I am join unable to majori- ty’s appellant conclusion that should be held accountable way for injuries some to her child with which she had to do and nothing which were ultimately only detected by Instead, I x-rays. would appellant’s conclude that failure to abuse, signs detect the of under the circumstances of this ease, was an adequate finding basis for that she was an abuser omission or that was a dependent A.V. child. infant, The child was a non-ambulatory and there was no evidence that her mother had failed to reasonably act to care for and protect light child in of knowledge possessed which she at any particular time. Appellant is living separate now apart from her and the evidence does not is suggest unwilling that she unable or provide proper parental daughter. care or for her control A child, mother should deprived not be of her nor the child of care, because, its mother’s love and as merely psycholo- one gist opined, the mother has a passive personality. There- fore, I am persuaded that findings the trial court’s of dependency and with respect appellant’s daughter abuse evidence, were supported by any much less were its findings supported “clear convincing evidence.”

Similarly, the support evidence failed to the trial court’s finding a dependent J.V. was child. There is no evidence whatsoever this child was proper “without care or control.” isNor there evidence that he was abused physically or omission” “by by either his mother or his short, father. dependent J.V. declared because his the children’s father. had been abused sister found properly dependent A child cannot improper. This Court has said: sibling is solely because can be made on the finding dependency true that a of It is Black, In the Interest prognostic evidence. basis (1980) (finding 417 A.2d 1178 of de parents’ infant affirmed where two of newborn pendency of improper pre died because care and children previous In the Matter DeSa parents); cautions taken (1976) 360 A.2d 237 vage, (prognostic inadequate but determina acceptable support evidence where evidence dealt with dependency mainly tion of infant). parents of newborn inexperience youthful However, should not be on the dependent a child found or no evidence simply siblings basis little because *7 See In the dependent. George, are Matter of 272 Pa.Su 173, (1979). finding 414 A.2d 1063 A that a child is per. serious, care is for it proper parental very may without relationship color the child’s future attitude toward and parents. with his E.,

In re Theresa supra, Pa.Super. 287 at 429 A.2d at added). 1156 (emphasis appellant

There was no whatsoever that had evidence provide adequate parental failed to care for her son. The Bureau psychologist upon testimony whose Children’s relied admitted her that she had not had an testimony opportunity relationship to observe the nature of appellant’s her son. with There also was no evidence that J.V. had adversely affected the abuse of his sister. Never- theless, dependent the trial court concluded that J.V. was a if because there existed a his father at possibility mother, him, some future attempted time to abuse who a passive protect had would be unable to him. personality, upon was a which to deter- wholly inadequate basis Jackson, mine supra. that J.V. was See: A upon court find a child clear and may dependent only convincing evidence which demonstrates that a child is presently without care and that such care is

188 respect With immediately available. the children in case, proven. this neither fact A child should not be parent separation a unless separated from is clearly neces (i.e., feasible). no other alternatives are Per sary nishek, at 877; 408 A.2d (3) 6301(b)(1) 6341(c). Pa.C.S.A. and See also: Rink §§ Appeal, er 143, 148, 117 (1955). separating for necessity children from their mother in this case simply Appellant shown. has been longer from and no separated lives her with there is a lack of total evidence to support finding appellant cannot will not adequately care chil dren.

I dissent.

525 A.2d 782 Pennsylvania COMMONWEALTH v. BECKHAM, Appellant. N.

Joe Superior of Pennsylvania. Court

Submitted Feb. 1987. May Filed 1987.