In the Matter of MARK T., a Minor. Appeal of CARRIE T.
Superior Court of Pennsylvania.
Argued Oct. 20, 1981. Filed March 19, 1982.
442 A.2d 1179
Larry Coploff, Lock Haven, for participating party.
Before BECK, WATKINS and HOFFMAN, JJ.
HOFFMAN, Judge:
Aрpellant 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 subjеct 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 upоn Mark and declared him dependent. A disposition hearing was held,
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
The lower court relied solely upon evidence relating to Mark‘s relationship with appellаnt 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 caрable 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, dеspite 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.”
Orders vacated and case remanded for further proceedings consistent with this opinion.
BECK, J., files a concurring opinion.
BECK, Judge, concurring:
I concur and would vacate the order adjudicating Mark dependent pursuant to the Juvenile Act,
The lower court erred in finding Mark dependent. The state failed to meet its burden of persuasion by clear and convincing evidence that Mark was “without proper parental care or control” at the time of the hearing.
In reviewing the evidence in this dependency proceeding, we are mindful that it “is a serious matter for the long arm of the state to reach into a home tо 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 individual should exercise with extreme care, and only where the evidence clearly establishes its necessity.” Rinker Appeal, 180 Pa.Super. 143, 148, 117 A.2d 780, 785 (1955).
Richard R. Mays, M.D., the psychiatrist who examined both Mark and his mother, testified that the mother exhibited symptoms generally associated with schizophrenic illness. This condition caused the mother to believe that unspecified persons werе beaming radio and television signals at her through the walls of her apartment and using her electrical
The lowеr court found that the mother was “suffering from delusional formations, ideas of reference which were consistent with a schizophrenic illness that is no longer in remission.” This condition, however, the court concluded, had had no harmful physical or psycholоgical effects on the boy. The lower court‘s adjudication of dependency was based not on the present condition of the child, but on testimony of potential long range psychological harm to the child. Such testimony alone will not supрort a finding of dependency. This case is distinguishable from In the Interest of Black, 273 Pa.Super. 536, 417 A.2d 1178 (1980), where this Court upheld a lower court finding that where parental incapacity had resulted in the death of two prior children, and where that parental incapacity had not been corrеcted, there were adequate grounds for adjudicating dependent a new born child of the same parent, even though the parents had caused no harm to the new born child. In this case, there has been no testimony that the mother‘s condition has harmed Mark or anyone else. Nor was there testimony that her condition would cause harm to Mark in the future. Absent a finding that the parent‘s conduct or condition has caused actual harm to the child, testimony concerning hypothetical prospective psychological harms does not constitute clear and convincing evidence of lack of “proper parental care or control.” Matter of DeSavage, 241 Pa.Super. 174, 185, 360 A.2d 237, 243 (1976).
This court has developed a two pronged test in dependency proceedings. A child may be adjudicated dependent: (1) if the child is currently without proper parental care or control; and (2) if such care is not immediately available from a non-custodial parent.
The genesis of this formulation is In the Interest of LaRue, 244 Pa.Super. 218, 366 A.2d 1271 (1976). In LaRue, twin boys aged six months had been placed in foster care by their mother under an entrustment agreement with the Child Welfare Service (“Agency“). Four years later, the mother requested the Agency to return the children to her. The Agency refused, and initiated a dependency proceeding, alleging that the children were “deprived” within the meaning of the Juvenile Act. In such a situation, this Court held that the Juvenile Act required both a finding of lack оf proper parental care and a finding that such parental care was not immediately available. LaRue, supra, 244 Pa.Super. at 1278, 1279, 366 A.2d 1271. The “immediately available parent” test thus originated in special circumstances. The state had already acquired de faсto custody of the children and had been caring for them for some time. The children not in the custody of their parent could have been deemed automatically without proper parental care. The LaRue court found such a result to be incоnsistent with the purposes of the Juvenile Act, one of which is to preserve the unity of the family. That court therefore ordered inquiry into whether the non-custodial parent, in this case the mother, was immediately available to provide care.
The two-pronged dependency test has properly been confined to circumstances where the state already has de facto custody of a child and has initiated a dependency action to
Moreover, if the two-pronged test were applied in the instant case, it would defeat an adjudication of dependency. The court would then have no statutory basis for a transfer of custody to the “immediately available” father. Under the Juvenile Act, the court has no authority to interfere with a child‘s custody absent an adjudication of dependency. If the court fails to find a child dependent, then it must dismiss the dependency petition and order the child discharged to the custodial parent.
I would vacate the order of dependency and would not remand for further hearing.4