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decided: June 21, 1974.


Appeal from order of Court of Common Pleas of Dauphin County, No. 40 of 1968, in case of Samuel T. Stapleton and Audrey Stapleton v. Dauphin County Child Care Service, Elwood Joseph Leitzel and Lynne M. Leitzel.


Lawrence G. Frank, with him Thomas W. Scott, Smith B. Gephart, and Killian & Gephart, for appellants.

William J. Madden, Jr., with him Howard L. Bozarth, for appellees.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent). Opinion by Spaeth, J. Hoffman, J., concurs in the result. Watkins, P. J., dissents. Wright, P. J., and Spaulding, J., did not participate in the consideration or decision of this case.

Author: Spaeth

[ 228 Pa. Super. Page 374]

This proceeding concerns the custody of a five year old child named Brent. The proceeding was initiated, and the appeal is taken, by Samuel T. and Audrey Stapleton as Brent's foster parents. Brent was born August 13, 1968, to appellees Elwood and Lynne M. Leitzel, but on November 22, 1968, he was removed from their home by appellee Dauphin County Child Care Service. This was done on a petition by the Child Care Service alleging that Brent and his brother were "dependent children . . . because of the mental and physical condition of the mother."*fn1 Brent was then placed with foster parents (apparently not the Stapletons) until April 25, 1969. At that time he was returned to the Leitzels, with whom he lived until August, 1969, when the Service again removed him, placing him with the Stapletons on August 22, 1969. After a determination by the court below of dependency, permanent custody of Brent was formally granted to the Service on January 30, 1970. Brent lived with the Stapletons until the present action was concluded in the court below. On October 10, 1973, the Stapletons, under the threat of a contempt citation, returned Brent to the Service.

Thus during his first year of life Brent spent seven months, in two intervals, in the custody of his natural parents, the Leitzels, and five months in the technical custody of the Child Care Service and the actual custody of foster parents. He spent his next four years in the technical custody of the Service and the actual custody of the Stapletons.

[ 228 Pa. Super. Page 375]

This proceeding began as an effort by the Stapletons to prevent the Child Care Service from removing Brent from their home and returning him to the Leitzels. The Service had brought no formal action but apparently had notified the Stapletons that it intended to exercise its "rights" as legal custodian and return Brent to the Leitzels. In response, on April 26, 1973, the Stapletons filed with the Juvenile Division of the Court of Common Pleas of Dauphin County a pleading captioned as the present case and labeled "Petition for Rehearing." This petition went unanswered. However, on May 2, notice was served on the Stapletons that Brent would be removed from their home on May 4, which was without the normal two weeks' formal notice and before the hearing that had been scheduled on the "Petition for Rehearing." In response to this notice, the Stapletons on May 3 filed a "Petition for Retention of Possession and Control of Foster Child." Judge Lipsitt thereupon ordered that custody remain with the Stapletons until a hearing could be held.

On May 29, 1973, the Child Care Service answered the Stapletons' petition for rehearing. The gist of the answer was that the Stapletons "have no standing . . . to assert any right to a rehearing with respect to the legal custody granted to the Dauphin County Child Care Service" (para. 9), and that the discretion of the Service "is not subject to question by [the Stapletons] who are, in fact, agents or instrumentalities of the agency itself in achieving the best interests for the welfare of the child" (para. 11).

The Stapletons responded to this in a pleading to the effect that the "contract" they had signed with the Service was unenforceable insofar as it limited any legal standing they might otherwise have, that as the de facto parents for four years they did have standing as parties in interest, that any change in Brent's custody would constitute an abuse of discretion by the Service,

[ 228 Pa. Super. Page 376]

    and that the Service "has acted in the instant case only for its own self-protection, and the best interests and welfare of Brent have been subordinated" (para. 11).

On July 9, 1973, a hearing was held before Judge Lipsitt. It is not quite clear whether this hearing was regarded as on the Stapletons' "Petition for Rehearing" alone or as also on their "Petition For Retention of Possession and Control of Foster Child." In any event, on August 14, Judge Lipsitt denied "the petition" and "directed that the minor child, Brent Leitzel, be returned to the Dauphin County Child Service in pursuance of its arrangements for return of said child to his natural parents."

In the opinion accompanying his order Judge Lipsitt discusses the evidence regarding the Leitzels and the Stapletons, and the care that Brent had received. Without summarizing this discussion, it is enough for present purposes to note that the judge's conclusion was that "[i]f only the question of custody was at issue, and the best interests of the child received paramount consideration, the Court could readily determine that young Brent would obtain greater advantages and benefits with a family such as the Stapletons rather than the Leitzels." (Opinion at 4-5.) The judge went on, however, to say that "[t]he nub of [the case] is the question whether this evidence of contrasts between the families is of any relevance." (Opinion at 6.) He concluded that it was not, and that "the Stapletons are at best volunteers who did an outstanding task in raising a child placed with them." (Id.)

In reaching this conclusion the judge acknowledged the parties' respective arguments regarding the Stapletons' standing. He decided, however, that "it would perhaps be best for this Court to cut through the procedural log jam caused by this question of the Stapletons' legal standing and consider the propriety of this suit in Juvenile Court." (Opinion at 4, footnote omitted.)

[ 228 Pa. Super. Page 377]

On this, the judge said: "The Stapletons accepted the child with knowledge of the terms of the agreement and received money compensation for their services. The agreement also provided the Stapletons were not to institute any proceedings with a view to adoption or placement. While a child's custody should not rest alone upon a contract and a child regarded as a mere chattel, the natural parents have natural rights and obligations and are entitled to their child. Under the present Juvenile Court Act, Section 1, 11 P.S. § 50-101, it is expressly stated that the unity of the family whenever possible is to be preserved. The family itself is an institution whose sanctity must be preserved. The state has an interest in establishing minimum standards of care for a child's well-being, but the statutes involving juveniles were never intended to provide a procedure whereby children were to be taken from their parents except in the most necessary circumstances. The opinion in Rinker Appeal, 180 Pa. Super. 143 (1955) delineates the difference between an ordinary habeas corpus custody case where individuals are contesting for the placement of children and a juvenile court case. The Court points out that in a habeas corpus proceeding, the state acts as an arbiter between parties but in a juvenile court action where a child is declared deprived (formerly either neglected or dependent), the state is both the arbiter and a party. As such, the juvenile court is not empowered to take away any rights from the natural parents, or to determine what is for the best interest of a child, or to simply improve the condition of a child. The state is and should be restrained in removing a child from its parents except under the most unusual conditions." (Opinion at 8-9.)


The opinion of the court below may be read as assuming arguendo that the Stapletons have standing to

[ 228 Pa. Super. Page 378]

    protest the removal of Brent from their home. Whether they do, however, is an issue of considerable importance. It should therefore be decided expressly.

This issue must be decided under the new Juvenile Act, Act of December 6, 1972, P. L. 1464, No. 333, 11 P.S. § 50-101 et seq. The Juvenile Act applies to this case because the Stapletons' petitions were filed on April 26, 1973, some two months after the effective date of the Act. Although the original adjudication of Brent's dependency was made under the Juvenile Court Law, Act of June 2, 1933, P. L. 1433, 11 P.S. § 243 et seq., Section 40(a)(1) of the Juvenile Act, 11 P.S. § 50-337(a)(1), repeals the Juvenile Court Law "absolutely." This repealer became effective sixty days after enactment, or February 4, 1973. The effect of the repealer is to prevent the Juvenile Court Law from governing actions brought years hence simply because an action regarding the child in question had been brought before February 4, 1973. To hold otherwise would be to allow the Juvenile Court Law to linger in our jurisprudence perhaps until 1994, when the last party to an action under it would be twenty-one years old.

Section 6 of the Juvenile Act, 11 P.S. § 50-302, provides:

"A proceeding under this act may be commenced:

"(1) By transfer of a case as provided in section 7 [11 P.S. § 50-303; this section pertains to certain criminal proceedings];

"(2) By the court accepting jurisdiction as provided in section 33 [11 P.S. § 50-330; this section pertains to ordering out-of-state supervision] or accepting supervision of a child as provided in section 35 [11 P.S. § 50-332; this section pertains to a child placed on probation or protective supervision by a juvenile court of another state]; or

[ 228 Pa. Super. Page 379]

"(3) In other cases by the filing of a petition as provided in this act. The petition and all other documents in the proceeding shall be entitled 'In the interest of ___, a minor,' and shall be captioned and docketed as provided by rule of the Supreme Court."

Although the Stapletons' petitions are not correctly entitled, they nevertheless "commenced" a "proceeding." They therefore represent one of the "other cases" contemplated by subsection (3) of Section 6 of the Juvenile Act. The ...

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