Appeal from order of Court of Common Pleas, Family Division, of Allegheny County, No. 1079 of 1973, in case of Janet D. v. Thomas Carros, individually and in his capacity as Director of Child Welfare Services of Allegheny County.
James A. Esler, Assistant County Solicitor, with him Thomas M. Rutter, Acting County Solicitor, and Stephen A. Zappala, County Solicitor, for appellant.
Max A. Levine, with him Eric N. Anderson, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J. Watkins, P.j., and Hoffman and Van der Voort, JJ., concur in the result.
[ 240 Pa. Super. Page 295]
This case presents two questions, each of first impression in Pennsylvania, and of first importance: Does a child committed by a juvenile court to a child
[ 240 Pa. Super. Page 296]
welfare agency as a "deprived child"*fn1 have a right to treatment? If so, may the director of the agency be held in contempt for failing to provide the treatment?
Appellant, Thomas Carros, is the Director of Child Welfare Services of Allegheny County (hereinafter "CWS"). When this action was commenced, appellee, Janet D., was a sixteen year old girl under the protective supervision of CWS.
On June 15, 1973, following the informal detention hearing required by the Juvenile Act,*fn2 the lower court issued the following order:
"And now, to wit, this fifteenth day of June, 1973, after Shelter Care Hearing, it is ordered and directed that:
1. Said child [appellee] is committed to the Allegheny County Juvenile Detention Home.
2. Child Welfare Services of Allegheny County (hereinafter called 'CWS') is directed to file a petition in the interest of said child by 4:00 P.M. Tuesday, June 19, 1973.
3. CWS is to provide suitable shelter for said child on or before Friday, June 22, 1973, so that she will not have to remain in the Juvenile Detention Home.
4. Said child appears to be retarded and ran away from McIntyre Shelter in March, 1973; it will
[ 240 Pa. Super. Page 297]
therefore be necessary for CWS to make suitable arrangements to see that said child does not run away subsequent to her placement in the shelter facility to be provided by CWS." (Record at 4a-5a).
On June 20, 1973, Bernard Frank, the CWS social worker assigned to appellee's case, filed the petition called for by paragraph 2 of this order. The petition designated appellee a "deprived child," requested that CWS be given "supervision with permission to place," and stated that "[i]t appears that it is in the best interest of said child and the public that she be given a hearing."*fn3 On June 22 appellee was taken by the Sheriff from the Detention Home to McIntyre Shelter, a facility administered by CWS and designated as "temporary" and "physically unrestricted."*fn4 On June 25 her appointed counsel*fn5 wrote a letter to appellant, stating that "[a]t this time, no suitable arrangements have been made, to the best of my knowledge," and demanding that appellant
[ 240 Pa. Super. Page 298]
comply with the June 15 order. Record at 16a. That same evening, appellee ran away from McIntyre Shelter.
On June 26, appellee's counsel petitioned the lower court for a rule to show cause why appellant should not be held in contempt. Record at 9a.*fn6 The lower court issued the rule, and after a hearing conducted on July 27, July 30, August 3, and September 4, 1973, filed an opinion on March 29, 1974, finding appellant in "Contempt of the Order of this Court dated June 15, 1973."*fn7 Pursuant to this finding, the court imposed a fine of $100.00 on appellant, and granted appellee leave to file a petition for compensatory damages.*fn8
Some background information about appellee and the history of her relationship with CWS is helpful to an
[ 240 Pa. Super. Page 299]
understanding of the events that brought into question whether CWS had complied with the June 15 order.
Appellee was born September 23, 1956, and was one of twelve children. Her father died in December, 1972. Her mother was considered mentally retarded and was cared for by one of the older children, appellee's sister Betty. Appellee has also been designated retarded (see, for example, the June 15 court order, supra), because she scored 64 and 76 on I.Q. tests, although one witness at the contempt hearing, Mrs. Laughren, Director of Social Services at McKeesport Hospital, disagreed with this interpretation, considering that appellee's problems derive from emotional disturbance rather than from retardation. (N.T. 66, 7/27/73.)*fn9
In 1969, when appellee was 13, she was admitted to McKeesport Hospital as an hysterical child. At that time, she was a resident of Westmoreland County and the Child Welfare service of that county removed her from her home and placed her with a foster family.
On March 28, 1973, appellee was again taken to McKeesport Hospital. Mrs. Laughren testified:
"Janet at that time was very unkempt and dirty, and dressed in clothing that was really heavy winter clothing, had been barefooted. The Emergency Room diagnosed at the time that they saw her acute exposure and feet frostbite. They didn't feel that she needed an admission, however, they did feel that she needed some emotional supports . . ." (N.T. 61, 7/27/73.)
Evidently, appellee had run away from her foster home because she had overheard that the court would not continue to make payments for her and that she would have to leave. At first she had returned to her mother and sister, but when they refused to keep her, she went to a neighbor's home. There, according to Mrs. Laughren,
[ 240 Pa. Super. Page 300]
"The man of the house then declared he wouldn't keep her unless she was cleaner and put her on the kitchen floor, sat on her, and shaved all her hair from her head." (N.T. 62, 7/27/73.)
After the hospital had cleaned appellee and had purchased a wig for her, they attempted to place her with a welfare agency. The Westmoreland County Child Welfare Service disclaimed responsibility because appellee's mother and sister had moved to Allegheny County. Despite this fact, CWS also disclaimed responsibility for appellee. Mrs. Laughren testified:
"Janet was highly disturbed and we saw her as a possible suicide attempt if some treatment weren't effected . . . . We attempted to persuade Child Welfare [CWS] to allow us to send Janet directly to . . . Shelter . . . and this was refused. And they insisted that they would have to have the mother, who is retarded, and the daughter . . . go to Juvenile Court and to Child Welfare to file a complaint . . . . This was after about seven or eight phone calls between agencies and all day at the [McKeesport] hospital . . . ." (N.T. 63, 7/27/73.)
Eventually appellee was committed to McIntyre Shelter. Soon, however, she ran away and returned to her former foster home in Westmoreland County. Three months later she ran away from the foster home, attempting to return to her mother and sister. However, they refused to keep her, she ran away again, and on June 12, 1973, her sister and a minister took her back to the McKeesport Hospital. Mrs. Laughren testified:
"She [the sister] had called the Child Welfare office and seemed to get no cooperation insofar as what she was to do with her sister, so she brought her back to me, hoping we could make some dispositional plan." (N.T. 73, 7/27/73.)
In trying to devise such a plan, Mrs. Laughren encountered considerable difficulty in obtaining the cooperation of CWS. Appellee had been brought to her
[ 240 Pa. Super. Page 301]
office at 9:30 that morning. Mrs. Laughren made numerous telephone calls to CWS, attempting to reach either appellee's caseworker or his supervisor, but her calls were not returned. After six hours, she called the office of the Juvenile Court judge who had previously committed appellee to shelter care. Because of his intervention, Mrs. Laughren was finally able to speak with a CWS supervisor, who advised her to file a petition and to take appellee to Juvenile Court. Appellee's sister followed this procedure, and appellee, although a deprived child rather than a delinquent child,*fn10 was placed in the Allegheny County Juvenile Detention Home, a facility for delinquents. She remained there for ten days. 11 P.S. §§ 50-311(d) and 50-321(b) prohibit the placement of deprived children in a facility for delinquents, but the lower court agreed to the placement as a temporary measure to enable CWS to plan for appellee's subsequent placement.*fn11
It was against this background that the lower court issued its June 15 order.
It is hardly surprising that the lower court found that appellant had disobeyed the June 15 order, which, it will be recalled, was that appellant was "to make suitable arrangements to see that [appellee] does not run away subsequent to her placement in the shelter facility
[ 240 Pa. Super. Page 302]
to be provided by CWS." Briefly stated, the arrangements made were again to place appellee in McIntyre Shelter, and then to provide her with next to nothing in the way of intelligent supervision, counseling, or treatment.
Since McIntyre Shelter was a "temporary" and "physically unrestricted" facility, see footnote 4, supra, it would seem that it was un suitable for a child, who, as CWS knew from its past experience with appellee (recited in Part I, supra), had run away before and was emotionally unstable. This unsuitability was in fact immediately and repeatedly demonstrated.
As already mentioned, on June 25 appellee's counsel wrote appellant demanding that suitable arrangements be made for appellee. That same evening, appellee ran away from McIntyre Shelter. The infirmary records*fn12 show that she left at 11:15 P.M. and returned several hours later, voluntarily. According to her testimony, "I just went out the door and down the stairs and out the back door." (N.T. 20, 7/27/73.)
Following this first runaway, appellee was placed on "Seven Day Restriction," which meant confining her to the cottage for seven days in pajamas and robe. This restriction was not imposed on all children who ran away. The Shelter Administrator, Paul Aigner, testified, however, that as concerned appellee, "We felt that with pajamas and robe on . . . we could hold her in detention . . . until possible placement." (N.T. 126, 7/27/73.) Although this suggests awareness that McIntyre Shelter was not a suitable facility for appellee, there is no evidence that any effort was made to find a suitable facility.
[ 240 Pa. Super. Page 303]
On June 28 appellee ran away again. (She explained that ". . . I have clothes downstairs I kept and I went downstairs with my pajamas on and took the clothes outside." (N.T. 20, 7/27/73.)) Again she returned voluntarily.
On July 4, appellee was reported a runaway for the third time (although she remained on the shelter campus for four hours, her absence was reported as a run). As she was returning to her cottage, she was attacked by four boys also in residence at the shelter, undressed by them, and beaten with a whip. Appellee testified that she feared she would be sexually attacked. (N.T. 23, 7/27/73.) After thirty minutes, a houseparent and the houseparent supervisor subdued the boys and took appellee to the infirmary. The infirmary records describe her condition:
"Child trembling when brought in the department. Long welts on left thigh of leg. Abrasion left side of back. Superficial scratching on arms. Underpants full of dirt. Outer jeans soaking wet . . . Stated she was on her way back to shelter when boys jumped her." (N.T. 49, 7/27/73.)
Bernard Frank, appellee's assigned caseworker, was not informed of this incident for six days, and only learned of it when appellee came to his office to meet with her attorney.
Appellee was again placed on restriction and made to wear pajamas and robe. However, on July 15 she ran away again, stayed away for three days, and returned voluntarily. Her condition on return is described by the infirmary records:
"Legs very dirty . . . condition very dirty. Legs covered with scratches and insect bites, also some on forearms. Had been staying in the woods. Had not eaten since dinner on 7/15. Was wearing gym shorts and short pajama bottoms, long sleeved shirt, no shoes or socks. Very depressed. Is afraid she will be locked up at J.C." (N.T. 49-50, 7/27/73.)
On July 23 appellee left her cottage again, stayed out
[ 240 Pa. Super. Page 304]
all night, and the next morning returned voluntarily. During this absence she stayed within the shelter boundaries.
In summary, although appellee was required to wear pajamas and robe during the entire six weeks (except for four days) that she was at McIntyre Shelter, she ran away five times.
In his answer to the petition for a rule to show cause why he should not be held in contempt, appellant claimed to have instructed the personnel at McIntyre Shelter that:
"[a] court order had been issued directing that suitable arrangements be made to prevent the child from running away; that special supervision and counseling be given to the child to assist her in adjustment to her placement; that she be carefully watched and that she be told she must not leave the shelter." (Record at 21a.)
It is evident from what has just been said that appellee was not "carefully watched;" she was able to run away five times. It is equally evident that neither was she given "special supervision and counseling ...