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decided: July 7, 1976.



Louis Erteschik, Neighborhood Legal Services, Pittsburgh, for appellant in No. 195.

Eric N. Anderson, Neighborhood Legal Services, Pittsburgh, for appellant in No. 268.

Robert E. Kline, Asst. County Sol., Clifford C. Cooper, Alexander J. Jaffurs, County Sol., James A. Esler, Asst. County Sol., Pittsburgh, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files a dissenting opinion.

Author: Hoffman

[ 241 Pa. Super. Page 175]

This appeal presents an important and difficult question arising under Pennsylvania's Juvenile Act:*fn1 Does the Act permit the juvenile court to declare a newborn infant "deprived" within the meaning of 11 P.S. § 50-102(4), when the child has never been in the custody of

[ 241 Pa. Super. Page 176]

    its natural parents, and the parents have never voluntarily relinquished custody of their child or evidenced an intent to do so? If the Act does authorize such an adjudication, we must then determine what standard applies, and whether the evidence produced in the court below is sufficient to support a finding of deprivation.

Appellant, Dale Henry DeSavage, was born on September 21, 1975, to George DeSavage, age fifteen, and Deborah DeSavage, age nineteen. On October 9, 1975, Child Welfare Services of Allegheny County ("CWS") filed a petition requesting that appellant be placed under its supervision.*fn2 Following a full and complete hearing on October 15, 1975, the court below held that appellant was a deprived child and ordered that he be placed in the custody of CWS. Both appellant and the natural parents seek review of that order.*fn3

Because of the importance of the questions raised in this appeal, it is necessary to outline the background of the parents, as well as the events which caused CWS to file the petition to declare appellant a deprived child. George and Debbie first met in the Lutheran Children's Home while both were in custody of CWS. Debbie was first adjudicated a dependent and neglected child at the age of six, and lived in four different foster homes. On September 1, 1971, however, CWS placed her in the Lutheran Children's Home, where she remained until her eighteenth birthday. At that time, her file was closed by CWS.

The DeSavage family was first referred to CWS in 1970 because of George's truancy. A deprivation petition

[ 241 Pa. Super. Page 177]

    concerning both George and his sister was filed in January, 1972; George was subsequently adjudicated a deprived child and CWS was given supervision. George was placed in the Child Welfare Center, the Juvenile Detention Home, and finally, the Lutheran Children's Home. George remained at the Home from June 30, 1972, until November 21, 1973, when he was permitted to leave in order to spend Thanksgiving with his family. At the end of the vacation, George refused to return to the Home. His mother supported that decision. George lived with his mother, but refused to attend school; all attempts to have him enrolled in a regular school program failed. Finally, on May 6, 1975, CWS decided that it should again seek to obtain supervision of George because he was a truant and had exhibited signs of emotional disturbance. By this time, Debbie was residing in the DeSavage home, and was several months pregnant. George's mother died in June 1975. A hearing was scheduled for July 13, 1975, but was continued until October 15.

George and Debbie, with the consent of George's father, and the permission of a Judge of the Orphans Court Division, were married on September 5, 1975, and obtained their own apartment. Their son was born on September 21, 1975. Debbie was scheduled for release from Allegheny General Hospital on September 24, but the hospital refused to discharge the baby because he had lost over two pounds since birth. When informed of the hospital's decision, George became verbally abusive and had to be removed by a hospital security guard. The parents returned on September 26; they were told by the medical personnel that the baby had developed a rash, and could not be released until the results of certain cultures had been obtained. Debbie understood that it was medically necessary for the infant to remain at the hospital. George, on the other hand, again demanded custody of the child, and again became verbally abusive. He told the

[ 241 Pa. Super. Page 178]

    hospital personnel, "You're not going to keep my baby here" and "I'd rather have him dead than in this hospital. He's leaving today, one way or another." George made no effort to listen to the advice of the hospital personnel and his wife. Instead, he responded with a threat: "If you don't release him, I'll be back, and cause the biggest riot you've ever seen."

Because of the medical risk to the child, the hospital obtained a restraining order that day which prevented his removal. The hospital personnel also referred the case to CWS. The factual situation was presented at the monthly SCAN (Suspected Child Abuse) meeting, which was held the following Monday, September 29, 1975. The meeting was attended by several physicians, several nurses, the director of children's services, and George's case worker, many of whom were personally familiar with the facts of the case. At the conclusion of the meeting it was determined that the baby had to remain in the hospital because it had developed a staph infection which required antibiotic treatment, and that the child should not be released in the custody of its parents when he was medically ready for discharge. Thereupon, CWS filed the instant petition.

At the October 15, 1975 hearing, the court first had to dispose of the May 6, 1975 petition seeking to have George declared a deprived child. The court acceded to CWS's request that a final order for supervision be issued "in order to complete educational plans for George in the Letsche Alternative School High School Program." This adjudication is not a subject of the instant appeal. The court then proceeded to receive testimony in the matter of Dale Henry DeSavage.

The first witness was Linda Mitchell of CWS, George's case worker. She informed the court of CWS's recommendation: ". . . Child Welfare feels that there is some question concerning father's maturity and his ability to take care of a child; but since the parents really

[ 241 Pa. Super. Page 179]

    never had a chance with the child, it's felt that the Parental Stress Center will be kind of a neutral area where there will be a lot of interaction between parents and child, and where they can be observed and also be a teaching experience for the parents." The Parental Stress Center is a facility with a full-time professional staff to care for the children. The parents, however, are free to come to the Center and take care of their child. In effect, it is a "halfway-house" between a foster home and the home of the natural parents. The parents have the opportunity to develop a relationship with their child, and at the same time receive instruction from professionals in child care. A child is assigned to the Parental Stress Center for a period of four to six weeks with the expectation that the child will then be released to the custody of his parents.

It must be stressed, however, that Ms. Mitchell, although a representative of CWS, did not agree with the CWS recommendation: "I guess I know George pretty well, and I know that he has a pretty bad temper, and oftentimes mouths off about things and you know, this is kind of a reaction that he does have. And usually he doesn't mean any harm by it. Once he calms down he's able to discuss things fairly rationally, and I feel that, you know, this was an instance where he acted very immaturely about it. But I don't see him as actually harming the baby in any way. And, you know, knowing Debbie and George, I know they have a fairly nice apartment and they want to take care of the baby. And they've really never had a chance to take care of it. So everything is just pure conjecture at this point . . . No, I don't think there'd be any danger of abuse, but you know possible inadvertent neglect, just, you know, by the fact that George and Debbie have never been parents, are both rather young, and their deprived background, I think they could use help in becoming better parents." (Emphasis added). Ms. Mitchell testified that she was

[ 241 Pa. Super. Page 180]

    not surprised by George's reaction at the hospital. In the first place, she stated that George reacts to stress by becoming verbally abusive. Secondly, she testified that George and Debbie were afraid that the authorities would not allow them to obtain custody of their child because they ...

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