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decided: December 15, 1976.


Appeal from the Order of the Court of Common Pleas of Allegheny County, Family Division, Juvenile Section at No. 326 of 1975, Entered on March 5, 1975. No. 425 April Term, 1975.


John W. Herold, Pittsburgh, for appellant.

Clifford C. Cooper, Asst. County Sol., Eric N. Anderson, Joseph A. Rieser, Jr., Joseph F. McDonough, Reed, Smith, Shaw & McClay, Pittsburgh, for appellee.

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

Author: Spaeth

[ 244 Pa. Super. Page 222]

This is a child custody case. John and James LaRue were born on January 2, 1971. They lived with their mother, Joanne, until July 12, 1971, when she signed an entrustment agreement placing them in the custody of the Allegheny County Child Welfare Services. On November 10, 1971, CWS placed the twins with Dove and Allie Harp. On January 17, 1975, Joanne LaRue revoked her entrustment agreement and notified CWS that she wanted the twins returned to her care. CWS responded by filing a petition under the Juvenile Act, Act of Dec. 6, 1972, P.L. 1464, No. 333, 11 Pa.C.S. § 50-101 et seq. (Supp.1976), alleging that the twins were "deprived" within the meaning of the Act. Following a hearing on March 5, 1975, the lower court ordered that CWS retain custody and continue placement of the twins with the Harps; the court continued the case for six months to afford it an opportunity to review its order. This appeal followed.


The fundamental principle, from which all other principles in custody cases derive, is that a child should grow up as part of its natural family. The role of the State is to do everything possible to ensure that the family will be strong and wholesome.

[ 244 Pa. Super. Page 223]

Thus, the Juvenile Act, 11 Pa.C.S. § 50-101(b) provides:

(b) This act shall be interpreted and construed as to effectuate the following purposes:

(1) To preserve the unity of the family whenever possible and to provide for the care, protection, and wholesome mental and physical development of children coming within the provisions of this act;

(2) Consistent with the protection of the public interest, to remove from children committing delinquent acts the consequences of criminal behavior, and to substitute therefor a program of supervision, care and rehabilitation;

(3) To achieve the foregoing purposes in a family environment whenever possible, separating the child from parents only when necessary for his welfare or in the interests of public safety;

(4) To provide means through which the provisions of this act are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights recognized and enforced.

The primacy that this statement of purposes assigns to the family reflects the emphasis we place on the individual. In our view, government does not exist for its own sake but to create and maintain a social order in which the abilities of every individual may be realized to their fullest extent. In such an order the family is one of the most important institutions. Within its shelter, more than anywhere else, we may find the love and security we all need.

Thus the courts have repeatedly acted to protect the family.

In Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1922), the issue was the validity of a state statute forbidding the teaching of a foreign language to any child who had not successfully finished the eighth

[ 244 Pa. Super. Page 224]

    grade. In holding the statute invalid, the Court said that parents have a right "within the liberty of the [Fourteenth] Amendment," id. at 400, 43 S.Ct. at 627, to have their children instructed in a foreign language. Liberty, said Mr. Justice McReynolds,

     denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

Id. at 399, 43 S.Ct. at 626.

In Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1924), the Court held invalid a state statute that required public school education of children aged eight to sixteen. The statute, said the Court,

     unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. . . . The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

Id. at 534-35, 45 S.Ct. at 573.

In Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942), the Court referred to marriage and procreation as among "the basic civil rights of man." In Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944), it said that the care of children is within "the private realm of family life which the state cannot enter." In Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), the Court held that an anticontraceptive statute

[ 244 Pa. Super. Page 225]

    violated the right of marital privacy, and in Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), that a statute prohibiting interracial marriage was a denial of due process. In Roe v. Wade, 410 U.S. 113, 153, 93 S.Ct. 705, 727, 35 L.Ed.2d 147 (1973), the Court held a woman's "right of privacy . . . broad enough to encompass [her] decision whether or not to terminate her pregnancy." In Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 640, 94 S.Ct. 791, 796, 39 L.Ed.2d 52 (1974), it held that a regulation requiring a pregnant teacher to take early leave was invalid as "acting to penalize [her] for deciding to bear a child."

None of this is to say that the State does not have any right to intrude upon the family. The conception of Roman law that the father is the sovereign of his family is gone -- assuming we ever shared it. See generally E. Bodenheimer, Jurisprudence 18-19 (1974). Parents may not dispose of their children at will. The right to have and to raise children is coupled with a "high duty". Pierce v. Society of Sisters, supra 268 U.S. at 535, 45 S.Ct. 571. Too often this duty is ignored. Instead of a shelter where love and security may be found, the family becomes a Hell. No one who has seen what parents sometimes do to children will think this language too strong. The Battered Child (R. Heller and C. Kempe eds. 1968); see also, V. Fontana, Somewhere a Child is Crying (1973); PLI, Effective Utilization of Psychiatric Evidence, ch. 5 (Criminal Law and Urban Problems 1970).

Thus arises one of the most difficult problems in the law. On the one hand, the State has an interest in requiring parents to respect the duty they owe their children. Roe v. Wade, supra. On the other hand, in requiring that respect, the State must be cautious not to intrude upon the family to the point of weakening it as one of our most important institutions.

The way to resolve this problem is to impose restraints upon the State, not to prevent its officials from reacting

[ 244 Pa. Super. Page 226]

    to a child's plight, but to prevent them from overreacting. No doubt one official will be sensitive and wise, but another will be a self-righteous prig; and that is the one we must guard against, for backed by the State, his power may overwhelm any parent.

Of such restraints upon the State, the most important is the principle that a child may not be taken from its parents except upon proof of "clear necessity." In re: Adoption of R. I., 468 Pa. 287, 361 A.2d 294 (filed July 6, 1976); Stapleton v. Dauphin County Child Care Service, 228 Pa. Super. 371, 324 A.2d 562 (1974); Rinker Appeal, 180 Pa. Super. 143, 117 A.2d 780 (1955). In the present case, the lower court ignored this principle. Instead, it decided the case as it would the usual custody case, where the question is whether the mother or father should have the child. That is to say, the court awarded the twins to the foster parents, and denied custody to their mother, because it found that that was in the twins' "best interest." Lower court slip opinion at 13.

This was error. "Best interest" is a much less exacting standard than "clear necessity." "Best interest" is a general welfare standard. Thus, in deciding in the usual custody case whether the mother or father should have the child, the court will typically consider such matters as the size and location of the mother's home as compared with the father's, the mother's character as compared with the father's, the availability of educational and religious facilities, and the mother's financial resources as compared with the father's. To hold that the present case should be decided in this manner would destroy the primacy we have assigned the family, as seen both in the cases and the Juvenile Act. Accept "best interest" as the standard by which to decide whether a child may be taken from the family, and social workers and judges of strong religious convictions will disapprove of a family when the child does not attend Sunday School; other social workers and judges, because of a

[ 244 Pa. Super. Page 227]

    family's social habits (the mother smokes marihuana; she lives with a man not her husband; the marriage is interracial); others, because of a family's economic status (the family is on welfare; it lives in a trailer; the husband is constantly changing jobs). Should this be thought an overstatement, consider such cases as Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976), and Gunter v. Gunter, 240 Pa. Super. 382, 361 A.2d 307 (1976). And see Janet D. v. Carros, 240 Pa. Super. 291, 362 A.2d 1060 (1976).

This does not mean that in a given case the family in question might not merit disapproval; it might. However, that should not entitle a court to take away its child:

It is a serious matter for the long arm of the state to reach into a home and 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 evidence clearly establishes its necessity. . . .

Rinker Appeal, supra, 180 Pa. Super. at 148, 117 A.2d at 783.

It is to prevent such actions that our courts have insisted that a child may be taken from its parents only upon proof of "clear necessity," and not upon proof of what may be in the child's "best interest".

[ 244 Pa. Super. Page 228]


The requirements that must be met before a child may be taken from its parents, are clearly set forth in the Juvenile Act.


The proceeding to take a child from its family may commence in a variety of ways, as for example by a petition by a social welfare agency to have the child declared deprived, or by a petition for habeas corpus brought by the natural parents, or upon petition by the foster parents. See Stapleton v. Dauphin County Child Care Service, supra. Whatever the form of proceeding, however, the issue that the hearing judge must determine is whether the child is a "deprived" child within the meaning of the Juvenile Act.

In making this determination, the hearing judge is controlled by the provision of the Juvenile Act that a "deprived" child is one who:

(i) is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals; or (ii) has been placed for care or adoption in violation of law; or (iii) has been abandoned by his parents, guardian, or other custodian; or (iv) is without a parent, guardian, or legal custodian; or (v) while subject to compulsory school attendance is habitually and without justification truant from school.

11 Pa.C.S. § 50-102(4).

The burden of proof should be on the party asking that the child be taken from its parents, and before the hearing judge may find the child deprived, the evidence must be "clear and convincing." 11 Pa.C.S. § 50-320(c). Evidence should be received from all interested

[ 244 Pa. Super. Page 229]

    parties, and the child should be represented by counsel, for its interests may be distinct from any other party's. Stapleton v. Dauphin County Child Care Service, supra. The judge should receive, and if necessary should seek out, evidence from objective, disinterested witnesses. Cf. Gunter v. Gunter, supra. His inquiry should be comprehensive and searching, and his conclusion as to whether the child is deprived should be supported by specific findings of fact and a full discussion of the evidence. Cf. Commonwealth ex rel. Grillo v. Shuster, 226 Pa. Super. 229, 312 A.2d 58 (1973).


Let us suppose the hearing judge decides that a child who has been entrusted to foster parents is deprived. He should then determine what "disposition [is] best suited to the protection and physical, mental, and moral welfare of the child." 11 Pa.C.S. § 50-321. In making this determination, the judge should be guided by the legislative statement of purposes in the Juvenile Act. He should try "to provide for the care, protection, and wholesome mental and physical development" of ...

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