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PAUL KUNKLE (05/04/79)

decided: May 4, 1979.


No. 1913 October Term, 1977, Appeal from Order of Court of Common Pleas of Lehigh County, Criminal-Juvenile Division, Docket No. 136J Sessions, 1977.


John B. Dunn, Allentown, for appellants.

Malcolm J. Gross, Allentown, for appellee, Lehigh County Children's Bureau.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., files a concurring and dissenting opinion. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Hester

[ 265 Pa. Super. Page 606]

This is an appeal from an order of the Common Pleas Court of Lehigh County adjudicating Paul and Edward Kunkle deprived; removing them from their home; and giving custody to the Lehigh County Children's Bureau.

[ 265 Pa. Super. Page 607]

The appellants, Charles H. and Janice G. Kunkle, are the natural parents of the above named juveniles. This present action was initiated on April 12, 1977 by a Deprivation Petition filed by the Lehigh County Children's Bureau.

The Deprivation Hearing was held on May 16, 1977, and on May 25, 1977, the court adjudicated Paul and Edward Kunkle deprived and placed them in custody of the Lehigh County Children's Bureau. This appeal followed.

Appellants' first contention is that the evidence presented below was insufficient to sustain a finding of deprivation within the meaning of the Juvenile Act, December 6, 1972, P.L. 1464 # 333, § 1, 11 P.S. § 50-101, et seq.

In order to adjudicate Paul and Edward Kunkle "deprived", the hearing judge had to find from "clear and convincing" evidence that the children were "without proper parental care or control, subsistence, education as required by law, or other care or control necessary for [their] physical, mental or emotional health or morals." The Juvenile Act, supra, at § 50-320(c), § 50-102(4)(i).

In reviewing the disposition below, we must always give great weight to the operation of the trial court, who has had an opportunity to observe and hear witnesses and thus judge credibility; in addition, talking to the children involved. Clair Appeal, 219 Pa. Super. 436, 281 A.2d 726 (1971). But, granting that we cannot substitute ourselves as fact finder in place of the hearing judge, we are not bound by a finding which has no competent evidence to support it. Commonwealth ex rel. Morales v. Morales, 222 Pa. Super. 373, 294 A.2d 782 (1972).

A review of the record indicates that there was more than sufficient credible evidence to sustain the finding that the Kunkle children were "deprived". In support of his adjudication, the court initially stated:

The presence of innumerable animals and their accompanying odors, the constant smell of urine and the stench arising from open garbage all over the kitchen and floor caused Allentown Police Juvenile Officer Joan Hausman

[ 265 Pa. Super. Page 608]

    and others to characterize this home a health hazard. The apartment is also cluttered and disarrayed by the presence of clothing, dirty pots and dishes and open food. A general absence of scrubbing, vacuuming and cleaning inure to the detriment of the occupants. (Lower Court Opinion, pages 2 and 3)

The Kunkles were no strangers to the Lehigh County Children's Bureau. Two of their older children had been removed from the home prior to this proceeding. Dianne Avila was the case worker assigned to work with the Kunkles since January, 1977. She went to the Kunkle apartment on April 20, April 22 and April 25, 1977. Her function was to pick up an older daughter, Geraldine, and remove her for placement in other surroundings. She testified that the home was in a deplorable condition; dishes, clothing, garbage all over the place plus a terrible odor (T. 4, 5). She further stated:

Q And you are saying you could smell it from the first floor?

A Yes.

Q All right. What happened then?

A I went up to the apartment and Mrs. Kunkle was out on the balcony and I asked if we could go inside and she said yes, and we went in through the kitchen. The kitchen was in complete disarray. It appeared as if every dish and pot and pan had been used and had just been left. There was no attempt to wash the dishes or clean up the aftermath of the meal preparation for quite a few days. It was just piled up everywhere and there were bags of garbage sitting around; pots; dirty pots sitting on the stove. They appeared to have been sitting there --

Q Was this true of the kitchen or were there any other rooms -- did you look at the bedrooms in the apartment, for instance?

A Yes. I looked at the entire apartment.

Q What were the bedrooms like? Will you tell us about that?

[ 265 Pa. Super. Page 609]

A Well, there was clutter throughout the entire apartment; clothing strewn everywhere. Mrs. Kunkle was in the process of cleaning out one closet in one bedroom and that may have accounted for some of the clutter in that particular bedroom. There was a urine odor coming from the bedrooms and also a urine odor coming from the bathroom. (T. 7)

Q All right. And you say that was from the bathrooms and bedrooms.

A Right. It smelled as if perhaps someone had been wetting the bed and the bed was soaked with urine. I think that's where the odor was coming from.

Q Did you observe that, too, that the bed was soaked?

A No, I did not observe that.

Q You smelled it.

A Yes.

Q All right. What about clothing? Did you see any clothing around?

A The clothing was just sort of strewn around. There was a nail between the living room and dining room where some of the clothing was hung up. The apartment was just totally wrecked from my observation. (T. 8)

Mrs. Avila returned on April 29, 1977 and found the odor still bad; the kitchen cleaned up; things put away; fairly neat but there had been no scrubbing and a vacuum had not been used. The place really was not clean (T. 9). On May 11th, the odor was still present (T. 10). Avila returned May 11th after she had encouraged the Kunkles to get their dwelling "really cleaned up" for the case worker to make her final observation of the living conditions prior to the hearing in the court below (T. 11). She found that the conditions had deteriorated.

Susan Hackman, case worker for the Lehigh County Children's Bureau, visited the Kunkle home on seven occasions during March, 1977. She was the case worker for the Eltz family. Two of the Eltz boys were regularly truant from school and they usually went to the Kunkle home in spite of

[ 265 Pa. Super. Page 610]

    many admonitions delivered to Mrs. Kunkle not to permit them entry. She also stated the kitchen was usually "pretty dirty"; the rest of the house was "cluttered" and on every occasion there was a very distinct odor (T. 26). In addition she testified as follows:

Q What was Mrs. Kunkle's condition when you visited the home?

A One time in particular, Mrs. Kunkle was drinking and --

Q What time of the day was that?

A This was approximately 2:00 o'clock in the afternoon. Jimmy had run away from his foster home and I went there to find him and he had just run out the back door. Later I was over at the Eltz home and Mrs. Kunkle was down the street next to the Eltz apartment with her daughter and at that point she looked to me to be inebriated.

Q Why do you say that? What's the basis for your opinion on that?

A Well, she was still drinking.

Q What do you mean she was drinking, Mrs. Hackman?

A Okay. She was drinking from a quart bottle of beer.

Q Yes. With a glass or just --

A No, just from a bottle.

Q In the street?

A It was in an alleyway between the apartments and this was two hours after I had seen her drinking in her home.

Q What was she drinking on that occasion the two hours before?

A Beer.

Q Again, out of the bottle?

A I don't specifically recall whether it was out of the bottle or not.

Q What else was she doing that made you form the opinion ...

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