No. 31 October Term 1978, Appeal from the Order of the Court of Common Pleas, Family Div., Juvenile Branch, Phila. County, DP#867-77-8 J #206831.
Charles C. Shainberg, Philadelphia, for appellant.
Mary Rose Cunningham, Assistant City Solicitor, Philadelphia, for appellee City of Philadelphia.
D. Mullins, Child Advocacy Unit, Philadelphia, for appellee Kyiah Jackson.
Beverly Nelson Finney, Philadelphia, on brief, for appellee Elizabeth Jackson.
Cercone, Spaeth and Lipez, JJ. Lipez, J., files a dissenting opinion.
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On August 26, 1977, the lower court adjudged appellant's infant daughter, Kyiah Jackson, a "dependent child" under the Juvenile Act, Act of Dec. 6, 1972, P.J. 1464, No. 333, § 2, as amended, Act of Aug. 3, 1977, P.L. 155, No. 41, § 1, 11 P.S. § 50-102(4), which provides:
"Dependent child" means a child who: (1) 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 . . . .
On September 23, 1977, the court ordered Kyiah placed under the joint custody of appellant and appellant's mother*fn1 and further ordered appellant referred to neuropsychiatric counseling. This appeal followed.
The basis for the finding of dependency was an incident that took place on August 15, 1977, outside a courtroom in which Kyiah's father was on trial for murder. At the dependency hearing this incident was described as follows. Appellant had just testified in the murder trial; in the course of her testimony she had said she lived at 1303 South 15th Street. While appellant was outside the courtroom, with Kyiah in a baby carriage, Mrs. Irene Watson, the mother of Kyiah's father, approached appellant and said to her, "Queenie, you don't live [at] 1303 South 15th Street." N.T. Aug. 26, 1977 at 3. Mrs. Watson testified that appellant began screaming, pulled a broken drinking glass from
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her handbag and yelled, "If you don't leave me alone I will kill her," meaning Kyiah. Then, Mrs. Watson testified, appellant rushed down the hall, pushing the carriage, until she came to an open window, where she picked Kyiah up and stood by the window. Mrs. Watson tried to get Kyiah from appellant but appellant told her not to touch Kyiah. Mrs. Watson then summoned a police officer, who led appellant away from the window. Kyiah had suffered no harm.
Appellant testified that she had picked the broken glass up from an ashtray outside the court, for use in case of a fight in connection with the murder trial. She admitted pulling out the broken glass and telling Mrs. Watson to stay away, but she denied threatening to hurt Kyiah, and said she had had no intention of hurting her.
The purpose of the Juvenile Act is to preserve, whenever possible, the unity of the family; children should be taken from their parents only in cases of clear necessity. In the Interest of Whittle, 263 Pa. Super. 312, 397 A.2d 1225 (1979); In the Interest of LaRue, 244 Pa. Super. 218, 366 A.2d 1271 (1976). The burden of proof is on the party asking that the child be taken from its parents, and the evidence in support of the request must be clear and convincing. In the ...