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decided: July 27, 1979.


No. 2253 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Columbia County, No. 758-1977


Donald F. Driscoll, Bloomsburg, for appellant.

Alvin J. Luschas, Bloomsburg, submitted a brief on behalf of the minor children.

Elwood R. Harding, Jr., Bloomsburg, for Columbia County Children's Services, an interested party.

William Patrick, Berwick, did not file a brief on behalf of Glynn Wildoner, an interested party.

Cercone, President Judge, and Watkins and Hoffman, JJ. Cercone, President Judge, concurs in the result.

Author: Watkins

[ 268 Pa. Super. Page 274]

This is an appeal from the order of the Court of Common Pleas of Columbia County, by the mother of five children, which removed the children from her custody pursuant to 11 P.S. 50-101, et seq. known as the "Juvenile Act".

Appellant's first contention on appeal is that the evidence presented at the hearing before the court below, held on August 15, 1978, was insufficient to warrant the placement of the children with Children and Youth Services of Columbia County. The testimony presented at the hearing revealed that appellant was the mother of five children ages 6, 5, 3, 2 and 1. Appellant, her husband and the five children resided in a third floor, two bedroom, four room apartment. During the period of four months immediately prior to the hearing the various welfare workers had visited appellants home two to three times per week. During these visits, appellant's apartment was unclean and unsanitary. Cats were observed licking the baby's milk bottles, the floors of the entire apartment were covered with animal excrement, the baby's crib was covered with feces and the mattress was urine soaked, the apartment was infested with flies due to the absence of screens for the windows and the flies covered the kitchen table, food and the children. Numerous dogs and cats also occupied the apartment. Dried and moldy food were found in the hair of the youngest child. Although the apartment was situated 30-35 feet above ground level, the open window, easily accessible to the children, provided no protection against the falling to the ground by the children. It was also established that even though a registered nurse had informed appellant that one of the children was allergic to cow's milk that appellant had continued to give cow's milk to that child resulting in allergic reactions, viz, wheezing, lethargy and difficulty in breathing. It was also established that various county personnel from the County Home-makers' Service had been assigned to help appellant clean her apartment on a regular basis but that appellant, although she had helped to clean the apartment on some occasions had, on other occasions, played cards with various visitors when the apartment was being cleaned.

[ 268 Pa. Super. Page 275]

Appellant's testimony was that she intended to rid the home of the pets, that she cleaned the apartment on a regular basis and that she was improving the general condition of the apartment but that she became depressed after hearing that a farmhouse she desired to rent was no longer available and therefore had allowed the condition of the house to lapse into its former state of uncleanliness. She also testified that she had been told not to give the baby a "whole lot of cow's milk" until goat's milk could be substituted for it. It was also established that Mr. Wildoner worked part time during the seven months prior to the hearing and that the appellant had not been working so that both parents had been at home and available to care for the children.

A dependent child is defined in the "Juvenile Act", inter alia, as one who "is without proper parental care or control, substance, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals . . ." 11 P.S. 50-102(4)(i). Before a child may be taken from his parents proof of a clear necessity for such action must be adduced. (Emphasis -- ours) Interest of La Rue, 244 Pa. Super. 218, 366 A.2d 1271 (1976). The facts, as outlined above, demonstrate a clear necessity for removing the five Wildoner children from their parents. A child's constant exposure to filthy, unsanitary, unhealthy and dangerous conditions in its home presents a clear necessity for removing that child from such an environment and all of the aforementioned conditions existed at the Wildoner home. Mrs. Wildoner's promises to change these conditions are certainly not binding on the trial court and we hold that the court below was justified in removing the children from that environment.

Appellant's next contention is that the court below erred when it excluded certain written reports presented by the appellant. One of the reports was prepared by Home Health Service Nurse who was unavailable at the time of the hearing. Another report was a written ...

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