No. 1490 October Term 1978, Appeal from the Order of the Court of Common Pleas of Lycoming County, Juvenile Division - No. 77-13, 163.
Walter Perry, Williamsport, for appellant.
Charles F. Greevy, III, Williamsport, for appellees.
Price, Spaeth and Lipez, JJ. Spaeth, J., files a concurring and dissenting opinion. Price, J., files a concurring and dissenting statement.
[ 272 Pa. Super. Page 175]
This is an appeal by a mother from an order declaring her four children dependent children. The order provides that three of the children, Leonna, Lisa, and Hollie, may remain in their mother's custody, subject to "protective supervision" by the Lycoming County Children's Services Agency for the period of one year, but directs that the fourth child, Bobby, be placed in the agency's custody for placement in an approved foster home.
One cannot read this record without concluding that Judge Raup was acutely sensitive to the needs of these children and was anxious to meet their needs. However, the legislature long ago decided that the purpose of the "Juvenile Act" was "to preserve the unity of the family whenever
[ 272 Pa. Super. Page 176]
possible"*fn1 and that a finding of dependency, must be based on "clear and convincing evidence."*fn2
This requires the fact finder to use a greater degree of certitude in making a dependency determination than one based on preponderance of evidence. There will perhaps be occasions under this stricter standard when children will suffer because of the need for the intervention of government (and this may be one of those cases), but the legislature has decided (wisely, I believe) that the interest of society on the whole is better served by requiring a higher standard of proof*fn3 before allowing such intrusion by government. I agree therefore with Judge Spaeth's analysis that as to Leonna and Lisa, the proof does not quite measure up to the "clear and convincing" standard.
I agree also that the standard for adjudication of dependency as to Bobbie and Hollie was met. I disagree, however, with his conclusion that Judge Raup's opinion was not sufficiently comprehensive to justify the removal of Bobby from the family. He reviewed in considerable detail Bobby's school record, his actions in school, the report of the school psychologist.*fn4 While not exhaustive (and I know of
[ 272 Pa. Super. Page 177]
no such requirement), it was sufficiently comprehensive enabling us to fulfill our responsibility of broad review.
Small wonder then that Judge Raup concluded: "Bobby, because of his particular acute emotional problems was considered to need a prolonged period in foster care. He was placed in the custody of the agency for placement in a foster home." It was clear to him, as it is to me, that Bobby could not reasonably receive in his home situation, where the needs of the other three children were met at most marginally, the services and attention that his intellectual and emotional difficulties required.*fn5 There was indeed present the clear necessity for Bobby's separation from his mother and family.*fn6
Accordingly, the order of the lower court declaring Leonna and Lisa dependent is reversed; otherwise, the order is affirmed.
PRICE, Judge, concurring and dissenting:
Since I would affirm the trial judge's order, I concur with Judge Lipez as to the children Bobby and Hollie. I dissent as to the majority's disposition as to the children Leonna and Lisa.
SPAETH, Judge, concurring and dissenting:
As Judge LIPEZ's opinion states, this is an appeal from an order declaring four children dependent. As to three of the children -- Leonna, ...