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K. B. (03/21/80)

filed: March 21, 1980.


Nos. 439 and 525 April Term 1979, Appeal from the Orders of the Court of Common Pleas, Butler County Juvenile Div., at No. 107 of 1979.


William J. Fries, Butler, for appellant.

Gwilym A. Price, III, Butler, for appellee.

Robert F. Hawk, Assistant District Attorney, Butler, for Commonwealth.

Spaeth, Hoffman and Van der Voort, JJ. Hoffman, J., files a concurring statement. Van der Voort, J., files a dissenting opinion.

Author: Spaeth

[ 276 Pa. Super. Page 384]

This appeal arises from an order granting custody of appellant's daughter to the Butler County Children and Youth Agency.*fn1

[ 276 Pa. Super. Page 385]

On March 26, 1979, Nancy Keffalas, a caseworker for the Butler County Children and Youth Agency, filed a petition alleging that within the prior year appellant's eight year old daughter had been sexually abused by her stepfather-appellant's husband-and that as a result the daughter was an abused and dependent child without proper parental care or control necessary for her physical, mental or emotional health or morals. See The Juvenile Act, 42 Pa.C.S.A. §§ 6301 et seq. (1979 Pamphlet); The Child Protective Services Law, 11 P.S. §§ 2201 et seq. (1979-80 Supp.). On April 6, 1979, an adjudicatory hearing was held before a master at which the following evidence was adduced.

Appellant's eleven year old son testified to several incidents of sexual abuse, as follows. When appellant was out of the house his stepfather had sodomized him and his sister, and had forced them to have intercourse with each other. His stepfather warned him that if he told appellant about the incidents, he would be spanked. He did not tell appellant, but when he "couldn't stand it any longer," did tell his natural father and the authorities. His stepfather also showed him nude photographs of appellant. At the hearing the Commonwealth introduced three photographs, two of which the son identified as ones the stepfather had shown him. The son also testified that on one occasion his sister tried to get into his bed without clothes but was discovered by appellant, who became angry. The son said he loved his stepfather but understood that he was sworn to tell what actually occurred.

Police Sergeant Dalcamo testified that appellant's son told him that within the previous year appellant's husband had sodomized him and his sister, and had shown him nude photographs of appellant in a bed. Acting on information from appellant's son, Sergeant Dalcamo obtained a search warrant. In executing the warrant, he found the photographs

[ 276 Pa. Super. Page 386]

    introduced at the hearing, and also had occasion to observe the condition of appellant's home. He said the home was a general mess, with clothes scattered about and dishes piled high in the sink, but that appellant's daughter was dressed decently.

Appellant testified that she had been married to her present husband for a year. It was her third marriage; her children resulted from her first marriage. Appellant said that she left her children alone with their stepfather when she went to play bingo or went to the hospital for medication to relieve bad headaches. Although she said that she went to the hospital only "a couple times," she also said that she had headaches "quite a bit." In any event, according to appellant never did any member of her family report to her any incident of sexual abuse by her husband, nor did she ever discover marks or vaginal irritation on her daughter, whom she bathed daily. One night, after sending her children to bed, she did hear noises that prompted her to go to her daughter's bedroom. There she discovered her daughter and her son, who had left his bedroom. She said that when she appeared, the children "jumped out of the bed and starting zipping their pants up . . . ." Upon inquiry, both denied that they had been doing anything, whereupon she spanked them and put them both back to bed. She said that she did not investigate the incident further since she wanted to believe the children. Appellant admitted that she had allowed her husband to take four nude photographs of her, for their personal use, and that she kept them, even though her husband wanted them destroyed, until they disappeared from her possession. Appellant described her home as a "very small" two bedroom residence. She said that her son had been in his father's custody and had been living in her home for only four weeks before the dependency petition was filed, and that for at least part of this four week period, the son's father had also been living there, in addition to herself, her present husband, and the children. Finally, appellant stated that if her present husband were released from jail, where at the time of the hearing he was

[ 276 Pa. Super. Page 387]

    incarcerated pending trial on charges of sexually abusing appellant's children, she would resume living with him.

Nancy Keffalas, the caseworker who filed the dependency petition, testified, over the objection of appellant's counsel, that school records showed that appellant's daughter had moved ten times within the two and a half year period between September 1976 and February 1979. During the 1976-77 school year,*fn2 her daughter missed thirty-three of one hundred twenty-two school days. On the day before the adjudicatory hearing, Mrs. Keffalas visited appellant's home and observed a "rather cluttered," "quite cramped" residence. On an earlier visit, she observed an unmade bed, "a lot of stuff on the center of the floor," a pile of what appeared to be dirty laundry beside a wall, dishes piled in the kitchen, and a house that "was just rather disheveled and messy." Mrs. Keffalas also testified that within several days of March 22, after appellant's daughter had been removed from appellant's home and temporarily placed in a foster home, a vaginal rash was detected on the daughter. The rash cleared up, apparently without medical treatment. An internal examination of the daughter had not been made because of the daughter's resistance. A partial external examination of her, however, had been made.

Eric Timko, who became the foster parent of appellant's daughter after she was removed from appellant's home on March 22, testified that he had not spoken with the daughter concerning incidents of sexual abuse. He testified that one evening, however, when he was tucking the daughter in bed, she jumped up and said, "What are you doing?" The next morning, the daughter told her foster mother that "Dad scared me last night . . . . He pulled the covers back . . . ."

Appellant's daughter did not testify at the hearing, but a stipulation was entered that had she been called, she would

[ 276 Pa. Super. Page 388]

    have denied all incidents of sexual abuse and would have said that she wanted to return to her mother.

The master found that appellant's daughter was dependent and abused "in that the evidence presented indicates that [she was] involved in sexual intercourse and unnatural sex acts." The lower court, without taking additional evidence, adopted the master's findings, adjudicated the daughter dependent, and ordered a dispositional hearing to be held within twenty days. On April 26, a dispositional hearing was held before the master at which a caseworker for the Child Abuse Division of the Children and Youth Agency of Butler County recommended that appellant's daughter be placed in foster care, giving the following reasons. Both of appellant's children had previously been in the care of child protective agencies in California and in adjoining Armstrong County. During the school year prior to the incidents of sexual abuse, appellant's daughter had missed approximately thirty-three of one hundred twenty-two school days; most of her absences were unexcused. Also, a psychiatric evaluation of the daughter showed that she needed to be placed in a structured environment with established guidelines and constant monitoring in order to counteract a hyperkinetic syndrome to which the daughter was susceptible. Appellant's home did not provide a structured environment; indeed, her home was such as to promote the syndrome. In addition, the daughter needed regular doses of medication. The caseworker admitted, however, that special training was not needed to treat the syndrome. A social summary was introduced into evidence, as well as a psychological evaluation and psychiatric and physical examination reports on the daughter.*fn3

Appellant testified that she had been living at her present address in Butler County for several months; that she had seen her daughter once since the adjudicatory hearing and had tried to make contact with Children's Services several times; that she thought her daughter "was doing pretty

[ 276 Pa. Super. Page 389]

    well going to school" and did not believe her daughter had missed thirty-three school days; and that she never had contact with children welfare agencies in either California or Armstrong County. She reaffirmed that were her present husband released from jail, she would resume living with him. In this regard, she said, "He'll never be alone with the girl anymore;" but then she added, "I don't believe it really happened [h]e's never been alone with her." Appellant stated that she was willing to participate in counseling established by Children's Services, and that if her daughter were returned to her, she would allow the agency frequent access to her house.

On this evidence the master recommended that appellant's daughter be placed in a foster home until further order of the court; that the daughter attend counseling until released by the Butler County Children and Youth Agency; that appellant and her first husband also attend counseling; that a reasonable visitation structure be established; that a firm plan to return the daughter to her parents be established within thirty days by the Children and Youth Agency; that appellant and her first husband meet with the Domestic Relations Director to establish a care and maintenance agreement while the daughter was in foster care; and that the case be reviewed prior to the 1979-80 school year. The master believed that these recommendations were in the best interests of appellant's daughter. The lower court, without ...

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