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DONNA W. AND EDWARD W. (02/06/81)

filed: February 6, 1981.


No. 200 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas of Allegheny County, Family Division, Juvenile Section, Nos. 2021 of 1977 and 785 of 1978.


Eileen D. Yacknin, Pittsburgh, for appellant.

Howard B. Elbling, Pittsburgh, for appellees.

James A. Esler, Assistant County Solicitor, Pittsburgh, for participating party.

Price, Cavanaugh and Hoffman, JJ. Price, J., dissents.

Author: Hoffman

[ 284 Pa. Super. Page 340]

This appeal involves the custody of two children formerly adjudicated dependent and placed in foster care by the court below. Appellant (the children's natural mother) contends that the lower court improperly denied her petition for the return of the children to her custody. Because we conclude that the court overemphasized certain evidence and failed to consider sufficiently other relevant factors, we vacate its order and remand for proceedings consistent with this opinion.

The subjects of these proceedings are Donna, born October 8, 1976 and Edward, born November 9, 1977. The events leading up to their being adjudicated dependent and placed in foster care are as follows. In April, 1977, appellant requested Children and Youth Services of Allegheny County (CYS) to provide immediate temporary foster care for Donna. Appellant, then age 17, sought this assistance because she was having serious marital problems and was suffering from a nervous condition associated with her pregnancy with Edward.*fn1 CYS provided foster care for several weeks and then returned Donna at appellant's request. CYS became

[ 284 Pa. Super. Page 341]

    involved with the family again in June, 1977, following renewed marital problems in appellant's household. Over the next several months CYS attempted to work with the family and arranged for their participation in a parenting program. During this period Edward was born, and he too was included in the program. Despite the assistance of CYS, the family's problems worsened. Appellant and her husband separated, and the husband was later arrested for automobile theft. Appellant soon found herself without suitable housing for herself and the children. Consequently, on March 30, 1978, appellant once again contacted CYS to request that her children be placed in temporary foster care. CYS arranged for such care immediately and then proceeded to file a dependency petition in the court below. On May 23, 1978, after a hearing the court adjudicated Donna and Edward dependent and ordered CYS to assume custody with authorization to place the children in foster care. Appellant did not appeal this order.

On June 19, 1979, appellant petitioned the court to review its earlier order and establish a plan for returning the children to her. At the initial hearing on the petition, in July, 1979, appellant established that she had made arrangements to obtain suitable public housing for herself and the children. She also informed the court that she had been divorced from her former husband for approximately one year. Ellen Amshell, a psychotherapist at the Southeastern Mental Health Clinic, testified that she had been counseling appellant regularly since January, 1979. Ms. Amshell stated that appellant had made substantial progress in developing a responsible outlook and in stabilizing her life, and she recommended the immediate return of the children with continued counseling and weekly in-home social services support. The lower court, however, was unwilling to return the children without evidence of appellant's parenting capabilities and before appellant had finalized her housing arrangements. Accordingly, the court continued the matter and ordered CYS to increase the mother's visitations with the children under the supervision of Ms. Amshell. After several delays

[ 284 Pa. Super. Page 342]

    in reconvening the hearing, the court received evidence again on December 12, 1979. At that hearing, CYS caseworker Janice Kowaleski testified that appellant had obtained suitable housing and needed only a few items of furniture to accommodate both children properly. Upon receiving the recommendation of CYS that arrangements be made to return the children, the court ordered that Edward be gradually reintroduced to appellant's custody over a period of six weeks. Assuming, after a further period of ...

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