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TINA JONES (05/08/81)

filed: May 8, 1981.


No. 123 April Term, 1979, Appeal from an Order of the Court of Common Pleas, Family Division, of Allegheny County, Juvenile Section, No. J-310-1976.


James E. Mahood, Pittsburgh, for appellant.

Shari F. Shink, Pittsburgh, for appellees.

Loraine S. Tabakin, Assistant County Solicitor, for participating party.

Price, Hester and Cavanaugh, JJ. Hester, J., files dissenting opinion.

Author: Cavanaugh

[ 286 Pa. Super. Page 577]

The dispute in this case concerns the custody of two children, Tina and Jameeda Jones.*fn1 In 1976 the children were adjudicated dependent pursuant to a petition by the Child Welfare Services and were removed from their mother's custody with direction that they were to remain in placement pending further disposition. Both girls were placed with their maternal aunt, Ernestine Taylor. The mother continued to maintain regular contact with the children since their placement. At the same time she underwent psychiatric care and counseling. Considering herself rehabilitated and competent to care for her children, the mother petitioned for a hearing in order to regain custody. A dispositional hearing*fn2 was held and the lower court concluded

[ 286 Pa. Super. Page 578]

    that the best interests of the children would not be served by an award of custody to the mother. We reverse and remand.

The question before us is whether a parent in a dispositional hearing has a constitutional right under the due process clause to confront and cross-examine adverse witnesses. We hold that the parent has such a right and that the procedure followed by the lower court did not adequately comport with the mandates of due process.

A review of the record reveals that but for the adverse resolution of one factual issue, all parties would have favored, and the lower court would have ordered, the return of the children to the mother, if not immediately, then through a period of extended visitation to facilitate readjustment. This key factual issue was whether the mother was continuing her involvement in a lesbian relationship with a male impersonator, Aznif Smith.

The record is replete with testimony as to the harmful influence Smith has had on the children and their mother. At the time of the removal of the children from the mother's custody by the Child Welfare Service Aznif Smith was living with the mother. According to testimony Smith assumed the alias "Hendren Bower" and it was believed that the mother and Smith were "married" in November or December of 1975. In December of 1975 the mother, while well advanced in pregnancy, was pushed down a flight of stairs by Smith. Soon after, on December 11, Kevin was born. Smith was adjudicated delinquent and came under the supervision of the Juvenile Court. According to the children's maternal grandmother, the children, especially Jameeda, became emotionally disturbed by the mother's relationship with Smith. Although the children wanted to return to their mother's custody, they were fearful that Smith would be there. During the judge's interview with the children it was determined that they preferred to visit with the mother before going back to her permanently so that they would be certain that Smith was not there.

[ 286 Pa. Super. Page 579]

The mother maintained that she had not seen Smith for approximately two years and had no idea of her whereabouts. However, counsel for the Children and Youth Services called Ernestine Taylor, the children's maternal aunt with whom the girls had resided since their removal from the mother's home. Mrs. Taylor testified that she had been getting reports from an unnamed source that the relationship between the mother and Smith was continuing.

The judge permitted this testimony over objection despite Mrs. Taylor's refusal to name the source of these reports. As a result of this information the social worker for Children and Youth Services stated to the court that, although she had intended to recommend that the girls be placed in the mother's custody, in view of Mrs. Taylor's testimony, she recommended further investigation. A hearing was scheduled so that the unnamed witness could be examined. Mrs. Taylor stated that the person would only appear if permitted to remain anonymous.

A second hearing was held at which time the trial judge overruled the objections raised by appellant's counsel and permitted the anonymous witness, Mr. C., to testify in camera in the absence of appellant.*fn3 The children's attorney, the Children and Youth Services caseworker, the Children and Youth Services attorney and the mother's attorney were present at this hearing. At the hearing the identity of Mr. C. and his relationship to the mother was revealed.*fn4 However, the witness's identity was not revealed to the appellant. Mr. C.'s testimony was that the appellant and Smith continued to maintain a relationship and that the relationship was at times violent. At a third hearing appellant presented rebuttal testimony. The trial judge, however, found against the mother and stated:

[ 286 Pa. Super. Page 580]

The Court upon the early reports of Child Welfare Services was completely willing to begin a transition of the children from the home of the maternal aunt to that of the mother, but the continuing investigation and the very strong credible in-court, under oath testimony from Mr. C. subject to intensive cross examination by plaintiff's lawyer, convinced this court beyond any doubt that a very disruptive influence is present in the life of the mother.

Custody of the children was awarded to the Child Welfare Services.

On appeal the mother argues that the proceedings below did not adequately protect her right to due process because she has a right to personally confront the witness presenting evidence contrary to her interests. She claims that the fact that her attorney learned of Mr. C.'s identity and had an opportunity to cross-examine him -- absent her own knowledge of Mr. C.'s identity -- is insufficient protection of her constitutional rights.

The facts of this case raise a difficult question as to the nature of the parent's right to due process in a dispositional hearing. The answer to this question is most troublesome in that it involves the delicate determination of when the integrity of the family may be sacrificed in an effort to protect its individual members.

The proceedings in the lower court were governed by the Juvenile Act, 42 Pa.C.S.A. ยง 6301 et seq.

In adopting the "Juvenile Act" the legislature stated that the Act shall be interpreted and construed as to effectuate certain purposes:

(1) To preserve the unity of the family whenever possible and to provide for the care, protection, and wholesome mental and physical development of children coming within the provisions of this chapter.

(3) To achieve the foregoing purposes in a family environment whenever possible, separating the child from parents only when necessary for his welfare or in the interests of public safety.

[ 286 Pa. Super. Page 581]

(4) To provide means through which the provisions of this chapter are executed and enforced and in which the parties are assured a fair hearing and their constitutional and ...

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