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THERESA E. (05/15/81)

filed: May 15, 1981.


Nos. 1114-15-16 April Term, 1979, Appeal from the Orders of the Court of Common Pleas of Butler County - Juvenile Division at Nos. 355, 356 and 357 of 1979.


William E. Buchko, New Castle, for appellant.

Robert F. Hawk, District Attorney, Butler, for Butler County, participating party.

Gwilym A. Price, III, Butler, for Minors, participating party.

Claude V. Falkenhan, Zelienople, for Natural Father, participating party.

Spaeth, Wickersham and Lipez, JJ. Wickersham, J., files a dissenting statement.

Author: Spaeth

[ 287 Pa. Super. Page 165]

This is an appeal by the mother of three children from orders finding the children dependent children under the provisions of the Juvenile Act*fn1 and awarding their custody to the Butler County Children and Youth Agency, with placement in the home of their father. We have concluded to remand for further proceedings, consistent with this opinion.

The parents were married on January 24, 1970. The children are Theresa, born August 3, 1971, Debbra, born July 27, 1972, and George, born August 15, 1978.*fn2 The parents separated in December 1976 -- before the birth of George -- Theresa and Debbra remaining with their mother. A bitter legal battle between the parents ensued, which we see no need to summarize, except as it is relevant to the issue of whether the children are dependent children.

In November 1978 the Butler County court, with the parties' consent, entered an order providing that Theresa and Debbra were to visit their father on Sunday afternoons. In April 1979 the father took the girls and did not return them to their mother. Slip op. at 2. He then brought an action in Beaver County, where he lived, seeking custody of the girls. Ultimately, this action was dismissed by the Beaver County court. Brief for father, at 5, 7. Meanwhile, the mother brought an action in Butler County, asking that the father be held in contempt for his failure to return the girls. The Butler County court found the father in contempt and ordered him imprisoned until he returned the girls. Finally, on July 3, 1979, the father returned the girls to their mother. Slip op. at 2.

On October 14, 1979, the father picked Theresa up for a visit. When he went to return her, the mother was not

[ 287 Pa. Super. Page 166]

    home. The following day the father and his attorney took Theresa to the Children and Youth Agency of Butler County. After he and his attorney made a number of allegations about the mother's mistreatment of Theresa, Theresa was detained by the Agency.

On October 22, 1979, the father filed petitions with the lower court alleging that Theresa, Debbra, and George were dependent children. Adjudication proceedings on all three petitions were held on November 5, before a master appointed by the lower court.*fn3 As required by the Juvenile Act, the children were represented by separate counsel. 42 Pa.C.S.A. ยง 6337. The master found all three children dependent and recommended that they be placed in the temporary custody of the Children and Youth Agency pending a disposition hearing. The lower court adopted the master's findings and approved his recommendation. On November 26 a disposition hearing was held, after which the master recommended that the children be placed in the custody of the Agency, with placement in the home of their father; that the children, their parents, and JoAnn Goodman (the woman with whom the father was living) undergo counseling as recommended by the Agency; and that a reasonable visitation schedule between the children and their mother at a neutral facility be established. Again, the lower court adopted the master's findings and approved his recommendations, and entered an order accordingly. It is from this order that the mother has appealed.

The master's report contained the following findings:

The testimony presented indicates that the juveniles have been residing with the mother and that the home facilities are limited as to providing proper care for the three youths, the mother having a one-room apartment with bath and kitchen. Sleeping arrangements seem to be inadequate.

Further appears from the testimony presented that there has been conflict between the parents, who have not

[ 287 Pa. Super. Page 167]

    resided together for a period of approximately two plus years. The parties have been undergoing various custody problems over this entire period.

The testimony presented further indicates that the emotional stability of the juveniles is very unstable due to, it appears, the conflict generated both internally and externally by the parents and their constant fighting between one another. Should be noted, however, that the juveniles did make some progress while they were in the physical custody of their father for a two to three month period in the spring and summer of this year, as was testified to by their teachers. However, it should be noted that the father obtained physical custody in a very improper manner.

Mr. Wolf, psychologist, testified and indicated that both juveniles are instable and are very easily influenced. He further indicates that Theresa demonstrates a passive resistance, and is very easily distracted. He further indicates that Debbra appears to be depressed and due to this depression is lagging behind in here psychological development at her age level. He further indicates that he feels the problems of the juveniles are in part a result of the constant custody battle between the parents, or at best, this conflict contributes to the juveniles' problems.

Further appears from the testimony presented that both parents truly love their children; however, this is overshadowed by the bitterness they demonstrate towards one another.

The Master did interview both juveniles at the request of the attorneys for all the parties, and the juveniles seem to be unstable and emotionally overwrought, expressing a desire to live with their father, and at other times with their mother.

Master's report on Nov. 5, 1979, hearing at 2-4.

In its opinion, the lower court stated its reasons for finding the three children dependent as follows:

Theresa and Debbra were neither physically ill nor undernourished. They were not abused physically by the

[ 287 Pa. Super. Page 168]

    parents. They were depressed and emotionally upset. This condition had developed over a period of nearly two years. Debbra wanted to live with her mother, while Theresa kept changing her mind about the parent with whom she would elect to live. Considerable legal turmoil between the parents preceded October 15, 1979 when Attorney Falkenhan and his client, George M. [E.], brought Theresa to the Children and Youth Agency. On that date George M. [E.] filed a complaint alleging dependency. Theresa was eight and one-half years of age at the time, and she was in a hysterical condition. It is noteworthy that she had been visiting her father.

These children have been victimized by the parents. The parents burdened the children with their personal hatreds arising from the marital conflict. The motivation of the parent may be love or hate. It may be the support payment or the welfare check. It may be combinations of such factors. Nevertheless, each parent is ...

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