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COMMONWEALTH PENNSYLVANIA EX REL. ROBERT PAUL GRIMES AND MARY ELIZABETH HAZLER v. THOMAS AND WENDY YACK (08/21/81)

filed: August 21, 1981.

COMMONWEALTH OF PENNSYLVANIA EX REL. ROBERT PAUL GRIMES AND MARY ELIZABETH HAZLER
v.
THOMAS AND WENDY YACK, APPELLANTS. IN THE INTEREST OF RACHEL MARIE YACK, A MINOR. APPEAL OF THOMAS AND WENDY YACK. IN RE ADOPTION OF RACHEL MARIE YACK. APPEAL OF THOMAS AND WENDY YACK



Appeal from the Order of the Court of Common Pleas of Northampton County at No. 1980-C-8916. Appeal from the Order of the Court of Common Pleas of Northampton County at No. 8916 of 1980. Appeal from the Order of the Court of Common Pleas of Bucks County.

COUNSEL

Marcel L. Groen, Cornwells Heights, for appellants.

Harry J. Newman, Bethlehem, for Grimes, appellee (at Nos. 1481 & 537) and participating party (at No. 1806).

David A. School, Philadelphia, for Hazler, appellee (at Nos. 1481 & 537) and participating party (at No. 1806).

Abraham M. Mora and Jerome B. Apfel, Philadelphia, for Regional Counsel, participating party (at Nos. 1481 & 1806).

Spaeth, Cavanaugh and Montemuro, JJ.

Author: Spaeth

[ 289 Pa. Super. Page 499]

Three appeals, which have been consolidated, are before us. In all of the appeals the appellants are Thomas and Wendy Yack. The subject of the appeals is a child, Rachel Marie, born March 20, 1980. Her mother and father, Mary Elizabeth Hazler and Robert Paul Grimes, are the appellees. Appellants got possession of the child with the intention of adopting her. They have nevertheless argued their appeals as though this were a child custody case. It is not. It is an adoption case. As an adoption case the only issue it presents is whether the record indicates any reason why appellees' interests as mother and father of the child should be involuntarily terminated. The lower court found no such reason and therefore ordered appellants to return the child to appellees. We affirm.

I

History of the Case

Ordinarily the history of a case may be told in a few paragraphs. Here that is impossible. For as will appear, appellants have complicated and delayed the case by engaging in an extraordinary series of legal maneuvers.

[ 289 Pa. Super. Page 500]

When the child was born, the mother was a seventeen-year-old unmarried high school student living with her parents in Northampton County, Pennsylvania. The father was twenty-two years old. Sometime after the mother became pregnant, she and the father stopped seeing each other. Before the child was born, the mother, partly in response to her parents' urging, agreed to give the child up for adoption. Arrangements for placement of the child with appellants were made by private intermediaries, one of whom was an attorney practicing in Northampton County. The child was born at a hospital in Lehigh County, Pennsylvania. On March 24, 1980, four days after the child's birth, the mother, while still in the hospital, and her mother signed a written consent to the placement of the child with prospective adopting parents and to the child's adoption. Shortly thereafter the mother gave the child to one of the intermediaries, who gave the child to appellants, who took her to their home in Bucks County, Pennsylvania.

A

The events leading up to the first of the three appeals before us were as follows.

On March 26, 1980, six days after the child's birth, the father, who had consistently opposed any plan to place the child for adoption and who was unaware that the child had been placed, filed a petition with the lower court, seeking custody of the child from the child's mother and her parents. Within two to three weeks of the child's birth, the mother changed her mind about the adoption and informed the intermediary that she wanted the child back.

On May 23, 1980, the lower court held a hearing on the father's petition for custody. During the hearing both parents informed the attorney intermediary that they wanted the child back.*fn1 After the hearing the parents reconciled their differences, and in August 1980 they began living together.

[ 289 Pa. Super. Page 501]

The attorney intermediary notified appellants of the father's petition for custody and advised them that they should decide whether to return the child. According to Mr. Yack's later testimony, appellants' decision was "that [they] would go through a legal battle." N.T. 70, January 22, 1981. The lower court has found that appellants then "concealed their identity and whereabouts from the natural parents." Slip op. at 4.*fn2 Appellees nevertheless tried to obtain the child from appellants, and on September 3, 1980, they filed a petition seeking custody of the child from appellants. On September 17 appellants filed preliminary objections challenging the jurisdiction of the Northampton County court and its appropriateness as a forum. On November 17 the lower court denied appellants' preliminary objections, finding both jurisdiction and proper venue in Northampton County. The court also directed appellants to file within ten days "an offer of proof concerning the evidence they propose to introduce in opposition to the application for custody." Appellants did not comply with this order. Instead, they took an appeal to this court, which on February 3, 1981, we quashed as interlocutory.

Meanwhile, on January 22, 1981, the lower court held a hearing, at which both appellants and appellees testified. At the hearing counsel for appellants requested that the court order a blood test of the father to establish his paternity, that it order social investigations of both appellants and appellees concerning their fitness as parents, and that it order a psychological evaluation of the child. The court granted the first request. (The father submitted to a blood test and, on the basis of it, the lower court has found that he is the father.) It refused, however, to order the social investigations and the psychological evaluation. In addition, the court granted the request of appellants' counsel that he be permitted to submit a brief. Appellants subsequently submitted a memorandum of law arguing that appellees' rights as parents of the child should be involuntarily terminated.

[ 289 Pa. Super. Page 502]

On February 26, 1981, the court filed its opinion and order. The court found: (1) that the child's mother had revoked her consent to the child's adoption and had refused to relinquish voluntarily her parental rights; (2) that the child's father had never given his consent to adoption and had never relinquished voluntarily his parental rights; and (3) that there was no reason why appellees' parental rights should be involuntarily terminated. The court ordered appellants to deliver the child to the Children and Youth Division of Northampton County. It directed the Division to investigate appellees' living situations. If the living situations were "suitable for the immediate transfer of custody of the child," the Division was directed to deliver the child to either or both of appellees as the child's parents. If "the investigation reveal[ed] a need for further review of the child's needs prior to transfer of custody," the Division was directed to place the child with "foster parents other than the pre-adoptive parents until the court [could] further review the matter."*fn3 It is from this order of February 26, 1981, that appellants took the first of the three appeals before us, Number 537.

B

The events leading up to the second of the three appeals before us were as follows.

Appellants did not deliver the child to the Children and Youth Division, as directed by the lower court. Appellees therefore filed with the lower court a petition for a rule to show cause why appellants should not be held in contempt. On March 9 the lower court issued a rule, returnable March 20. On March 10 appellants filed a petition for a supersedeas with this court. On March 12 we denied this petition without prejudice to appellants' right to petition the lower

[ 289 Pa. Super. Page 503]

    court for a supersedeas.*fn4 The lower court denied appellants' petition to it, but refused to find appellants in contempt. On March 31 appellants filed a second petition for a supersedeas with this court, which we denied on April 14.

Meanwhile, appellees had again asked the lower court to hold appellants in contempt, or in the alternative, to order appellants to allow them to visit the child. The court issued a rule to show cause, and on April 15 it found appellants to be in non-compliance with its order of February 26 and ordered them to deliver the child to the Children and Youth Division within 72 hours. The court directed the Division to arrange an emergency placement for the child until April 20 and ordered a hearing on that date "as a Juvenile Court matter in the nature of a Dependency proceeding." Finally, the court denied appellants' petition for a supersedeas.

Again, appellants did not deliver the child to the Children and Youth Division, as directed by the lower court. Instead, on April 20, which was after the seventy-two hour period had expired, they filed a third petition for a supersedeas with this court. On April 21 we denied this petition. On April 24 the lower court issued an order finding that appellants had not complied with the order of April 15 and directing the Sheriff of Bucks County to take possession of the child and deliver her to the Children and Youth Division. The court also directed the Division either to give the child to appellees as her parents "forthwith," or to file a dependency petition pursuant to the Juvenile Act, "whichever course of action it deems to be in the best interest of the child." On April 29 appellants filed a petition for supersedeas with this court. After staying the lower court order "pending further Order of this Court," on May 5 we denied the petition for a supersedeas.*fn5

[ 289 Pa. Super. Page 504]

Appellants continued to refuse to deliver the child to the Children and Youth Division. On May 11, on appellees' petition, the lower court issued a rule to show cause why appellants should not be held in contempt. The rule was returnable May 29. Pending the contempt hearing, appellants filed a variety of papers. On May 21 appellants filed a praecipe for a jury trial and a "motion for discovery" in which they sought from the court and from appellees the following information:

1. The exact basis for the allegations of contempt against the respondents herein, Thomas and Wendy Yack.

2. The exact time the alleged contempt of court began.

3. State whether the contempt of court continues at the present time and if so, for what reason.

4. State the type of contempt seeking to be imposed upon the respondents, Thomas and Wendy Yack.

5. State the court's purpose for carrying out the contempt proceeding.

On May 26 appellants filed a petition for custody of the child, alleging that the court's order of February 26, refusing to order appellees' parental rights involuntarily terminated, had been issued without regard to the best interests of the child, that appellees as the child's parents were unfit and unable to provide for the child, and that "the Children and Youth Division of Northampton County [had] failed to provide for the necessary care, comfort and support of the said child and [had] no plans to do so." On May 29 appellants filed a "petition for reconsideration or modification of custody order," alleging that the lower court erred in its opinion and order of February 26 by treating the case as an adoption case rather than a custody case. In addition they alleged that they had obtained "new and additional evidence" indicating that appellees were unfit parents. They asked the court:

(a) to reconsider the evidence produced at the hearing of January 22, 1981 in addition to all new evidence presently available, and apply the body of law appropriate to a habeas corpus action, so as to deny the Petition for Habeas Corpus made therein, and/or;

[ 289 Pa. Super. Page 505]

(b) to modify the Order of April 15, 1981 to award temporary custody of the child, Rachael Marie Yack, to the petitioners, Thomas and Wendy Yack, until such time as the adoption action, presently pending in Northampton County [ sic*fn6], is resolved; and/or

(c) to award any and all other relief which the Court may deem appropriate.

Appellants also filed a petition asking that the lower court appoint counsel to represent the child.*fn7

On May 29 the lower court held a hearing, without a jury, on the issue of appellants' contempt. In an order dated that day and filed on June 4 the court found appellants to be in wilful non-compliance of its order of April 15 "because [their] conduct . . . demonstrated that they [had] acted knowingly and with the conscious object of not surrendering" the child. The court therefore adjudged appellants to be in contempt but offered them the opportunity to purge themselves by surrendering the child. Since appellants had informed the court that the child was ill, the court ordered them to deliver the child within fourteen days to the Children and Youth Division. The court ordered that appellants pay a penalty of $100 a day if they failed to comply. The court also directed the Children and Youth Division to arrange an emergency placement for the child. Finally, it directed that a juvenile court dependency hearing be held within 72 hours of the emergency placement.

On June 12 appellants delivered the child to the Children and Youth Division.

On June 15 the lower court denied appellants' May 26 petition for custody of the child and their May 29 "petition for reconsideration or modification of custody order," and

[ 289 Pa. Super. Page 506]

    held the dependency hearing that it had ordered.*fn8 Counsel for the Children and Youth Division stated that the Division did not wish to file a dependency petition. Counsel for appellants then announced that on appellants' behalf he wished to file a dependency petition and he presented it to the court. The court received it and held a full hearing on appellants' dependency petition. Both appellants and appellees presented evidence concerning appellees' character, past history, manner of living, and ability to take care of the child. Representatives of the Children and Youth Division testified that they had been working with appellees, and that the problems referred to in their earlier report had been or were being corrected and they were no longer concerned about them. After the hearing the lower court entered an adjudication finding the child dependent, saying that it was doing so primarily because the evidence suggested that the father, who had had problems with alcohol abuse when he was a teenager, might have continuing problems of that sort:

I have no idea how long the dependency status should last, but I am satisfied that if I return the child right now to the care of Miss Hazler and Mr. Grimes, that there would be at a minimum physical dependency and I am still pursuing whether or not the child's safety would be jeopardized not because of any potential abuse on his part but because of what I still consider to be an unanswered alcohol problem.

[O]n the evidence I have here, I would be unwarranted in even concluding that there is a problem.

N.T. at 2-3.

In order to resolve the "unanswered alcohol problem," the court requested the father to submit to an evaluation by the Northampton Council on Drug and Alcohol Abuse, which the

[ 289 Pa. Super. Page 507]

    father agreed to do, and set July 1 as the date for a dispositional hearing.

On June 24, in spite of the fact that the lower court had not yet made a final disposition concerning the dependency petition that they had filed, appellants once again petitioned this court for a supersedeas. On June 29 we denied this petition. Appellants then sought relief from the Supreme Court. On July 1, the day set for the dispositional hearing, Justice LARSEN entered an order stating "[t]he Order of the Court of Common Pleas of Northampton County placing the child . . . in the custody of the Children and Youth Division without consideration of said child's best interests," and placing the child in the custody of appellants "pending the disposition of the appeal in this matter." Appellants' counsel then appeared at the dispositional hearing:

MR. GROEN: The other thing is, Your Honor, I have a praecipe and by way of motion I would like to, as Your Honor knows this was our petition for dependency, we feel that based upon Justice Larson's [ sic ] supersedeas that petition is now moot. As a result, we are filing a praecipe and I am making a motion to permit us to withdraw our original petition for dependency so in fact there is nothing further before the Court. I have that praecipe which I would like to hand up to the Court.

THE COURT: The motion is received as being properly before the Court; however, the motion is denied because the Court believes that the interest of justice requires ...


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