No. 616 Philadelphia, 1981, Appeal from the Orders of the Court of Common Pleas of Clinton County, Juvenile Division, at No. 27 of 1980.
Garry Wamser, Lock Haven, for appellant.
Larry Coploff, Lock Haven, for participating party.
Beck, Watkins and Hoffman, JJ. Beck, J., files a concurring opinion.
[ 296 Pa. Super. Page 534]
Appellant contends that the lower court erred in finding her minor son "dependent" as defined in the Juvenile Act.*fn1 We agree and, accordingly, vacate the orders of the lower court and remand for proceedings consistent with this opinion.
Mark, the subject of this appeal, was born to appellant and her husband, on May 19, 1972. Following his parent's divorce, Mark remained in the custody of appellant in Pennsylvania, while his father settled in Florida. After a pattern of unexcused absences from school, the Clinton County Children and Youth Social Services Agency (CYS) filed a petition on October 6, 1980, alleging that Mark was without proper parental care or control and requesting that he be adjudicated dependent. The lower court held a series of hearings and found that although Mark's physical needs were being adequately met and a close mother-son relationship had developed, appellant's bizarre behavior*fn2 could very well have serious long-range detrimental effects upon Mark and declared him dependent. A disposition hearing was held, 42 Pa.C.S.A. § 6351, and the lower court awarded custody to CYS.*fn3 This appeal followed.
A "dependent child" is defined under the Juvenile Act as a child "without proper parental care or control, subsistence, education as required by law, or other care or control
[ 296 Pa. Super. Page 535]
necessary for his physical, mental or emotional health or morals . . . ." 42 Pa.C.S.A. § 6302. "The question 'Is the child without proper parental care or control?', includes two questions: 'Is the child at this moment without proper parental care or control?', and if so, 'Is such care or control immediately available?'." In the Interest of LaRue, 244 Pa. Superior Ct. 218, 233, 366 A.2d 1271, 1278 (1976). Accord In the Interest of Theresa E., 287 Pa. Superior Ct. 162, 178, 429 A.2d 1150, 1158 (1981); In the Interest of Black, 273 Pa. Superior Ct. 536, 543, 417 A.2d 1178, 1182 (1980). A finding of dependency must be supported by evidence that is clear and convincing. 42 Pa.C.S.A. § 6341(c); In the Interest of Pernishek, 268 Pa. Superior Ct. 447, 457, 408 A.2d 872, 877 (1979).
The lower court relied solely upon evidence relating to Mark's relationship with appellant in adjudicating him dependent. We find such evidence by itself insufficient to support a finding of dependency. Assuming, arguendo, that the lower court correctly found Mark was without proper parental control at the time of the hearing, he could " not be adjudicated dependent unless there [was] clear and convincing evidence that such care [was] not immediately available." In re: A.E.M., 288 Pa. Superior Ct. 284, 288, 431 A.2d 1049, 1052 (1981) (emphasis added). To make such an adjudication, the lower court was required to determine whether Mark's father was capable of rendering the requisite care and control for the child -- a determination which cannot be made on the record before us. The lower court did not consider the availability of the father before adjudicating the child dependent, despite the express purpose of the Juvenile Act to provide care and protection for children "in a family environment whenever possible, separating the child from parents only when necessary for his welfare or in the interests of public safety." 42 Pa.C.S.A. § 6301(b)(3). See also In the Interest of Pernishek, supra; In the Interest of LaRue, supra. Accordingly, because the record is insufficient, we must vacate the orders of the lower court and remand the case for further proceedings. The lower court
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shall direct an investigation of the father's home and consider the results of such an investigation before making its adjudication. "Additionally, the court should consider obtaining disinterested testimony from neighbors, social workers, and/or psychological experts before making its adjudication." In re: A.E.M., supra, 288 Pa. Super. at 289, 431 A.2d at 1052. After the hearing, the ...