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MATTER M.L.W. (04/13/82)

submitted: April 13, 1982.

IN THE MATTER OF M.L.W., A MINOR. APPEAL OF B.W.


No. 129 Pittsburgh, 1981, Appeal from the Order dated December 24, 1980, Court of Common Pleas, Orphans' Court Division, Crawford County, at No. O.C. 180 of 1979.

COUNSEL

Stephen E. Hall, Meadville, for appellant.

John Fuller, Meadville, for appellee.

Hester, Johnson and Popovich, JJ. Hester, J., files a dissenting statement.

Author: Johnson

[ 307 Pa. Super. Page 30]

This is an appeal from the final Order dated December 24, 1980, terminating Appellant's parental rights to her child M.L.W. We reverse.

[ 307 Pa. Super. Page 31]

The record indicates that the child was born on April 9, 1974 to Appellant, age twenty, who was then residing with foster parents. The child's father is the son of Appellant's foster parents. Appellant and the child's father never married. Sometime prior to November of 1978, Appellant and the child moved out of the foster home and into the home of Appellant's father in Crawford County.

In November of 1978, Appellant and her father sought out the assistance of the Meadville Mental Health Center concerning their inability to control the child. The staff psychologist testified that, after observing the child, he found him to be manipulative. The child was observed as having a speech impediment and his appearance was ". . . a little dirty, clothing wasn't the best." Four sessions of parental counseling and play therapy were scheduled from November of 1978 through January of 1979, after the initial visit.

On January 25, 1979 Appellant and her father contacted Child Welfare Services of Crawford County (CWS) concerning their continued problems with the child, i.e., temper tantrums, running away, refusal to follow routines, and threatening Appellant and her father with knives. The testimony is disputed as to whether Appellant inquired into the possibility of the child's placement in foster care at this meeting. Thereafter, on February 6, 1979, CWS took temporary emergency custody of the child following allegations that the child, at age four, had been abused and sexually molested. The child was found to have pinworms, pneumonia and a speech impediment. Prior to a dependency hearing, Appellant appeared before the court with counsel and consented to the temporary voluntary placement of the child in a foster home. Subsequently, the allegations of abuse were determined to be unfounded by CWS. Appellant then voluntarily admitted herself to the Mental Health Center in Meadville for one week, after becoming hysterical upon turning the child over to CWS. Between February and May of 1979, Appellant visited her son approximately once a week.

[ 307 Pa. Super. Page 32]

Appellant was administered I.Q. and psychological tests in May of 1979. She was determined to have an I.Q. of 65, which is in the range of mental retardation, and achievement at the third grade level. Appellant testified that prior to the administration of the tests, she discovered that her sister had taken an overdose of drugs, that she was distracted and she informed the psychologist administering the tests of this. The psychologist testified that he did recall Appellant informing him of her sister and she did not appear upset, in any event.

The child was psychologically tested in January and May of 1979 and found to have an I.Q. of 70 and 79, respectively. The child's speech problem was improved in February, as noted by the ...


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