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filed: May 28, 1982.



Toni M. Cherry, DuBois, for appellants.

John A. Burkhiser, Oil City, for participating parties.

Wieand, Johnson and Montemuro, JJ. Wieand, J., files dissenting opinion.

Author: Montemuro

[ 300 Pa. Super. Page 95]

This case concerns the adoption of a young child, David Lynn Sturgeon, who has been placed in two different adoptive families by an agency with undisputed legal custody of the child. Certain aspects of the case arose in Clearfield County and other aspects arose in Venango County, so that this court on appeal must deal with a tangled jurisdictional situation as well as with the human tragedy involved. Because the facts are unusual, we shall summarize them briefly, before embarking on a full discussion in the body of this opinion.

Winfield Scott and his wife, Donna Scott, (Scotts) are residents of Clearfield County, Pennsylvania. James L. Beck and his wife, Virginia M. Beck, (Becks) are residents of Venango County, Pennsylvania. The Clearfield County Children and Youth Services (Clearfield Agency) placed David Lynn Sturgeon, (David), the subject of this litigation, with the Scotts for the purpose of adoption. Before the adoption became final in Clearfield County, the Agency removed David from the Scott home and shortly thereafter placed him with the Becks in Venango County, again for the purpose of adoption. The court in Venango County, over the objections of the Clearfield Agency and private counsel for the Scotts, awarded custody of David to the Becks and withheld a decision on the Becks' adoption petition pending the outcome of this appeal.

For the reasons that follow, we affirm the decision of the Venango County Court of Common Pleas to accept the

[ 300 Pa. Super. Page 96]

    matter for hearing, to award custody to the Becks, and to dismiss all filings by the Clearfield Agency and the Scotts which would tend to obstruct the future adoption of David by the Becks.


David, the subject of this appeal, was born on January 10, 1978, in Clearfield Borough, Clearfield County. His father, David Lynn Easton, and his mother, Donna Louise Sturgeon, were twenty (20) and seventeen (17) years of age respectively at the time of his birth. They were young, single, and apparently not very much in love.

The baby initially resided with his mother, but both parents, on or about March 26, 1979, voluntarily placed David into the care and custody of the Clearfield Agency. On or about the same date, the Clearfield Agency placed the child in a foster home. On July 2, 1979, the parents of David filed a Petition for Voluntary Relinquishment of Parental Rights and Duties. The Clearfield Agency joined in said Petition and agreed to accept custody of the child until such time as the child was adopted or otherwise placed. (R.18a-23a) This petition was filed in the Court of Common Pleas of Clearfield County, Pennsylvania, Orphans' Court Division, and captioned: In re: David Lynn Sturgeon, d.o.b. 1-10-78, Number 1628. (R. 18a). On July 5, 1979, the Honorable John K. Reilly, Jr., President Judge of the Court of Common Pleas of Clearfield County, entered an order awarding temporary custody of the child to the Clearfield Agency pending a final resolution of the Petition which he scheduled for August 29, 1979. On or about July 11, 1979, the Clearfield Agency removed the child from temporary foster care placement and placed him with the Scotts, appellants herein, for the purpose of adoption. Although it is not clear from the record, (R. 25a), both sides agree that the Scotts on or about July 30, 1979, filed a "Report of Intent to Adopt" under the same court term and number as the Petition for Voluntary Relinquishment, supra. On August 29, 1979, Judge Reilly entered a final order forever terminating all parental rights and duties of the natural parents.

[ 300 Pa. Super. Page 97]

On October 31, 1979, the Clearfield Agency, through its caseworker, Ms. S. Jean Camberg, who had arranged for the child's placement with the Scotts, filed with the court in Clearfield County a "Report of Intermediary," to which was attached Clearfield Agency's consent to the proposed adoption by the Scotts (R. 28a-31a). It should be noted here that Ms. S. Jean Camberg resigned her position on the same date she filed the "Report of Intermediary", and her last home visit with the Scotts was on September 18, 1979. (N.T. 155)

At this point, if the usual and normal procedures in an adoption case had taken place, it seems clear that in all likelihood the Scotts would today be the adoptive parents of David. However, events subsequently transpired which gave rise to this litigation and appeal.

On January 4, 1980, after David had been with the Scotts for nearly six months, the Clearfield Agency received a telephone report of suspected child abuse concerning David. Mr. Dennis Caldwell, (Caldwell), a supervisor in the employ of the Clearfield Agency, the next day conducted an investigation of the report of suspected child abuse and presumably an investigation of the Scott home and their suitability to be adoptive parents.

According to his later testimony, Mr. Caldwell became gravely concerned about the placement during his visit to the Scott home. Chiefly, the basis for his concern was that he observed a most unusual lack of physical contact between Mrs. Scott and the two year old she intended to adopt. (N.T. Vol. 1, 78)

On the 8th or 9th of January, he re-visited the Scott home, and this time he interviewed Mr. Scott, Mrs. Scott being at a class she was required to attend as a result of a drunken driving charge. Mr. Scott and David appeared to have a better relationship, but in conversation Mr. Scott admitted to concern over raising the child and over his wife's inability to "settle down" and he discussed her continuing problems with the use of alcohol and marijuana. The child, again, was largely unsupervised, and although he would sit on Mr. Scott's lap, he would not hug or kiss him. (N.T. 81a-82a).

[ 300 Pa. Super. Page 98]

Supervisor Caldwell then planned a third visit to the Scott residence on January 15, 1980, this time asking a colleague, Mr. Endress, to help with evaluation. Prior to departure for the Scott home, Mr. Caldwell filed an amended Report of Intermediary with the Clearfield County Court, requesting an additional six months to supervise the placement before scheduling a final adoption. (R. 32a-33a)

Thereafter, he and Mr. Endress spent another two and one-half hours in observation of the situation and reached a determination that the Scotts were not suitable adoptive parents. The child seemed positively averse to Mrs. Scott; . . . "the child would push her away and slap and hit her and kick her and anything a child that age would do that didn't want to be picked up." (N.T. Vol. 1, 86) Although Mr. Scott called the boy "my son" and seemed to notice when he wandered, Mrs. Scott seemed to be "unable to give anything to the child", showed no emotion toward him, felt she couldn't read to him, and was unwilling to give him crayons for fear he would scribble on the walls. (N.T. Vol. 1, 119-121)

Caldwell and Endress conferred and determined to remove David from the Scott home immediately. He was taken to a hospital for a check-up and placed in the hands of an experienced foster mother for temporary care.

Caldwell's testimony was that he informed the Scotts that David would be in foster care for ten days pending any legal action which the Scotts might decide to take concerning David's removal, and that if no such action was taken during the ten (10) day period, the Clearfield Agency would thereupon proceed to locate and place David in another home for purposes of adoption.

Mr. Scott's testimony stressed his understanding that the removal was based upon the original report of child abuse, which he knew was unfounded. He decided therefore to let the agency take David and "we'll get it straightened out." He also states that he was told that he had "no rights" and that "there was nothing we could do about it." (N.T. Vol. 2, 94)

[ 300 Pa. Super. Page 99]

Mr. Endress' testimony confirms that of both the supervisor and the adoptive father. He personally told the Scotts what he himself believed to be true: that he thought they probably had no legal right to David because the agency had custody of him, but that they should contact their attorney, and that no move would be made other than foster care for the next ten days. (N.T. Vol. 1, 127-128)

The next day, January 16, 1980, Caldwell personally advised Judge Reilly, the President Judge of the Clearfield County Court of Common Pleas, of David's removal from the Scott home, his reasons for taking that action, and the Agency's intention to seek a new adoptive home for David. Judge Reilly told Caldwell to wait ten (10) days, and if no petition was filed by the Scotts during that time, to go ahead and place the child in another adoptive home. (N.T. Vol. 1, 91). No legal papers were filed, however, by the Scotts or the agency, and the court took no official action sua sponte. There appears in the Record a mention of a meeting attended by Judge Reilly and the attorneys for the Scotts and the Clearfield Agency during the ten day period. (N.T. Vol. 1, 92)

On February 2, 1980, no appeal or petition having been filed by the Scotts, Clearfield Agency placed David for adoption with the Becks in Venango County. On the same date, Clearfield Agency and the Becks executed a Placement Agreement and said Agreement provided, inter alia, that "the finalization of this placement hinges on the legal consequences of the previous placement." (R. 75a)

On March 13, 1980, an Interagency Agreement in Adoption Placement was entered into between Clearfield Agency and Venango County Children and Youth Services (Venango Agency) which provided that the Venango Agency would supervise the adoptive home of the Becks and provide supervisory reports to the Clearfield Agency and notify Clearfield Agency of any changes in the status of the Beck adoptive home. (R. 74a).

On February 7, 1980, the Becks filed a "Notice of Intent to Adopt" in the Court of Common ...

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