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JOANN BENNAGE AND PAULINE BENNAGE AND MINOR CHILDREN. APPEAL KENNETH BENNAGE (08/20/82)

SUPERIOR COURT OF PENNSYLVANIA


filed: August 20, 1982.

IN RE JOANN BENNAGE AND PAULINE BENNAGE AND MINOR CHILDREN. APPEAL OF KENNETH BENNAGE

No. 66 Harrisburg, 1980, Appeal from the Order of the Court of Common Pleas, Juvenile Division, Union County, at No. JU-18-1973.

COUNSEL

Joseph A. Campagna, Jr., Sunbury, for appellant.

Raymond Lobos, Mifflinburg, for appellee.

Cercone, President Judge, and Wieand and Lipez, JJ. Wieand, J., filed a dissenting statement.

Author: Cercone

[ 303 Pa. Super. Page 319]

Appellant is the natural father of two minor children, Joann and Pauline. They are not only the objects of his affection but also the objects of this appeal, for it involves a dispute over their custody. They were adjudicated dependent in November of 1973 and placed in the custody of Union County Child Welfare Services. In January of 1980 appellant filed a petition to resume custody of his children.*fn1 A hearing on the petition was held on February 13, 1980. The court denied the petition the same day. This timely appeal followed.*fn2 For the reasons stated below we now vacate the order appealed and remand for further proceedings below.

Appellant argues that the court erred when it did not apply the "clear necessity" standard as set out in the Juvenile

[ 303 Pa. Super. Page 320]

Act,*fn3 but rather decided the case on the "best interest of the child" standard. We cannot accept appellant's contention as correct. It has been clear for some time that in cases such as this one the proper test to apply is the "best interests" test. As Judge Hoffman cogently stated in a recent opinion:

The "clear necessity" standard is designed to ensure that family unity is preserved "whenever possible." 42 Pa.C.S.A. ยง 6301(b)(1) and (3).

However, once the child has been taken from the parents, the court will appraise the evidence, and award custody, according to the child's best interests. In applying this standard the court will recognize the natural parents' claim to custody. In a given case this claim may prove of decisive weight; the particular circumstances of each case, including such facts as the length of time the child has been separated from the parents, must be taken into account.

Stapleton v. Dauphin County Child Care Service, 228 Pa. Super. 371, 391, 324 A.2d 562, 572 (1974) (emphasis added).

As we noted in Stapleton, supra, "the natural parents' claim to custody" is a significant, and sometimes decisive factor in custody disputes such as this one. Indeed, our cases have long recognized "that depriving a parent of [his or] her child is one of the most serious interferences that the state can impose on an individual." Milligan v. Davison, 244 Pa. Super. 255, 261, 367 A.2d 299, 302 (1976). See also In re William L., 477 Pa. 322, 383 A.2d 1228 (1978); Commonwealth ex rel. Children's Aid Society v. Gard, 362 Pa. 85, 66 A.2d 300 (1949); In the Interest of LaRue, [244 Pa. Super. 218, 366 A.2d 1271 (1976) (plurality opinion)]; Rinker Appeal, 180 Pa. Super. 143, 117 A.2d 780 (1955).

[ 303 Pa. Super. Page 321]

    make that determination we must vacate the court's order and remand the case for further proceedings below. See Ray v. Ray, supra; Beichner v. Beichner, supra; Commonwealth ex rel. Michael R. v. Robert R. R., supra.

Order vacated and case remanded for proceedings below not herewith inconsistent. Jurisdiction relinquished.

WIEAND, Judge, dissenting:

I respectfully dissent. In my judgment the trial court was in possession of ample facts to make a custody determination. Moreover, the reasons for continuing custody of appellant's dependent daughters in the Union County Child Welfare Services were not only convincing but compelling. Those reasons have been set forth in the comprehensive opinion of the trial court, and no good purpose would be served by repeating them here. Suffice it to say that appellant's circumstances are such that he is unable physically or financially to provide adequate care for his daughters. I would affirm the order denying his petition to resume custody.


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