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DIANNE LYNN SPENCER. APPEAL MATTIE L. WITHERSPOON (10/08/82)

filed: October 8, 1982.

IN RE DIANNE LYNN SPENCER. APPEAL OF MATTIE L. WITHERSPOON


No. 2237 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Lancaster County, Orphans' Court Division, No. 915 1/2 of 1980.

COUNSEL

James D. Wolman, Lancaster, for appellant.

Carol Gundel Falk, Lancaster, for appellee.

Robert David Bacher, Lancaster, for participating party.

Wickersham, Rowley and McEwen, JJ.

Author: Rowley

[ 305 Pa. Super. Page 436]

I.

Dianne Lynn Spencer was born September 12, 1977, the out-of-wedlock child of Estella Spencer and Richard Walton. When Dianne was ten months old, her mother married Samuel Witherspoon, the son of appellant Mattie A. Witherspoon. In July of 1979, Dianne, Estella and Samuel moved in with appellant. When Estella and Samuel later moved out, Dianne was left in appellant's care. On July 14, 1980, appellant filed a Petition for Adoption to adopt Dianne, pursuant to the Adoption Act of 1970, Act of July 24, 1970, P.L. 620, No. 208, 1 P.S. § 101 et seq. The Petition contained a consent to the adoption by Dianne's natural mother and sought involuntary termination of the natural father's parental rights. That same day, the court ordered an investigation by the Lancaster County Children and Youth Social Service Agency (the Agency). On December 12, 1980, the natural father's parental rights were terminated. Also on that date Carol Gundel Falk, Esquire, the appellee in this case, was appointed as Dianne's guardian ad litem.

An evidentiary hearing on the proposed adoption was held on January 16, 1981. While conceding that appellant loved and had adequately cared for Dianne, the Agency recommended against the adoption because "a much more suitable one could be provided by this or several other placement agencies in the area".

In an Opinion dated July 20, 1981, the lower court denied appellant's Petition for Adoption, citing the following reasons for its decision. The court concluded that the evidence presented concerning the current activities and lifestyle of

[ 305 Pa. Super. Page 437]

    appellant's four youngest sons,*fn1 ages twenty, eighteen, seventeen and sixteen years, indicated a lack of "nurture and fulfillment" in the manner in which they had been raised. The court was concerned with the presence of appellant's "paramour" of twenty years, a Mr. Opple, who is the father of her four youngest sons and who is presently renting a room from appellant. The court also concluded that there was an "aura of insecurity" in appellant's home. This conclusion was apparently based on three facts: 1) the bedrooms of Mr. Opple and the teenage sons were kept locked, 2) meals usually consisted of only appellant and Dianne at the table and 3) appellant's finances are entirely dependent upon governmental sources (social security and food stamps) and Mr. Opple's rent payment. In addition to denying the Adoption Petition, the lower court awarded custody of Dianne to the Agency.*fn2 It is that portion of the order dealing with custody which is at issue in this appeal.

Appellant raised two issues on appeal: 1) Whether, after an adoption petition has been denied, a court must follow the requirements of the Juvenile Act, Act of July 9, 1976, P.L. 586, No. 142, 42 Pa.C.S.A. § 6301 et seq., before custody may be granted to a public child care agency?; and 2) Whether ...


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