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filed: February 11, 1983.


NO. 492 PITTSBURGH, 1980, NO. 141 PITTSBURGH, 1981, Appeal from the Orders dated April 16, 1980 and January 21, 1981, of the Court of Common Pleas of Allegheny County, Juvenile Division, at No. 2811 of 1978.


Carol S. Mills McCarthy, Pittsburgh, for appellants.

Marc Drier, Pittsburgh, for appellee.

Wickersham, Wieand and Beck, JJ. Wickersham, J., concurs in result. Wieand, J., files a concurring and dissenting opinion.

Author: Beck

[ 310 Pa. Super. Page 277]

Richard and Cheryl Rhine ("Appellants") appeal orders of the Court of Common Pleas of Allegheny County, dated April 16, 1980, and January 21, 1981, which indefinitely suspended Appellants' visitation with their natural daughter, Cheryl Ann Rhine, born May 19, 1978. We reverse and remand.

[ 310 Pa. Super. Page 278]

On December 5, 1978, Appellee Children and Youth Services of Allegheny County ("CYS") filed a petition alleging that Cheryl Ann was a dependent child within the intendment of the Juvenile Act ("Act"), 42 Pa.C.S. §§ 6301 et seq. After a hearing the court of common pleas entered an order on December 13, 1978, stating that Cheryl Ann was a dependent child and was to be "under supervision of [CYS], in the custody of [CYS] with permission for placement." Appellants appealed neither the court's determination of their child's dependency nor the court's transfer of temporary legal custody of Cheryl Ann to CYS.

On February 7, 1979, CYS placed Cheryl Ann with a foster family. In conjunction with the foster home placement Appellants and Cheryl Ann participated in a parent training program pursuant to which Appellants had weekly, supervised contact with Cheryl Ann.

In August of 1979 Cheryl Ann's foster mother reported to CYS that after visiting with Appellants, Cheryl Ann suffered from severe diarrhea, acted very aggressively toward her foster family, failed to maintain eye contact, and exhibited self-destructive behavior including banging her head and pulling out her hair. Thereafter, on the recommendation of a panel of CYS consultants, Appellants were permitted supervised visits with Cheryl Ann only one hour per month from September of 1979 through January of 1980.

Appellants were last permitted to visit Cheryl Ann on January 24, 1980. On April 2, 1980, the court of common pleas held the first of a series of evidentiary hearings concerning Cheryl Ann's welfare in relation to the discontinuance of Appellants' visitation. At the April 2 hearing the trial judge ruled that he had been presented with insufficient evidence to decide the matter properly. Accordingly, the parties were afforded two weeks within which to secure necessary witnesses.

Again, at a hearing conducted on April 16, 1980, and at hearings on September 3, 1980, and December 31, 1980, the trial judge refrained from issuing an explicit order regarding the discontinuance of Appellants' visitation and extended

[ 310 Pa. Super. Page 279]

    the period for judicial review so that the parties could adduce additional evidence.*fn1 Finally, after a hearing on January 21, 1981, the trial judge entered an order directing that Cheryl Ann remain in her "present foster home under [CYS] supervision" and that "termination of visitation . . . remain in effect until further order of court."

On appeal to this Court Appellants question the guidelines by which the trial judge terminated their visitation with Cheryl Ann. Appellants argue (1) that the applicable standard of evidence is "clear and convincing"; (2) that the proper test for terminating visitation is "clear necessity," and (3) that the trial court lacked competent evidence to terminate Appellants' visitation.

Appellants first contend that because the instant controversy involves the child's natural parents and the state, the appropriate standard is clear and convincing evidence. An implicit corollary to Appellants' contention is that the state carries the burden of proof in such a dispute.

In Addington v. Texas, 441 U.S. 418 [99 S.Ct. 1804, 60 L.Ed.2d 323] (1979), the Court, by a unanimous vote of the participating Justices, declared: 'The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to "instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication."' Id., at 423 [99 S.Ct. at 1807], quoting In re Winship, 397 U.S. 358, 370 [90 S.Ct. 1068, 1075, 25 L.Ed.2d 368] (1970) (Harlan, J., concurring). Addington teaches that, in any given proceeding, the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants.

[ 310 Pa. Super. Page 280]

This Court has mandated an intermediate standard of proof -- 'clear and convincing evidence' -- when the individual interests at stake in a state proceeding are both 'particularly important' and 'more substantial than mere loss of money." Addington v. Texas, 441 U.S., at 424 [99 S.Ct. at 1808] . . . . [T]he Court has deemed this level of certainty necessary to preserve fundamental fairness in a variety of government-initiated proceedings . . . .

Santosky v. Kramer, 455 U.S. 745, 754, 102 S.Ct. 1388, 1395, 71 L.Ed.2d 599, 607-10 (1982).

While Pennsylvania courts have not heretofore analyzed the private interests affected by state opposition to parental visitation, recent court decisions have recognized that in custody disputes pitting a child's natural parents against the state, the private parental interest is legislatively protected. Ellerbe v. Hooks, 490 Pa. 363, 366-67, 416 A.2d 512, 513 (1980); In re Hernandez, 249 Pa. Super.Ct. 274, 279-80, 376 A.2d 648, 650-51 (1977). Since the considerations controlling custody disputes "apply with equal force to matters involving visitation," Morris v. Morris, 271 Pa. Super.Ct. 19, 29, 412 A.2d 139, 144 (1979), an examination of custody disputes between parents and the state is instructive in resolving the present visitation controversy.

Where the state opposes parents in custody matters our Legislature has established clear guidelines and procedures. Here either the Juvenile Act, 42 Pa.C.S. § 6301 et seq., or the Child Protective Services Law, 11 P.S. § 2201 et seq. are [sic] controlling. Yet the Juvenile Act has as its first express purpose: 'To preserve the unity of the family whenever possible,' § 6301(b)(1) and thus permits

[ 310 Pa. Super. Page 281]

    state-enforced custody only when a child is found delinquent or dependent as defined by the Act . . . .

Ellerbe, 490 Pa. at 366-67, 416 A.2d at 513.

The determination of custody under the Juvenile Act is a bipartite proceeding. In re C.A.M., 264 Pa. Super.Ct. 300, 399 A.2d 786 (1979). Initially, an adjudicatory hearing is held to ascertain whether the child is dependent. At this stage of the proceeding "'[t]he burden of proof [is] on the party asking that the child be taken from its parents, and . . . the evidence must be "clear and convincing."'" In re George, 272 Pa. Super.Ct. 173, 184, 414 A.2d 1063, 1069 (1979) (Spaeth, J., concurring and dissenting) (quoting In re LaRue, 244 Pa. Super.Ct. 218, 228, 366 A.2d 1271, 1276 (1976); Section 6341(c) of the Act, 42 Pa.C.S. § 6341(c).

If the child is found dependent, the second, or dispositional, stage of the proceeding commences. The court conducts an evidentiary hearing to discovery the "disposition best suited to the protection and physical, mental, and moral welfare of the child . . . ." Section 6351(a) of the Act, 42 Pa.C.S. § 6351(a). The court may "[p]ermit the child to remain with [the] parents . . . subject to conditions and limitations . . . [or] transfer temporary legal custody to [ inter alia ] . . . [a] public agency . . ." Id. However,

[t]he law is clear that a child should be removed from her parent's custody and placed in the custody of a state agency only upon a showing that removal is clearly necessary for the child's well-being . . . . [C]lear necessity for removal is not shown until the hearing court determines that alternative services that would enable the child to remain with her family are unfeasible.

In re K.B., 276 Pa. Super.Ct. 380, 393, 419 A.2d 508, 515 (1980).

Thus the situations in which the state may intervene are limited, and its burden is very heavy. These restrictions derive from the convictions that the family is one of our most important institutions, that a child's best interest is served by being raised within the family, and that the

[ 310 Pa. Super. Page 282]

    state should not unnecessarily intrude upon, and thereby weaken, the family.

In re Hernandez, 249 Pa. Super. at 279-80, 376 A.2d at 651.

In the present controversy the state has already removed Cheryl Ann from Appellants' custody. Nevertheless, the loss of custody does not eradicate Appellants' legislatively protected interest in Cheryl Ann. Consistent with its declared purpose to maintain the family, the Juvenile Act permits legal custody of a dependent child to be transferred only temporarily from the child's natural parents to a state agency and thereby safeguards continued parental interest in the child as a preclude to the eventual reunification of the family. Sections 6301(b) and 6351(a) of the Act. "Furthermore, the rights and duties granted to a legal custodian under 42 Pa.C.S. § 6357, . . . are subject to the remaining rights and duties of the parents . . . ." O'Grady v. Centennial School District, 43 Pa. Commw.Ct. 287, 293, 401 A.2d 1388, 1391 (1979). Thus, Appellants have at stake a "particularly important" private interest in Cheryl Ann that is "more substantial than mere loss of money." Santosky.

As for the gravity of the threatened loss to Appellants, here the state has not merely assumed legal custody of Cheryl Ann but has further attenuated familial bonds by preventing parental visitation.*fn2 Such a radical disruption of the familial relationship not only imposes upon Appellants a prolonged, indefinite loss*fn3 of a particularly important private

[ 310 Pa. Super. Page 283]

    interest*fn4 but also may well precipitate Appellants' permanent loss of parental rights through the formal dissolution of the family.*fn5

Therefore, we hold, as did the trial judge,*fn6 that because the present state action threatens either a prolonged, indefinite or a permanent loss of a substantial private interest, the state must prove that its action ...

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