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LESLIE H. APPEAL HARRY AND DONNA H. (07/13/84)

filed: July 13, 1984.

IN THE INTEREST OF LESLIE H. APPEAL OF HARRY AND DONNA H.


No. 38 Harrisburg 1983, Appeal from the Order of the Court of Common Pleas of Lebanon County, Juvenile Division, No. 108-82.

COUNSEL

Thomas K. Wynne, Lebanon, for appellants.

Rosamond A. Presby, Assistant District Attorney, Lebanon, for participating party.

Wickersham, Olszewski and Hoffman. Wickersham, J., concurs in the result.

Author: Olszewski

[ 329 Pa. Super. Page 455]

This appeal follows an order remanding custody of appellant's daughter to the Lebanon County Children and Youth Services.

On December 17, 1982, Lynn E. Richards, an investigator for the Lebanon County Children and Youth Services, filed a petition alleging sexual abuse of the sixteen year old girl by her father. The agency claimed the girl was, as a result, an abused and dependent child without proper parental care or control necessary for her physical, mental or emotional health, or morals. See The Juvenile Act, 42 Pa.C.S. §§ 6301 et seq.; The Child Protective Services Law, 11 P.S. §§ 2201 et seq. It assumed temporary custody of the girl.*fn1 On January 6, 1983, a hearing was held in chambers before Judge John Walters. The court found the girl to be a dependent child, and ordered her custody remanded to the agency for placement in foster care or its equivalent.

Appellants challenge the sufficiency of the evidence of record to support the finding of dependency. They argue that the court below based its decision on evidence improperly admitted. If the inadmissible testimony were excluded,

[ 329 Pa. Super. Page 456]

    appellants contend that the basis of the adjudication of dependency would vanish.

We agree.

The court heard, over objections, testimony of the agency investigator chronicling a history of abuse allegedly suffered by the girl at her father's hand. Again over objections, it listened as the girl's best friend told of the girl's reaction to the abuse.

That testimony forms the sum of the evidence on record of sexual abuse.*fn2 A court may find a child dependent only on proof by clear and convincing evidence. In re Frank W.D., 315 Pa. Super. 510, 462 A.2d 708 (1983). The testimony offered by the Commonwealth, that of an agency investigator and the girl's best friend, was hearsay, incompetent to prove the truth of the matter asserted.*fn3 In Interest of Jones, 286 Pa. Super. 574, 429 A.2d 671 (1981). That testimony discounted, little ...


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