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Y.P. AND T.H. APPEAL V.M. (01/15/86)

submitted: January 15, 1986.

IN THE INTEREST OF Y.P. AND T.H. APPEAL OF V.M., MOTHER OF CHILDREN


Appeal from the Order Entered December 7, 1984 in the Court of Common PLeas of Venango County, Juvenile Div. at No. J.C.D. Nos. 15, 16 of 1984.

COUNSEL

Elissa M. Stuttler, Assistant Public Defender, Franklin, for appellant.

Cavanaugh, Olszewski and Kelly, JJ.

Author: Olszewski

[ 353 Pa. Super. Page 186]

Appellant, V.M., challenges the lower court's findings of dependency of her children, Y.P. and T.H., and their resultant temporary removal from her custody. Appellant argues that: (1) the Commonwealth failed to meet the burden of proof of clear and convincing evidence; (2) appellant's constitutional rights were denied because her children were removed from her custody on less than clear and convincing evidence; (3) the court erred in awarding temporary custody of T.H. to Children and Youth Services because there was no testimony of wrong-doing regarding T.H.; (4) the court erred in failing to inquire into solutions that would enable the children to remain with the custodial parent; (5) the court erred in not holding a dispositional hearing within twenty days of a finding of dependency as required by 42 Pa.Cons.Stat.Ann. Sec. 6341(c); and (6) the court, as trier of fact, erred by deciding the outcome of the dispositional hearing before all testimony was heard. We find these arguments to be without merit and affirm the order of the court below.

On Monday, August 20, 1984, B.P., Y.P.'s father, picked up his daughter from appellant's home. He was to have custody of her for the ensuing week. Y.P. told her father of an incident that occurred during the weekend of August 18-19, 1984. Y.P. stated that her mother, appellant in this case, and her brother were in the bathtub at appellant's house with two nude men. Her mother was kissing one of the men. Y.P. was pulled into the tub and indecently assaulted by the other man.

On August 22, 1984, juvenile petitions were filed alleging that Y.P., age 7, and T.H., age 2, were dependent. A hearing was held on August 24, 1984. At that hearing, the Commonwealth presented evidence in the form of testimony

[ 353 Pa. Super. Page 187]

    by Y.P. and B.P. Appellant was present and represented by counsel. Appellant presented testimony by the two men Y.P. implicated in the incident. They presented alibi testimony and stated that they had never been at appellant's home at the same time. All three denied that the incident ever took place. At the conclusion of the hearing, Y.P. and T.H. were adjudged dependent. The court found that the children were in need of care and protection to prevent any repetition of the incident and that they needed "the attention, supervision and control temporarily of the Children and Youth Services . . . ." Order of the lower court of August 24, 1984 at 1. The court did not hold a separate dispositional hearing.

On October 3 and 4, 1984, appellant filed a motion for rehearing and a motion to dismiss. A hearing was held on November 30, 1984, at which time appellant offered alibi testimony that was corroborated by her mother, and earlier testimony of one of the men involved was corroborated by three of his employees. The testimony of the August 24 hearing was incorporated by reference. An order of dependency was entered on November 30, and a dispositional hearing was scheduled for December 6, 1984. At the dispositional hearing, Y.P. testified that appellant physically and verbally abused her. B.P., Y.P.'s father, and his wife testified that sometimes when Y.P. came to visit them she appeared to have been abused. Evidence was offered to show that Y.P.'s school performance had improved since she was removed from her mother's custody, and that episodes of nightmares and bed wetting from which she had suffered now occur only after visitation with appellant. T.H.'s foster mother testified to the boy's behavioral problems when he first came to live with her, and that he now experiences these problems only after visitation with appellant. The court entered an order placing Y.P. and T.H. in the custody of Children and Youth Services. Y.P. was to remain with her father and T.H. was to remain with his foster parents. The court specifically made no determination as to appellant's future custodial rights. The court ordered counseling

[ 353 Pa. Super. Page 188]

    for appellant, the two children, and B.P. and his wife. Appellant was given rights to monitored visitation. Additionally, Children and Youth Services and the counselor were to make full reports to the court in one month, and monthly thereafter until the court determined that any change in custody and visitation should be made in the interest of Y.P. and T.H.

There is ample evidence on the record to support the court's finding of dependency by clear and convincing evidence. There is also evidence that would, if believed, support a finding that the incident complained of by Y.P. never occurred. The role of determining the credibility of witnesses and resolving factual conflicts in testimony belongs to the finder of fact. Janson v. Hughes, 309 Pa. Super. 399, 455 A.2d 670 (1982). There is no reason in ...


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