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CONSTANCE W. APPEAL GARY HOOVER (01/31/86)

filed: January 31, 1986.

IN RE CONSTANCE W. APPEAL OF GARY HOOVER, FATHER


Appeal from the Order of the Court of Common Pleas of Green County, No. 7 Juvenile, of June 26, 1985

COUNSEL

Thomas C. Panian and B. Kirk Holman, California, for appellant.

Gregory C. Hook, Waynesburg, for appellee.

Wieand, Del Sole and Hester, JJ. Hester, J., files a dissenting statement.

Author: Del Sole

[ 351 Pa. Super. Page 394]

Before this Court is the propriety of an order suspending the natural father's visitation rights of his daughter, Constance W., for a period of one year. For the following reasons, we reverse.

The facts pertinent to our review are: prior to the child's birth on November 26, 1983, Appellant, the natural father, filed a petition to determine paternity. Blood tests proved Appellant to be the child's father. In August of 1984, the Appellant was granted visitation rights, and on October 2, 1984, Appellant petitioned for custody. A hearing was held on October 18 of that year, and the court granted full custody to the mother and partial custody to the father. A clarification of the court's order was requested and granted in February of 1985.

Children and Youth Services of Greene County became involved in the case upon the father's allegations of abuse and neglect of Constance by her mother. CYS initiated dependency proceedings. The hearing was not held because the parties entered into a stipulation that the child was not abused or neglected, and therefore, the dependency action was dismissed. The court issued an order on March 19, 1985 finding no abuse.

Children and Youth Services filed a second petition for dependency on April 30, 1985 because Constance was found to have three cigarette-type burns on her hand. Both parents testified, and the court found no abuse while noting that it was not satisfied with either parent's explanation. The child was adjudicated dependent because of immature and irrational conduct of the parents. The Appellant was given full custody in alternate months.

On June 3, 1985, the Appellant was in a tavern when he received a call from an anonymous caller who said that the mother, Sherry, had taken the child to North Carolina and

[ 351 Pa. Super. Page 395]

    would not be bringing her back. Appellant then called Sherry's sister-in-law, who resided in North Carolina and with whom he suspected Sherry was staying. The call was placed around 1:00 a.m. on June 4. Appellant threatened Sherry's husband with the police and the FBI. He said that he would come down with his friend, "the Hulk", and take the child back to Pennsylvania. Other threats were made that the child would be better off if Sherry were dead and he could see that it was done. Sherry's husband testified that when the call was made, she was still in Pennsylvania.

Appellant consulted Officer James Popielarcheck of the East Bethlehem Township Police Department who called the North Carolina number and asked to speak with Sherry. He was told by a woman that she was unable to come to the phone. The provision contained in the court's May 31 order was that:

[i]f the mother as now planned goes to North Carolina and makes her residence the child shall continued in the custody of the father.

The officer told the woman that he would transfer this order to the North Carolina Sheriff. The officer testified that that night Appellant ...


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