Appeal from the Order entered September 13, 1984, Court of Common Pleas, Westmoreland County, Juvenile Division at No. 123 WCCB 1983, The Superior Court, No. 1274 Pittsburgh 1984.
Gary A. Falatovich, Greensburg, for appellant.
Marker, Judge. Cavanaugh, Wieand and Johnson, JJ. Wieand, J., files a dissenting opinion.
[ 363 Pa. Super. Page 180]
WIEAND, Judge, dissenting:
The majority permits a mother, who is now separated from her husband, to be deprived of the custody of her young son and daughter because of physical abuse committed by the mother's husband upon one of the children. My review of the record fails to disclose that the children are dependent or that the mother has done or has failed to do anything which requires that her children be taken from her and given to another.
[ 363 Pa. Super. Page 181]
The appellant, T.V., and her husband, W.V., are the parents of two children. J.V. was born June 11, 1982, and A.V. was born April 30, 1983. On October 31, 1983, A.V., then six months old, was taken by her mother to Dr. Elias Alsabti because the child was suffering from a fever and respiratory problems. Believing that the child might be suffering from pneumonia, Dr. Alsabti ordered a chest x-ray. The x-ray revealed various fractures of the rib cage. Suspecting possible child abuse, Dr. Alsabti ordered a complete set of x-rays. These x-rays disclosed three fractured ribs in various stages of healing; a fractured left femur, approximately four to six weeks old; a fractured radius, about three months old; and, fractures of the tibia, about four weeks old.
After he had made these findings, Dr. Alsabti contacted the Westmoreland County Children's Bureau and informed a representative thereof that A.V. had sustained seven separate fractures which he believed to be the result of abuse. The Bureau initiated dependency proceedings pursuant to the Juvenile Act, 42 Pa.C.S. § 6301 et seq., and the Child Abuse Act of November 26, 1975, P.L. 438, 11 P.S. § 2201 et seq.
The Child Protective Services Law defines child abuse as follows:
[S]erious physical or mental injury which is not explained by the available medical history as being accidental, or sexual abuse or sexual exploitation, or serious physical neglect, of a child under 18 years of age, if the injury, abuse or neglect has been caused by the acts or omissions of the child's parents or by a person responsible for the child's welfare, or any individual residing in the same home as the child, or a paramour of the child's parent provided, however, no child shall be deemed to be physically or mentally abused for the sole reason he is in good faith being furnished treatment by spiritual means ...