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filed: May 31, 1988.


Appeal from the Order of the Court of Common Pleas, Juvenile Division of Westmoreland County at No. 25 WCCB, 1986.


Richard M. Conte, Jeannette, for appellant.

Rowley, Tamilia and Popovich, JJ. Tamilia, J., files a dissenting opinion.

Author: Popovich

[ 375 Pa. Super. Page 92]

This is an appeal from an order of the Westmoreland County Court of Common Pleas awarding custody of the two minor children, Justin S. and Matthew S., to their natural father, Edward S. The appellant, Mary Ann F., is the children's natural mother and, prior to the court's decision, had custody of the children. We affirm the order of the court.

The appellant questions whether the lower court, in proceedings under the Juvenile Act, 42 Pa.C.S.A. § 6301, et seq., and the Child Protective Services Law, 11 P.S. § 2201 et seq., can make a disposition as to children which alters an existing custody arrangement without first adjudging the children to be dependent. The appellant further challenges whether the court can restrict her custody rights absent an

[ 375 Pa. Super. Page 93]

    adjudication identifying her as the perpetrator of the child abuse.

The history of this case is unusual and a thorough review of the pertinent facts is warranted. The record reveals that, at the time of this action's inception, Justin S., born July 4, 1983, and his brother Matthew S., born March 8, 1981, resided with their natural mother, Mary Ann F. (formally Mary Ann S.), and their mother's paramour, Roy D. At the initiation of these proceedings, the children's natural parents were estranged and, during the course of this action, finalized their divorce. Mary Ann F. has since remarried. Her current husband is not associated with this appeal in any manner. Prior to this action, the children's natural father, Edward S., visited his sons on weekends. During one such visit, Edward S. allegedly physically abused Justin.

On March 24, 1986, after receiving a report of child abuse, the Westmoreland County Children's Bureau (hereinafter "WCCB") initiated this case by filing a petition pursuant to the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq., alleging physical abuse as defined by the Child Protective Services Law, 11 P.S. § 2201 et seq. (hereafter "CPSL"), of Justin S. by his natural father. The petition alleged "dependency and abuse" and requested a hearing to adjudicate and dispose of the matter consistent with the best interest of the child. A hearing was scheduled, and all interested parties were notified. On April 1, 1986, the court entered a protective order which directed that Edward S. "shall have supervised visitation with his minor children, Matthew Edward S. and Justin Edward S." On April 30, 1986, the court appointed William Wiker, Esquire to represent Justin as his guardian ad litem.

After numerous continuances, the first hearing was held on August 5, 1986. At the hearing, the father vehemently denied the allegation of abuse set forth against him. On February 23, 1987, additional hearings were held, and the court entered an order finding Justin S. to be "an abused child." However, the court was "unable to determine the

[ 375 Pa. Super. Page 94]

    perpetrator of said abuse." Consequently, the court "ordered that the natural father have partial custody rights." The court also ordered that psychological evaluations of the children, parents and grandparents be performed prior to final disposition of the proceedings.

Later the same day, Mary Ann F. registered a complaint with the local police alleging Edward S. had sexually abused his minor children approximately fourteen months earlier. Prompted by her allegations, the court immediately ordered that the father's "partial custodial rights be exercised [only] in the immediate presence of the paternal [grandparents]."

On the morning of February 26, 1987, Justin's guardian ad litem petitioned the court for an emergency hearing on the recent developments. The court then ordered WCCB to take emergency protective custody of the two minor children, and the caption of the case was amended to include both children. In addition, the court appointed William J. Wiker, Esquire to represent Matthew S. as well as Justin.

Later that day, the guardian ad litem filed an amended petition for the placement of the minor children. Based upon evidence discovered earlier that day, the petition asserted that the mother had fabricated her allegations of sexual abuse and that she had forced her children to accuse unjustly their father of sexual abuse. The guardian ad litem also alleged that the father did not physically abuse Justin as contended originally. After reviewing the amended petition, the court promptly directed WCCB to relinquish custody of the children to their father.

A hearing was held on February 27, 1987, and evidence in support of the guardian ad litem's allegations, i.e. Mary Ann F. coerced her children into relating fictional accounts of abuse to WCCB officials and Edward S. was not responsible for any such abuse, was presented. The court-appointed psychiatrist expressed deep concern about the mother's "vindictive attitude and malice." He further testified that Matthew revealed to him that the true perpetrator of the physical abuse of Justin was the mother's paramour, Roy D. The court, having found the mother's testimony denying

[ 375 Pa. Super. Page 95]

    the guardian ad litem's allegations to be "simply incredible," granted custody of the children to their natural father. The court then limited the mother to supervised visitation with the children until a disposition hearing could be held on March 26, 1987. Subsequently, WCCB filed a petition for reconsideration of the court's order of February 23, 1987. This petition requested further hearings to determine the true identify of the perpetrator of the child abuse.

Following the disposition hearing on March 26, 1987, the court was still unable to identify positively the perpetrator of the physical abuse of Justin. However, exculpatory evidence absolutely eliminated the children's natural father, Edward S., as a suspect. The court believed the perpetrator could only be one of the following: the mother, the mother's brother, or one of the mother's "boyfriends," such as Roy D. The court stated, "It was abundantly clear that the mother maliciously coached the children into reporting the incidents of sexual abuse as a means of preventing the natural father from seeing his children."

The court disposed of the case on March 26, 1987, as follows: Edward S. was awarded custody of his two minor children, Justin and Matthew S.; WCCB was ordered to provide general protective services for the youths; the parents were ordered to undergo "parenting counseling"; WCCB was ordered to arrange for Mary Ann F.'s supervised visitation of her minor children; and, the court found no reason to disturb their order of February 23, 1987 which found Justin to be abused but did not name the perpetrator. Mary Ann F. then petitioned the court for reconsideration of its decision. The court refused, and this appeal followed.

This appeal presents an interesting question: whether a court is permitted to alter an existing custody arrangement between a child's parents without a determination of "dependency" in a disposition proceeding initiated pursuant to the Juvenile Act and the Child Protective Services Law.

Before discussing the substantive issues of this case, a brief outline of the relevant provisions of the Juvenile Act and the Child Protective Services Law is appropriate. The

[ 375 Pa. Super. Page 96]

    primary purpose of the Juvenile Act is the preservation of family unity whenever possible. In the Interest of Ryan Michael C., 294 Pa. Super. 417, 440 A.2d 535, 536-537 (1982). This purpose is ...

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