Appeal from the Order entered January 6, 1987 in the Court of Common Pleas of Philadelphia County, Family Division, at No. J. No. 270877.
Marian C. Nowell, Philadelphia, for D.D., appellant.
Samuel B. Magdovitz, Philadelphia, for T.D., appellant.
M. Robin Maddix, Philadelphia, for appellee.
Cavanaugh, Wieand and Del Sole, JJ. Cavanaugh, J. files a dissenting opinion.
[ 381 Pa. Super. Page 301]
This is an appeal from an order adjudicating the Appellant minor to be dependent. We reverse.
The facts as developed on the record are the following. Appellant T.D., a female minor, was born in 1976. Appellant D.D. is the child's mother. During the course of her young life, T.D. has been the victim of two sexual assaults, the first occurring at the age of three and the second occurring at the age of eight. She has also suffered through the accidental death of a younger sister. At a detention hearing held on June 20, 1986, the court observed that there was a need for some supervision on the part of the Department of Human Services (DHS). However, finding that the circumstances did not warrant removing the child from the custody of her mother, the court concluded
[ 381 Pa. Super. Page 302]
that Services to Children in their own Home (SCOH) would be the appropriate alternative:
Thereafter in January of 1987, an adjudicatory hearing was held*fn1 at which time the court heard testimony from various witnesses, including T.D.'s principal, a schoolteacher, and several individuals associated with the DHS. Evidence adduced at the hearing indicated that Appellant mother had failed to fully comply with the SCOH requirement of regular therapy visits for T.D. In addition, both the principal and teacher testified concerning various behavioral problems which the child had manifested at school, noting that this constituted a serious departure from T.D.'s previous conduct. Finally, the court was able to question Appellant mother following examination by counsel. At the conclusion of testimony and closing arguments, the court made the following observations:
[ 381 Pa. Super. Page 303]
In the mind of this Court that parent has been reluctant to provide such, and, in view of that, the Court believes that this child is at risk. In view of the effects of the kind of risk -- that is to say, this risk has the potential of interfering with the child's full life -- it is better off to have this issue addressed in this sense of if it does not exist, there would be no need for continued therapy. On the other hand, if it does exist, there is a need to commence therapy as soon as possible. In the mind of this Court the risk is of such a nature as to require that it be addressed as soon as possible.
Therefore, this Court is going to adjudicate this young lady to be dependent, and the Court will follow through with requiring supervision on the part of the Department of Human Services. However, the Court believes there is a clear and present threat of injury to this youngster and the injury is of such a serious nature -- that is to say, although it may not be conspicuous, the Court believes mental illness exists and that mental illness may not be clear and conspicuous to those who may be in close contact. On the other hand, the effects of sexual assault are indelible and, therefore, have to be addressed as soon as possible.
(N.T. 1/6/87 at 116-117).
In accordance with the above, the court made an adjudication of dependency and ordered that SCOH services be continued. The appellants have taken an appeal therefrom.
The following issues have been presented for our consideration:
1) Did the lower court err in denying Appellants' Motion to Dismiss the original petition because it stated only allegations of abuse rejected at the detention hearing and failed to allege facts which would support a finding that the child was without proper parental care or control?
2) Did the lower court err in denying Appellants' Motion to Dismiss the Amended Petition because the only new ground alleged was that Ms. D. failed to cooperate with
[ 381 Pa. Super. Page 304]
Children and Youth agency supervision without alleging that the child ...