Appeal from the Order of the Court of Common Pleas, Juvenile Division, of Clearfield County, Juvenile Docket No. 9, p. 365.
James Johnson, State College, for appellants.
Cirillo, President Judge, and Rowley and Tamilia, JJ.
[ 380 Pa. Super. Page 478]
This appeal of Joseph and Pearl S., the parents of nine-year-old Paul S., is from the trial court's order of September 25, 1987, directing that Paul be returned to foster care. Paul, who had been declared dependent and placed in the legal custody of appellee, Clearfield County Children and Youth Services (hereinafter "CYS"), had been residing with appellants for approximately three months on a temporary, trial basis.
Appellants raise three issues in this appeal: 1) whether the trial court erred in applying a "best interests" rather than a "clear necessity" standard in determining whether Paul should be returned to foster care; 2) if the "clear necessity" standard is appropriate, whether the standard was met in this case;*fn1 and 3) whether the trial court erred in allowing Dona Braznock, a CYS caseworker, to give opinion testimony on the ultimate issue of where Paul should live. For the reasons set forth below, we reverse the trial court's order of September 25, 1987, and remand the case to the trial court for a determination in accordance with the "clear necessity" standard.
The facts of the case, briefly summarized, are as follows: Paul was born on January 26, 1979. On May 28, 1982, CYS petitioned the court for an interim emergency order of custody with regard to Paul, asserting that appellants' residence was unlivable owing to, inter alia, lack of running water and electricity, inadequate heat, and insufficient food. The court entered an emergency custody order that same day, and Paul was removed from appellants' home and taken into the custody of CYS. On June 3, 1982, the court entered as a court order the stipulation of appellants, CYS, and Paul's guardian ad litem that Paul was a dependent child within the meaning of the Juvenile Act. Paul's placement with a foster family was periodically reviewed by the trial court over the next several years, with appellants
[ 380 Pa. Super. Page 479]
being allowed regular visitation with Paul. Eventually arrangements were made for Paul to have overnight visits with appellants on weekends; extended visits subsequently lasted up to seven days.
On June 17, 1987, the court entered an order continuing legal custody of Paul with CYS; granting temporary physical custody of Paul to appellants for approximately six weeks, their custody to begin at the end of the then-current school year; directing both CYS and Lutheran Social Services, whose caseworker had been working with appellants, to monitor and evaluate appellants' home and Paul's placement therein; and giving CYS the right to supervise the placement. A hearing was subsequently held on September 2 and 4, 1987, to review Paul's placement and disposition, with testimony being taken from Dona Braznock, the CYS caseworker; Dorothy Nixon, appellants' neighbor; Paul's twenty-one-year-old brother, Bill S.; Pearl S., Paul's mother; and Beverly Hatten, Paul's foster mother. In addition, Paul, who suffers from a speech problem and learning disabilities, was interviewed by Judge Ammerman in chambers.
In an order filed September 25, 1987, the trial court, finding that Paul continued to be dependent and that his best interest and permanent welfare would be served by his return to foster care "pending a hopeful change in the conduct and circumstances of the parents resulting from the initiation of remedial action" by CYS and Lutheran Social Services, directed that Paul be returned to foster care forthwith, with legal custody to continue with CYS. In the order and a subsequently filed opinion, Judge Ammerman explained that his decision was based on the history of the case, having taken judicial notice of all prior proceedings, and on the opinion of the CYS caseworker, Dona Braznock, that conditions were deteriorating at appellants' home. This appeal followed.
In their first issue, appellants argue that the trial court erred when it determined, based on a "best interests of the child" ...