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TINA K. (12/27/89)

filed: December 27, 1989.


Appeal from the Order entered on June 18, 1987 in the Court of Common Pleas of Montgomery County, Juvenile No. 1985-978.


Stephen P. Imms, Jr., Ambler, for appellant.

Wendy G. Rothstein, Lansdale, for participating party.

Brosky, McEwen and Hoffman, JJ.

Author: Mcewen

[ 390 Pa. Super. Page 95]

This is an appeal by the Montgomery County Office of Children and Youth Services (hereinafter "CYS"), from an order, which classified as dependent Tina K., a ten year old minor. Tina had been in the legal and physical custody of CYS as a result of voluntary placement with CYS by her parents in 1985. CYS asserts that the trial court erred (1) when it reversed its prior order of November 24, 1986, which classified the child as abused, and (2) reinstated her classification as dependent. We affirm.

The trial judge has aptly summarized the underlying factual history:

On November 25, 1985, legal and physical custody of Tina K., [then] eight and one-half years of age, was voluntarily transferred for a period of thirty days by her parents to the Office of Children and Youth Services of Montgomery County. The agency immediately obtained residential placement for the child at Silver Springs-Martin Luther School (hereinafter referred to as "Silver Springs"). Just prior to the conclusion of the permitted period of placement, [CYS] filed a Dependency Petition with the Juvenile Court alleging Tina K. was an ungovernable child because her parents were "unsuccessful at controlling (her) wild and hyper behavior."

Richard Blasetti, Esquire, having been appointed guardian ad litem, a hearing was held on December 18, 1985, before Juvenile Court Master Kent Albright, Esquire, and the resulting Master's Report filed January 3, 1986. Findings of Fact and Recommendations contained in this report affirmed both the child's ungovernability and her need for continued residential placement at Silver Springs. Exceptions were not filed and the Master's Recommendations became the Order of the Court [of January 9, 1986, and the child was thereby adjudicated dependent.]

[ 390 Pa. Super. Page 96]

On May 20, 1986, pursuant to 55 Pa.Code Sec. 3130.71, a Placement Review was conducted by Master Albright and his Findings of Fact and Recommendations affirmed by the Honorable William Nicholas on July 18, 1986. The child's continued placement was necessitated by an unaddressed alcohol dependency problem experienced by Mrs. K., parental inability to provide an emotionally secure environment, and the child's own need for the therapy and structure offered by Silver Springs. At no time were allegations of sexual abuse, or inappropriate sexual conduct by the child mentioned.

From November 25, 1985, until August of 1986, the physical custody of Tina K. was within the exclusive control of Silver Springs. Her parents enjoyed telephone contacts and approximately twelve home visits with their daughter during this period. On August 20, 1986, nine months after the child had been committed to Silver Springs, [CYS] informed the Court that Tina K. had been exhibiting inappropriate sexual conduct during the previous months of April and May. At a subsequent meeting with a [clinical social worker], Tina K. explained her conduct by accusing her father (Jack K.) of sexually assaulting her. As a result of the child's statements [CYS] requested the Court terminate all telephone contacts between the child and her parents and limit parental visitation to one hour every two weeks and then only under strict supervision by [CYS]. This request was granted, however, no Petition alleging sexual abuse was immediately forthcoming thereafter, as the Court had expected.

On November 24, 1986, approximately three months later, at a hearing originally scheduled as a Placement Review, [CYS] filed in open court a Juvenile Petition accusing Jack K. of sexually abusing his daughter and requesting her adjudication as a dependent/abused child. Jack K., having been given notice of the agency's intention, agreed that an adjudication hearing could be conducted on this date. Accordingly, the hearing was held.

[ 390 Pa. Super. Page 97]

At the hearing, Sharon Fyffe, Christina Walton, and Judy Nissen all social workers supervising Tina K. at Silver Springs, and Ralph Battinieri, a [clinical social worker] specializing in child abuse, retained by [CYS], testified. All spoke of conversations with Tina K. in which she stated that her father had sexually assaulted her. Tina K. never testified herself, nor was any explanation offered by [CYS] to explain the reasons for her absence from the courtroom. Counsel for Jack K. objected to ...

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