In re Jackson
| Decision Date | 29 June 1979 |
| Citation | 267 Pa.Super. 428,406 A.2d 1116 |
| Parties | In re Kyiah JACKSON. Appeal of Queen JACKSON. |
| Court | Pennsylvania Superior Court |
Argued Sept. 12, 1978.
Charles C. Shainberg, Philadelphia, for appellant.
Mary Rose Cunningham, Asst. City Sol., Philadelphia, for appellee City of Philadelphia.
D Mullins, Child Advocacy Unit, Philadelphia, for appellee Kyiah Jackson.
Beverly Nelson Finney, Philadelphia, on brief, for appellee Elizabeth Jackson.
Before CERCONE, SPAETH and LIPEZ, JJ.
On August 26 1977, the lower court adjudged appellant's infant daughter, Kyiah Jackson, a "dependent child" under the Juvenile Act, Act of Dec. 6, 1972, P.J. 1464, No. 333 § 2, as amended, Act of Aug. 3, 1977, P.L. 155, No. 41, § 1, 11 P.S. § 50-102(4), which provides:
"Dependent child" means a child who: (1) is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals . . . .
On September 23, 1977, the court ordered Kyiah placed under the joint custody of appellant and appellant's mother [1] and further ordered appellant referred to neuropsychiatric counseling. This appeal followed.
The basis for the finding of dependency was an incident that took place on August 15, 1977, outside a courtroom in which Kyiah's father was on trial for murder. At the dependency hearing this incident was described as follows. Appellant had just testified in the murder trial; in the course of her testimony she had said she lived at 1303 South 15th Street. While appellant was outside the courtroom, with Kyiah in a baby carriage, Mrs. Irene Watson, the mother of Kyiah's father, approached appellant and said to her, "Queenie, you don't live (at) 1303 South 15th Street." N.T. Aug. 26, 1977 at 3. Mrs. Watson testified that appellant began screaming, pulled a broken drinking glass from her handbag and yelled, "If you don't leave me alone I will kill her," meaning Kyiah. Then, Mrs. Watson testified, appellant rushed down the hall, pushing the carriage, until she came to an open window, where she picked Kyiah up and stood by the window. Mrs. Watson tried to get Kyiah from appellant but appellant told her not to touch Kyiah. Mrs. Watson then summoned a police officer, who led appellant away from the window. Kyiah had suffered no harm.
Appellant testified that she had picked the broken glass up from an ashtray outside the court, for use in case of a fight in connection with the murder trial. She admitted pulling out the broken glass and telling Mrs. Watson to stay away, but she denied threatening to hurt Kyiah, and said she had had no intention of hurting her.
The purpose of the Juvenile Act is to preserve, whenever possible, the unity of the family; children should be taken from their parents only in cases of clear necessity. In the Interest of Whittle,--- Pa.Super. ---, 397 A.2d 1225 (1979); In the Interest of LaRue, 244 Pa.Super. 218, 366 A.2d 1271 (1976). The burden of proof is on the party asking that the child be taken from its parents, and the evidence in support of the request must be clear and convincing. In the Interest of Clouse, 244 Pa.Super. 396, 368 A.2d 780 (1977); In the Interest of LaRue, supra. Clear and convincing evidence is
testimony (that) is so clear, direct, weighty, and convincing as to enable the jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.
LaRocca Trust, 411 Pa. 633, 640, 192 A.2d 409, 413 (1963).
Appellant argues that these standards cannot be satisfied when the evidence discloses only one isolated incident; according to appellant, the cases hold that only evidence of longstanding patterns of behavior can provide a sufficient basis for a finding of dependency. We disagree. There is no logical reason why evidence of one isolated incident might not reveal such a degree of parental indifference as to enable the hearing judge to find without hesitancy that a child should be taken from a parent: for example, if a parent Were to drop a child out the window. We do agree with appellant, however, to this extent: the standard of clear and convincing evidence will be more Difficult to satisfy in a case of one isolated incident.
In deciding whether the evidence here was sufficient to support an order taking Kyiah from her mother, two procedural aspects of the case should be noted.
First, at the hearing on whether Kyiah should be found dependent, the lower court received evidence of the adequacy of Kyiah's two grandmothers' houses as places for Kyiah to live, should she be found dependent. [2] The court recognized that this evidence was out of sequence, and said it would not take the evidence into consideration in determining dependency. We nevertheless mention the point as a point of practice important to dependency proceedings generally; as we noted in In the Interest of LaRue, supra, the danger in counsel offering, and the hearing judge receiving, such evidence is that the "clear necessity" test, applicable in a dependency proceeding, is likely to become confused with the very different "best interest of the child" test, applicable in a custody proceeding.
Second, at the hearing on whether Kyiah should be found dependent, the lower court received no expert testimony. At the later disposition hearing, two psychiatrists did testify as to appellant's mental state. The lower court recognized that such testimony would have been useful in resolving the issue of dependency, for the testimony figures heavily in the court's opinion. Again, as a point of practice, we note that when the hearing judge believes the evidence offered at a dependency hearing to be incomplete he not only may but
should receive, and if necessary should seek out, evidence from objective, disinterested witnesses.
In the Interest of LaRue, supra, 244 Pa.Super. at 229, 366 A.2d at 1276.
These procedural aspects of the case noted, we may turn to the evidence that was offered to the lower court at the dependency hearing. The only witnesses were Mrs. Watson and a representative of the Department of Public Welfare, and appellant. It was the representative of the Department of Public Welfare who compared the grandmothers' homes. Mrs. Watson's testimony and appellant's testimony have been summarized above.
The lower court found as a fact that Mrs. Watson's version of the incident was more credible than appellant's, that is, that appellant did threaten to kill Kyiah and did pick her up and stand by the open window. These findings were clearly within the court's power, and we shall not disturb them. However, in the context of a dependency hearing, the question at issue was not only whether appellant Did these acts, but in addition, what he Intention was. One who yells, "If you don't leave me alone I will kill her," does not necessarily mean to carry out the threat. Before the lower court could declare Kyiah dependent, it was obliged to have before it clear and convincing evidence that the threat was made, And was made with the intention of carrying it out. Given evidence of the context in which the threat was made, a finding of dependency might then well be warranted, even though the threat represented one isolated incident.
Here the lower court advises us in its opinion that the later psychiatric testimony was not a factor in its finding of dependency. Lower court opinion at 4. It therefore appears that the court found only from the evidence that we have summarized that appellant intended to carry out her threat. We are unable to say that the evidence in support of such a finding was clear and convincing. Nothing suggests that Mrs Watson knew enough about appellant to make her testimony on the question reliable if indeed she had been asked the question directly, which she wasn't. In addition, it may be noted, Mrs. Watson testified that if Kyiah were to be found dependent, she would like custody of her; she was therefore hardly a disinterested witness. Indeed, she appears to be anything but disinterested, for quite apart from her interest in Kyiah, it was her son who was on trial for murder, and while we do not know what appellant said, we do know that she did testify as a witness at that trial, and that Mrs. Watson disagreed with her testimony at least as regards the address she had given. See In the Interest of LaRue, supra (...
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