J.P., Matter of

• Decision Date: 27 March 1990
• Parties: In the Matter of J.P., a Minor Adjudicated Dependent. Appeal of S.P., Parent of the Above Named Minor Child.
• Court: Pennsylvania Superior Court

Page 1057

573 A.2d 1057

393 Pa.Super. 1

In the Matter of J.P., a Minor Adjudicated Dependent.

Appeal of S.P., Parent of the Above Named Minor Child.

Superior Court of Pennsylvania.

Argued June 19, 1989.

Filed March 27, 1990.

James E. Beveridge, Erie, for Children's Services, participating party.

Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, ROWLEY, MONTEMURO, BECK, TAMILIA, POPOVICH and JOHNSON, JJ.

TAMILIA, Judge:

This appeal was taken from the Order of the Juvenile Court of Erie County by S.P. who contests the finding of dependency of her child, J.P., now four years of age, and the temporary removal of J.P. from her custody.

On October 28, 1987, J.P. was admitted to Millcreek Community Hospital for a fracture to her left elbow. The explanation for this injury provided by appellant and a grandparent were inconsistent with the injury, as three different versions were offered as to the cause of the injury to the elbow. Doctor Anthony Ferretti, the examining physician at the hospital, believed J.P.'s injury was caused by twisting and/or pulling her arm. J.P. had been discharged from the hospital on October 28, 1987 at which time she had been treated for a fracture to her right elbow, and it was later that same day she was readmitted to the hospital for the fracture of her left elbow. The explanation for the fracture to J.P.'s right elbow appeared to be consistent with the injury and was not included as a basis for the dependency petition subsequently filed by the Erie County Office of Children and Youth Services (CYS).

On October 30, 1987, J.P. was transferred to Great Lakes Rehabilitation Center with casts on both of her arms. She was discharged from the rehabilitation center on November 23, 1987, and placed in a foster home. On December 11, 1987, Erie County CYS filed a dependency petition pursuant to the Juvenile Act, 42 Pa.C.S. § 6301 et seq. ¹

Following placement in the foster home, the foster mother reported that she had great difficulty whenever attempting to change J.P.'s diaper. She exhibited running away behavior when forced to lay down, arching her back and attempting to roll away. When the foster mother tried to wash her vaginal area, J.P. would lock her legs together and arch her back. On December 17, 1987, J.P. was examined at Saint Vincent's Pediatric Clinic by Dr. Linda Fagenholtz. Dr. Fagenholtz gave J.P. a thorough examination, particularly in relation to the complaints of abnormal response to diaper changes and washing of the vaginal area. She found that J.P.'s vaginal opening was significantly larger than normal and determined that she had suffered on-going sexual abuse over a period of time. As a result of this finding, Erie County CYS filed an amended dependency petition which included sexual abuse.

On December 22, 1987, following a shelter hearing, an Order was entered by the court based upon the master's recommendation that J.P. be placed in a foster home pending further proceedings. On January 7, 1988 and January 15, 1988, an adjudication hearing was held with counsel representing the mother, the child and CYS. Following testimony by several witnesses on behalf of the appellant and CYS, the court adjudicated J.P. to be a dependent child. At a dispositional hearing held on February 5, 1988, testimony was received from the appellant, the appellant's grandparents and a case worker from CYS. The court entered an Order placing J.P. in the custody of CYS, making findings of clear necessity to have the child placed outside of the home and providing directions for creation of a service plan, whereby the mother/appellant would be assisted in improving her parenting capacities and for dispositional reviews at appropriate times to determine whether or not a change in placement in favor of the child's grandparents would be in order. A review hearing was to take place in six months. It is from this Order that appeal was taken.

The issues raised on appeal by the mother may be summarized as follows. First, the court erred in determining the child was dependent and in need of placement; secondly, the court erred in refusing to consider placing the child in question with family members as opposed to foster care; and thirdly, whether counsel was ineffective in failing to present evidence in support of appellant to counter the allegation of sexual abuse inflicted on the child.

The statutory authority empowering the Juvenile Court judge to make a determination of dependency and thereafter to place the custody of the child with the CYS agency and/or foster home is found at section 6301(b) Purposes. Pursuant to that section, the Act construes its purpose to be to preserve the unity of the family whenever possible and to provide for the care, protection and wholesome mental and physical development of children coming within the provisions of the chapter; to achieve the purposes in a family environment whenever possible, separating the child from parents only when necessary for his/her welfare or in the interests of public safety; and to provide means for enforcement of the chapter in which the parties are assured a fair hearing and protection of their constitutional and other legal rights. Section 6302, Definitions, defines a dependent child as one who 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. Section 6303(a)(1) provides that the proceedings of the chapter shall apply to a child who has been alleged to be delinquent or dependent. An adjudication of the child is pursuant to a petition under section 6341, Adjudication, which provides:

(a) General rule.--After hearing the evidence on the petition the court shall make and file its findings as to whether the child is a dependent child.... If the court finds that the child is not a dependent child ... it shall dismiss the petition and order the child discharged from any detention or other restriction theretofore ordered in the proceeding.

Section 6341(c), Finding of dependency, provides:

If the court finds from clear and convincing evidence that the child is dependent, the court shall proceed immediately or at a postponed hearing, ... to make a proper disposition of the case.

Pursuant to subsection (d), Evidence on issue of disposition, evidence may be received at the disposition hearing. Section 6351, Disposition of dependent child, provides that upon a finding of dependency, the court may make any number of dispositions best suited to the protection and physical, mental and moral welfare of the child. Among those dispositions is:

(a)(2) Subject to conditions and limitations as the court prescribes transfer temporary legal custody to any of the following:

....

(ii) An agency or other private organization licensed or otherwise authorized by law to receive and provide care for the child.

In conformity with the statutes, case law has been extensive in interpreting the procedures and the burdens imposed on the state to establish dependency, the need for care and the basis for removal of the child from the home. The child may be adjudicated dependent when it is established by clear and convincing evidence that the child is without proper parental care and such care is not immediately available. In re Miller, 380 Pa.Super. 423, 552 A.2d 261 (1988). The dependency of the child must first be determined before a disposition as to custody or change of custody may be considered. Helsel v. Blair County Children and Youth Services, 359 Pa.Super. 487, 519 A.2d 456 (1986). Following the adjudication of dependency, a child may not be separated from its parents unless evidence presented establishes that such separation is required by clear necessity. In Interest of Ryan Michael C., 294 Pa.Super. 417, 440 A.2d 535 (1982). The standard of review which is employed by the Superior Court in cases of dependency is broad, but the scope of review is limited in a fundamental manner by our Court's inability to nullify the fact finding of the trial court. In re Frank W.D., 315 Pa.Super. 510, 462 A.2d 708 (1983).

This case presents a question of first impression in the law of Pennsylvania as to the hearing of a dependency case under the Juvenile Act. The issue as we frame it is whether ineffectiveness of counsel is an available issue for appellate review in a dependency case and if so, how and when may the issue be raised in the context of a dependency proceeding. The first part of that question may be quickly and summarily answered yes; ineffectiveness may be alleged as a basis for appellate review. The Juvenile Act, 42 Pa.C.S.A. § 6337, Right to counsel, provides that a party is entitled to representation by legal counsel at all stages of any proceeding under the Act, and if indigent, the right to have the court provide counsel for him.

In Banks v. Randle, 337 Pa.Super. 197, 486 A.2d 974 (1984) (a case involving determination of paternity in a support action), we held that the right to the assistance of counsel means the right to effective assistance of counsel. In Banks, the court applied the standard used in review of criminal cases to the review of ineffectiveness of counsel in civil paternity proceedings. Id. at 202, 486 A.2d at 977. Banks was followed in Kitrell v. Dakota, 373 Pa.Super. 66, 540 A.2d 301 (1988), which likewise was a paternity case. We decline to follow precisely the reasoning or standard applied to Banks and Kitrell as there are clearly substantive and procedural differences in the nature and conduct of the proceedings which requires us to tailor the standard and manner of reviewing ineffectiveness in the context of a dependency proceeding. At the outset, we point out that the standards which were applied to paternity decisions were derived from the criminal law because it implicated a potential loss of liberty. Corra v. Coll, 305 Pa.Super. 179, 451 A.2d 480 (1982). Corra adopted the three due...