S.M., In re

• Decision Date: 01 October 1992
• Citation: 418 Pa.Super. 359,614 A.2d 312
• Parties: In re S.M. Appeal of F.M. and L.M.
• Court: Pennsylvania Superior Court

Page 312

614 A.2d 312

418 Pa.Super. 359

In re S.M.

Appeal of F.M. and L.M.

Superior Court of Pennsylvania.

Argued May 21, 1992.

Filed Oct. 1, 1992.

Kathy Jo Liddick, Towanda, for appellants.

L. Carter Anderson, Montrose, for participating party.

Before BECK, JOHNSON and HUDOCK, JJ.

BECK, Judge:

In this opinion, inter alia, we revisit the standard to be applied in evaluating effectiveness of counsel in a dependency proceeding.

This is an appeal from an order continuing the placement of fifteen-year-old S.M. in foster care after he was found to be a dependent child under section 6302 of the Juvenile Act. F.M. and L.M., appellants and parents of S.M., raise three issues on appeal: 1) whether the evidence was sufficient to support a finding of dependency; 2) whether the evidence was sufficient to support the trial court's finding that there was a clear necessity to place S.M. outside the home; and 3) whether appellants' trial counsel was ineffective. Our careful review of appellants' arguments and of the trial court record indicates that none of these contentions has merit. We affirm.

S.M. was placed in foster care after being involved in a confrontation with his father in which his father struck him in the rib cage. On several occasions S.M. reported to his school psychologist that his father hit him and that his home life was unbearable. S.M. has a recent history of discipline and academic problems at school and displayed inappropriate behavior towards female classmates. S.M. was in therapy for a short time to help him with his problems but was withdrawn when he "fell in love" with his therapist.

Judge Kenneth Seamans found that S.M. was "without proper parental care or control ... necessary for his physical, mental, or emotional health, or morals...." and that he was, therefore, a "dependent child" as defined in section 6302 of the Juvenile Act. In the order on appeal, Judge Seamans continued S.M.'s placement in foster care and ordered that both he and his family receive counselling and that his parents attend parenting classes.

Appellants contend that the evidence presented was insufficient to support a finding of dependency. A finding of dependency must be supported by "clear and convincing evidence" that proper parental care and control are not available. In the Interest of Justin S., 375 Pa.Super. 88, 543 A.2d 1192 (1988); In Re Barclay, 321 Pa.Super. 417, 468 A.2d 778 (1983). Such a conclusion requires that testimony be "so clear, direct, weighty, and convincing as to enable the [trier of facts] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." In the Interest of Justin S. at 100, 543 A.2d at 1197. While our standard of review in dependency cases is generally quite broad, we must defer to the fact finding of the hearing judge who had the opportunity to observe and rule upon the credibility of the witnesses and parties who appeared. Id. at 100, 543 A.2d at 1198.

Judge Seamans heard extensive testimony from which he concluded that S.M. was "without proper parental care, control or education as required by law...." This conclusion was based largely on his finding that S.M.'s father employed excessive force in disciplining S.M. Our review of the record reveals that Judge Seaman's findings were supported by clear and convincing evidence. He did not err by adjudicating S.M. to be a dependent child.

Ronald Miller, S.M.'s school psychologist, testified that S.M. had been experiencing serious disciplinary and academic problems during the recent school year. In particular, Mr. Miller described the inappropriate behavior which S.M. had displayed toward female students. Mr. Miller testified that S.M. had been in therapy for these problems and that he recommended to appellants that S.M. receive further therapy but that they did not follow his advice, even after S.M. was suspended from school for his inappropriate behavior. Mr. Miller also described conversations which he had had with S.M. in which he had the opportunity to gain insight into S.M.'s relationship with his father. During these conversations, S.M., often in tears, would describe how he had run away from home due to his unbearable home life and the fact that his father would hit him. Mr. Miller had on several occasions seen fit to put S.M. in contact with Children's Services, hoping that they might be able to help S.M. with the problems he was having at home.

Judge Seamans also heard testimony from Carol Newhart, a Children's Services caseworker, who discussed the findings of the investigation which she had done subsequent to a report that S.M. had been struck in the ribs by his father. Ms. Newhart testified that S.M. has problems dealing with his relationship with his father, that his father has a history of "inappropriate discipline" and "poor parenting skills," and that S.M.'s behavior was "age inappropriate." Ms. Newhart also testified that the relationship between S.M. and his father was deteriorating.

Finally, Dr. Albert Bertsch testified regarding the findings he made when S.M. was brought to be examined after reportedly being struck in the ribs by his father. Dr. Bertsch testified that S.M. had a "clinical fracture" of the rib, that the history which S.M. had given revealed that S.M. had been struck in the ribs by his father's knee, and that these two facts were consistent with one another.

After hearing all of this testimony, Judge Seamans concluded that S.M.'s parents were not providing S.M. with the necessary support and that S.M. had certain behavioral and psychological problems to which his family life contributed. The record does not support appellants' contention that the evidence was insufficient for a finding of dependency. To the contrary, the hearing judge's adjudication of dependency was supported by clear and convincing evidence.

Appellants next argue that there was "no evidence presented of the clear necessity of removing the minor child from the home." In support of their contention, appellants argue that because no testimony was elicited from either of them regarding their ability to care for or control S.M., and because the trial court did not make a sufficient inquiry into alternative options, S.M.'s placement outside the home was based on insufficient evidence.

The relevant section of the Juvenile Act covering disposition of a dependent child provides, in pertinent part:

(a) General rule.--If the child is found to be a dependent child the court may make any of the following orders of disposition best suited to the protection and physical, mental, and moral welfare of the child:

(1) Permit the child to remain with his parents, guardian, or other custodian, subject to conditions and limitations as the court prescribes, including supervision as directed by the court for the protection of the child.

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

(i) Any individual resident within or without this Commonwealth who ... is found by the court to be qualified to receive and care for the child.

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

(iii) A public agency authorized by law to receive and provide care for the child.

42 Pa.C.S.A. § 6351. The Juvenile Act has been interpreted to allow for the removal of a child from the custody of his parents only where there is clear necessity for such removal. In Re Miller, 380 Pa.Super. 423, 552 A.2d 261 (1988). Such necessity is implicated where the welfare of the child demands that he be taken from his parents' custody. Id. We note that a decision to remove a child from his or her parents' custody must be reconciled with the "paramount purpose" of preserving family unity. In Re Frank W.D., 315 Pa.Super. 510, 462 A.2d 708 (1983). This reconciliation may require that temporary custody of the child be given to someone other than the parents until such time as the welfare of the child no longer demands that he be separated from his parents. See Frank, supra (decrees concerning children are temporary and subject to modification to meet changing conditions; appellant may institute proceedings to recover her child and present evidence or professional evaluations regarding any improvement in her parenting skills and abilities); see also Miller, supra (when child's home is inadequate, state agency should take steps necessary to instruct parents in skills needed). Ultimately, a hearing court is given broad discretion in meeting the goal of entering a disposition "best suited to the protection and physical, mental, and moral welfare of the child." In Re Lowry, 506 Pa. 121, 484 A.2d 383 (1984).

We find that appellants' contention in this regard is meritless. Judge Seaman's factual findings support the necessity of continuing S.M.'s placement in foster care. Moreover, his order clearly accords with the relevant statutory provisions, case law, and policy dictates in support of both family reunification and the child's best interests. The testimony revealed not only that S.M. was in need of help, but that at the present time S.M.'s parents were incapable of providing him with proper parental guidance, support, and discipline. With this in mind, the trial court required that S.M. receive individual counselling to help him with his problems, that his family receive family counselling, and that his parents attend parenting classes. The judge's decision was consistent with the Children's Services caseworker's recommendations and was supported by the facts of the case.

Finally, appellants contend that their court appointed trial counsel was ineffective. ¹ It is clear that in a dependency proceeding parents are entitled to counsel. The Juvenile Act explicitly states that "a party is entitled to representation by legal counsel at all stages of any proceeding under this chapter and if h...