In re T.D. , 381 Pa. Super. 300 ( 1988 )

DEL SOLE, Judge:

This is an appeal from an order adjudicating the Appellant minor to be dependent. We reverse.

The facts as developed on the record are the following. Appellant T.D., a female minor, was born in 1976. Appellant D.D. is the child’s mother. During the course of her young life, T.D. has been the victim of two sexual assaults, the first occurring at the age of three and the second occurring at the age of eight. She has also suffered through the accidental death of a younger sister. At a detention hearing held on June 20, 1986, the court observed that there was a need for some supervision on the part of the Department of Human Services (DHS). However, finding that the circumstances did not warrant removing the child from the custody of her mother, the court concluded that Services to Children in their own Home (SCOH) would be the appropriate alternative:

... [Tjhere is a clear need for some SCOH services based upon what this court has heard ... We can make this a DHS referral at this stage of the game. DHS will supervise. The child will be returned to the natural mother ... In the mind of this Court that parent has been reluctant to provide such, and, in view of that, the Court believes that this child is at risk. In view of the effects of the kind of risk — that is to say, this risk has the potential of interfering with the child’s full life — it is better off to have this issue addressed in this sense of if it does not exist, there would be no need for continued therapy. On the other hand, if it does exist, there is a need to commence therapy as soon as possible. In the mind of this Court the risk is of such a nature as to require that it be addressed as soon as possible.

(N.T. 6/20/86 at 48-49)

Thereafter in January of 1987, an adjudicatory hearing was held¹ at which time the court heard testimony from various witnesses, including T.D.’s principal, a schoolteacher, and several individuals associated with the DHS. Evidence adduced at the hearing indicated that Appellant mother had failed to fully comply with the SCOH requirement of regular therapy visits for T.D. In addition, both the principal and teacher testified concerning various behavioral problems which the child had manifested at school, noting that this constituted a serious departure from T.D.’s previous conduct. Finally, the court was able to question Appellant mother following examination by counsel. At the conclusion of testimony and closing arguments, the court made the following observations:

Therefore, this Court is going to adjudicate this young lady to be dependent, and the Court will follow through with requiring supervision on the part of the Department of Human Services. However, the Court believes there is a clear and present threat of injury to this youngster and the injury is of such a serious nature — that is to say, although it may not be conspicuous, the Court believes mental illness exists and that mental illness may not be clear and conspicuous to those who may be in close contact. On the other hand, the effects of sexual assault are indelible and, therefore, have to be addressed as soon as possible.

(N.T. 1/6/87 at 116-117).

In accordance with the above, the court made an adjudication of dependency and ordered that SCOH services be continued. The appellants have taken an appeal therefrom.

The following issues have been presented for our consideration:

1) Did the lower court err in denying Appellants’ Motion to Dismiss the original petition because it stated only allegations of abuse rejected at the detention hearing and failed to allege facts which would support a finding that the child was without proper parental care or control?

2) Did the lower court err in denying Appellants’ Motion to Dismiss the Amended Petition because the only new ground alleged was that Ms. D. failed to cooperate with Children and Youth agency supervision without alleging that the child was harmed thereby?

3) Did the lower court violate the procedural requirements of the Juvenile Act and Appellants’ due process rights when it based its finding of dependency upon the child’s alleged need for therapy concerning prior incidents of sexual abuse even though that ground had not been stated in the original petition or the amended petition?

4) Did the lower court err in adjudicating the child dependent?

A. Did the lower court err in finding the petitioner presented clear and convincing evidence that the child was without proper parental care or control?

B. Did the lower court err in finding that the petitioner proved at the adjudicatory hearing that the child suffered from “post-rape syndrome”?

After a comprehensive review of the record and controlling authority, we reverse the trial court’s adjudication of T.D. as a dependent child. We hold that such interference in this family is unwarranted because the Commonwealth has failed to show by the requisite clear and convincing evidence that T.D. is without “proper parental care and control, subsistence, education as required by law, or other care or control necessary for [her] physical, mental or emotional health, or morals.” 42 Pa.C.S.A. § 6302 et. seq.; In Interest of Theresa E., 287 Pa.Super. 162, 172, 429 A.2d 1150, 1155 (1981); See, 42 Pa.C.S.A. § 6341(c).

Our court has stated that it is “a very serious matter indeed to allege that a child is a dependent child and thereby invite the intervention of agencies of the state into a parent’s care of that child.” In Interest of Theresa E., supra, 287 Pa.Super at 171, 429 A.2d at 1155. In this decision to intervene the State must balance its interest in protecting and caring for minor children against its interest in protecting and caring for one of our most important institutions, the family. In this regard, this court has frequently cited the following policy statement:

On the one hand, the State has an interest in requiring parents to respect the duty they owe their children. On the other hand, in requiring that respect, the State must be cautious not to intrude upon the family to the point of weakening it as one of our most important institutions. The way to resolve this problem is to impose restraints upon the State, not to prevent its officials from reacting to a child’s plight, but to prevent them from overreacting. No doubt one official will be sensitive and wise, but another will be a self-righteous prig; and that is the one we must guard against, for backed by the State, his power may overwhelm any parent. In the Interest of LaRue, 244 Pa.Super. 218, 225-26, 366 A.2d 1271, 1274-75 (1976), cited in, In Re Custody of Frank, 283 Pa.Super. 229, 237-38, 423 A.2d 1229 (1980).

Because a finding that a child is without proper parental care is very serious, perhaps coloring the child’s future attitude toward and relationship with a parent, the court must base its decision on clear and convincing evidence of parental failure to care for the child and whether such care is immediately available. In Re Barclay, 321 Pa.Super. 417, 422, 468 A.2d 778, 781 (1983); In Re Custody of Frank, supra. 283 Pa.Super. at 240, 423 A.2d 1229.

Our standard of review in cases of dependency is broad. In Re Frank W.D., 315 Pa.Super. 510, 517, 462 A.2d 708 (1983). We must find clear and convincing evidence in the record that T.D. was without proper parental care and control. The trial court bases its finding of dependency on the mother’s failure to fully comply with the SCOH requirement of regular therapy visits for T.D. The trial court held that the child was “at risk” to develop depression and other mental problems because of the sexual abuse she had experienced, and therefore therapy and counselling were required. (Trial Court Opinion at 9-10).

In contrast to the trial court’s view, our review of the record leads us to believe that these conclusions are based on a very shaky evidentiary edifice. This edifice is built on conjecture and on subjective reactions to heinous incidents of sexual abuse of a young child, which happened outside the control of the mother, instead of the required comprehensive and penetrating inquiry into the circumstances of T.D.’s home life, and the ability of the mother to care for her child. In Re Custody of Frank, 283 Pa.Super. 229, 244-45, 423 A.2d 1229 (1980); In Interest of H.B., 293 Pa.Super. 109, 115-16, 437 A.2d 1229 (1981).

For instance, the testimony of Mr. Sherwood Nichols, a family therapist with Hall Mercer in Philadelphia, was introduced to establish the need for therapy concerning rape trauma syndrome. Mr. Nichols’ contact with T.D. and her mother was minimal, he only saw her twice, and although he was aware of the incidents of sexual abuse, he stated that the primary issue for the therapy was grief over the accidental death of T.D.’s younger sister. He states that his conclusion that “T.D. would benefit from some kind of counselling” was based on the testimony that he had heard at the trial. (N.T. at 67-70, 1/6/87). He had not personally observed any harmful psychological effects from the incidents of sexual abuse (N.T. at 73, 1/6/87), and in fact, had decided at the intake interview to concentrate on the issue of grief, although aware of the abuse. Clearly, his evidence lacks serious merit in regard to whether there was any apparent necessity for counselling pertaining to the sexual abuse.

Next, there is testimony from Mr. Ingo Schamber who, as an employee of the Department of Human Services, had “case management” responsibilities in T.D.’s case. Mr. Schamber had absolutely no personal conduct with T.D., and yet testified to the need for therapy in this case while admitting that not every case of sexual abuse results in an ongoing need for some sort of therapy. (N.T. at 34, 1/6/87). Thus, of these two witnesses, one admittedly had no personal contact with T.D. and the other based his opinion on in-court testimony.

Apart from Mr. Erskine Hicks, who counselled T.D.’s mother, not T.D. herself, no other expert witnesses testified. Thus the trial court relied on the expertise of two witnesses, neither of whom is a psychologist or psychiatrist, to show that T.D. was “at risk” of potentially serious psychological harm because of the mother’s failure to take T.D. to counselling. On this proof it can not be said that the requisite showing of harm resulting from the absence of proper parental care or control necessary for mental or emotional health has been made. In re Custody of Frank, 283 Pa.Super. 229, 239, 423 A.2d 1229 (1980).

This Court has urged the trial courts to make a comprehensive and searching inquiry in these cases. It may not find a child dependent absent clear and convincing evidence which has has been defined as testimony that is direct and unambiguous as to enable the trier of fact to come to a sure determination. In re Frank W.D., 315 Pa.Super. 510, 462 A.2d 708 (1983). Far from a comprehensive and searching inquiry, we have precious little evidence of the parenting ability of T.D.’s mother: no reports of home visits, nor professional evaluations of the home environment. While the record shows testimony from one teacher and a principal concerning disturbing trends in T.D.’s behavior, we lack evidence from involved professionals, which is normally generated by a comprehensive inquiry, not only of T.D.’s psychological condition but of the home situation and the mother’s ability to care for her child.

Such information is necessary in determining dependency. For instance, in In re Breisch, 290 Pa.Super. 404, 434 A.2d 815 (1981), a case in which the child was found dependant because of the parent’s failure to provide therapy for her son’s severe speech disability, a full picture of the child’s problems as well as the home environment was developed. Speech pathologists periodically evaluated the child’s speech development; there was a Home Visitor reporting on her attempts to teach parenting skills to this parent of a child (like T.D.) with special needs, and testimony from caseworkers who visited the home regularly and reported on a chaotic and harmful home life.

This court has stated that proper parental care, “is that care which (1) is geared to the particularized needs of the child and (2) at a minimum is likely to prevent serious injury to the child.” In Interest of Pernishek, 268 Pa.Super. 447, 458, 408 A.2d 872, 878 (1979). Here we lack clear evidence of the child’s particularized needs and of the particular harm against which T.D. needs protection. The court has the power to order home visits while the dependency action is pending, and in fact is encouraged to do so as part of its obligation to make a comprehensive inquiry. However, in failing to offer that information on the record, the Commonwealth has not proved the existence of either particularized needs or a particular harm to be guarded against.

Under the Act, a court may not declare dependency and order state supervision solely because it would be in the child’s best interest to have therapy. Much more must be shown. The Legislature has sought to achieve the proper balance between a parent and the State by requiring that a specifically high quality of proof be forthcoming. In re Custody of Frank, 283 Pa.Super. 229, 241, 423 A.2d 1229 (1980). As such proof was not forthcoming in this case, we reverse the trial court’s finding of dependency.

ORDER REVERSED. JURISDICTION RELINQUISHED.

CAVANAUGH, J. files a dissenting opinion.

1 . Subsequent to the detention hearing of June 20, 1986, but prior to the adjudicatory hearing of January 6, 1987, two additional hearings were held on November 5, 1986 and December 12, 1986. At the November 5th proceeding, both T.D. and D.D. were given an opportunity to testify, and counsel for appellant-mother made a motion to dismiss on the grounds that there were "insufficient factual allegations before the court to invoke the court’s jurisdiction ...” (N.T. 11/5/86 at 8) In response to the allegations of lack of jurisdiction, the court provided for the filing of the amendments, stating as follows: "What this court is going to do is allow the County time to file the appropriate petitions ..." (N.T. 11/5/86 at 9). The December 12, hearing dealt with a motion for reconsideration which was ultimately denied, and the matter was rescheduled for a dispositional hearing. In addition, counsel for the DHS withdrew a motion to quash that had been filed previously. Although it would appear that the November 5th hearing had been listed as an adjudicatory hearing and testimony from the appellants was heard at that time, we will refer to the January 6, 1987 hearing as the actual adjudicatory proceeding since most of the testimonial evidence was provided on that date.