# In the Interest of Justin S.

> Superior Court of Pennsylvania · May 31, 1988 · 375 Pa. Super. 88

URL: https://www.frixlaw.com/law-library/cases/9692935

## Case

- **Full name:** In the Interest of JUSTIN S. and Matthew S. Appeal of MARY ANN F., Natural Mother of Justin S. and Matthew S.
- **Court:** Superior Court of Pennsylvania
- **Decided:** May 31, 1988
- **Citations:** 375 Pa. Super. 88; 543 A.2d 1192; 1988 Pa. Super. LEXIS 1776
- **Precedential status:** Published
- **Opinion:** Dissent by Tamilia
- **Judges:** Rowley, Tamilia, Popovich
- **Cited by:** 57 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9692935

## Opinion text

TAMILIA, Judge,
dissenting:
I respectfully dissent. The analysis of the majority is correct until it makes a finding that the trial court had the authority to transfer custody to the noncustodial parent without a finding of dependency as to the custodial parent. Authority to make a custodial disposition follows only upon an adjudication of dependency pursuant to the Juvenile Act, 42 Pa.C.S.A. § 6351(a), which provides:
(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, *108 mental, and moral welfare of the child[.] (Emphasis added)
Nowhere in the Juvenile Act is there authority in the court to act without a finding of dependency.
The majority has misread In the Interest of Theresa E., 287 Pa.Super. 162 , 429 A.2d 1150 (1981) in holding that a change of custody can be made in a dependency proceeding, without a dependency finding, if one of the parents is not subject to the charge of neglecting the child. The ruling in the case sub judice will foster what always has been denied, the use of dependency proceedings as a substitute for a custody action.
I differ with the majority that a child may not be determined dependent if the out of custody parent is not neglectful and is willing to take the child. It frequently occurs that a child is subject to abuse in one household and needs the intervention of the Children and Youth Services and the court, with their investigative powers, when a traditional custody proceeding might prove ineffective. The fine line between custody actions and dependency actions should not be breached on either side. Here, if there was dependency by the mother, the court should so find and award custody to the father. If the record is not clear as to neglect or abuse but would warrant consideration of custody, based on fitness of the parents and best interest of the child, the dependency action should be dismissed and the parties instructed to proceed in a custody action.
The heavy involvement of the state should be avoided at all cost, but if the evidence is clear and convincing as to abuse and neglect, the protection of the child warrants such a finding. This does not interfere with the underlying philosophy of retaining children within the family when the first alternative for custodian always will be a suitable family member.
Here it would appear dependency would be a proper adjudication and the change of custody would be in order.
I would remand for such a finding.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9692935. Public record. Not legal advice.