removal of a child from its home requires a finding of clear necessity rather than best interest
How later courts described this case
- removal of a child from its home requires a finding of clear necessity rather than best interest
- emphasizing the importance of disinterested testimony as an ingredient of clear and convincing evidence
- Opinion in Support of Remand by HOFFMAN, J.
Written by the judges who cited it.
The opinion
CERCONE, Judge
(concurring):
Essentially, I agree with Judge Spaeth’s position, expressed in his opinion in support of remand, that the Juvenile Act provides an adequate framework and set of standards for determining whether a child, consensually placed in a foster home, should be returned to a natural parent. Consequently, I agree that an entrustment agreement should not be used to shift the inquiry from *236 whether a child will be deprived if returned to a natural parent, to whether a child’s better interests will be served if he stays in the foster home. Because I have so concluded, and because the court below manifestly used this latter improper standard in the instant case, I agree that this case should be remanded for a new hearing. I hasten to add, however, that on the facts thus far presented, I would have affirmed the lower court’s decision had it employed the proper standard and reached the same results ; and, I do not interpret the opinions of any of my colleagues to suggest the contrary result is proper. Furthermore, I reject any suggestion that a deprivation hearing should be employed as an ad hoc inquisition into the adequacy of the services provided by Child Welfare Services. At such a hearing it is irrelevant, for example, whether “more extensive efforts by CWS [could] have preserved the integrity of the family.” Similarly, if the court has already determined that a child has been or will be deprived by being with the natural parent, the question of whether “the agreement [was] clearly necessary in order to protect the child from living in continuing conditions amounting to deprivation” is moot. [Id.]
I do not agree that the facts in this case or in others which have been before us justify the general condemnation of entrustment agreements. 1 Entrustment agreements do not “disrupt” the child-parent relationship; they merely evidence the fact that the parent has decided that the child’s interests will best be served, temporarily, by placing him in the custody of CWS. 2 Entrustment *237 agreements, therefore, offer flexibility to the statutory scheme which requires a deprivation hearing if the natural parents do not consent to placing the child with CWS. Furthermore, since a finding of deprivation has the effect of stigmatizing the natural parent, very often a consensual entrustment of a child will be far less disruptive to the future of a parent-child relationship than a deprivation hearing would be.
Hence, I join Judge Spaeth in remanding for a new hearing where the court would employ the standards set forth in the Juvenile Act in determining whether custody of the children should remain with the foster parents or be returned to Miss LaRue.
. Interestingly, two of my colleagues disapprove of the lower court’s use of a CWS file because it denied Miss LaRue the right to cross-examine those who prepared the file. Yet, my colleagues use a law review article [to wit, Levine, Caveat Parens: A Demystification of the Child. Protection System, 35 U.Pitt.L.Rev. 1 (1973) ] as though it were evidence. There is simply no evidence of record in the instant case that CWS used duress or overreached in executing the entrustment agreement with Miss LaRue. See also In the Interest of Clouse, 244 Pa.Super. 396, 368 A.2d 780 (1976).
. There is no evidence that CWS carries out its duties like an Orwellian big brother, either. In virtually all cases where a child *237 comes to the attention of CWS, it is either through referrál from agencies or institutions like the police or hospitals, and sometimes it is at the behest of the parents themselves.
. The Juvenile Act defines a “deprived child” as one who: “(i) 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; or (ii) has been placed for care or adoption in violation of law; or (iii) has been abandoned by his parents, guardian, or other custodian; or (iv) is without a parent, guardian, or legal custodian; or (v) while subject to compulsory school attendance is habitually and without justification truant from school.” Act of December 6, 1972, P.L. 1464, No. 333, § 1; 11 P.S. § 50-102(4).
. Note 1, supra.