Petition for Writ of Certiorari — Jarboe v. Read

Supieree Be US

agp: se

FILE&D

03 305 aug 22 2008

No.

OFFICE @6 ZHE CLERK

. IN THE

Supreme Court of the United States

~ CARL J. JARBOE AND ABIGAIL E. JARBOE,

Petitioners

V.

RusseLt A. READ AND RUTH E. READ Erb,

~ On Petition For Writ Of Certiorari

To The Pennsylvania Superior Court

PETITION FOR WRIT OF CERTIORARI

ABIGAIL E. AND CARL J. JARBOE,

Pro Se

416 MaApPLeE St.

LEBANON, PA 17046

(717) 272-1371

i me

QUESTIONS PRESENTED FOR REVIEW

1. Are the courts violating the Constitution?

2. When an appellate court ignores the questions pre-

sented for review and instead applies irrelevant standards

applicable to a different kind of case, must reconsideration

be granted? |

3. When a judgement establishes fraudu‘ent misrepre-

sentation regarding standing to litigate for custody, and the

dependency court finds material facts contrary to those

found by the custody court, must an UNOPPOSED Motion

to Open that standing judgement be granted?

LIST OF PARTIES

All parties are listed in the caption and no-corpora-

tions are involved.

TABLE OF CONTENTS

Questions presented ......cssessesesseesseeterneessessesssetenennennennensttntteg i

List Of Parties ........sssssssecssssssssneeensensnesnnecsscrssessnsenacnnnonanenssssensee il

Table of Contents .........scscscssessessseesneseseessesersensnssnnecsenseensnnensanes ii

Table of Cited Authorities........... vaniehevsnsaiareinanmnoaamn iv

Citation of Official and Unofficial Reports of

Opinions and Order ......--sescssecseessssesseeteetnnennnneenesennstte 1

Basis Of JUTISGICION ..........eseceetesteseseeneseenenteneanensnsnnenennenenneneenes 1

Verbatim Constitutional PrOviSiONs .......-.:eseseeserete tenets 1

Statement of the Case .......ssssssscseseseeneeeerseseeeesnenensnenesensneneees 2

ALQUMEN ........sccsecneersoosseeeneessssnseansonsccnnecnnscnessnsconnenavenncenseensen 11

CONCIUSION .......00.esceseeercerseorseressserseresssecssoncesssnesnesnnscsonsessonsenses 16

Appendix ......sccsssscceserseeseneessneensnecnnnrenssccnnecenscnnsccnnnannnoqsnsenassee 18

(i) Opinions and Orders regarding judgement

sought to be reviewed

2/19/02 Order of the Lebanon County Pennsylva-

nia Court of Common Pleas denying Motion to

OPpe©n ....sssssesssssserseessessssesnsensensecnsesseneennensanncnnennegss 18

3/8/02 Order of said Lebanon County Court

denying Motion for Reconsideration............ 20

5/16/02 Memorandum Opinion of judge

Tylwalk of the Lebanon County Court of

COMM Peas .......ssceseeseseeeeeeeeeeeeseesseneeneeseesess 21

12/13/02 Order of the Pennsylvania Superior

Court denying Appeal .........-:sssesseesessrersetees 26

12/13/02 Memorandum of the Pennsylvania

Superior COurt ......ssecssesseesseeseeneenesnessnssnsennennnen 26

me

2/13/03 PA Superior Court Order denying recon-

ta a Ee 36

6/11/03 Order of the Pennsylvania Supreme Court

denying Petition for Allowance of Appeal ... 37

(ii ) Other relevant opinions and findings of fact

Selected 1/24/02 Dependency Findings of Fact and

selected portions of Opinion ..........0..:cceeee: 38

5/19/97 Custody Opinion of Lebanon County

Pennsy!vania Court of Common Pleas (This is

the Opinion in ss ‘port of the Judgement re-

quested to De Ope#¢ned) ............ccccsscsocssessseersseens 55

(iii ) Other relevant material

8/26/97 Letter from then District Attorney

Bradford Charles stating crime of criminal

coercion would not apply to Abigail Jarboe . 72

Pennsylvania criminal coercion statute .............. 74

Pertinent portions of transcript of District Justice

hearing in which the criminal coercion charges

against Abigail Jarboe were dismissed .......... 76

4/21/2003 Transcript of statement by Senior Judge

Barry Feudale regarding judges and pro se

aiid ic aaictidadolies wusvssvl cop cibseiciaeanescaiaglna 78

Church of the Holy Trinity v. United States, 143 U.S.

IIIT Tadiceliiniraeticlcbldanbibhesonmeshuevsihesenstanniaecns 80

Lebanon County, Pennsylvania abortion

PEE serccieiicessinmsaasntinvnnnvasinaiveenticeersesssetnonnssnes 97

~ iii -

TABLE OF CITATIONS

Cases

Church of the Holy Trinity v. United States, 143 U.S. 457, 12

S Ct. 511, 36 L.Ed. 226 ....-.-sosseseesseresersrnvensennscnnennssnse 13, 14

In the Interests of Alexander Lee Mann, A Minor, Lebanon

County, Pennsylvania, No. 97-35038 ....ssesceecsserseeresenenenes 6

In the Interests of Ryan, ***, A Minor, Lebanon County Penn-

sylvania, No. 98-35012 ....cssseserssceeessnensensnesnenennnnsnnens 5,6,8,10

Jarboe v. Clough and Erb, Lebanon County, Pennsylvania,

Nic, 2000-01360 .....+.snernvensssovesneseroneennnonsensnansenntannennrons senor 6,8

Wiggins v. Smith, Warden, et al., 539 U.S. (2003) ..... 11

Constitutions

United States Constitutica, Amendment 14, Section 1

(U.S.C.A., Constitution, Amendment 14, Section 1,

p. 6) (West Publishing Co., BOT) sacneieresersverenes 1,9,12,13,16

Pennsylvania Constitution, Article |, Section 11 (2001 Penn-

sylvania Manual, Vol. 115, p. 2-4, Purdon’s Penna. Statutes

Annotated, Constitution Article 1 Section 9 to end, p. 538)

(West Group, 2002) w.sescscesossessesssoceseneensecesensenessencnnensees 2,9,16

Books

Final Report of the Penn-sylvania Supreme Court Committee on

Racial and Gender Bias in the Justice System (Pennsylvania

Supreme Court, DONS) .nscssvcecerssssssnsesserernenconssrscnevenssnesoneres 11

Holy Bible (King James Translation) .......seseseeseeeeeeeees 13,14,15

Reports

The Report of the Pennsylvania House of Representatives

Select Committee on House Resolution No. 127

ORDIID necnnrasnsevesonronsisonsninsensannnccivenrorersncineosnrees sees 11

Lebanon County, Pennsylvania, Abortion Statistics ........-. 14

except a man be born again cannot see the kingdom

-ivV-—

i eee eee

CITATIONS OF THE OFFICIAL AND UNOFFICIAL

REPORTS OF OPINIONS AND ORDERS IN THIS CASE

There are no such reports of the opinions known to

the Jarboes. The Superior Court denial is recorded at Jarboe v.

Read, 817 A2d 1190 (Table) Pa. Super. Dec. 13, 2002 (Superior

Court of PA, Jarboe v. Read (FN 23) No 00447 MDA 02, Dec.

13). The Pennsylvania Supreme Court denial is recorded at

___ A2d___ (Table), 2003 WL 21354230, Pa, June 11, 2003

(Jarboe v. Read).

BASIS FOR JURISDICTION

The Jarboes’ Motion to Open the judgement of the

Lebanon County Court of Common Pleas regarding their

standing to litigate for custody of Ryan was denied on 2/19/

2002. Their Motion for Reconsideration was denied on 3/8/

02. The Jarboes’ appeal to the Pennsylvania Superior Court

was denied on 12/13/02. Their Application for Reconsidera-

tion was denied on 2/13/02. Their Petition for Allowance of

Appeal to the Pennsylvania Supreme Court was denied on

6/11/03.

The jurisdiction of this court is invoked under 28

U.S.C. Section 1257 (a).

VERBATIM TEXTS OF PERTINENT PROVISIONS

OF CONSTITUTIONS

United States Constitution, Amendment 14, Section 1

(U.S.C.A., Constitution, Amendment 14, Section 1, p> 6)

(West Publishing Co., 1987):

“All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they

reside. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any

person of life, liberty, or property, without due

~

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”

Pennsylvania Constitution, Article I, Section 11 (2001

Pennsylvania Manual, Vol. 115, p. 2-4), (Purdon’s Penna.

Statutes Annotated, Constitution Article 1 Section 9 to end, p.

538) (West Group, 2002):

“ A}l courts shall be open; and every man for an

injury done him in his lands, goods, person or repu-

tation shall have remedy by due course of law, and

right and justice administered without sale, denial, or

delay. Suits may be brought against the Common-

wealth in such manner, in such courts and in such

cases as the Legislature may by law direct.”

CONCISE STATEMENT OF THE CASE containing the

facts material to a consideration of the questions presented

and with the facts which the Jarboes consider immaterial to

this petition omitted

Ryan, the subject child, and his family moved into

the Jarboes’ neighborhood in approximately March of 1992

(R. 366a). From approximately August of 1993 through

August of 1996, Ryan spent most of his time in the physical

custody of the Jarboes and they supported him financially

and otherwise while he was with them. (R. 370a, 371a, 384a).

The Jarboes provided Ryan with food (R. 384a), shelter (R.

384a), household necessities (R. 154a) and education (R.

155a). Ruth (the biological mother) abdicated her parental

responsibilities (R. 417a-418a) and Russell (the biological

father) was a non-participant (R. 394a) once he left Ruth in

1995 (R. 114a). In August of 1996, the Jarboes took court

action for custody, temporary custody, and visitation of Ryan

(R. 1a), claiming in loco parentis status (R. 29a). Judge Eby,

without waiting for a response from Ruth and Russell,

granted the Jarboes bi-weekly partial custody (R. 29a).

Ruth subsequently contested the grant of partial

custody and a hearing was held (R. 29a). Ruth claimed that

itn

the Jarboes had exaggerated how much they had the child

(N.T. 10-1-96, p. 17), but she also testified that she had not

kept records and could not guess how much the Jarboes had

had him (N.T. 10-1-96, p. 17). Abigail Jarboe testified that she

had kept records and that the Jarboes had had Ryan as much

as she had said (N.T. 10-1-96, pp. 38, 40). Ruth’s landlady

and another neighbor testified that they had never known the

Jarboes to exaggerate or misrepresent the facts (R. 30a, 31a,

32a). The landlady testified that she had known Ruth to

exaggerate or misrepresent the facts (R. 31a). Nevertheless,

Judge Eby accorded Ruth more credibility than the Jarboes

(R. 44a, 45a), and reduced the Jarboes partial custody to tri-

weekly without prejudice.

Following that hearing, (at which Ruth was repre-

sented pro bono by an attorney who was also employed as

county solicitor), even though the Jarboes had not been

served before the orders were issued and even though they

had been given no opportunity to respond, Judge Eby on a

number of occasions issued ex parte orders that adversely

impacted the Jarboes, such as quashing subpoenas (R. 4a)

and ordering the Jarboes to pay $850 (R. 3a, 46a—48a). This

judicial behavior ultimately resulted in bifurcating the issues

of standing and custody against the wishes of the Jarboes (R.

49a—54a, 129a, 130a) and in violation of pertinent case law.

Two days of hearing regarding the Jarboes’ standing

were held (R. 4a), in which, over the Jarboes’ protests, Judge

Eby refused to hear any evidence about the kind of care (or

lack thereof) which the biological parents were providing.

The Jarboes had pointed out that this was likely to result in a

wrong decision.

The Jarboes presented nine witnesses (R. 57a, 60a—

108a). Ruth presented only two. On 5/19/97, Judge Eby

issued his Opinion in which he made no mention of any

witnesses except Ruth and the Jarboes (R. 146a—163a), in

which he ignored crucial testimony that was given by the

Jarboes which Ruth testified was correct (R. 66a, 140a, 67a,

135a, 154a), and in which he ignored the evidence that Ruth

=

was not a credible witness. By order (R. 164a) and Opinion

(R. 146a-163a) of 5/19/97, Judge Eby denied the Jarboes

standing to litigate for custody of Ryan in spite of testimony

and evidence supporting the Jarboes’ in loco parentis status

(R. 27a-145a). Asa result of that order, the Jarboes were

denied their court ordered partial custody, with no judicial

consideration of Ryan’s best interests or what separation

from the Jarboes would do to him.

The 5/19/97 Opinion of Judge Eby in this case,

stated on p. 15 in Footnote 8:

“ At the hearings, Plaintiff Abigail Jarboe

stated:

‘A major aim of my life is to promote Jesus ~

Christ, is to promote the fact that the Bible says that

except a man be born again cannot see the kingdom

of God and that unless a person believes that Jesus

Christ is God coming in flesh and has — believes that

Christ has died for our sins according to the scrip-

tures; that he was buried; that he rose the third day

and was seen of many witnesses that that person is

going to hell.

And an aim and desire of my life is to save as

many people from hell as possible. To give me a child

to virtually raise when you don’t believe that is to

turn over your child to be taught those things.’

N.T. 12/30/96 p. 158.”

In approximately 1998, the Lebanon County District

Attorney’s office charged Ruth with false swearing in this

custody case. She entered and successfully completed ARD.

Also in approximately 1998, criminal charges which the

District Attorney had stated were unsupportable under the

law were falsely filed against Abigail Jarboe. The District

Justice dismissed them and they were not refiled.

Because of Ruth’s untruthfulness in this case and the

behavior of Judge Eby, the Jarboes filed other custody, etc.

actions regarding Ryan which were not successful due to the

appellate court’s reliance upon false facts found in the initial

ay

ey

case on the basis of false testimony of Ruth Read Erb.

In March of 1998, the Jarboes filed a Petition alleging

that Ryan is a dependent child (Lebanon County No. 98-

35012). Approximately seven days of hearings, concluding

on 12/18/98, were held on the subject of Ryan’s alleged

dependency. A little over THREE YEARS LATER, on

1/24/02, the judge issued his opinion, which, although

denying dependency, contained statements and findings

of fact supporting the Jarboes in loco parentis status.

The lower court’s 1/24/02 DEPENDENCY Opinion stated:

“... Ryan’s father lived out of state while the hear-

ings were being held and despite being notified of

each proceeding, chose, for whatever reason to be a

non-participant. Based on what we heard that did not

strike us as unusual because it would appear that is

how he approached his responsbilities to Ryan. . . .”

(R. 394a) (Brief, p. 23)

and regarding Ruth Read Erb (the biological mother)

and the Jarboes:

“We believe that in the past she was satisfied often to

let others, and when she lived on Maple Street many

times it was the Petitioners” (the Jarboes) “to fulfill

what truly were her parental duties. From providing

care to feeding to washing clothes, to homework, to

making sure dental and medical care was provided —

she abdicated each of these functions to others. We

believe she was a woman who was perhaps over-

whelmed with the responsibility, and who was

unable or unwilling to fulfill it on her own. . . . The

Jarboes spent much time with the younger boys and

- had fulfilled many parental functions with regard to

them. They helped feed and clothe them, cared for

them and even took them on extensive vacations. The

Jarboes concern and love for the boys is genuine.”

(R. 417a, 418a), (Brief p. 23)

The Jarboes’ appeal and petition for allowance of appeal of

the denial of dependency were timely filed in the appropri-

~~

ate appellate courts and denied.

On 2/19/02 the Jarboes filed a Motion to Open the

5/19/1997 judgement in this custody case. In that Motion,

they incorporated the entire proceedings and appeals thereof

in the above mentioned dependency action and the one

regarding Ryan's brother, in this action number, and in

Lebanon County Pennsylvania action number 2000-01360,

the case in which Abigail Jarboe has a default judgement

against Ruth Read Erb for fraudulent misrepresentation in

this case. In #35 of their Motion to Open this case, the

Jarboes stated:

“Thus, clearly, on the basis of the above

mentioned finding of facts and discussion in

Judge Tylwalk’s 1/24/02 Opinion and the

above mentioned Default Judgement for

Fraudulent Misrepresentation against Ruth

Read Erb, justice (and the Constitution and

: laws of Pennsylvania and Restatment of the

Law Second) requires that judgement MUST be

opened.”

However, the 2/19/02 Lebanon County Court of

Common Pleas decision stated:

“AND NOW, this 19th day of February, 2002, in

consideration of:

(1) the within Motion to Open Judgement

(2) Boyle v. Steiman, 631 A2d 1025, 429 PaS 1

(1993) }

(3) the Honorable Robert Eby’s 11/21 /01

letter

(4) the Honorable John Tylwalk’s 1-24-02

findings of facts and opinion in case No. 98-

35012

(5) the Default Judgement currently against

Ruth Read Erb in case No. 2000-01360 includ-

ing counts against her for Fraudulent Misrep-

resentation in Case. No. 1995-20748 (this case)

and Defamation, and

a

_——

(6) other within listed after discovered evi-

dence,

IS HEREBY ORDERED THAT:

The Motion is Denied

BY THE COURT:

JOHN C. TYLWALK J. /s/”

The lower court denied the Jarboes’ Motion to Open

Judgement the same day it was filed, which was before the

biological parents had responded. However, said biological

parents have not objected in any way to the Jarboes’ Motion,

either in the lower court or on appeal. The biological parents

both failed to file any brief, and both failed to attend oral

argument, and both failed to oppose before any court in any _

way this action to open judgement.

Following the denial of their Motion, the Jarboes filed

a Motion for Appointment of Out of County Judge and for

Reconsideration of Motion to Open Judgement. They stated

in paragraph #83:

“ Additionally, in spite of being the fairest and best

judge that Lebanon County has, Judge Tylwalk has

made numerous other rulings against Plaintiffs

which were in violation of case law, statutes, the

- Constitution, and/or Rules of Court.”

That Motion was denied on 3/8/02.

The Jarboes timely appealed to the Superior Court.

The Memorandum Opinion filed by the lower court in

support of its denial stated on pp. 5-6:

“We believe a review of any of the proceedings we

have handled will show that we may have disagreed

with the Jarboe’s positions at times, but not in viola-

tion of their constitutional rights.”

In this custody, partial custody, and visitation case,

the questions the Jarboes presented to the Superior Court for

review are:

“1. When as a result of virtually identical

witnesses, testimony, and exhibits, the dependency

judge finds facts supporting the litigants in loco

alt dhol

parentis status which contradict the “facts” the cus-

tody judge previously found, and when there is a

default judgement against the biological mother for

fraudulent misrepresentation in the case, what is the

proper resolution of a motion to open judgement and

restore partial custody?

2. Under what circumstances should the

entire lower court recuse itself and an out of county

judge be appointed? (now moot since all Lebanon

County judges have now recused themselves or been

recused from cases involving the Jarboes).

3 Have the child and the litigants’ legal and/

or Constitutional rights been denied?”

On pp. 27-28 of their brief for the Superior Court, the Jarboes

pointed out that in Lebanon County Case No. 2000-01360

(incorporated R. 328a-329a), Abigail Jarboe currently has a

default judgement against Ruth Read Erb for fraudulent

misrepresentation in this case that this appeal is requesting

be opened.

The Jarboes were also appealing the dependency case

around the same time. The Superior Court erroneously

thought that this custody case was also a dependency case.

Consequently, the Superior Court applied dependency

standards which do not apply to custody cases and ne-

glected to deal with the issue of fraudulent misrepresenta-

tion having denied the Jarboes their rightful standing. The

Superior Court also disregarded most of the extensive law

the Jarboes had cited in their brief. The Superior Court

Memorandum erroneously stated that the judgement the

Jarboes are requesting be opened in this case was the

1/24/02 decision in the above mentioned dependency

case instead of the 5/19/97 order in this case refusing them

standing to litigate for custody and erroneously stated on

p. 7 of their Memorandum:

“ the claim the litigants’ and child’s constitu-

tional rights have been violated, is a mere reitera-

tion of their sufficiency argument . . .”

The combined Superior Court Memorandum in this

case and the dependency case was filed on 12/13/02 and

stated on p. 9:

“Having found each of appellants’ arguments

devoid of merit, we affirm the Orders denying

relief. (Footnote omitted).

Orders affirmed.

Judgement Entered.”

This was signed by the Prothonotary and dated Dec. 13,

2002. The Jarboes did not receive a separate order for this

case.

On 12/23/02, the Jarboes filed an “Application for

Reargument Due to Panel’s Mistake as to which Judgement

was Requested to be Opened and as to the Nature of Said

Judgement (Custody, Not Dependency) and Related Prob-

lems with Decision and Memorandum.” They stated pp. 7-8

of their Application:

“The Jarboes believe and therefore aver that they

have been denied their U.S. and Pa. Constitu-

tional rights to equal protection and a just and

right decision because of religious discrimination.

... The content of the Jarboes’ religious beliefs

would seem to be irrelevant to a decision regard-

~ ing whether or not the Jarboes were in the place

of parents to Ryan. The fact that they are included

in the 5/19/97 opinion, taken together with the

lower court's refusal to open the judgement in the

custody case, in spite of the above quotes from

the Opinion in the Dependency case, seem

strongly to indicate unconstitutional bias and

denial of the Jarboes’ and Ryan’s 14th Amend-

ment Constitutional rights to equal protection of

the laws.”

The per curiam Superior Court 2/13/03 Order stated:

“The Court hereby DENIES the application filed

December 23, 2002 requesting reargument or

reconsideration of the decision dated December

_~9-

13, 2002.”

On 2/21/03, the Jarboes petitioned for allowance of

appeal to the Pennsylvania Supreme Court. The questions

they presented for review were:

“1, Has widespread Superior Court corruption

and Pennsylvania lower court corruption tainted

this litigation?

2. Have the Jarboes’ constitutional rights been

violated by the Pennsylvania Superior Court and

the Lebanon County Pennsylvania lower court

because the Jarboes are pro se and/or because of

their religion?

3. When as a result of virtually identical wit-

nesses, testimony, and exhibits, the dependency

judge finds facts supporting the litigants in loco

parentis status which contradict the “facts” the

custody judge previously found in denying said

status, when said “facts” found by the custody

judge were based on the testimony of the biologi-

cal mother, and when said biological mother was

subsequently criminally charged and entered

ARD because of testimony she gave in the cus-

tody case, and when there is currently a default

judgement against the biological mother for

fraudulent misrepresentation in said custody

case, what is the proper resolution of the Jarboes’

motion to open judgement in said custody case

and restore partial custody when said Motion has

not been opposed by any litigant?

4. Does the Appellees’ complete failure to re-

spond in any way in this action to open judge-

ment require the granting of the relief requested

by the Jarboes including granting them standing

and a hearing on the best interests of the child?

5. Have other of the child and Jarboes’ legal and/

or Constitutional rights been denied?

6. xk*k*

—_

On 6/11/03 the Pennsylvania Supreme Court issued

the following Order:

“PER CURIAM

AND NOW, this 11th day of June,

2003, the Petition for Allowance of Appeal is hereby

DENIED.”

ARGUMENT

The isues in this case involve matters of immediate

public importance: namely, the physical safety, welfare, and

best interests of the nation’s children and the Constitutional

rights of those who are in the place of parents to them.

Children have died in Pennsylvania because of the courts.

The “Report of the Pennsylvania House of Representatives

Select Committee on House Resolution No. 127” (completed

in 1998 as the result of the murder of toddler Maxwell Fisher

by his mother’s boyfriend) states on p. 5:

“The Select Subcommittee found several

problem areas within the system which may allow a

child to “fall through the cracks”.

C. Involvment of the court.”

Wiggins v. Smith, Warden, et al., 539 U.S. ___ (2003)

indicates that physical and sexual abuse suffered as a child

at the hands of parents and foster parents is enough to

mitigate a murderer’s culpability. Thus, it becomes the

responsibility of the United States Supreme Court to prevent

children from suffering such abuse by making sure the

courts act upon the truth and the best interests of the child.

This case is the United States Supreme Court’s opportunity

to do just that.

The 554 page Final Report of the Pennsylvania Supreme

Court Committee on Racial and Gender Bias in the Justice System,

copyrighted in 2003 by the Pennsylvania Supreme Court,

indicates a wide spread and pervasive denial in Pennsylva-

i

nia of certain litigants’ Pennsylvania Constitutional rights to

right and justice. Clearly, United States Supreme Court

oversight is necessary to stop this and to stop courts from

making decisions that endanger children’s lives, health,

safety, welfare, and best interests.

The U.S. Constitution guarantees the Jarboes and

Ryan the equal protection of the laws. However, the Pennsyl-

vania Superior Court panel disregarded the specific law and

constitutional considerations raised by the Jarboes in the

approximately 22 pages (pp. 47-69 of their Brief) in which

they cited approximately 15 cases in their Argument 3 that

Ryan’s and the Jarboes’ legal and /or Constitutional rights

have been violated.

Over the past six plus years, the Jarboes have had

continuing problems with being denied the equal protection

of the laws by various courts ignoring legal issues they have

raised and ignoring the case law cited by the Jarboes. The

Superior Court panel’s discussion on p. 6 of their Memoran-

dum, besides overlooking the law the Jarboes quoted in their

brief also overlooked the fact that:

(1) since Ruth, the biological mother, abdicated her

parental duties to Ryan to others, and

(2) since Russell, the biological father, was a non-

participant in his responsibilities to Ryan, and

(3) since the Jarboes fulfilled many parental functions

with regard to Ryan, and

(4) since in this appeal the biological parents have not

filed a brief and did not appear at oral argument, and thus

are not contesting the Jarboes claims, therefore the Jarboes’

claims of being in the place of parents to Ryan, etc., as

detailed in their Motion to Open Judgement (R. 326a-340a),

are established, AND JUDGEMENT MUST BE OPENED.

Ryan has never been allowed to testify, and his legal

rights to have his best interests considered have been fla-

grantly disregarded. For all the above reasons mentioned in

this document, this situation should not be tolerated by the

United States Supreme Court.

7 |)

(o>) aia

Additionally, the courts now seem to be unconstitu-

tionally biased against litigants who believe the King James

translation of the Bible to be the word of God, completely

true and totally trustworthy, as the Jarboes do. The content

of the Jarboes’ religious beliefs would seem to be irre'evant

to a decision regarding whether or not the Jarboes were in

the place of parents to Ryan. The fact that those beliefs are

included in the 5/19/97 opinion, taken together with the

lower court's refusal to open the judgement in this custody

case in spite of the default judgement for fraudulent misrep-

resentation in this case against Ruth and the dependency

court’s findings of facts supporting the Jarboes’ in loco _

parentis status, seem strongly, to indicate unconstitutional

bias and denial of the Jarboes and Ryan’s U.S. 14th Amend-

ment Constitutional rights to equal protection of the laws.

Church of the Holy Trinity Church v. United States, 143

U.S. 457, 12 S Ct. 511, 36 L.Ed. 226 (1892) states on p. 471:

“ .., this is a Christian nation.” and:

“’... Nor are we bound by any expressions in the

constitution, as some have strangely supposed,

either not to punish at all, or to punish indis-

criminately the like attacks upon the religion of

Mahomet or of the Grand Lama, and for this

plain reason, that the case assumes that we are a

Christian people, and the morality of the country

is deeply ingrafted upon Christianity, and not

upon the doctrines or worship of those impost-

ers.’ And in the famous case of Vidal v. Girard’s

Ex’rs, 2 How. 127, 198, this court, while sustaining

the will of Mr. Girard, with its provision for the

creation of a college into which no minister

should be permitted to enter, observed: ‘It is also

said, and truly, that the Christian religion is part

of the common law of Pennsylvania.”

Said U.S. Supreme Court decision also states on

p. 459:

ttn

“Tt is a familiar rule that a thing may be within

the letter of the statute and yet not within the

statute, because not within its spirit nor within

the intention of its makers.”

That Supreme Court Opinion, reprinted in the appen-

dix, was delivered in 1892, much closer to our founding

fathers than today. It goes into extensive detail regarding the

Christian foundation of our country and shows that Chris-

tianity is to receive Constitutional protection not afforded to

other religions. Under the doctrine of stare decisis, decided

cases have precedential value and are to be followed. There-

fore, the United States Supreme Court since then has vio-

lated the U.S. Constitution by allowing consensual sodomy,

the murder of unborn children by abortion, and by removing

Christian prayer and Bible reading from the schools, all of

which are anathema to true Christianity. More than 6,500

unborn children of Lebanon County Pennsylvania residents

and /or of women who came to Lebanon County, have died

since 1975 as a result of abortion, a nice name for legalized

murder. God has said in Proverbs 24:11-12 in the Bible:

“T€ thou forbear to deliver them that are drawn

unto death, and those that are read; to be slain; If

thou sayest, Behold, we knew it not; doth not he

that pondereth the heart consider it? and he that

keepeth thy soul, doth not he know it? and shall

not he render to every man according to his

- works?”

The country has reaped bad results from these un-

constitutional decisions. America is currently under the

curse of God. Deuteronomy chapter 28 in the Bible (King

James tran: »tion) states:

“ And it shall come to pass, if thou shalt hearken

diligently unto the voice of the Lord thy God, to

observe and to do all his commandments which |

command thee this day, that the Lord thy God

will set thee on high above all nations of the

ma, © ae

hel 490K. RAR isla ip SIS a ALE De de sd

i lee i Pah ot

tai

earth: . . . But it shall come to pass, if thou wilt not

hearken unto the voice of the Lord thy God, to

observe to do all his commandments and his

statutes which I command thee this day; that all

these curses shall come upon thee, and overtake

thee; . . .”

A review of that chapter indicates the reason for the

droughts, new diseases, and other problems currently

plaguing this country. Additionally, the September 11, 2001

attacks against this country show that it is imperative that

the Supreme Court, in accord with the above cited Supreme

Court Opinion, refuse to offer constitutional protection to the

Islamic religion or any other false religion. There is only one

God, the God described in the King James translation of the

Bible. While America worshiped and obeyed Him, He set us

on high above all the nations, just like He promised. Jesus

Christ is God, come in the flesh. America has become wicked

because America has rejected Him.

Isaiah 55:7 in the Bible says:

“Let the wicked forsake his ways, and the unrigh-

teous man his thoughts: and let him return unto

the Lord, and he will have mercy upon him: and

to our God, for he will abundantly pardon.”

I Corinthians 15:1-9 in the Bible tells us that the good

news (gospel) is that:

“... Christ died for our sins according to the

scriptures; And that he was buried, and that he

rose again the third day according to the scrip-

aNesS..

and that more than 500 people saw him.

In 1892, the Bible in general use was the King James

Translation of 1611. The Supreme Court is respectfully

requested to read, believe and obey said translation, starting

with the Gospel of John. It was written:

“.., that ye might believe that Jesus is the Christ,

the Son of God, and that believing ye might have

life through his name.” (John chapter 20, verse 31,

in

the Bible).

The above mentioned religious discrimination

against Bible believing Christians and /or the fact that the

Jarboes are pro se seem the most likely reasons for the Penn-

sylvania Superior Court's refusal to reconsider their obvi-

ously fatally flawed Memorandum. The Superior Court per

curiam refused to allow reconsideration, even though the

panel did not get right either which order was requested to

be reopened or what kind of case this is. They applied

dependency standards although they are irrelevant in cus-

tody cases such as this. They disregarded most or all of the

extensive law the Jarboes quoted in their brief. Since the

Pennsylvania Supreme Court refused to grant relief, the

Jarboes are forced to the inescapable conclusion that they

have been denied their U.S. and Pa. Constitutional rights to

equal protection and a just and right decision because of

religious discrimination and/or because they are pro se.

Senior Judge Barry Feudale stated in court on 4/21/03, “No

judge seems to like pro se litigants.” (See Appendix H; p. 79).

It appears that in the eyes of the Pennsylvania Supreme,

Superior, and lower court that certain law does not apply to

the Jarboes, although it applies to others. This is unconstitu-

tional. The courts cannot be allowed to discriminate against

the Jarboes because of their religious beliefs or because they

are pro se.

A decision based on false “facts” is neither just nor

right. The Pennsylvania Constitution, Article I, Section 11,

guarantees the Jarboes and Ryan “right and justice adminis-

tered without sale, denial, or delay.” They have not received

it.

CONCLUSION

Therefore, for the above reasons, the Jarboes respect-

fully request that this Honorable Court grant their petition

for a Writ of Certiorari. They further request that after full

review, the judgement of the Pennsylvania Superior Court be

~~

OSM

el Aides ne ratte kitnb crane 06 Sie tomy Me

reversed and the case remanded with direction in turn to the

lower court to open the judgement in this case, restore the

Jarboes’ partial custody along with make-up time, and hold

a hearing on the best interests of the child as regards cus-

tody. The Jarboes further respectfully request that the United

States Supreme Court return this country to obedience to the

King James translation of the Bible, overturn legalized

abortion and sodomy, return Christian prayer and Bible

reading to the schools, and grant such other relief for the

Jarboes as this Honorable Court deems just and right.

Respectfully submitted,

Coli pe

Carl J. Jarboe, Pro Se

Date 3/ dl / 003

Nigal E Narbre_

Abigail E. Jarboe, Pro Se

Date 3/21/2003

x.

Appendix A

ENTERED & FILED

2002 FEB 19 A 8:32

PROTHONOTARY OFFICE

LEBANON, PA

IN THE COURT OF COMMON PLEAS OF LEBANON

COUNTY, PENNSYLVANIA

FAMILY DIVISION

CARL J. JARBOE AND

ABIGAIL E. JARBOE,

PLAINTIFFS :

V. - NO. 1995-20748

RUSSELL A. READ AND

RUTH READ ERB,

DEFENDANTS

MOTION TO OPEN JUDGEMENT

AND NOW, this 19th day of February, 2002, in consideration

of:

(1) the within Motion to Open Judgement

(2) Boyle v. Steiman, 631 A2d 1025, 429 PaS 1 (1993)

(3) the Honorable Robert Eby’s 11/21/01 letter

(4) the Honorable Judge Tylwalk’s 1/24/02 finding of

facts and opinion in case No. 98-35012

(5) the Default Judgement currently against Ruth

Read Erb in case No. 2000-01360 including counts against

her for Fraudulent Misrepresentation in Case No. 1995-

20748 (this case) and Defamation, and

(6) other within listed after discovered evidence,

IS HEREBY ORDERED THAT:

=

t

-

The Motion is Denied

Asam ow. a ts aah A oe en 2 at

’

,

- ‘

.

r

.

~~

.

.

.

«tt.

BY THE COURT:

/s/ JOHN C. TYLWALK, J.

PURSUANT TO RULE 236

You are hereby notified that this order has been entered in

this case.

AMMENDED ORDER OF COURT

AND NOW, this 8" day of March, 2002, the Plaintiffs’

Motion for Appointment of Out of County Judge and Mo-

tion for Reconsideration is DENIED.

BY THE COURT,

/s/ JOHN C. TYLWALK, J.

JCT: apa

CC: Dr. &Mrs. Carl Jarboe

Ruth Read. Erb

Russell Read

oe

IN THE COURT OF COMMON PLEAS OF LEBANON

COUNTY PENNSYLVANIA

CIVIL ACTION-FAMILY DIVISION

CARL J. JARBOE and

ABIGAIL E. JARBOE,

Plaintiffs

vs. : NO. 1995-20748

RUSSELL A. READ-and

RUTH READ ERB,

Defendants

APPEARANCES:

Carl J. Jarboe and Abigail E. Jarboe Pro Se

Russell A. Read Pro Se

Ruth Read Erb Pro Se

MEMORANDUM OPINION, TYLWALK, J., MAY 16, 2002.

This opinion is intended to address the issues raised

by Carl J. Jarboe and his wife, Abigail E. Jarboe (Jarboe) in

their Concise Statement of Matters Complained Of filed in

response to an Order we issued pursuant to Pa.R.App.P.

1925 (b). Jarobe sets forth seven matters complained of. It

would be a mistaken application of the word to say that each

of them is “concise.” We will do our best to comment on

each of them.

Before we begin, we will review the long and wind-

ing history of this case, but will attempt to do so in a direct,

concise manner. It will not be easy.

The case filed to this action number began as a fairly

«tt «.

straight-forward divorce matter when Russell Read filed a

Complaint for Divorce in September of 1995. The Defendant

in the divorce proceeding was his then wife Ruth, now Ruth

Read Erb. The Reads were divorced and ultimately, in

August of 1996, a Complaint for Custody was filed. The

Complaint was filed by Jarboe and sought custody rights

with regard to the Read’s minor son, Ryan.

Jarboe was ultimately unsuccessful in obtaining

custody rights as this court, per the Honorable Robert J. Eby,

President Judge determined that Jarboe lacked standing to

pursue such rights as Jarboe did not stand in loco parentis to

Ryan. Jarboe pursued an appeal, and the Superior Court

upheld this court’s determination. Jarboe v. Read, No. 484

Harrisburg 1997, unpublished memorandum (Pa. Super.

Filed February 24, 1998).

In March of 1998, Jarboe filed a second Complaint for

Custody, alleging they should be awarded custody of the

child because Ruth Read Erb had been charged with the

offenses of false swearing and unsworn falsification to

authorities. 18 Pa.C.S.A. §§ 4903 and 4904. This Complaint

was dismissed due to there being a lack of standing and

because Jarboe’s Petition for Reargument was still pending

before the Superior Court. The Superior Court upheld the

dismissal of the second complaint as well. Jarboe v. Read,

No. 525 Harrisburg 1998, unpublished memorandum (Pa.

Super. Filed December 4, 1998).

Jarboe then pursued two dependency actions seeking

to have this Court conclude that both Ryan and his brother,

Alex, were dependent children. After lengthy hearings, this

court concluded that the two boys were not dependent. In

the Interest of Ryan A. Read and Alexander L. Mann,

Lec.C.C.C.P. Nos. 1997-35038 and 35012, decided january 16,

2002. The dependency cases are currently on appeal in the

Superior Court.

Part of our decision in the dependency cases in-

cluded extensive findings of fact based on eight days of

testimony from over forty witnesses. After that decision was

«29 x

filed Jarboe filed a Petition to Open Judgment in the custody

case alleging there are conflicts in the factual findings be-

tween the custody case and the dependency cases which

justify opening the “judgement,” that is, the determination

that there was no standing. On February 19, 2002, we en-

tered an Order denying the Petition.! On March 1, 2002,

Jarboe filed a Motion for Appointment of Out of County

Judge and for Reconsideration of Motion to Open Judgment.

On March 4, 2002, we entered an Order denying these

requests and this Jarboe appeal followed.

It appears to us that the crux of Jarboe’s first and

second complaints is their ongoing dissatisfaction with this

courts determination that they lacked standing to pursue the

custody action. This court twice ruled on the standing issue

and on both occasions the decision was affirmed by the

Superior Court. Merely because in another proceeding there

may be a finding of fact that appears to differ from a finding

in another case does not necessarily warrant a re-opening of

that case. President Judge Eby’s decision was based on a

factual record developed in the custody case. The depen-

dency decision was based on the factual record developed in

those cases. We believe the facts do not contradict one

another as Jarboe asserts and that there is no basis now for

opening the judgment of the custody case.

In their third complaint, Jarboe asserts we acted as an

advocate for Ruth Read Erb rather than impartially when we

denied the Jarboe Motion to Open even though no one asked

for it to be denied. Although we think it goes without say-

ing, we do not ascribe to the belief that a court must always

grant a Motion even if there is no objection to it. We do not

believe a judge would be fulfilling his or her responsibilities

' Although the Honorable Robert J. Eby, President Judge, issued the origi-

nal order in the custody case, he did not deal with the Motion to Open

Judgment. After his decision in that case Jarboe mounted an attempt to im-

peach Judge Eby and actively campaigned against him in his retention elec-

tion. He has recused himself from all cases involving the Jarboes.

8.

if what appears to be a baseless motion is granted. Here, all

of the facts were explored in both proceedings and the ruling

on standing was fully litigated. We did not believe there was

a basis to open the judgment so we did not do so.

Jarboe asserts this judge has shown partiality to Ruth

Erb in the dependency cases and has unjustly maligned

them in an attempt to protect Erb and President Judge Eby

and in disregard of the welfare of Ryan. jarboe asserts that

because there were inconsistencies in Erb’s testimony the

only basis for the dependency decision had to be bias toward

them. We believe a review of the dependency proceedings

will reveal the patience this court has exercised in dealing

with Jarboe and the leeway given to insure they could fully

explore the concerns they had. We do not believe the record

supports that there was bias or prejudice against them,

rather we believe it reflects this court’s careful consideration

of the facts developed and the law as applied to those facts.

We also do not see why an out of county judge is

necessary. President Judge Eby has been the subject of an

impeachment effort by Jarboe and has recused himself.

Judge Samuel A. Kline was an opponent of Jarboe in legal

proceedings in the past and has been recused. Judge

Bradford H. Charles was the District Attorney of Lebanon

County at a time when Abigail Jarboe was arrested on

criminal charges involving Ruth Erb and he has been re-

cused. The writing Judge is the only jurist left in Lebanon

County to deal with this, and the many other matters pend-

ing before the court, in which Jarboe is involved. We do not

believe we have demonstrated bias or prejudice against

Jarboe. We have always attempted to treat them properly

within the bounds of the law, no better and no worse than

anyone else. Merely because we may have decided an issue

differently than Jarboe proposes, does not mean we are

prejudiced against them. It could just be reasonable minds

disagreeing as to what certain facts indicate. We believe a

review of any of the proceedings we have handled will show

that we may have disagreed with the Jarboe’s positions at

~ ;

ip Mele en ee ee

times, but not in violation of their constitutional rights. Such

a review would also reveal that on many occasions we have

accepted the Jarboes’ arguments and decided in their favor.

Finally, we disagree with the assertion that we have

somehow failed Ryan. We determined Ryan was not a

dependent child and therefore his mother was entitled to

have custody of him free of any restriction imposed by

Lebanon County Children and Youth.? We know now that

Ruth Read Erb has moved to Ohio and is currently residing

with Ryan’s father. Based on the prior rulings in these cases,

Ruth Erb and Russell Read, Ryan’s parents, are the only

parties that have rights concerning Ryan, and as far as we

know, they are living together, happily. We would not assume

differently.

> In fact, a review of the record will reveal that at the beginning of the

dependency proceedings, Children and Youth investigated the Jarboe com-

plaints and found no basis for filing a dependency petition. Jarboe then

proceeded to file the petitions themselves.

- 25 -

APPENDIX B

Having found each of appellants’ arguments devoid

of merit, we affirm the Orders denying relief.

Orders affirmed.

Judgment Entered.

/s/ Prothonotary

Date: DEC 13 2002

IN THE INTEREST OF : R.A.R, - IN THE SUPERIOR

a minor : COURT OF

PENNSYLVANIA

APPEAL OF: CARL J. JARBOE AND :

ABIGAIL E. JARBOE : NO.294MDA 2002

Appeal from the Order in the Court of

Common Pleas of Lebanon County,

Civil Division, No. 1998-35012

CARLJ. JARBOE AND ABIGAILE. : IN THESUPERIOR

JARBOE, COURT OF

PENNSYLVANIA

Appellants

V.

RUSSELL A. READ AND RUTH E.

READ,

Appellees : No. 447 MDA 2002

iin

ee ey

Appeal from the Order in the Court of

Common Pleas of Lebanon County,

Civil Division, No. 1995-20748

BEFORE: TODD, BOWES and TAMILIA, JJ.

MEMORANDUM: FILED DEC 13, 2002

Carl J. and Abigail E. Jarboe appeal from the Orders

denying relief requested with regard to the minor child

R.A.R., son of appellees Russell A. Read and Ruth E. Read

Erb, now divorced. In the interest of judicial economy, the

two appeals before us will be resolved by this single Memo-

randum.

The appellants were the next-door neighbors of the

appellees while the latter couple was married. During this

time, due to various domestic problems in the appellees’

home, appellees’ son, R.A.R., often was cared for by the

appellants. It was as a consequence of these domestic prob-

lems, which sometimes included physical violence and less

than perfect living conditions, that the appellants began their

attempt to have child declared dependent and removed from

the home. Without going into detail, appellants’ repeated

efforts have failed. Before us now are two appeals from

Orders denying requested relief. They are inextricably

intertwined. In the matter of 294 MDA 2002, the appellants

are appealing from the January 24, 2002 Order denying their

petition to have child declared dependent.' In the case of 447

MDA 2002, appellants are appealing from the February 19,

2002 Order denying their petition to open the January 24,

2002 “judgment” denying appellants’ petition to have child

declared dependent.’ In both cases, the crux of appellants’

' We note that appellants’ current efforts are directed only to the minor child

R.A.R. and do not include the other children of appellee mother.

? Although no appellee’s brief was filed in this matter, the brief filed at 294

MDA 2002 adequately adresses all issues.

x.

argument is that the facts did not support the court's conclu-

sions.

Also included in the latter case is an appeal from the

March 4, 2002 Order denying appellants’ request for the

recusal of all Lebanon County Court of Common Pleas

judges, and the appointment of an “out-of-county” jurist.

Once on appeal, the appellants also were ruled by this Court

to show cause why their appeal filed at 447 MDA 2002

should not be dismissed as interlocutory.

We will begin our analysis with the consideration of

appellants’ argument that the court’s decision finding child

not dependent was not supported by the evidence.

A dependent child is one who, inter alia,

(1) is without proper parental «are

or control, subsistence, educa-

tion as required by law, or

other-care or control necessary

for his physical, mental or

emotional health, or morals. A

determination that there is a

lack of proper parental care or

control may be based upon

evidence of conduct by the par-

ent, guardian or other custo-

dian that places the health,

safety or welfare of the child at

risk, including evidence of the

parent’s, guardian’s or other

custodian’s use of alcohol or a

controlled substance that

places the health, safety or

welfare of the child at risk.

42 Pa.C.S. §, Definitions. “The definition of a dependent

child contained in section 6302 clearly states that a child

must lack a parent, guardian or other legal custodian who

can provide appropriate care to the child.” In re M.L., 562 Pa.

646, _, 757 A.2d 849, 851 (2000). A court is empowered to

2

make a finding that a child is dependent if the child meets

the statutory definition by clear and convincing evidence. Id.

The standard of review which this

Court employs in cases of dependency

is broad. However, the scope of review

is limited in a fundamental manner by

our inability to nullify the fact-finder

of the lower court. We accord great

weight to this function of the hearing

judge because he is in the position to

observe and rule upon the credibility

of the witnesses and the parties who

appear before him. Relying on this

unique posture, we will not overrule

his findings if they are supported by

competent evidence.

In re K..2.D., 779 A.2d 540, 543 (Pa.Super. 2001), quoting In re

A.H., 763 A.2d 873, 875 (Pa. Super. 2000).

The record indicates appellants were afforded eight

days of testimony in order to address the merit of their claim

appellees were inadequate parents, necessitating that the

child, R.A.R., be declared dependent. As pro se litigants the

court afforded appellants much leeway in presenting often

far-afield evidence. While admittedly the child’s life has not

been ideal, and appellants often enjoyed the opportunity to

care for the child, we are convinced, as was the trial court,

that there was insufficient evidence presented to declare him

dependent. The court heard testimony concerning appellee /

father’s violent tendencies toward appellee / mother, but

concluded that tendency did not extend to the child.’ As for

appellants’ claim appellees provided caregivers who were

inappropriate, some having DUI records or an assault

conviction, the trial court reasoned, “[e]ach of things in a

vacuum may seem troublesome, but we question if they

* Appellee/mother had mistaken her blood, the result of a broken nose in-

flicted by husband, for that of the child. An examination of the child con-

firmed he was not injured.

- 99

really are. There was no testimony presented that despite

these incidents in their [caregivers’ | background that the

children were ever at risk when they were in the company of

these individuals.” Trial Court Opinion, Tylwalk, J., 1/24/02,

at 66. The fact that appellants arguably may have provided

the child with what they perceived as a “better life” than that

which he enjoyed with appellees is not a basis upon which

to find him dependent. See In re Rinker, 117 A.2d 780

(Pa.Super. 1955).

The issues and theory proposed by appellant are rot

new and bear remarkable similarity to the seminal case of In

re Rinker. The succinct analysis of the underlying principles

involved in Rinker are reported in the Pennsylvania Law

Encyclopedia as follows:

Though it is possible for a parent

to establish such an immoral atmo-

sphere that the condition would

amount to legal neglect, the mere fact

that a parent is a law violator, or uses

alcohol to excess, or has in the past

committed immoral acts, does not of

itself require a finding of neglect or

require separation of the child from

the parent.

A child is not neglected merely be-

cause he is dependent on private char-

ity.

Proceedings to have children de-

clared neglected or dependent are not

a substitute for habeas corpus, and it

has been held, in effect, that in a de-

pendency or neglect proceeding the

court’s first duty is to determine

whether a child is neglected or depen-

dent, and not, in the first instance, to

determine what would be for the best

interests of the child. A Superior Court

_

opinion, so holding, states that a child

cannot be declared neglected merely

because his condition might be im-

proved by changing his parents, and

goes on to state: “Under our system of

government children are not the prop-

erty of the state to be reared only where

and under such conditions as officials

deem best. On the other hand, the state

is interested in establishing a mini-

mum standard of care for a child’s

physical, intellectual and moral well

being. * * * The welfare of many chil-

dren might be served by taking them

from their homes and placing him in

what the officials may consider a bet-

ter home. But the Juvenile Court Law

was not intended to provide a proce-

dure to take the children of the poor

and give them to the rich, nor to take

the children of the illiterate and give

them to the educated, nor to take the

children of the crude and give them to

the cultured, nor take the children of

the weak and sickly and give them to

the strong and healthy.

P.L.E. Minors § 32 Who Are Delinquent, Neglected, or

Dependent Children, at 406-407 (footnotes omitted), quoting

Rinker at 783. We conclude the trial court’s findings of fact

and conclusions of law were supported by the record. We

will not disturb the Order denying appellants’ petition for

dependency.

Included in the appeal is the claim at No. 447 MDA

2002, once again, that the trial court erred by denying appel-

lants in loco parentis status with regard to R.A.R. This issue

has been finally adjudicated and we will not revisit it. See

Jarboe v. Read, 715 A.2d 512 (Pa.Super. 1998), anyeal denied,

~

556 Pa. 692, 727 A.2d 1121 (1998). “Merely because in another

proceeding there may be a finding that appears to differ

from a finding in another case does not necessarily warrant a

re-opening of that case.” Trial Court Opinion, Tylwalk, J., 5/

16/02, at 4.

Also included in the 447 MDA 2002 appeal is the

claim, “the entire lower court [should] recuse itself and an

out of county judge [should] be appointed.” Appellants’

brief at 4. Appellants contend Judge John C. Tylwalk is

biased against them, generally because he consistently has

not ruled in their favor. Their argument in support of this

issue, as well as the claim the litigants’ and child’s constitu-

tional rights have been violated, is a mere reiteration of their

sufficiency argument and includes the claim Judge Tylwalk

acted as an advocate for appellee / mother. Appellant's brief

at 39-41.

We find this issue to have been addressed adequately

by the trial court. In pertinent part the trial court stated:

We also do not see why an out of

county judge is necessary. President

Judge [Robert J.] Eby has been the sub-

ject of an impeachment effort by [ap-

pellants] and has recused himself.

Judge Samuel A. Kline was an oppo-

nent of [appellants] in legal proceed-

ings in the past and has been recused.

Judge Bradford H. Charles was the

District Attorney of Lebanon County

at a time when [appellant/ mother]

was arrested on criminal charges in-

volving [appellee / mother] and he has

been recused. The writing judge is the

only jurist left in Lebanon County to

deal with this, and the many other

matters pending before the court, in

which the [appellants are] involved.

We do not believe we have demon-

=

strated bias or prejudice against [ap-

pellants]. We have always attempted

to treat them properly within the

bounds of the law, no better and no

worse than anyone else. Merely be-

cause we may have decided an issue

differently than [appellants] propose

[ ], does not mean [we] are prejudiced

against ther. It could just be reason-

able minds disagreeing as to what cer-

tain facts indicate. We believe a review

of any of the proceedings we have

handled will show we may have dis-

agreed with the [appellants’] positions

at times, but not in violation of their

constitutional rights. Such a review

would also reveal that on many occa-

sions we have accepted the [appel-

lants’] arguments and decided in their

favor.

Trial Court Opinion, 5/16/02, at 5-6. We agree the record

supports a finding recusal was not warranted. See Corrado v.

Thomas Jefferson Univ. Hosp., 790 A.2d 1022 (Pa.Super.

2002) (holding a party seeking recusal must provide evi-

dence of the necessity for a disqualification).

Finally, as stated by Jon F. Arnold, Esquire, Child

Law Guardian for R.A.R.,

To sustain a dependency petition,

it must be shown [R.A.R.] is dependent

at the time of the hearings. In the eight

(8) days of testimony, extensive testi-

mony was presented as to the paren-

tal care, which was provided to

[R.A.R.]. The trial court was generous

in allowing the Jarboes to present evi-

dence of virtually everything that oc-

curred in [R.A.R.’s] life over the five

x

(5) years prior to them filing their pe-

tition. The testimony, which pointed

towards dependency occurred more

than a year and one-half prior to the

Jarboes’ filing their petition. For ex-

ample, no evidence was presented that

the utilities where [R.A.R] was resid-

ing were terminated since he lived at

412 Maple Street. He last lived at 412

Maple Street in May of 1995. This was

also the last time there were occasions

when no food was in the home.

It should also be noted the incident

of abuse of Ruth by Russell took place

over five (5) years before the last hear-

ing or four (4) years before the Jarboes

filed their petition. The utility services

were disconnected from the home is

in excess of three (3) years prior to the

Jarboes’ filing their petition. Based on

the age of these incidents, they have

little relevancy to whether or not

[R.A.R.] is presently dependent.

The testimony as to [R.A.R.’s] cur-

rent parental care and control indi-

cated that the home in which he was

residing with his mother and step-fa-

ther, Kenneth Erb, contained the nec-

essary utility services and food.

[R.A.R.] was being appropriate[ly] su-

pervised and his education needs were

being met. Therefore, [R.A.R.] was not

dependent at the time of the hearings,

and the trial court’s decision should be

affirmed.

Appelee’s brief at 10-11 (citations omitted).

Having found each of appellants’ arguments devoid

~ o

AA ee

of merit, we affirm the Orders denying relief.’

Order affirmed.

Judgment Entered.

/s/ Prothonotary

Date: DEC 13 2002

* On June 4, 2002 this Court ruled appellants to show cause why the appeal

filed at 447 MDA 2002 should not be dismissed as interlocutory. In light of

our resolution of all issues before us, the issue of the interlocutory nature of

ihe appeal is now moot. Also with regard to 447 MDA 2002, appellants

filed a “Supplemental Memorandum Regarding Newly Acquired Documen-

tary Evidence of Lower Court’s Admission that Appears to Indicate Unac-

ceptable Unconstitutional Bias Regarding Appellants” on September 16,

2002. This appears to be an additional brief filed in support of appellants’

contention Judge Tylwalk was biased and should recuse himself. The supple-

mental memorandum was considered and the arguments therein rejected by

this panel.

— =

J. A34045 /02

RUSSELL A. READ : IN THE SUPERIOR

COURT

: OF PENNSYLVANIA

V.

RUTH E. READ

APPEAL OF: CARL J. AND

ABIGAIL E. JARBOE : No. 447 MDA 2002

ORDER OF COURT

The Court hereby DENIES the application filed Decem-

ber 23, 2002, requesting reargument or reconsideration of the

decision dated December 13, 2002.

PER CURIAM

DATE: February 13, 2003

TRUE COPY FROM RECORD

Attest: 2-13-03

/s/ P. Whittaker

Chief Clerk - Superior Court of PA

Middle District

a hes

APPENDIX C

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

CARL J. JAROBE AND ABIGAILE. : No. 124 MAL 2003

JARBOE,

Petitioners : Petition for Allow-

ance of Appeal from

the Order of the

Superior Court

V.

RUSSELL A. READ AND

RUTH E. READ

Respondents

ORDER

PER CURIAM

AND NOW, this 11" day of June, 2003, the Petition

for Allowance of Appeal is hereby DENIED.

SEAL OF THE SUPREME COURT

OF PENNSYLVANIA

TRUE & CORRECT COPY

ATTEST: JUN 11 2002

/s/ SHIRLEY J. PHIPPS

APPELLATE CLERK

= =

APPENDIX D

IN THE COURT OF COMMON PLEAS OF LEBANON

COUNTY

PENNSYLVANIA

JUVENILE DIVISION

CARL J. JARBOE and

ABIGAIL E. JARBOE,

Petitioners

In the Interests of

RYAN A. READ and

ALEXANDER L. MANN,

Minors

APPEARANCES:

CARL J. JARBOE and

ABIGAIL E. JARBOE, Petitioners

RUTH E. ERB, natural parent

ROGER L. MANN, natural parent

LOREEN M. BURKETT, ESQUIRE

Law Guardian

JON F. ARNOLD, ESQUIRE

Law Guardian

NOS. 1997-35038

1998-35012

Pro Se

Pro Se

Pro Se

For Alexander L. Mann

For Ryan A. Read

OPINION, TYWALK, J., JANUARY 24, 2002.

Before the Court are two separate dependency

actions. The actions were originally pursued separately but

have been consolidated for disposition.

_

xx

A complicating factor throughout these proceedings

has been that Petitioners and Respondents have appeared

pro se. The only counsel involved have been those appointed

as Law Guardians for the children. One of the named Re-

spondents, Russell Read, never appeared at any of ‘he

hearings even though he was notified on each occasion of

those hearings.

The hearings in this case stretched over eleven

months, involving twelve days and over thirty witnesses.

The transcripts of the proceedings total in excess of 1,700

pages. Nearly 250 exhibits were identified and admitted,

many of them involving multiple pages of information for

our consideration. The Petitioners and counsel have submit-

ted nearly 800 proposed Findings of Fact for our consider-

ation. No proposed Findings were filed by any of the par-

ents.

We have conscientiously reviewed all of the tran-

scripts and exhibits, as well as, each of the Proposed Find-

ings. Due to the nature of the proceedings and their impor-

tance, our findings will be extensive. '

FINDINGS OF FACT

2. On March 2, 1998, Carl J. Jarboe and Abigail E. Jarboe

filed a Petition alleging Ryan A. Read is a dependent

child.

3. | The Jarboes are adult individuals who reside at 416

Maple Street, Lebanon, Lebanon County, Pennsylvania.

5. | RyanA. Read is a minor child who was born on Au-

gust 16, 1991.

6. Ruth E. Erb is the biological mother of both Alexander

and Ryan. Russell A. Read is the biological father of

' in many instances each of the parties have made a request for a finding as

to the same issue or testimony. We have attempted to avoid repetition when

such dual requests have been made. In addition we would note that the

requests, like the testimony, do not always follow chronologically.

in he

Sn

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29.

Ryan A. Read.

David Witherson is the half-brother of Alexander

Mann.

Russell Read and Ruth Erb were divorced in 1996. (N.T.

33, 2/24/98). .

At the time of the hearing, David was living with Alex,

Ryan, his mother, his stepfather, Kenneth Erb, and his

stepsister, Mia. (N.T. 39, 2/24/98).

Ruth Read married Kenneth Erb on January 28, 1998.

(N.T. 46, 2/24/98).

While living on Maple Street, Ruth Read Erb worked at

various locations including Country Apple, Farmer's

Wife, Frystown Truckstop, the Hershey Country Club,

Country Fare Restaurant, Harper’s Tavern, the Hearth,

Lyndon’s Diner, and the Top Diner. (N.T. 49-54, 2/ 24/

98).

While living on Maple Street, David also performed

other household duties as follows: laundry; grocery

shopping; washing dishes; housecleaning; cleaning the

cat litter box; feeding and cleaning up after the dog;

filling the tub for his mother’s bath. (N.T. 55-56, 2/24/

98).

David complained to Abigail Jarboe about the amount

of housework he had to do. He complained because he

did not like to do it. (N.T. 58, 2/24/98).

David had numerous unexcused absences from school

and his mother was fined as a result. (N.T. 58, 2/24/

98).

When one of the utilities was turned off at the home, it

~~ =

k*e*

49.

50.

kkk

75.

76.

77.

78.

kk*

97.

kkk

99.

100.

101.

102.

was generally only for one day and never for an ex-

tended period of time. (N.T. 120, 2/24/98).

When Alex lived at Harry Root’s and Tammy Herr’s,

Ryan stayed with the Jarboes. (N.T. 156, 2/24/98).

Ryan slept most of the time at the Jarboe’s home when

his mother, Alex and David lived with his grand-

mother. (N.T. 160, 2/24/98).

When the family lived at Harry Root’s house Ryan

slept overnight at the Jarboe’s much of the time. (N.T.

28, 4/16/98).

Ryan was sleeping at the Jarboe’s when the family

lived with Tammy Herr in Annville. (N.T. 29, 4/16/98).

Ryan slept at the Jarboe’s most of the time while the

family lived with Alex’s grandmother. (N.T. 29, 4/16/

98).

During the years prior to the hearing, Ryan frequently

ate meals at the Jarboes’ house and the Kreider’s

house. (N.T. 64, 4/16/98).

Ruth Erb’s prior husband, Russell Read, had a drinking

problem during their marriage. (N.T. 132, 4/16/98).

Lebanon County Children and Youth Services threat-

ened to remove Ryan from his mother’s home if she

allowed Mr. Read to return to the home following the

filing of the PFA Petition. (N.T. 135, 4/16/98).

When Ruth and Kenneth Erb were married in January

of 1998 they spent three days in Atlantic City. (N.T. 143,

4/16/98).

During that time David Witherson and Mia Erb were

taking care of Ryan and Alex, and had a telephone

number where the Erbs could be reached in Atlantic

City. (N.T. 143, 4/16/98).

Ruth Erb’s brother, Charles Witherson, also stopped by

the house during this time to make sure the children

~

103.

104.

xx

128.

were okay and to take them to and from school. (N.T.

42, 4/16/98).

Ruth Erb permitted her children to be with her friend,

Scott Mentzer, even though she was aware of

Mentzer’s criminal record, as she felt his record had

nothing to do with how he treated her children. (N.T.

135, 4/16/98).

Ruth allowed Alex to ride in a car that Mentzer was

driving even though she was aware of the possibility

that Mentzer did not have a driver’s license. (N.T. 157-

159, 4/16/98).

_ Kenneth Erb, the stepfather of Ryan and Alex, com-

pleted an alcohol counseling program at New Perspec-

tives after his DUI arrest, including an additional six

months of counseling thereafter. (N.T. 48, 4/17/98).

Mr Erb met his wife through David Witherson and his

daughter, Mia, who are boyfriend and girlfriend. (N.T.

55-57, 4/17/98).

- Kenneth, Ruth, David and Mia all smoke cigarettes in

the house when the children are present. (N.T. 68, 4/

17/98).

Mia Erb helped care for Alex and Ryan in the months

immediately preceding the hearing. She would wake

them up, help them get ready for school, make sure

they got to school, supervise their homework, made

sure they ate and that they got to bed at their set time.

(N.T. 112-113, 4/17/98).

_ Debbie Talbot watches the children for short periods of

time after school and she has never mistreated Alex or

Ryan. (N.T. 187, 4/17/98).

. Laycene Kreider was Ruth Erb’s landlord and lived

ni on

166.

167.

168.

*x**ek

185.

next door to her from 1992 through 1995. (N.T. 124-125,

7/30/98).

On one occasion Mrs. Kreider took Ryan and his

mother to the hospital because Ryan drank some citrus

cleaning liquid. Ryan was young and using a walker at

the time. (N.T. 128, 7/30/98).

On one occasion Mrs. Kreider saw David and Alex

playing in the yard and saw David throw Alex to the

ground. Alex was crying after the incident and Mrs.

Kreider was afraid he would not be able to walk. (N.T.

130, 7/30/98).

Deborah Talbot babysat for Alex and Ryan when they

lived at Walnut Manor and occasionally after they

moved from that location. (N.T. 137, 138, 7/30/98).

. Deborah Talbot had previously pleaded guilty to

Endangering the Welfare of Children as a result of a

firecracker accident. (N.T. 139-140, 7/30/98).

. Russell Read, Ryan’s natural father, has a history of

drug and alcohol problems. (N.T. 152, 7/30/98).

. Russell Read lives in Ohio and Ryan visits him twice a

year. (N.T. 153-154, 7/30/98).

. Russell Read was notified three times by General

Public Utilities that there was a possibility of his

utilities being terminated and the electriciy was turned

off on one occasion. (N.T. 95, Exhibit 95, 10/1/98).

. Ruth Read and her family moved into the Jarboe’s

neighborhood in approximately March of 1992. (N.T.

108, 10/1/98).

In August or September of 1993, Ruth Erb asked Mrs.

Jarboe if she would be willing to babysit Ryan. Mrs.

Jarboe agreed to do so refusing to accept payment for

doing so. (N.T. 111, 10/1/98).

The Jarboes claim Ryan spent more than fifty percent of

his time at their home during the time they were caring

~~. =

for him. (N.T. 111-112, 10/1/98).

186. The Jarboes took David, Alex and Ryan with them to

California in November of 1994. (N.T. 115, Exhibit 33,

10/1/98).

187. Ruth Erb gave Abigail Jarboe a key to her house so that

Mrs. Jarboe could come into the home, wake up the

children and get them ready for school. (N.T. 118, 10/

1/98).

192. On April 16, 1996, the Jarboes went to pick up Ryan

because he was unable to wake his mother. (N.T. 129,

10/1/98).

204. When Ruth Erb lived on Maple Street, there was one

house between the Erb house and the Jarboe house,

with a distance of 36 to 50 feet between the residences.

(N.T. 10, 12/16/98).

206. Ryan was treated at Good Samaritan Hospital on

August 4, 1993 and August 27, 1993. One incident

involved Ryan allegedly drinking a cleaning solution

and the other was an incident in which Ryan’s father

hurt him. (N.T. 21, Exhibit 69, 12/16/98).

207. Ruth Erb contacted Mrs. Jarboe and asked her to go to

into the hospital and stay with Ryan while he was there

in August of 1993. (N.T. 21, 12/16/98).

208. Mrs. Jarboe signed Ryan out of the hospital and took

Ryan to her home where she and her husband cared for

him while he was taking medications. The Jarboes paid

for the medications. (N.T. 22, Exhibits 240A and 240B,

12/16/98).

209. Abigail Jarboe agreed to watch Ryan in August or

September of 1993 to relieve David of the pressure and

insure that Ryan had adequate care. (N.T. 25, 12/16/

98).

211. Ryan frequently slept at the Jarboe’s home from 1993

~44-

through the end of May 1995. ‘N.T. 30, 12/16/98).

212. There were times when Abigail Jarboe woke the chil-

dren up to get them ready for school because Ruth and

Russell did not wake up in time to get them ready,

Ruth was working nights and needed to sleep, or Ruth

was up, and watching television and did not wake the

children up. (N.T. 30, 12/16/98).

213. During the time Abigail Jarboe took care of Ryan, Ruth

would not call for extended periods of time. (N.T. 33,

12/16/98).

214. Even when Ruth lived only three blocks away, she

would let Ryan stay at the Jarboes for extended times

and not see or call him for as long as a week. (N.T. 33,

12/16/98).

218. From August of 1993 through August of 1996 Ryan

frequently slept at the Jarboe’s home, and they pro-

vided food, clothing, diapers, boots, etc. for him while

he was there. (N.T. 51, 12/16/98).

222. During the California trip, David constantly did things

to annoy Alex and Ryan, causing Alex to cry and

spanking Ryan when Ryan had not misbehaved. (N.T.

73, 75, 12/16/98).

223. In October of 1993, the Jarboes took the three boys to the

Philadelphia Zoo. On the trip David smacked Ryan in

the face causing him to cry. (N.T. 76, 12/16/98).

224. The Jarboes sought custody of Ryan because they did

not feel he was safe in David's care. (N.T. 78, 12/16/

98).

229. Mrs. Jarboe saw a change in Ryan’s behavior during the

time when the Jarboes had partial custody rights.

When Ryan first got to their home he would seem

depressed, but he would become happy and loving the

longer he was with them. (N.T. 109, 12/16/98).

xk

-45-

244. The Jarboes provided boots for Ryan one winter and

provided snow suits for him as well. His mother had

bought Ryan a snow suit but it was lost after it was lent

to a friend. (N.T. 150, 12/16/98).

248. Normally when Ryan stayed at the Jarboes’, he did not

ask to return to his mother’s, did not ask to call and

did not ask where Ruth was or what she was doing.

(N.T. 157, 12/16/98).

250. The Jarboes took Ryan to Awana, a Bible cubbies pro-

gram for children. (N.T. 159, 12/16/98).

251. The Jarboes took Ryan to Sunday school and church

every weekend they were allowed to do so. (N.T. 163,

12/16/98).

952. Marian Darkes lives approximately three houses from

the Jarboes and knew them for ten years at the time of

the hearing. (N.T. 14, 12/17/98).

253. Mrs. Darkes saw Ryan with the Jarboes and saw the

Jarboes playing with children in their backyard, where

they had children’s swings and other activities. (N.T.

14-15, 12/17/98). |

954. Mrs. Darkes saw children’s clothing on the Jarboe

washline. (N.T. 15, 12/17/98).

255. Mrs. Darkes attended a birthday party the Jarboes had

for Ryan. (N.T. 16, 12/17/98).

256. Mrs. Darkes saw Ryan interacting with the Jarboes and

he seemed comfortable with the Jarboes caring for him.

(N.T. 16, 12/17/98).

257. The Jarboes took Ryan and other neighborhood children

to the playground. Mrs. Darkes never saw Ruth do the

same. (N.T. 18, 12/17/98).

259. During some period of time, Ruth told the Jarboes she

had very little food in the house, so the children went

to the Jarboes’ to eat. (N.T. 28, 12/17/98).

260. Ruth Read Erb signed a form authorizing the Jarboes to

~ 46 -

make medical decisions for Alex and Ryan because

Mrs. Jarboe frequently cared for them. (N.T. 30-32,

Exhibit 90, 12/17/98).

261. Ruth’s mother-in-law gave the Jarboes a booklet that

explained what medical benefits the children had. (N.T.

32, 12/17/98).

262. From September 23, 1994 through November 3, 1994,

Ryan frequently was at the Jarboes during the day and

overnight. (N.T. 34-39, 12/17/98).

265. On October 10, 1994, at about 1:00 P.M., Mrs. Jarboe

found Ryan screaming in the alley behind their homes.

Ryan told her he had not eaten and that he wanted to

go with her and did not want to go back to his mother.

(N.T. 40, 12/17/98).

266. After the October 10th incident Mrs. Jarboe took Ryan to

his mother. Ruth Read permitted Ryan to go with Mrs.

Jarboe for lunch and to stay at the Jarboe home over-

night. (N.T. 40, 12/17/98).

268. The Jarboes cared for Ryan in February of 1995 while his

mother was working. They often cared for Ryan for a

period in excess of his mother’s work hours. (N.T. 45-

46, 12/17/98).

281. Mrs. Jarboe saw a water termination notice posted on

the Read house on Maple Street and on one occasion

when she was at the house babysitting there was no

water when David turned the faucet on. (N.T. 116, 12/

17/98).

282. Kenneth Weaver is the elementary school principle in

the Northern Lebanon School District and confirmed

that Ryan was a student there at the time of the Decem-

ber 1998 hearing. (N.T. 116, 12/17/98).

283. Ryan was a student in the District from September 1,

1998 through the December hearing dates. (N.T. 128,

12/17/98).

— OF x

284. During this period Ryan was tardy on ten occasions

with the amount of time varying from five minutes to

thirteen minutes. (N.T. 128, Exhibit 270, 12/17/98).

285. Mrs. Erb was sent a letter from the District advising her

that continued tardiness would result in an unexcused

absence for Ryan. The letter was sent December 16,

1998. (N.T. 128, 12/17/98).

291. Compared to other students, the number of times Ryan

was tardy was more than normal, the average being

about two or three times. (N.T. 141, 12/17/98).

319. After Ruth Read Erb moved from Maple Street, she

lived with four different individuals. During each,

Ryan spent most of his time in the physical custody of

the Jarboes. (N.T. 209, 12/17/98).

320. After Ruth moved into her own apartment in

Myerstown, Ryan continued to spend more than fifty

percent of the time with the Jarboes. (N.T. 209, 12/17/

98).

326. Russell Read broke Ruth’s nose during an incident

while they lived on Maple Street. (N.T. 44, 12/18/98).

328. Ruth was aware of Russell’s tendencies to be violent.

(N.T. 46, 12/18/98).

329. Ruth allowed Ryan to go visit his father in Ohio for a

week during June of 1998. (N.T. 47, 12/18/98).

330. Later Ruth agreed to extend the visitation period until

August 16, 1998. (N.T. 49, 12/18/98).

337. Vicky Engle is a neighbor of Ruth’s who transporte<!

Ryan to school. Ruth never asked if she had a driver’s

license or a criminal record. (N.T. 70, 12/18/98).

340. Ruth is aware of only one suspension of Russell’s

driver’s license. His license was suspended for speed-

~~

anita cae ab Reet sbn OS A

ing. (N.T. 88, 12/18/98).

341. Since December of 1996 Ruth was aware that Scott

Mentzer did not have a driver’s license. (N.T. 95, 12/

18/98).

kk*

372. Abigail Jarboe is known in the community as an honest

and truthful person. (N.T. 54, 12/17/98).

374. Michelle Johnson, a home study caseworker, found a

substantiated record of child abuse against Russell

Read in the Children and Youth files. (N.T. 65, 7/30/

98).

375. While living on Maple Street, Ruth believed Russell had

a drinking problem, but he was not abusing illegal

drugs at that time. (N.T. 132, 4/16/98).

376. Russell's certified driving record shows that he had his

license suspended two times, once for a DUI conviction

and once for his placement on ARD for a DUI charge.

(Exhibit 247).

383. Charles Witherson was convicted of Disorderly Conduct

as a result of an incident in which he pushed Carl

Jarboe into the Jarboe’s car. (N.T. 120-122, 12/16/98).

384. Witherson has also been convicted of Harassment and

Stalking and was court ordered to attend anger man-

agement counseling. (N.T. 85-92, 10/1/98).

385. Witherson has been the subject of numerous Protection

From Abuse orders. (N.T. 137-142, 4/16/98).

386. Ruth Read Erb let David skip school and travel to North

Carolina with Scott Mentzer. During the trip Mentzer

was drinking alcohol while driving. (N.T. 153, 4/16/

98).

387. Alex testified that Mentzer was drinking beer on one

occasion when Alex rode with him. (N.T. 246-247, 2/

24/98).

388. Ruth was also aware of the fact that Mentzer had a

criminal record involving the use of drugs. (N.T. 154,

iin

en

4/16/98).

389. Ruth knew that Mentzer had been in jail for two years

prior to letting Alex go with him in a vehicle. (N.T. 156,

4/16/98).

390. Ruth used a Vicki Engle as a babysitter for the children.

A person named “Vicki Engle” was found guilty of

Harassment in the Court of Common Pleas of Lebanon

County for shouting, obscenities at a man and throwing

rocks at a dog. :

DISCUSSION

The law to be applied to this case is set forth at 42

Pa.C,S.A. §6302 which details ten different and distinct

circumstances in which a child can be determined to be a

“dependent child.” The Jarboes are pursuing these actions

under one of the definitions which states a dependent child

is one who:

Is without proper parental care or con-

trol, subsistence, education as required by law,

or other care or control necessary for his physi-

cal, mental or emotional health, or morals. A

determination that there is a lack of proper

parental care or control may be based upon

evidence of conduct by the parent, guardian

or other custodian that places the health, safety

or welfare of the child at risk, including evi-

dence of the parent's, guardian's of other

custodian’s use of alcohol or a controlled sub-

stance that places the health, safety or welfare

of the child at risk.

42 Pa.C.S.A. 6302.

The primary focus of the parenting criticism, due to

the circumstances of this family, has been the boys’ biologi-

cal mother, Ruth Read Erb. Ryan’s father lived out of state

while the hearings were being held and despite being noti-

><

fied of each proceeding, chose, for whatever reason to be a

non-participant. Based on what we heard that did not strike

us as unusual because it would appear that is how he ap-

proached his responsibilities to Ryan. ***

RUSSELL READ AS A THREAT

TO RYAN’S PHYSICAL SAFETY

Petitioners asserts Russell Read poses a physical

threat to Ryan’s safety. They base this conclusion on a num-

ber of things including Russell’s use of alcohol and drugs in

the past, the fact that he has had DUI convictions in the past

and finally, due to the fact that there was a substantiated

finding of abuse of Ryan in the records of Lebanon County

Children and Youth. Although the facts referred to are part

of the record of this case, we do not believe they support the

conclusion reached.

We did hear testimony as to Russell’s past history of

- drug and alcohol use, but heard nothing of any recent

incidents. Since shortly after his divorce from Ruth, Russel

has lived in Ohio and he did not appear at the hearings.

There is no testimony of recent origin from which we can

conclude that Russell is currently abusing drugs or alcohol.

Petitioners want us to assume the negative — since there is no

testimony that Russell is no longer addicted, we should

assume that he is. We will not do so.

kkk

Concerns were raised about the medical and dental

care provided for the boys. At times it is clear that Ruth

permitted others to aid her in seeking or providing such care

for the boys, even to the extent of permitting others to take

one of the boys to the hospital to receive care that was

needed. We do not condone such behavior, but like so much

of what we heard that was negative as to Ruth, it had oc-

curred in the past and no testimony supported that those

same circumstances were in existence at the time of the

hearings.

ot

As another example, we would agree that after the

family’s initial move from Maple Street, Ruth had difficulty

in establishing a stable residence. She lived with friends and

family members and it took several years until she gained

stability. Yet, at the time of the hearings she, and the chil-

dren, were in a stable environment with her new husband.

During the period of instability it is true that both younger

boys, but especially Ryan, spent significant periods of time

with Petitioners. Instead of viewing this as a negative as to

Ruth, one might see it as a positive recognition on her part

that Petitioners provided a safe and loving environment for

her children when her circumstances were unsettled. That is

how we view it.

RYAN’S “ATTACHEMENT” TO PETITIONERS

Petitioners have argued that they believe Ryan has

become emotionally attached to them and that we should

determine that he is a dependent child because of this. They

claim he is experiencing emotional difficulties while in his

mother’s home that his educational development has suf-

fered, that Ryan wants to live with them, that the moral

environment in Ruth’s home is inappropriate and that Ryan

is afraid of angering his mother if he reveals his true feelings

about her and them. We find these arguments to be

unpersuasive as they relate to the dependency issue.

We view this type of testimony as a backhanded

attempt to turn the dependency proceedings into custody

proceedings.’ Many, if not all of this conglomeration of

circumstances, relates to what would be the appropriate

home for Ryan to live in if this were a custody case. We

would not even reach such concerns in the dependency

context. We do not discount them, we just do not view them

as relevant.

7 We use the plural “proceedings” even though Petitioners arguments focus

solely on Ryan and do not include Alex.

~ =.

OG De LO ik WL

TE ee ee eT

CONCLUSION

We believe that Petitioners, even though they may

have failed to convince us that the children are dependent,

have served a useful function in this case. We believe Ruth

Read Erb has regained her focus, if you will, in terms of the

need to provide a proper home environment for her chil-

dren. We believe that in the past she was satisfied often to let

others, and when she lived on Maple Street many times it

was the Petitioners, to fulfill what truly were her parental

duties. From providing care, to feeding, to washing clothes,

to homework, to making sure dental and medical care was

provided — she abdicated each of these functions to others.

We believe she was a woman who was perhaps over-

whelmed with the responsibility, and who was unable, or

unwilling, to fulfill it on her own. As we said, we believe she

has regained her focus.

In making positive comments about Petitioners, we

are in no way pandering to them. In this case we believe

they had a heartfelt but mistaken concern about the children.

They enjoyed a surprisingly open access to the children, in

particular Ryan, and when that access ended, we believe

they pursued what they thought was right. The Jarboes

spent much time with the younger boys and had fulfilled

many parental functions with regard to them. They had

helped feed and clothe them, cared for them and even took

them on extensive vacations. The Jarboes’ concern and love

for the boys is genuine.

kk*

Although the boys have benefited from the past care and

unconditional love of the Petitioners, we are confident that

. Alex and Ryan are now in a safe, loving environment where

their needs are met.

~~

CONCLUSIONS OF LAW

eR

2. The Record does not support an adjudication of

dependency in regard to Ryan Read.

xk

4. The Dependency Petitions filed by the Jarboes

should be dismissed.

~

APPENDIX E

IN THE COURT OF COMMON PLEAS OF LEBANON

COUNTY, PENNSYLVANIA

CIVIL ACTION - DOMESTIC RELATIONS SECTION

CARL JARBOE AND ABIGAIL JARBOE, :

Plaintiffs :

v. : No. 95-20748

RUTH E. READ,

Defendant

APPEARANCES:

Adrienne Snelling, Esquire For Ruth Read

Sullivan, Sullivan & Snelling

CARL JARBOE Pro Se

ABIGAIL JARBOE

Opinion by Eby, P.J., May 19, 1997

In this case, we must determine whether persons

who are not blood relatives of a child have standing to bring

a custody action respecting the child. We will recount the

background of this case briefly before proceeding to the facts

adduced by the parties during hearings.

Plaintiffs, Carl and Abigail Jarboe, are former neigh-

bors of Defendant / Mother, Ruth E. Read. Defendant /

Mother is the divorced mother of three children, one of

whom is Ryan Read. Plaintiff Abigail Jarboe cared for Ryan

on various occasions between 1993 and 1995 while Mother

was working outside the home. In 1996, Plaintiffs filed the

instant custody action, alleging that Ryan’s best interests

would be served by removing him from Mother’s care and

=

placing him in their home. Mother challenges Plaintiffs’

standing to bring the custody action, arguing that since

Plaintiffs are not Ryan’s blood relatives, they have no rights

vis-a-vis Ryan. Plaintiff Abigail Jarboe states that she and her

husband stand in loco parentis to Ryan, and so have standing

to ask us to place him in their care.

We begin by noting that the blood relationship

between child and custodian always has been considered in

our society to be of great importance. In Ellerbe v. Hooks, 490

Pa. 363, 416 A.2d 512 (1980), the Supreme Court stated:

[T]he blood relationship of parenthood

has traditionally served and continues to serve

as our society’s fundamental criterion for allo-

cating control over and responsibility for our

children, and . . . without some showing of

harm, the court should not interfere with that

arrangement.

490 Pa. at__, 416 A.2d at 514-15.

A number of cases address the issue of standing in

custody matters; we shall first examine Ken R. on behalf of

C.R. v. Arthur Z., __ Pa.Super. ___ 682 A.2d 1267 (1996),

and Weber v. Weber, 362 Pa.Super. 262, 524 A.2d 498 (1987),

allocatur granted 531 A.2D 431.

In Weber, the adult sister of a minor child petitioned

for partial custody of the child, alleging that because the

child’s parents disapproved of her lifestyle, they refused to

allow the child to visit her. The Superior Court stated:

The right to raise one’s children has long

been recognized as one of our basic civil rights.

Freedom of personal choice in matters of fam-

ily life, and the concomitant freedom from un-

warranted governmental intrusion, is a funda-

mental liberty interest protected by the Four-

teenth Amendment. For these reasons, govern”

mental intrusion into the family is warranted

only in exceptional circumstances. The statutory

bases for court interference with the parents’

= §=

re

right to custody are limited and specific, reflect-

ing that philosophy. See, 11 P.S. § 2208 (taking

an abused child into protective custody); 23

Pa.S.C. § 301 (custody and visitation rights be-

tween parents in a divorce action); 23 Pa.S.C. §

2511 (involuntary termination of parental

rights); 23 Pa.C.S. § 5311-5313 (grandparents

visitation); 42 Pa.S.C. § 6351, 6352 (disposition

of dependent and delinquent children).

362 Pa.Super. at__, 524 A. 2d at 498-99 (citations omitted).

The Court concluded that a sister has no standing under

Pennsylvania statutes to seek partial custody or visitation

with a minor sibling.

In Ken R., a petition was filed on behalf of a minor for

visitation with her half-sisters. The Superior Court, as in

; Weber, held that Petitioner had no standing to seek the relief

requested, stating:

[Ajn immediate interest is shown

where the interest the party seeks to

protect is within the zone of interests

sought to be protected by the statute

or constitutional guarantee in ques-

tion .... There is no provision in the

statute for protecting C.R.’s interest,

that is maintaining her relationship

with her sisters. Thus, C.R.’s interest

does not fall within the zone of inter-

ests that the statute seeks to protect.

: ___ Pa.Super. at ___, 682 A.2d at 1270. The Court repeated its

Weber holding that under Pennsylvania law, a sister has no

standing to seek visitation with a sibling, and suggested that

the legislature examine this issue.

In Dorsey v. Freeman, 438 Pa.Super. 236, 652 A.2d 352

4 (1994), the Superior Court was asked to review a trial court’s

determination that the natural father of a child should have

custody instead of the child’s grandmother. The Court

stated:

as te Lala

-57 -

In a custody dispute between a parent

and a non-parent, the non-parent bears both the

burden of persuasion and the burden of pro-

duction concerning evidence. The non-parent’s

evidentiary burden is a heavy one as the scales

are “tipped hard” in favor of the parent.

438 Pa.Super. at ___ 652 A.2d at 353 (citations omitted).

The Superior Court has also addressed cases in

which a person seeking custody or visitation has no blood

ties to the child. In Kellogg v. Kellogg, 435 Pa.Super. 581, 646

A.2d 1246 (1994), the Superior Court held that a step-mother,

when she had shown a “sustained, substantial and sincere

interest” in the welfare of her ex-husband’s children, had

standing to challenge the children’s step-grandparents for

custody. The Court stated:

The question becomes the, whether the

evidence here was sufficient to establish that

(step-mother) showed a sincere and sustained

interest in the boys. The record reveals that she

did. She sought to foster a healthy relationship

between the boys and her own children, despite

the fact that she was divorced from Bruce, their

father, She saw the boys ona regular basis when

picking up her own children after school. She

played with the boys in their home on a regu-

lar basis. (Step-mother’s) testimony regarding

her relationship with the boys, which was cred-

ited by the court, supports a finding by clear

and convincing evidence that she has always

shown and continues to show a genuine inter-

est in the welfare of these children. It was in-

deed proper, therefore, for the trial court to ac-

cord (step-mother) standing in this custody ac-

tion.

Id. at___, 646 A. 2d at 1250-51.

In In re Adoption of Baby Boy Wims, __ Pa.Super. __,

685 A.2d 1034 (1996), the Court held that persons who are

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not related to a child must establish that they stand in loco

parentis to the child before they can be found to have stand-

ing to seek custody. The Court quoted an earlier case,

Cardamone v. Alshoff, 442 Pa.Super. 263, 275, 659 A.2d 575, 581

(1995):

The phrase “in loco parentis” refers toa

person who puts himself in the situation of as-

suming the obligations incidental to the paren-

tal relationship without going through the for-

mality of a legal adoption. The statue of “in logo

parentis” embodies two ideas: first, the assump-

tion of a parental status, and second, the dis-

charge of parental duties.

In Wims, the natural mother of the child had placed her baby

with an adoption agency, and the plaintiffs had enjoyed

temporary custody as foster parents while the agency sought

suitable adoptive parents. When the baby was placed with

his adoptive parents, the foster parents sued for the right to

adopt. The Superior Court held that the foster parents stood

in loco parentis during their period of custody, but lost their

status when the baby left their care. The Court held that at

the time they filed their petition, the foster parents did not

stand in loco parentis, and overruled the lower court's refusal

to dismiss the foster parents’ petition to adopt.

In J.A.L. v. E.P.H., __Pa.Super.___, 682 A.2d 1314

(1996), the Superior Court was asked to determine whether

the domestic partner of a child’s mother had standing to

seek partial custody of the child after the partnership broke

up. The Superior Court examined the history of the parties’

relationship, noting that the child’s mother had signed

papers nominating her partner as the child’s guardian in the

event she could not care for the child. The Court also noted

that domestic partner had participated in the decisions

which culminated in the child’s birth, and had assisted in the

artificial insemination process. The Court, stating that since

the child had lived with the domestic partners from birth

~59-

until the breakup, the child’s moth r intended from concep-

tion that her partner stand in loco p. ventis, and the child had

formed strong emotional bonds with the woman seeking

partial custody, held the woman seeking partial custody had

standing to do so.

We turn to the evidence adduced by the parties in the

instant matter in two days of hearings on the standing issue.

The evidence was that Mother lives in Myerstown,

Pa., with her three children and their grandmother. David is

a teenager, Alex is 10 at.d Ryan is about 5 years old. Mother

is divorced, and works part-time as a waitress at a local

restaurant.

Mother testified that in 1992, she, her husband and

their children moved into a house near the Jarboe home in

Lebanon, and that Plaintiff Abigail Jarboe immediately

became interested in David (N.T. 12/30/96 pp.66, 120-21).

Later, when Plaintiff offered to baby-sit for Ryan while

Mother was working, Mother allowed Plaintiff to care for

Ryan (N.T. 12/30/96 p. 68). Mother gave Plaintiff a house

key so that Plaintiff could obtain diapers, food and clothing

for Ryan, and Plaintiff began using the key to visit Mother’s

home after David and Alex came home from school (N.T.

12/30/96 p.68).

During this time, Mother testified, she and her

husband had problems, and Father was drinking. Father

eventually left the household, and Mother began working

longer hours, allowing Plaintiff to care for Ryan for longer

periods (N.T. 12/30/96 p.71). Plaintiff began to keep Ryan

overnight, and when Mother was able to care for Ryan upon

her return from work, Plaintiff often told Mother that Ryan

was asleep, and returned him to Mother’s care in the morn-

ing (N.T. 12/30/96 p.72).

After Ryan’s father left the household, Mother

moved away from Plaintiffs’ neighborhood, eventually

settling in Myerstown. Plaintiffs continued to assist Mother

' The parties never adduced evidence on the children’s ages.

-60-

in caring for Ryan.

Mother testified that Plaintiff disagreed with

Mother’s belief that it was better for Ryan for him to be in

the public school system rather than “home school.” Mother

stated Plaintiff believed Ryan should be home-schooled until

he reached the age of 8 (N.T. 12/30/96 p.82). Mother testi-

fied that she believed her decision to enroll Ryan in the

public school system precipitated Plaintiffs’ present custody

action. -

Immediately prior to filing the instant custody action,

Plaintiff Abigail Jarboe sent the following letter to Mother:

Very important

Dear Ruthie: 8/17/96

I would like to have custody of Ryan so I

can home school him and so David isn’t

babysitting him. I love David as if he was my own

son and I love him no matter what he does or

how he acts; but I have seen him mistreat Alex

and I have pictures of what David did to my arm.

Also, recently on the way to your house when

Elizabeth said she wanted to see David, Ryan

asked her if she wanted to get beat up. When I

asked Ryan if David beats him up, Ryan said that

David kicks him and that it hurts. I asked him if

he tells you and he said that sometimes he does

and that you yell at David to stop. No little boy

should have to put up with this.

Iam also concerned because Ryan told me

that he and Alex were playing that David’s bed

is the “sex bed” and they were laying there un-

der blankets pretending there were naked women

there. Put that together with the fact that Alex was

accused of sexually molesting, Tammy’s daugh-

ter and that for years I saw Alex walking around

holding his penis through his clothes and I feel

there is cause for concern.

As soon as I get home from California I

wy an waited thas fe

. - 61 -

baa Re ERs eA Reo mS

would like time with you, David, and Alex with-

out any company to discuss my concerns and

possible solutions. If you have Ryan start kinder-

garten, that means that you would have David

babysitting him while you are working. Ryan has

told me that David does not like him and that

David thinks he is a punk and a brat and a

crybaby. I know from what David has told me in

the past that David has resented having to take

care of Ryan. Over the years I have seen you push

a lot of the care of Ryan down on to David. That

is part of why I agreed to babysit Ryan when you

asked me to. I told Ryan long ago that if David

babysits him, I am going to court for custody of

him. I don’t want to do anything that would hurt

you or Alex or David and if I have to go to court

it is going to be embarrassing for all of you, be-

cause I will be subpoenaing utility payment

records, driving records, tax payment records,

school attendance records, court records, Tammy

and her mother, etc., the Lord willing. Last year

Tammy offered to testify if I went to court for

custody of Ryan.

Even when you are not working, you are

often not at home. You’ve had Ryan stay over-

night at Lee’s house and you've had Lee babysit

Alex. I checked the criminal records for C—— L—

— and found a C L who had a crimi-

nal record of passing bad checks. Ages and resi-

dence made it appear that it is probably your

friend. [have concerns about what other men you

will be bringing into Ryan’s life. His father had a

drug problem and you told me that Alex’s father

has a drinking problem. The reason you have had

a lot of the problems you have had is because you

have not been obeying the Bible.

[am particularly upset that you disobeyed

~62-

the school attendance laws and you let S—— M—

—— take David to North Carolina when S——

had no drivers license, and was on parole, and

had been in jail for drug use. I also have other

concerns.

I have done the legal research. I have

standing to file for custody of Ryan and to be

awarded custody of Ryan.

I have a lot more to say, and have a peti-

tion almost ready to file with the court if that is

necessary. I hope it will not be necessary. You and

I need to talk as soon as possible. When can we?

Love,

Gail

(Exhibit 39) (names omitted).

Plaintiff Carl Jarboe is 58 years old, and the owner of

his own business. He and Abigail Jarboe have no children

(N.T. 12/20/96 p.74). Plaintiffs served as foster parents to

two children between 1970 and 1974, and at the conclusion

of their foster parenthood, filed a dependency petition

regarding one of the children, asking for continued custody

(N.T. 12/20/96 p.75). In addition, Plaintiffs filed a petition

for custody of a Cambodian child in 1979 or 1980, while

living in Cumberland County (N.T. 12/20/96 p.77, 135, 140).

Plaintiffs also petitioned for custody of Plaintiff Abigail

Jarboe’s niece in 1985 (N.T. 12/20/96 p.140). None of these

actions resulted in the placement of the subject children with

Plaintiffs.

Plaintiffs bought many items for Ryan to use while

he was in their care.? They bought household necessities for

his use, such as disposable diapers, toothpaste and tooth-

* Plaintiff Carl Jarboe stated that if they permitted Ryan to take the

items home with him, the items “would get lost” (N.T. 12/20/96

p.43). The items included bicycles, safety helmets, sandboxes, toys,

gardening toys, bunk beds, gym sets, and the like.

st <

brushes, and medicine as well. They also paid for Ryan's

admission to various places when they took him on day trips

and overnight trips (N.T. 12/20/96 p.46, 48, 160). Plaintiff

Abigail Jarboe accompanied Ryan on his first trip to the

dentist (N.T. 12/20/96 p.55, Exhibit 11 ). Plaintiffs took Ryan

to local photo studios to obtain studio portraits of him and

them (N.T. 12/20/96 p.148, Exhibits 27A-G).

Plaintiffs instructed Ryan in their religion.” Plaintiff

Abigail Jarboe took Ryan to her church and signed papers

indicating her guidance activities with him (N.T. 12/20/96

p.93), and received papers showing her participation in his

religious education. Ryan helped Plaintiff Carl Jarboe put

shock absorbers on Plaintiffs’ truck (N.T. 12/20/96 p.58).

Plaintiff Carl Jarboe showed Ryan how to use a hammer

(N.T. 12/20/96 p.61). The Plaintiffs held birthday parties for

Ryan. Plaintiff Abigail Jarboe provided educational materials

to Ryan (N.T. 12/20/96 p.156), sex-education materials to

Ryan, and engaged in home-school activities with him. Ryan

learned how to read with Plaintiff Abigail Jarboe’s assistance

(N.T. 12/20/96 pp.157, 166).

Plaintiffs also filled out health insurance claim forms

respecting Ryan’s health care, and submitted them to the

insurers who covered his health care (N.T. 12/20/96 p.122).

Plaintiffs took splinters out of Ryan’s feet, and brought him

home from the hospital after he was treated for drinking a

cleaning solution.’

Plaintiff Carl Jarboe testified that he and his wife

always asked Mother for permission before taking Ryan

anywhere “major” (N.T. 12/ 20/96 p.79). Plaintiffs intro-

duced documents showing Mother gave permission for

> Mother testified that once she became aware that Plaintiffs were

talking with her children about religion, she told them to stop (N.T.

12/20/96 pp.151-52).

+ Mother received the cleaning solution as a gift from her landlady,

Laycene Kreider (N.T. 12/20/96 p.114). Mrs. Kreider put some of the

solution in a baby food container, which apparently had no safety

cap, and Ryan accidentally swallowed it.

-64-

them to take Ryan and Mother’s other children to medical

caregivers, to zoos and to other places (N.T. 12/20/96 p.124,

Exhibits 14, 18, and 19). Plaintiffs estimated they cared for

Ryan between 50 and 70 percent of the time between 1993

and 1995.° During the time she cared for Ryan, Plaintiff

Abigail Jarboe kept precise records of his food intake and

toilet training, measured his height, and computed the

amount of time he spent with her.

> Plaintiff Abigail Jarboe said she kept notes of the amount of time

Ryan spent at the Jarboe home “[b]ecause Ruth’s situation was ex-

tremely bad” (N.T. 12/20/96 p.178). Mother’s older child, David,

also spent time with Plaintiffs. In May of 1995, Plaintiff Abigail Jarboe

wrote a letter to Mother respecting David (Exhibit 51):

Dear Ruthie:

This is very important, so please read the whole letter. There

is more than one part to this.

First, | was very upset when I was informed that David has

been living with S——. I have enclosed copies of part of S——’s crimi-

nal record. You yourself told me that S—— is a problem drinker and

that you got rid of Russ because he was a problem drinker. The Bible

says, “He that walketh with wise men shall be wise, but a compan-

ion of fools shall be destroyed.” (Proverbs 13:20). Form (sic) what

David has said to me (that you said was only kidding) and from S—

—'s record, it looks to me very likely that David has been using drugs.

He is precious to me. I don’t want him to end up an addict or in jail.

David is too important to God, for me to sit idly by and do nothing

while he self-destructs.

Also enclosed is a copy of the report the school faxed to me

on Monday. If David does not pass social studies, he will definitely

not have sufficient grades to go on to 9th grade next year. Also, Mr.

Grier told me last week, that since you moved, David has had sucha

bad attitude that if it does not improve, he will not let David reamin

(sic) at the Middle School. I know that if you tell David to shape up,

he will. 1 am asking you to tell him to come to my house every day

after school starting on Thursday and work for 1-2 hours, plus come

over on Saturday and work. There are only about 15 more days of

school. There are only about 3 weeks of school left, and it (sic) not

good for David to fail another grade. While David may complain, I

know that if you tell him to do it, he will do it. We can bring him back

«(5

Plaintiff testified that she believed that Mother would

no longer let her see Ryan after she sent Mother the letter

(Exhibit 39), and so she filed the instant custody action. She

to you when he is done or when you are ready for him.

I love David very, very much, and I miss him very, very much.

Not being able to see him and talk to him gets me all upset, particu-

larly when there is evidence that he is doing things that are going to

get him into serious trouble. He can (not) get away with doing bad

things, because God loves him, and God sees everything he does.

Proverbs 3:11-12 says, “My son, despise not the chastening of the

Lord; neither be weary of his correction: For whom the Lord loveth

he correcteth: even as a father the son in whom he delighteth.” Also

God has ways of letting me know everything He wants me to know

about what David is doing. The Bible says, “For the eyes of the Lord

run to and fro throughout the whole earth, to show himself strong in

the behalf of them whose heart is perfect toward him.”

I spoke with Mr. Grier last night, and he said that David's

absence on Monday is another unexcused absence (because there

was no doctor’s excuse), so it is likely that you will be fined. The

reason I asked the school to require doctor’s excuses is because you

let David go to North Carolina with S——, and I know he drank (sic)

and drives. David isn’t safe with him, either physically or morally.

Please stop letting him skip school. I don’t like your having to pay

fines, but the amount of the fine is no where near the amount of

money I have saved you by feeding David, Alex and Ryan, by taking

David to the doctor and buying him clothes last year and a gym

outfit this year, by watching Ryan free, and by buying training pants

for Ryan, which I have been doing since you said you did not want

to pay for the ones he used at my house. Have David obey the school

law, and you won't have these problems. Romans 13:1-3 says, “Let

every soul be subject unto the higher powers. For there is no power

but (of) God: the powers that be are ordained of God. Whosever there-

fore resisteth the power, resisteth the ordinance of God: and they

that resist shall receive to themselves damnation. For rulers are not a

terror to good works, but to the evil.”

I am distressed that watching Ryan kept me from doing

something to help David before now. When I have Ryan, I don’t have

time to investigate what is going on like I do when he is not here. I

know all 3 judges. I know the superintendent of schools, and I know

the head of child welfare. Please do not try to keep your children

a

FP AEM SIRS AG FI

also stated that Mother “usually does not stay home and

take care of Ryan” (N.T. 12/20/96 p.171), and that she had

others take care of him.° Plaintiff stated that “it was obvious

that [Mother] was not taking proper parental care of [Ryan],

and it became apparent at some point [the Jarboes] might

need to go to court for him” (N.T. 12/20/96 p.178). Plaintiff

had reported some events in Ryan’s life to Lebanon County

Children & Youth Services, but was advised that those

events did not constitute abuse (N.T. 12/20/96 p.179).

from talking to me, because when that happens I become convinced

that something is going on that shouldn’t be. I love your children as

if they were my own.

I went to child welfare about Shawn because I heard him

screaming that he was going to kill himself; and his mother, when I

asked her in a letter to get him some help, would not talk to me.

Since there didn’t seem to be any way I could personally help him,

because of his mother, I influenced child welfare to do something. I

have known its head for years and have used him for a witness in

court, in the past.

I do not like to involve Child Welfare (Children & Youth Ser-

vices) and therefore I would only do that as a last resort; but if the

time ever comes that I can no longer help David or Ryan or possibly

Alex, then the Lord willing, | would leave no stone unturned to get

them help.

Last weekend you had mentioned that S—— might be pick-

ing Ryan up. Please do not ever send him over here after any of your

children. We will be glad to drive them where they need to go. S——

probably does not have a license, and he drinks and drives.

I trust that you will handle these situations, and that it will

not be necessary for me to contact anybody else.

Love,

Gail

PS — We have to go away today (Wednesday) and it will probably be

late till we get home.

° Plaintiff Abigail Jarboe, when asked on cross-examination by coun-

sel for Mother whether she was put on earth to eradicate evil in the

world, stated, “No. Put on earth to be a faithful servant of the Lord

Jesus Christ, to witness to him, to obey the word of God and to tell

other people so they don’t end up in hell” (N.T. 12/20/96 p.177).

~'7

Plaintiff Abigail Jarboe also testified that she had

written to Ryan’s father and asked him to give up his paren-

tal rights, and that she would not request support payments

if he did so (N.T. 12/20/96 p.187). She also testified that she

had written another letter to Mother’s mother, in which she

stated that she was filing for custody of Ryan because

Mother insisted on having David babysit Ryan (N.T. 12 /20/

96 p. 188). Plaintiff stated she did not feel Ryan’s best

interests were served by his being in Mother’s custody (N.T.

12/20/96 p.192).

Mother testified that she did not share parenting

decisions with Plaintiff (N.T. 12/30/96 p-73). She testified

that Plaintiff dressed Ryan in clothing of Plaintiff's choice

when Plaintiff cared for Ryan, and that she changed the

clothing when Ryan got home (N.T. 12 /30/96 p.74). Mother

stated that Ryan went to his first dental appointment with

Plaintiff because the appointment conflicted with her work

schedule (N.T. 12/30/96), and stated that her children

visited a dentist regularly.

Mother testified that she played with Ryan, read to

him, toilet-trained him and took him and his brothers to

special places like the zoo (N.T. 12/30/96 p.77). She indi-

cated that since Ryan was toilet-trained at the age of 21/2

years, there was no need for Plaintiff to buy diapers for

Ryan, or for Ryan to use diapers (N.T. 12/30/96 p.77).

Mother testified that once she gave the key to her home to

? Pertinent portions of the letter (Exhibit 42) state:

We are not trying to separate Ryan from Ruthie. I am friendly.

If the Lord gives us custody of Ryan, she can call him anytime she

wants to and she can come over and see him any time she wants to.

What we are trying to do is protect him from David (who I have

personally seen mistreating his brothers) and from her friends who

she uses as babysitters who have criminal records, etc. I was not plan-

ning to go to court until Ruth insisted upon using David for a

babysitter. I don’t believe that David has any interest in babysitting

Ryan. He is a young man and needs to be equipping himself to sup-

port a wife and family, not be babysitting his little brother.

~~

eee =

Bias re har Rd ng BI EMIT HOD

Plaintiff, Plaintiff abused the privilege, and entered her

home “whenever she wanted to” (N.T. 12/30/96 p,78). She

also testified that she did not give permission for Plaintiffs to

instruct Ryan in their religious beliefs (N.T. 12/30/96

p.152).8

Plaintiff Abirgail Jarboe’s contention seems to pre-

sume that when a child received care she believes is substan-

dard, any person who takes action to care for the child

thereby stands in loco parentis. At the hearing she said:

Your Honor, they have been trying to

say that the reason that we took action for cus-

tody of this child were due to inappropriate

motives on our part. The kind of care that she

was providing for this child greatly impacts

whether or not we were in loco parentis to this

child because had she been having people care

for him that were providing good, adequate

care, that had good reputations, there would

have been no reason for us to try and get cus-

tody of this child.

(N.T. 12/30/96 p.135). Plaintiffs are mistaken in their analy-

sis of the status of this area of the law.

In Pennsylvania, for purposes of custody litigation,

an unrelated adult who has never been intimate with a

* At the hearings, Plaintiff Abigail Jarboe stated:

A major aim of my life is to promote Jesus Christ, is to

promote the fact that the Bible says that except a man be born

again cannot see the kingdom of God and that unless a person

believes that Jesus Christ is God coming in flesh and has — believes

that Christ has died for our sins according to the scriptures; that he

was buried; that he rose the third day and was seen of many

witnesses that that person is going to hell.

And an aim and desire of my life is to save as many people

from hell as possible. To give me a child to virtually raise when

you don’t believe that is to turn over your child to be taught those

things.

N.T. 12/30/96 p.158.

-69-

child’s parent stands in loco parentis when the parent con-

sents to that adult having complete responsibility for and

control over the child, not for a temporary period of time,

but for an indefinite period of time.” By Plantiffs’ definition,

any person who cares for a child stands in loco parentis when

she believes the child for whom she is caring is not being

treated appropriately by parents. As evidenced by the

holdings in the cases handed down by our Courts, this is

simply not so.

Plaintiffs cite J.A.L. in support of their argument that

as a matter of law, they stand in loco parentis to Ryan and

have standing to seek custody of him. The situation in J.A.L.

was entirely different from the situation in this case.

In ].A.L., the “parents” of the child were two lesbians.

The mother of the child was the former life partner of the

person seeking partial custody, and presumably had en-

gaged in intimate relations with her. The person seeking

partial custody had participated with the mother of the child

in the process leading to the child’s birth. The child, mother

of the child, and the person seeking partial custody lived

together continuously under the same roof until the child’s

mother and the person seeking partial custody ended their

partnership. Prior to the breakup, the person seeking partial

custody had been named by the child’s mother as legal

guardian of her child in the event of the mother’s death.

In this case, the Plaintiffs seek full custody of Ryan,

not partial custody. Mother is not related in any way to

Plaintiffs, and has certainly never been involved in intimate

relations with them. The Plaintiffs did not participate with

Mother in the events leading to Ryan’s birth. Plaintiffs, Ryan,

and Mother have never lived together under the same roof.

Mother has never nominated Plaintiffs to be Ryan's legal

° This differs from the definition of loco parentis for purposes of edu-

cation of training, where a parent may give control over her child to

a school authority for a specified period of time. See Guerrieri v. Tyson,

147 Pa.Super. 239, 24 A.2d 468 (1942).

~70 -

guardians; indeed, unlike the situation in J.A.L., she and

Ryan have numerous close relatives in the area.

In Kellogg, where the Court found the step-mother of

the subject children had standing to seek visitation with

them, the step-mother was married to the children’s father,

and lived with the children and their father as the female

half of a conventional family unit. Again, the step-mother

did not seek full custody of the children, but visitation.

In Wims, the child’s natural mother had given up her

parental rights entirely, and her baby was placed with the

plaintiffs as foster parents. The Court stated that while the

baby was with the foster parents, they were in loco parentis to

the baby, but when they gave the baby back to the adoption

agency for placement with the adoptive parents, they lost

that status.

Contrary to the arguments proffered by Plaintiffs,

this is not a proceeding to determine whether Defendant has

been an ideal performer in her role as mother of Ryan.

Likewise, the issue for resolution does not require a finding

that the Read household is an ideal setting for the rearing of

this child. We are now presented singly with determining

whether Mr. and Mrs. Jarboe in fact enjoyed the standing of

in loco parentis with regard to Ryan. We are clearly persuaded

that they did not.

Mother never consented to giving up custody of

Ryan to the Jarboes, and never relinquished her birthright

responsibilities to him. She never consented to the Jarboes’

choice of clothing, religious instruction, and education for

Ryan.

If we were to hold otherwise — that temporary

caregivers could sue for custody — every single parent would

potentially be in peril of having to defend a similar action

from-over-zealous (albeit perhaps well-meaning) caregivers

and child-care providers. The Jarboes, quite simply, were

gratuitous caregivers for Ryan, and did not create in loco

parentis status for themselves by their actions.

For all the above reason, we will dismiss the Petition

for Custody.

~

APPENDIX F

Office of the District Attorney

Lebanon County

Municipal Building

400 S. 8" Street

Lebanon, Pennsylvania 17042

Telephone - 717 — 374 - 2801

Sradford H. Charles

District Attorney

Michael Wahmann

Chief County Detective

August 26, 1997

Mrs. Abigail Jarboe

416 Maple Street

Lebanon, PA 17046

Adrienne Sneliing, Esquire

242 South Eighth Street

Lebanon, PA 17042

Dear Mrs. Jarboe and Attorney Snelling:

I am writing to each of you as a result of requests you have

made to file criminal charges. Mrs. Jarboe has made a re-

quest that we file criminal charges against Mrs. Ruth Read,

who is represented by Attorney Snelling. Mrs. Read, through

Attorney Snelling, has asked that criminal charges be filed

against Mrs. Jarboe.

Senior Deputy District Attorny David Wingert has person-

ally looked into this matter and has discussed the same with

me. David and I have reviewed the applicable criminal

= FP =

=

statutes found in the Pennsylvania Crimes Code. We have

also taken into consideration evidence and information

provided to us by everyone. For reasons I will briefly set

forth below, we are declining to initiate criminal charges

against anyone at this time.

Quite honestly, I view this matter as a bitterly contest cus-

tody fight which is being litigated before Judge Eby. I do not

wish to have this office drawn into that fight. On the other

hand, we do have an obligation to review complaints which

are forwarded to us. That we have done.

With respect to the request to the charge the Reads with

perjury, we do not believe that sufficient evidence exists to

warrant a filing of perjury charges. Likewise, with respect to

the Reads’ request to charge the Jarboes with criminal

coercion, we do not believe that sufficient evidence exists to

bring that charge as well. Under the law, a person who has a

good faith (even if unreasonable) belief in the accuracy of

what is being represented cannot be guilty of either perjury

or criminal coercion. In this case, it is our opinion that Mrs.

Jarboe has a good faith belief that Mrs. Read has lied. There-

fore, the crime of criminal coercion would not apply. Like-

wise, is it our opinion that any statements made by Mrs.

Read were not material to the ultimate issue before Judge

Eby. Therefore, even if one assumes (which we will not do)

that Mrs. Read intentionally misrepresented facts to the

court, we do not believe that the crime of perjury would

exist. Accordingly, charges of perjury would not be appropri-

ate against her.

=

a,

We make no opinion or comment with respect to the reason-

ableness of the beliefs of either side. I trust that those are

issues which will be addressed before Judge Eby I the ongo-

ing custody battle.

Of course, either of you would be at liberty to file for a

5. =

private criminal complaint. I am telling you in advance that

unless additional information is brought to the attention of

our office, we will not approve a private criminal complaint

and you will be relegated to utilizing the procedure set forth

in the criminal rules.

Thank you for your attention regarding the above.

Very truly yours,

/s/ Bradford H. Charles

District Attorney

BHC/sld

-74-

PENNSYLVANIA CONSOLIDATED STATUES

TITLE 18 1998 ED.

§2906. Criminal coercion.

1989 Offense defined. — A person is guilty of crimifial

coercion, if, with intent unlawfully to restrict freedom

of action of another to the determent of the other, he

threatens to:

1988 commit any criminal offense;

1989 accuse anyone of a criminal offense;

1990 expose any secret tending to subject any person to

hatred, contempt or ridicule; or

1991 take or withhold action as an official, or cause an

official to take or withhold action.

1990 Defense. — It is defense to prosecution based on para-

graphs (a)(2), (a)(3) or (a)(4) of this section that actor

believed the accusation or secret to be true or the pro-

posed official action justified and that his intent was

limited to compelling the other to behave in a way

reasonably related to the circumstances which were the

subject of the accusation, exposure of proposed official

action, as by desisting from further misbehavior, mak-

ing good a wrong done, refraining from taking any

action of responsibility for which the actor believes the

other disqualified.

1991 Grading. — Criminal coercion is a misdemeanor of the

second degree unless the threat is to commit a felony or

the intent of the actor is felonious, in which cases the

offense is a misdemeanor of the first degree.

~75 —

Appendix G

IN THE MAGISTERIAL DISTRCIT COURT

NO. 52-2-01

OF LEBANON COUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA

VS.

ABIGAIL E. JARBOE

TRANSCRIPT OF PROCEEDINGS

OF PRELIMINARY HEARING

BEFORE: THOMAS M. CAPELLO, DISTIRCT JUSTICE

DATE: Thursday, May 28, 1998

10:00 a.m.

PLACE: 502 State Drive

Lebanon, PA 17042

APPEARNACES:

JENNIFER WISNIEWSKI,

ASSISTANT DISTRICT ATTORNEY

DISTRICT ATTOENRY’S OFFICE

Lebanon Municipal Building

400 South 8" Street, Room 11

Lebanon, PA 17042

Appearing on behalf of the Commonwealth of

Pennsylvania

Lebanon Valley Reporting Service

(717) 272-8296

een?

= Ib =

[p. 25] DISTRICT JUSTICE CAPELLO: Your motion is

to dismiss if they haven’t met their burden.

MRS. JARBOE: Yes. That's right.

DISTRICT JUSTICE CAPELLO: Okay. I agree with

you, okay, they have not met their burden. I already put

down there dismissed. Okay. The case is dismissed.

kkk

APPENDIX H

IN THE COURT OF COMMON PLEAS OF LEBANON

COUNTY PENNSYLVANIA

CIVIL ACTION - LAW

CARL J. JARBOE and : Action Number

ABIGAIL E. JARBOE : 2001-01674

V.

CORPORATION OWNING RADIO: Argument

STATION WLBR, ROBERT ETTER, :

And LAURA LEBEAU

TRANSCRIPT OF PROCEEDINGS

April 21, 2003

10:30 a.m.

LEBANON COUNTY MUNICIPAL BUILDING

COURTOOM NUMBER 3

LEBANON, PENNSYLVANIA

BEFORE: HONORABLE BARRY F. FEUDALE, SENIOR

JUDGE

APPEARANCES:

CARL J. JARBOE and ABIGAIL E. JARBOE

pro se

HARRY W. FENTON, ESQUIRE

For — Defendants

~ 78 -

CHRISTY L. FRITZ,

OFFICIAL COURT REPORTER

kkk

[pp. 45-46] THE COURT: * * *No judge seems to like pro se

litigants. * * *

~79 —

APPENDIX I

Supreme Court of the United States.

RECTOR, ETC., OF HOLY TRINITY CHURCH

Vv.

UNITED STATES.

February 29, 1892.

Mr. Justice BREWER delivered the opinion of the court.

Plaintiff in error is a corporation duly organized and incor-

porated as a religious society under the laws of the state of

New York. E. Walpole Warren was, prior to September, [458]

1887, an alien residing in England. In that month the plaintiff

in error made a contract with him, by which he was to

remove to the city of New York, and enter into its service as

rector and pastor; and, in pursuance of such contract, Warren

did so remove and enter upon such service. It is claimed by

the United States that this contract on the part of the plaintiff

in error was forbidden by chapter 164, 23 St. p. 332; and an

action was commenced to recover the penalty prescribed by

the act. The circuit court held that the contract was within

the prohibition of the statute, and rendered judgment ac-

cordingly, (36 Fed. Rep. 303,) and the single question pre-

sented for our determination is whether it erred in that

conclusion.

The first section describes the act forbidden, and is in these

words:

‘Be it enacted by the senate and house of representatives of

the United States of America, in congress assembled, that

from and after the passage of this act it shall be unlawful for

any person, company, partnership, or corporation, in any

manner whatsoever, to prepay the transportation, or in any

way assist or encourage the importation or migration, of any

alien or aliens, any foreigner or foreigners, into the United

~80-

States, its territories, or the District of Columbia, under

contract or agreement, parol or special, express or implied,

made previous to the inportation or migration of such alien

or aliens, foreigner or foreigners, to perform labor or service

of any kind in the United States, its territories, or the District

of Columbia.’

It must be conceded that the act of the corporation is within

the letter of this section, for the relation of rector to his

church is one of service, and implies labor on the one side

with compensation on the other. Not only are the general

words ‘labor’ and ‘service’ both used, but also, as it were to

guard against any narrow interpretation and emphasize a

breadth of meaning, to them is added ‘of any kind;’ and,

further, as noticed by the circuit judge in his opinion, the

fifth section, which makes specific exceptions, among them

professional actors, artists, lecturers, singers, and domestic

[459] servants, strengthens the idea that every other kind of

labor and service was intended to be reached by the first

section. While there is great force to this reasoning, we

cannot think congress intended to denounce with penalties a

transaction like that in the present case. It is a familiar rule

that a thing may be within the letter of the statute and yet

not within the statute, because not within its spirit nor

within the intention of its makers. This has been often

asserted, and the Reports are full of cases illustrating its

application. This is not the substitution of the will of the

judge for that of the legislator; for frequently words of

general meaning are used in a statute, words broad enough

to include an act in question, and yet a consideration of the

whole legislation, or of the circumstances surrounding its

enactment, or of the absurd results which follow from giving

such broad meaning to the words, makes it unreasonable to

believe that the legislator intended to include the particular

act. As said in Stradling v. Morgan, Plow. 205: ‘From which

cases it appears that the sages of the law heretofore have

construed statutes quite contrary to the letter in some ap-

ott.

pearance, and those statutes which comprehend all things in

the letter they have expounded to extend to but some

things, and those which generally prohibit all people from

doing such an act they have interpreted to permit some

people to do it, and those which include every person in the

letter they have adjudged to reach to some persons only,

which expositions have always been founded upon the

intent of the legislature, which they have collected some-

times by considering the cause and necessity of making the

act, sometimes by comparing one part of the act with an-

other, and sometimes by foreign circumstances.’

In Pier Co. V. Hannam, 3 Barn. & Ald. 266, ABOTT, C_J.,

quotes from Lord Coke as follows: ‘Acts of parliament are to

be so construed as no man that is innocent or free from

injury or wrong be, by a literal construction, punished or

endangered.’ In the case of State v. Clark, 29 N.J. Law, 96, 99,

it appeared that an act had been passed, making it a misde-

meanor to willfully break down a fence in the possession of

another person. Clark was indicted [460] under that statute.

The defense was that the act of breaking down the fence,

though willful, was in the exercise of a legal right to go upon

his own lands. The trial court rejected the testimony offered

to sustain the defense, and the supreme court held that this

ruling was error. In its opinion the court used this language:

‘The act of 1855, in terms, makes the willful opening, break-

ing down, or injuring of any fences belonging to or in the

possession of any other person a misdemeanor. In what

sense is the term ‘willful’ used? In common parlance, ‘will-

ful’ is used in the sense of ‘intentional,’ as distinguished

from ‘accidental’ of ‘involuntary.’ Whatever one does inten- '

tionally, he does willfully. Is it used in that sense in this act?

Did the legislature intend to make the intentional opening of

a fence for the purpose of going upon the land of another

indictable, if done by permission or for a lawful purpose? * *

* We cannot suppose such to have been the actual intent. To

adopt such a construction would pu: a stop to the ordinary

= =

business of life. The language of the act, if construed literally,

evidently leads to an absurd result. If a literal construction of

the words of a statute be absurd, the act must be so con-

strued as to avoid the absurdity. The court must restrain the

words. The object designed to be reached by the act must

limit and control the literal import of the terms and phrases

employed.’ In U.S. v. Kirby, 7 Wall. 482, 486, the defendants

were indicted for the violation of an act of congress provid-

ing ‘that if any person shall knowingly and willfully obstruct

or retard the passage of the mail, or of any driver or carrier,

or of any horse or carriage carrying the same, he shall, upon

conviction, for every such offense, pay a fine not exceeding

one hundred dollars.’ The specific charge was that the

defendants knowingly and willfully retarded the passage of

one Farris, a carrier of the mail, while engaged in the perfor-

mance of his duty, and also in like manner retarded the

steam-boat Gen. Buell, at that time engaged in carrying the

mail. To this indictment the defendants pleaded specially

that Farris had been indicted for murder by a court of com-

petent authority in Kentucky; that a bench-warrant had been

issued and [461] placed in the hands of the defendant Kirby,

the sheriff of the county, commanding him to arrest Farris,

and bring him before the court to answer to the indictment;

and that, in obedience to this warrant, he and the other

defendants, as his posse, entered upon the steamboat Gen.

Buell and arrested Farris, and used only such force as was

necessary to accomplish that arrest. The question as to the

sufficiency of this plea was certified to this court, and it was

held that the arrest of Farris upon the warrant from the state

court was not an obstruction of the mail, or the retarding of

the passage of a carrier of the mail, within the meaning of

the act. In its opinion the court says: ‘All laws should receive

a sensible construction. General terms should be so limited

in their application as not to lead to injustice, oppression or

an absurd consequence. It will always, therefore, be pre-

sumed that the legislature intended exceptions to its lan-

guage which would avoid results of this character.

~

Thereason of the law in such cases should prevail over its

letter. The common sense of man approves the judgment

mentioned by Puffendorf, that the Bolognian law which

enacted ‘that whoever drew blood in the streets should be

punished with the utmost severity,’ did not extend to the

surgeon who opened the vein of a person that fell down in

the street in a fit. The same common sense accepts the ruling,

cited by Plowden, that the statute of 1 Edw. II., which enacts

that a prisoner who breaks prison shall be guilty of felony,

does not extend to a prisoner who breaks out when the

prison is on fire, ‘for he is not to be hanged because he

would not stay to be burnt.’ And we think that a like com-

mon sense will sanction the ruling we made, that the act of

congress which punishes the obstruction or retarding of the

passage of the mail, or of its carrier, does not apply to a case

of temporary detention of the mail caused by the arrest of

the carrier upon an indictment of murder.’ The following

cases may be also cited: Henry v. Tilson, 17 Vt. 479; Ryegate

v. Wardsboro, 30 Vt. 743; Ex parte Ellis, 11 Cal. 220; Ingraham

v. Speed, 30 Miss. 410; Jackson v. Collins, 3 Cow. 89; People v.

Insurance Co., 15 Johns. 358; Burch v. Newbury, 10 N.Y. 374;

[462] People v. Commissioners, 95 N.Y. 554, 558; People v.

Lancombe, 99 N.Y. 43, 49, 1 N.E. Rep. 599; Chesapeake &

Ohio Canal Co. v. Baltimore & Ohio R. Co., 4 Gill & J.152;

Osgood v. Breed, 12 Mass. 525, 530; Wilbur v. Crane, 13 Pick.

284; Oates v. Bank, 100 U.S. 239.

Among other things which may be considered in determin-

ing the intent of the legislature is the title of the act. We do

not mean that it may be used to add or take from the body of

the statute, (Haddon v. Collector, 5 Wall. 107,) but it may

help to interpret its meaning. In the case of U.S: v. Fisher, 2

Cranch, 358, 386, Chief Justice MARSHALL said; ‘On the

influence which the title ought to have in construing the

enacting clauses, much has been said, and yet it is not easy

to discern the point of difference between the opposing

counsel in this respect. Neither party contends that the title

~ $4 -

of an act can control plain words in the body of the statute;

and neither denies that, taken with other parts, it may assist

in removing ambiguities. Where the intent is plain, nothing

is left to construction. Where the mind labors to discover the

design of the legislature, it seizes everything from which aid

can be derived; and in such case the title claims a degree of

notice, and will have its due share of consideration.’ And in

the case of U.S. v. Palmer, 3 Wheat. 610, 631, the same judge

applied the doctrine in this way: ‘The words of the section

are in terms of unlimited extent. The words ‘any person or

persons’ are broad enough to comprehend every human

being. But general words must not only be limited to cases

within the jurisdiction of the state, but also to those objects

to which the legislature intended to apply them. Did the

legislature intend to apply these words to the subjects of a

foreign power, who in a foreign ship may commit murder or

robbery on the high seas? The title of an act cannot control

its words, but may furnish some aid in showing what was in

the mind of the legislature. The title of this act is, ‘An act for

the punishment of certain crimes against the United States.’

It would seem that offenses against the United States, not

offenses against the human race, were the crimes which the

legislature intended by this law to punish.

[463] It will be seen that words as general as those used in

the first section of this act were by that decision limited, and

the intent of congress with respect to the act was gathered

partially, at least, from its title. Now, the title of this act is,

‘An act to prohibit the importation and migration of foreign-

ers and aliens under the contract or agreement to perform

labor in the United States, its territories, and the District of

Columbia. Obviously the thought expressed in this reaches

only to the work of the manual laborer, as distinguished

from that of the professional man. No one reading such a

title would suppose that congress had in its mind any pur-

pose of staying the coming into this country of ministers of

the gospel, or, indeed, of any class whose toil is that of the

—

brain. The common understanding of the terms ‘labor’ and

‘laborers’ does not include preaching and preachers, and it is

to be assumed that words and phrases are used in their

ordinary meaning. So whatever of light is thrown upon the

statute by the language of the title indicates an exclusion

from its penal provisions of all contract for the employment

of ministers, rectors, a.id pastors.

Again, another guide to the meaning of a statute is found in

the evil which it is designed to remedy; and for this the court

properly looks at contemporaneous events, the situation as it

existed, and as it was pressed upon the attention of the

legislative body. U.S. v. Railroad Co., 91 U.S. 72, 79. The

situation which called for this statute was briefly but fully

stated by Mr. Justice BROWN when, as district judge, he

decided the case of U.S. v. Craig, 28 Fed. Rep. 795, 798: ‘The

motives and history of the act are matters of common knowl-

edge. It had become the practice for large capitalists in this

country to contract with their agents abroad for the ship-

ment of great numbers of an ignorant and servile class of

foreign laborers, under contracts by which the employer

agreed, upon the one hand, to prepay their passage, while,

upon the other hand, the laborers agreed to work after their

arrival for a certain time at a low rate of wages. The effect of

this was to break down the labor market, and to reduce other

laborers engaged in like occupations to the level [464] of the

assisted immigrant. The evil finally became so flagrant that

an appeal was made to congress for relief by the passage of

the act in question, the design of which was to raise the

standard of foreign immigrants, and to discountenance the

migration of those who had not sufficient means in their

own hands, or those of their friends, to pay their passage.’

It appears, also, from the petitions, and in the testimony

presented before the committees of congress, that it was this

cheap, unskilled labor which was making the trouble, and

the influx of which congress sought to prevent. It was never

~'06 -

suggested that we had in this country a surplus of brain

toilers, and, least of all, that the market for the services of

Christian ministers was depressed by foreign competition.

Those were matters to which the attention of congress, or of

the people, was not directed. So far, then, as the evil which

was sought to be remedied interprets the statute, it also

guides to an exclusion of this contract from the penalties of

the act.

A singular circumstance, throwing light upon the intent of

congress, is found in this extract from the report of the

senate committee on education and labor, recommending the

passage of the bill: ‘The general facts and considerations

which induce the committee to recommend the passage of

this bill are set forth in the report of the committee of the

house. The committee report the bill back without amend-

ment, although there are certain features thereof which

might well be changed or modified, in the hope that the bill

may not fail of passage during the present session. Espe-

cially would the committee have otherwise recommended

amendments, substituting for the expression, ‘labor and

service,’ whenever it occurs in the body of the bill, the words

‘manual labor’ or ‘manual service,’ as sufficiently broad to

accomplish the purposes of the bill, and that such amend-

ments would remove objections which a sharp and perhaps

unfriendly criticism may urge to the proposed legislation.

The committee, however, believing that the bill in its present

form will be construed as including only those whose labor

or service is manual in character, and being very desirous

that the bill become a law before the adlournment, have

reported the bill without [465] change.’ Page 6059, Congres-

sional Record, 48° Cong. And, referring back to the report of

the committee of the house, there appears this language: ‘It

seeks to restrain and prohibit the immigration or importa-

tion of laborers who would have never seen our shores but

for the inducements and allurements of men whose only

object is to obtain labor at the lowest possible rate, regardless

~ 87 -

of the social and material well-being of our own citizens, and

regardless of the evil consequences which result to American

laborers from such immigration. This class of immigrants

care nothing about our institutions, and in many instances

never even heard of them. They are men whose passage is

paid by the importers. They come here under contract to

labor for a certain number of years, They are ignorant of our

social condition, and, that they may remain so, they are

isolated and prevented from coming into contact with

Americans. They_are generally from the lowest social stra-

tum, and live upon the coarsest food, and in hovels of a

character before unknown to American workmen. They, as a

rule, do not become citizens, and are certainly not a desirable

acquisition to the body politic. The inevitable tendency of

their presence among us is to degrade American labor, and

to reduce it to the level of the imported pauper labor.’ Page

5359, Congressional Record, 48" Cong.

We find, therefore, that the title of the 7 ct, the evil which was

intended to be remedied, the circum .ances surrounding the

appeal to the congress, the reports uf the committee of each

house, all concur in affirming that the intent of congress was

simply to stay the influx of this cheap, unskilled labor.

But, beyond all these matters, no purpose of action against

religion can be imputed to any legislation, state or national,

because this is a religious people. This is historically true.

From the discovery of this continent to the present hour,

there is a single voice making this affirmation. The commis-

sion to Christopher Columbus, prior to his sail westward, is

from ‘Ferdinand and Isabella, by the grace of God, king and

queen of Castile,’ etc., and recites that ‘it is hoped that by

God's assistance some of the continents and islands in the

[466] ocean will be discovered,’ etc. The first colonial grant,

that made to Sir Walter Raleigh in1584, was from ‘Elizabeth,

by the grace of God, of England, Fraunce and Ireland,

queene, defender of the faith,’ etc; and the grant authorizing

——_—— aie

him to enact statutes for the government of the proposed

colony provided that ‘they be not against the true Christian

faith nowe processed in the Church of England,’ The first

charter of Virginia, granted by King James I. in 1606, after

reciting the application of certain parties for a charter, com-

menced the grant in these words: ‘We, greatly commending,

and graciously accepting of, their Desires for the Furtherance

of so noble a Work, which may, by the Providence of Al-

mighty God, hereafter tend to the glory of his Divine Maj-

esty, in propagating of Christian Religion to such People, as

yet live in Darkness and miserable Ignorance of the true

Knowledge and Worship of God, and may in time bring the

Infidels and Savages, living in those parts, to human Civility,

and to a settled and quiet Government; DO, by these our

Letters-Patents, graciously accept of, and agree to, their

humble and well-intended Desires.’

Language of similar import may be found in the subsequent

charters of that colony, from the same king, in 1609 and 1611;

and the same is true of the various charters granted to the

other colonies. In language more or less emphatic is the

establishment of the Christian religion declared to be one of

the purposes of the grant. The celebrated compact made by

the pilgrims in the Mayflower, 1620, recites: ‘Having under-

taken for the glory of God, and Advancement of the Chris-

tian Faith, and the Honour of our King and Country, a

Voyage to plant the first Colony in the northern Parts of

Virginia; Do by these Presents, solemnly and mutually, in the

Presence cf God and one another, covenant and combine

ourselves together into a civil Body Politick, for our better

Ordering and Preservation, and Furtherance of the Ends

aforesaid.’

The fundamental orders of Connecticut, under which a

provisional government was instituted in 1638-39, com-

mence with this declaration: ‘Forasmuch as it hath pleased

the Allmighty God by the wise disposition of his diuyne

i.

pruidence [467] so to Order and dispose of things that we

the Inhabitants and residents of Windsor, Hartford, and

Wethersfield are now cohabiting and dwelling in and vppon

the River of Conectecotte and the Lands thereunto

adioyneing; And well knowing where a people are gathered

togather in the word of God requires that to mayntayne the

peace and vnion of such a people there should be an orderly

and decent Gouerment established according to God, to

order and dispose of the affayres of the people at all seasons

as occation shall require; doe therefore assotiate and

conioyne our selues to be as one Publike State or

Comonwelth; and doe, for our selues and our Successors

and such as shall be adioyned to vs att any tyme hereafter,

enter into Combination and Confederation togather, to

mayntayne arid presearue the liberty and purity of the

gospell of our Lord Jesus wch we now prfesse, as also the

disciplyne of the Churches, wch according to the truth of the ~

said gospell is now practised amongst vs.’

In the charter of privileges granted by William Penn to the

province of Pennsylvania, in 1701, it is recited: ‘Because no

People can be truly happy, though under the greatest Enjoy-

ment of Civil Liberties, if abridged of the freedom of their

Consciences, as to their Religious Profession and Worship;

And Almighty God being the only Lord of Conscience,

Father of Lights and Spirits; and the Author as well as Object

of all divine Knowledge, Faith, and Worship, who only doth

enlighten the Minds, and persuade and convince the Under-

standing of People, I do hereby grant and declare,’ etc.

Coming nearer to the present time, the declaration of inde-

pendence recognizes the presence of the Divine in human

affairs in these words: ‘We hold these truths to be self-

evident, that all men are created equal, that thet are en-

dowed by their Creator with certain unalienable Rights, that

among these are Life, Liberty, and the pursuit of Happiness.’

‘We, therefore, the Representatives of the united States of

~90 —

America, in General Congress, Assembled, appealing to the

Supreme Judge of the world for the rectitude of our inten-

tions, do, in the Name and by Authority of the good People

of these Colonies, solemnly publish and declare,’ etc.; ‘And

for the [468] support of this Declaration, with a firm reliance

on the Protection of Divine Providence, we mutually pledge

to each other our Lives, our Fortunes, and our sacred Honor.’

If we examine the constitutions of the various states, we find

in them a constant recognition of religious obligations. Every

constitution of every one of the 44 states contains language

which, either directly or by clear implication, recognizes a

profound reverence for religion, and an assumption that its

influence in all human affairs is essential to the well-being of

the community. This recognition may be in the preamble,

such as is found in the constitution of Illinois, 1870; ‘We, the

people of the state of Illinois, grateful to Almighty God for

the civil, political, and religious liberty which He hath so

long permitted us to enjoy, and looking to Him for a blessing

upon our endeavors to secure and transmit the same unim-

paired to succeeding generations,’ etc.

It may be only in the familiar requsition that all officers shall

take an oath closing with the declaration, ‘so help me God.’

It may be in clauses like that of the constitution of Indiana,

1816, art. 11, § 4: ‘The manner of administering an oath or

affirmation shall be such as is most consistent with the

conscience of the deponent, and shall be esteemed the most

solemn appeal to God.’ Or in provisions such as are found in

articles 36 and 37 of the declaration of rights of the constitu-

tion of Maryland, (1867;) ‘That, as it is the duty of every man

to worship God in such manner as he thinks most acceptable

to Him, all persons are equally entitled to protection in their

religious liberty: wherefore, no person ought, by any law, to

be molested in his person or estate on account of his reli-

gious persuasion or profession, or for his religious practice,

unless, under the color of religion, he shall disturb the good

= OF x.

order, peace, or safety of the state, or shall infringe the laws

of morality, or injure others in their natural, civil, or religious

rights; nor ought any person to be compelled to frequent or

maintain or contribute, unless on contract, to maintain any

place of worship or any ministry; nor shall any person,

otherwise competent, be deemed incompetent as a witness

or juror on account of his religious belief: provided, he [469]

believes in the existence of God, and that, under his dispen-

sation, such person will be held morally accountable for his

acts, and be rewarded or punished therefor, either in this

world or the world to come. That ro religious test ought ever

to be required as a qualification for any office of profit or

trust inthis state, other than a declaration of belief in the

existence of God; nor shall the legislature prescribe any other

oath of office than the oath prescribed by this constitution.’

Or like that in articles 2 and 3 of part 1 of the constitution of

Massachusetts, (1780:) ‘It is the right as well as the duty of all

men in society publicly, and at stated seasons, to worship the

Supreme Being, the great Creator and Preserver of the

universe. * * * As the happiness of a people and the good

order ard preservation of civil government essentially

depend upon piety, religion, and morality, and as these

cannot be generally diffused through a community but by

the institution of the public worship of God and of public

instructions in piety, religion, and morality: Therefore, to

promote their happiness, and to secure the good order and

preservation of their government, the people of this com-

monwealth have a right to invest their legislature with

power to authorize and require, and the legislature shall,

from time to time, authorize and require, the several towns,

parishes, precincts, and other bodies politic or religious

_societies to make suitable provision, at their own expense,

for the institution of the public worship of God and for the

support and maintenance of public Protestant teachers of

piety, religion, and morality, in all cases where such provi-

sion shall not be made voluntarily.’ Or, as in sections § and

14 of article 7 of the constitution of Mississippi, (1832:) ‘No

~ot..

person who denies the being of a God, or a future state of

rewards and punishments, shall hold any office in the civil

de partment of this state. * * * Religion morality, and knowl-

edge being necessary to good government, the preservation

of liberty, and the happiness of mankind, schools, and the

means of education, shall forever be encouraged in this

state.’ Or by article 22 of the constitution of Delaware, (1776,)

which required all officers, besides an oath of allegiance, to

make and subscribe the following declaration: ‘I, A. B., do

profess [470] faith in God the Father, and in Jesus Christ His

only Son, and in the Holy Ghost, one God, blessed for

evermore; and I do acknowledge the Holy Scriptures of the

Old and New Testament to be given by divine inspiration.’

Even the constitution of the United States, which is sup-

posed to have little touch upon the private life of the indi-

vidual, contains in the first amendment a declaration com-

mon to the constitutions of all the states, as follows: ‘Con-

gress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof,’ etc.,-and

also provides in article 1, § 7, (a provision common to many

constitutions,) that the executive shall have 10 days (Sun-

days excepted) within which to determine whether he will

approve or veto a bill.

There is no dissonance in these declarations. There is a

universal language pervading them all, having one meaning.

They affirm and reaffirm that this is a religious nation. These

~ are not individual sayings, declarations of private persons.

They are organic utterances. They speak the voice of the

entire people. While because of a general recognition of this

truth the question has seldom been presented to the courts,

yet we find that in Updegraph v. Com., 11 Serg. & R. 394,

400, it was decided that, ‘Christianity, general Christianity, is,

and always has been, a part of the common law of Pennsyl-

vania; * * * not Christianity with an established church and

tithes and spiritual courts, but Christianity with liberty of

=e

conscience to all men.’ And in People v. Ruggles, 8 Johns.

290, 294, 295, Chancellor KENT, the great commentator on

American law, speaking as chief justice of the supreme court

of New York, said: ‘The people of this state, in common with

the people of this country, profess the general doctrines of

Christianity as the rule of their faith and practice; and to

scandalize the author of these doctrines is not only, in a

religious point of view, extremely impious, but, even in

respect to the obligations due to society, is a gross violation

of decency and good order. * * * The free, equal, and undis-

turbed enjoyment of religious opinion, whatever it may be,

and free and decent discussions on any religious [471]

subject, is granted and secured; but to revile, with malicious

and blasphemous contempt, the religion professed by almost

the whole community is an abuse of that right. Nor are we

bound by any expressions in the constitution, as some have

strangely supposed, either not to punish at all, or to punish

indiscriminately the like attacks upon the religion of

Mahomet or of the Grand Lama; and for this plain reason,

that the case assumes that we are a Christian people, and the

morality of the country is deeply ingrafted upon Christian-

ity, and not upon the doctrines or worship of those impos-

tors.’ And in the famous case of Vidal v. Girard’s Ex’rs, 2

How. 127, 198, this c urt, while sustaining the will of Mr.

Girard, with its provision for the creation of a college into

which no minister should be permitted to enter, observed: ‘It

is also said, and truly, that the Christian religion is a part of

the common law of Pennsylvania.’

If we pass beyond these matters to a view of American life,

as expressed by its laws, its business, its customs, and its

society, we find every where a clear recognition of the same

truth. Among other matters note the following: The form of

oath universally prevailing, concluding with an appeal to

the Almighty; the custom of opening sessions of all delibera-

tive bodies and most conventions with prayer; the prefatory

words of all wills, ‘In the name of God, amen;’ the laws

=

respecting the observance of the Sabbath, with the general

cessation of all secular business, and the closing of courts,

legislatures, and other similar public assemblies on that day;

the churches and church organizations which abound in

every city, town, and hamlet; the multitude of charitable

organizations existing every where under Christian auspices;

the gigantic missionary associations, with general support,

and aiming to establish Christian missions in every quarter

of the globe. These, and many other matters which might be

noticed, add a volume of unofficial declarations to the mass

of organic utterances thai this is a Christian nation. In the

face of all these, shall it be believed that a congress of the

United States intended to make it a misdemeanor for a

church of this country to contract for the services of a Chris-

tian minister residing in another nation?

[472] Suppose, in the congress that passed this act, some

member had offered a bill which in terms declared that, if

any Roman Catholic church in this country should contract

with Cardinal Manning to come to this country, and enter

into its service as pastor and priest, or any Episcopal church

should enter into a like contract with Canon Farrar, or any

Baptist church should make similar arrangements with Rev.

Mr. Spurgeon, or any Jewish synagogue with some eminent

rabbi, such contract should be adjudged unlawful and void,

and the church making it be subject to prosecution and

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