# Petition for Writ of Certiorari — Jarboe v. Read > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2038%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2003 - **Citation:** 540 U.S. 983 ## Text 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 “ey "ss kkk 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< 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 iin 3 q 3 : ry q 3 . 4 < P| R . 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 t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2038%3A1. Public record. Not legal advice.