(dissenting).
I dissent because I believe the majority confuses the concept of foster care with that of custody or guardianship. I have no disagreement with Regulation 3231(d) which provides for the transfer for foster care from the natural parents to the Service without the necessity of a judicial hearing where there is an agreement between the parties. This conclusion, however, does not mandate the result suggested by the majority which requires the natural parents to initiate action and to sustain the burden of proof in any subsequent proceeding for the purpose of having the child returned to their care.
Regulation 3231(d), by clear and unambiguous language, distinguishes between foster care and the legal concepts of custody and guardianship. While it permits a consensual transfer for purposes of foster care, it requires a petition to the Juvenile Court where a change of custody or guardianship is sought. I do not believe, under the terms of this Regulation, that the “placement agreement” confers custody upon the agency, but rather permits the agency to provide foster care during the period of time that the parties consent to the arrangement.
The state’s right to intrude upon the household and uproot a child from its natural ties must be predicated either on a finding of the delinquency of that child or a determination that the minor is suffering deprivation in his present surroundings. See Juvenile Act, Act of December 6, 1972, P.L. 1464, No. 333, § 24 and § 25; 11 P. S. § 50-321 and § 50-322 (Supp.1974-75). The record *652fails to indicate any facts that would suggest that either of these conditions existed at the time the parents agreed to allow the Service to have control over the child for the purpose of foster care. Where parents, because of an unexpected emergency, are required to seek the aid of an agency because of their concern for the best interest of a child, these parents should not be penalized because of this interest by being required to initiate court action and to sustain a burden of proof in a suit for custody.
The rule of law that will evolve from the present position of the majority will cause parents who love their children and seek only their best interest to hesitate to seek, in times of need, aid from agencies such as the one involved for fear that they would be relinquishing a right to the care, custody, love and affection of their child even though temporary help may be needed. We therefore would, by this ruling, remove an alternative for those in need of temporary help, and frustrate the basic objective of facilitating assistance for those who seek the best interest of their child during periods of emergency.
Furthermore, public policy dictates that the Service should have the burden of initiating any legal proceeding to determine custody and should bear the burden of establishing the unfitness of the parents to perform the parental role.1 This Commonwealth has always recognized a strong public policy to maintain the integrity of the family unit which, in my judgment, is ignored by the ruling of the majority today. See Juvenile Act, supra, § 1(b)(1); 11 P.S. § 50-101 (b) (1). In many instances those persons who, by circumstances, are forced to seek such assistance are the uneducated, the deprived and the unsophisticated. To require them to seek out legal as*653sistance and to sustain the cost of litigation is contrary to reason and in my judgment provides a most undesirable result.
MANDERINO, J., joins in this dissent.. The Courts of Pennsylvania have required governmental agencies to prove unfitness when proceeding under the Juvenile Act. See Levine, Caveat Parens: A Demystification of the Child Protection System, 35 Pitt.L.Rev. 1, 32 (1973).