In re T.D.

CAVANAUGH, Judge,

dissenting:

This is an appeal from an order entered in the Court of Common Pleas of Philadelphia County, adjudicating the appellant minor to be dependent. I disagree with the majority’s disposition of this matter and would instead affirm the decision of the court below.

I accept the majority’s statement of the facts and issues raised in this case and would adopt them as part of my dissent.

The Juvenile Act defines a dependent child in pertinent part as one who “is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional *309health, or morals;” 42 Pa.C.S.A. § 6302(1) (Definition of “Dependent Child”)1 It is beyond peradventure that a finding of dependency must be supported by clear and convincing evidence. Matter of Yeager, 309 Pa.Super. 491, 495, 455 A.2d 717, 719 (1983). (citations omitted). See also Fallaro v. Yeager, 364 Pa.Super. 408, 420, 528 A.2d 222, 228 (1987) (“[T]he court must be convinced by clear and convincing evidence that the child fits into one of the categories established in section 6302 before it can adjudicate the child as dependent.”) Clear and convincing evidence may be defined as “testimony that is so direct and unambiguous as to enable the trier of fact to come to a sure determination, without conjecture, of the truth of the exact facts at issue.” In Re Frank W.D., 315 Pa.Super. 510, 516, 462 A.2d 708, 711 (1983). Moreover, the standard to be applied in determining whether a child is dependent is not “best interests”, rather, it must be shown that the child is “presently without proper parental care and, if so, whether such care is immediately available.” In Re Barclay, 321 Pa.Super. 417, 422, 468 A.2d 778, 781 (1983) (quoting In the Interest of Pernishek, 268 Pa.Super. 447, 458, 408 A.2d 872, 877-878 (1979)). Finally, interference with the rights of a legal custodian will not be sanctioned in the absence of an adjudication of dependency. See 42 Pa.C.S.A. § 6341(a). As noted therein:

§ 6341. Adjudication

(a) General rule. — After hearing the evidence on the petition the court shall make and file its findings as to whether the child is a dependent child, or if the petition alleges that the child is delinquent, whether the acts ascribed to the child were committed by him. If the court finds that the child is not a dependent child or that the allegations of delinquency have not been established it shall dismiss the petition and order the child *310discharged from any detention or other restriction theretofore ordered in the proceeding.

(emphasis added)

The appellants first contend that the lower court erred in failing to dismiss the original dependency petition filed by the DHS since it failed to allege facts which establish that T.D. was without proper parental care or control. However, a review of the petition reveals the fallacy of such an assertion. Following the detention hearing, the DHS filed a petition which included allegations that the child had been sexually abused on two separate occasions, that her mother had refused to cooperate with the Department, and that there was evidence of physical abuse on D.D.’s part. The petition, which was filed on September 17, 1986, went on to state that the child had not received medical treatment for an eye injury which she had sustained. Subsequent to the filing of the dependency petition and pursuant to the court’s direction, amendments were filed in which the DHS again alleged that appellant mother had failed to comply with the required therapy schedule. I consider the foregoing to be sufficient grounds in support of the finding that D.D. failed to provide “proper parental care or control” in violation of 42 Pa.C.S.A. § 6302. Even if it could be said that the original petition was incomplete, the amendments clearly allege a pattern of conduct on the part of appellant mother that was detrimental to her child. I do not believe we can allow retrospective procedural imperfections to defeat the court’s obligation to provide a sound remédy for the demonstrated needs of a child.

At both the detention and adjudicatory hearings there was ample evidence to suggest that T.D. was emotionally disturbed and manifested such disturbances through unacceptable conduct. Whereas the child had previously had a reputation for being a pleasant little girl who consistently maintained an excellent academic record,2 the testimony *311indicated that she had suffered a significant change in behavior. In one incident, T.D. reacted violently to a normal reprimand from the principal of her school. In another incident, she demonstrated bizarre behavior by walking down a hallway in the company of a schoolfriend with a piece of paper held over her buttocks. Witnesses who had been recognized as experts in the area of sexual abuse indicated that T.D. would benefit from therapy. Mr. Inigo Schamber, a DHS supervisor who had been involved in the case, observed that, “Based on the history of this case, the Department would recommend that [T.D.] be adjudicated dependent and that she have DHS supervision and therapy provided with Hall Mercer, and that mother cooperate with SCOH services.” (N.T. 1/6/87 at 28) Although Mr. Schamber admitted that he had never had any personal contact with appellant minor, it was noted that he was involved in over one hundred cases of child abuse (specifically rape or sexual abuse) as either a worker or a supervisor with the Department. Sherwood Nichols, a family therapist who holds a Bachelor’s Degree in psychology and a Master’s Degree in counseling, testified that he had experienced some difficulty in setting up appointments to meet with appellant mother, noting that “I believe that she was working or something to that effect, or she just didn’t schedule an appointment.” (N.T. 1/6/87 at 69) The witness voiced an opinion that T.D. would benefit from “some kind of counselling”, adding that this was based on testimony “and some of the things that I have learned since being here.” (N.T. 1/6/87 at 70).

This court has defined rape trauma syndrome in the following manner:

Rape trauma syndrome is one kind of post-traumatic stress disorder. The essential feature of post-traumatic *312stress disorder is the development of characteristic symptoms after a psychologically traumatic incident that is usually beyond the range of ordinary human experience. Those symptoms typically involve re-experiencing the traumatic incident, numbing the responsiveness to, or lessened involvement with, the external world, and a variety of autonomic, dysphoric or cognitive symptoms.

Commonwealth v. Pickford, 370 Pa.Super. 444, 450 n. 2, 536 A.2d 1348, 1351 n. 2 (1987) (citations omitted). From the foregoing it is apparent that rape trauma syndrome has received some recognition in this Commonwealth. Moreover, while there is a divergence of opinion as to the admissibility of testimony regarding the syndrome in various situations. See Commonwealth v. Gallagher, 353 Pa. Super. 426, 510 A.2d 735 (1986) (Cavanaugh J., dissenting) vacated and remanded 519 Pa. 291, 547 A.2d 355 (1988),3 we are concerned herein with the issue of whether such a condition exists and could conceivably pose a threat to the victim if left untreated. From the testimony submitted at the adjudicatory hearing, it is my belief that therapy is warranted in the case sub judice. This being so, appellant mother’s failure to avail T.D. of professional counseling constitutes a threat to the child as contemplated by the Juvenile Act. Accordingly, I- would conclude that both the original and amended dependency petitions allege sufficient facts in support of the finding that D.D. failed to provide proper parental care and control to her child. Furthermore, it was not necessary that the petition allege that D.D.’s failure to cooperate harmed her daughter. Where there *313was evidence to demonstrate that services which would have been beneficial were not administered to T.D., the lower court was justified in concluding that the child was suffering some degree of harm. In light of the above, I find no merit in the appellants’ first and second claims.

Appellants next contend that they were denied due process insofar as the original and amended petitions did not contain the allegation that therapy was needed in connection with the incidents of sexual abuse. This claim is totally devoid of merit. Both petitions indicate that T.D. was the victim of sexual abuse. Both petitions note that appellant mother failed to cooperate with the DHS. While the first petition was primarily concerned with allegations of physical abuse on D.D.’s part,4 the amended petition contains the following language:

On November 5, 1986 following an in-chambers discussion of DHS’s recommendations regarding [T.D.’s] need for counseling following two rapes and the death of a sibling, Judge Braxton ordered [D.D.] to cooperate with SCOH services and to attend therapy sessions.
Since November 5, 1986, [D.D.] has failed to cooperate with Judge Braxton’s Order. [D.D.] kept one (1) appointment with the SCOH worker, Mr. Hicks. The one appointment was on November 19. At the November 19 meeting [D.D.] was cooperative but alluded to the fact *314that her counsel had let her to believe that she did not need to cooperate fully because the Court’s order was going to be appealed.

As this court noted in In Interest of M.B., 356 Pa.Super. 257, 514 A.2d 599 (1986), affirmed 517 Pa. 459, 538 A.2d 495 (1988), “Due process requires that the litigants receive notice of the issues before the court and an opportunity to present their case in relation to those issues.” Id., 356 Pa.Super. at 260, 514 A.2d at 601. Since I believe that the appellants were adequately apprised of the issues in question, I would find that their claim cannot be sustained on these facts.

The appellants’ final claim is a two-part challenge to the lower court’s adjudication of dependency. For the reasons discussed in regard to the appellants’ first and second claims, I would conclude that the lower court appropriately determined that T.D. should be adjudicated a dependent. In light of the foregoing, there is no merit to this claim.

. We have omitted mention of the various other grounds on which a child could be adjudicated dependent pursuant to 42 Pa.C.S.A. § 6302 as none are applicable in the case at bar.

. According to Soledad Gillespie, principal of the school attended by T.D.

*311... [T.D.] was essentially a child who loved school and loved learning and took great pride in being one of the brightest in the class. She still, obviously, has that intelligence and could excel should she be able to bring all of her energy to bear on it; but [T.D.] began to be more resistant and become angry at which is the normal correction of all youngsters in group situations.

(N.T. 1/6/87 at 52)

. "It is clear that the only purpose of the expert testimony was to enhance the credibility of the victim____ Such testimony would invest the opinions of experts with an unwarranted appearance of authority on the subject of credibility, which is within the facility of the ordinary juror to assess. We therefore hold that expert testimony on rape trauma syndrome should not have been admitted in the trial of this case." 519 Pa. at 297, 547 A.2d at 358-359. Gallagher dealt with the identification of a rapist by his victim, and the rape trauma syndrome testimony was used to explain how the victim was able to identify her assailant four years after the attack. In the present case, we are concerned not with the issues of identification and credibility, but rather with the emotional and psychological condition of the victim as this pertains to appropriate treatment.

. At the detention hearing on June 20, 1986, a social worker initially assigned to the case noted that during a conversation with D.D. the latter admitted that she beat the child. The following exchange occurred on direct examination:

... Mother said, "Yes, I beat her and I am going to beat her again,” which would be that night.
Q. Did she indicate to you why she had beaten the child?
A. Mother said [T.D.] tried to hit her Friday morning, that [T.D.], quote, Raised her hand to me.
Q. The mother responded by saying what?
A. That she punched her, beat her for raising her hand.
(N.T. 6/20/86 at 18-19).
The lower court’s reluctance to remove T.D. from her home would indicate that the court’s adjudication of dependency was motivated more by concerns over the psychological harm caused by the sexual abuse than by the allegations of physical abuse.