In Re Interest of Clouse

HOFFMAN, Judge,

dissenting:

This appeal presents a difficult situation in which natural parents seek to regain custody of a child whom they had previously entrusted to the care of a social service agency. Following a hearing, the lower court ordered that placement be continued in the foster home, but that an intensive effort be made to establish a relationship between the child and her natural parents. I would reverse the order of the lower court because I believe that the evidence of deprivation is not clear and convincing and because there are not compelling reasons for continuing the child in foster placement.

The subject of this appeal is Stephanie Clouse, now three years old. Her parents, Mary Clouse, twenty-five, and John Clouse, twenty-eight, have three other children: Renee, seven; Pamela, six; and Joyce, five. The three older children live with their parents. Child Welfare Services of Allegheny County (“CWS”) assumed custody of Stephanie under an entrustment agreement signed by *413the. Clouses on June 5, 1972. On July 23, 1973, CWS placed Stephanie in the home of Thomas and Sandra Dunmeyer, where she has remained until the present. In August, 1975, the Clouses revoked the entrustment agreement and requested Stephanie’s return. CWS filed the-instant petition on September 16, 1975, seeking to retain legal custody of Stephanie; a hearing was held on October 15, 1975, at which the following facts were established.

CWS’s initial contact with the Clouse family occurred in March, 1972, when McKeesport Hospital reported that Joyce Clouse had been admitted to the hospital and diagnosed as a “failure-to-thrive” child. On May 22, 1972, the parents signed an entrustment agreement placing Joyce in the custody of CWS. At this time, Mrs. Clouse was suffering from severe emotional and psychological problems, which required intensive therapy and which prevented her from adequately caring for Joyce.1 On March 6, 1973, Joyce was returned to her family. Although there were some initial difficulties, the caseworker assigned to the Clouses, Mrs. Mulroy, testified that the family made a satisfactory adjustment to the return of the child despite Mrs. Clouse’s continued psychiatric difficulty. Mrs. Clouse testified that two days after Joyce’s return, Mrs. Clouse’s brother died which made her very depressed. Consequently, when Stephanie was born on June 2, 1973, Mrs. Clouse felt that it would not be in Stephanie’s best interests to take her home: “. . I felt at that time with my brother’s death — which was very hard because I lost my mother when I was fourteen, . . . and there was no other family — I thought I had lost just about everything, and I figured I needed time to get over this, and I felt at that time there was no way I could bring a child home and subject her to *414my depression and my anxiety that I was suffering through from my brother’s death. And then doing the best I could with the fact that Joyce had been returned just two days before my brother had died, and I felt, T am not going to let the same thing happen to this child as I did to Joyce.’ ”

The Clouses signed an entrustment agreement which placed Stephanie in the custody of CWS three days after her birth. On July 23, 1973, CWS placed Stephanie with the Dunmeyers. During the first year of foster care, CWS scheduled monthly visits with the Clouses, but Stephanie became so upset that CWS found it necessary to have Mrs. Dunmeyer attend. Later, Stephanie would not cry if the foster parents were not present, but was much quieter and more passive than she was at the Dunmeyer home. In July, 1974, CWS began to explore the possibility of returning Stephanie to the Clouses. A tentative return date of November, 1974, was agreed upon, and CWS increased the number of visits to twice per month. Mrs. Mulroy testified, however, that “as the plan for her return began to materialize, the parents began to verbalize increased anxiety and ambivalence. ... In December of 1974, the parents felt that the return of Stephanie did not seem to be in either her best interest or the interest of the family, and at that time [a] plan to refer the parents to the Adoption Department was initiated.” The Clouses, however, again decided that they would consider a plan for Stephanie’s return. CWS again agreed that Stephanie could be returned, and the parties set April, 1975, as the target date.

In preparation for Stephanie’s return, CWS again began an intensive visitation program. In order to facilitate Stephanie’s adjustment to her natural parents, CWS scheduled the visits at the Dunmeyer home, because they believed Stephanie would be more receptive in a familiar environment. Following several visits, CWS scheduled Stephanie’s return for April 21, 1975, and had Stephanie stay in the Clouse home from April 15th to April 17th. *415Mrs. Mulroy testified that “at the end of this two-day visit, both Stephanie and the mother appeared to be physically and emotionally upset, and at that time, the parents again decided to proceed with adoption. They were referred to the Adoption Department again . . •. ” Once again, however, the Clouses decided not to pursue adoption and informed CWS on June 17, 1975, that they had abandoned any plans to have Stephanie adopted. The Clouses had no further contact with CWS until August, 1975, when they revoked the entrustment agreement and requested that Stephanie be returned.

The record clearly establishes that the Dunmeyers have provided Stephanie with excellent care and have become her psychological parents. Stephanie views the Clouse as strangers and has experienced difficulty in relating to them. Mrs. Mulroy testified that “ [i] nitially, she’d refused to relate to them at all. At this ¡point we brought the foster parents into the visits and had them stay with Stephanie just so she could be calmed down. . . . She still was fairly anxious, but we worked this out so that she was able to relate to them minimally. However, when she went for the overnight visit, Mrs. Clouse related to me that the difficulties they experienced were on one occasion she took Stephanie for a walk. Stephanie saw a home that resembled the foster parents’ home. She walked up to the porch, and she was crying and very upset, evidently relating this home to the foster family.” Mrs. Clouse’s own testimony acknowledged that Mrs. Dunmeyer had been an excellent mother and that Stephanie had developed a bond with her. Additionally, Mrs. Clouse very candidly stated that “[i]t’s going to be very difficult, being that she hasn’t seen me in all these months, it’s going to be difficult. I’m going to have to accept the fact that right now I am no more than just a stranger in my child’s life, and she is going to be, I guess, as any chiild would be, really frightened of the outcome, until she starts getting used to the fact that my *416husband and I are her parents and we're there when she needs us, and she doesn’t have to be afraid.”

Mrs. Clouse testified that her previous ambivalence was the product of her physical and emotional illnesses combined with her concern for Stephanie’s welfare: “After I visited the Dunmeyer home and I had seen the baby . . . having fun, and I felt that she at that time was so relaxed and felt so at home. And I only felt at the time that I wanted what was best for the child. I did not want to bring her home, as what resulted from the visits I had seen, I figured, ‘Well, when she comes home, it’s going to be the same way, and it might give her an emotional scar for her life. Even as little as she is, she’ll realize this.’ And I seen another thing. Mrs. Dunmeyer, at the time in her home — Her home is all together different from my home. We have completely different homes. Their home is softspoken, seems like it’s very happy and softspoken. Our home is happy, but we are far from softspoken people. We are go-getters, and our children talk loud, and we talk loud, and I didn’t know how Stephanie would adjust to that . . . .” She did testify, however, that she was completely recovered from her prior illnesses, and for the first time, felt deeply committed to having Stephanie returned. Mr. Clouse testified that his ambivalence stemmed solely from concern about his wife’s physical and emotional health: “. . . I did not want her to regress to a period where she would have to go back weekly to see a psychologist. But she’s overcome that now, and there’s no reason that I can see why the baby shouldn’t be home now.” He did admit, however, that if Stephanie’s return created a deterioration in Mrs. Clouse’s health, he would have Stephanie adopted.

Mrs. Clouse also expressed her dissatisfaction with the visitation program adopted by CWS: “I do not believe in this preplacement business where she comes home for a while and goes back because this is very serious. This is why my husband and I stopped the visits. As you can *417see we haven’t seen the baby for about three or four months now . . . . I don’t care if the baby comes home for twenty-eight days to stay with us. She goes back to that home, she’s going to remember this woman as the woman who took care of her. She cannot be a ball and bounce back and forth. We had to either stop it by adoption, or stop it by bringing her home. And we felt that our children is the only thing my husband and I have. We have no family, we only have our children. And we feel that in our lifetime we’re going to give our children all we can give them, because we never had.”

It is clear that the Clouses’ previous attitude regarding Stephanie’s return had been ambivalent. Mrs. Mulroy described their conflicting feelings: “Mrs. Clouse feels that the Clouses probably are not going to change their lifestyle that much, and if Stephanie’s going to adjust to their home, it has to be on her part. She feels some problem may arise. Should in six weeks or two months Stephanie not have adjusted to their home, what is going to happen at this point. This is her feeling negatively about having Stephanie coming home. The positive feeling that she has about Stephanie’s coming home is that she feels when Stephanie grows up should she be adopted, Stephanie is going to come back to her and say, ‘Why didn’t you take care of me? You were my parents.’ I think these are the kinds of feelings they were going through.” In view of their previous vacillation, Mrs. Mulroy expressed doubt about the strength of the Clouses’commitment: “. . . Mr. and Mrs. Clouse have to make a commitment now that they are going to see it through, and that if in six weeks Stephanie has not adjusted, that they could not return her to the Dunmeyer foster home. ... I don’t know that they are willing or able to say that.” She also cited the possibility that Mrs. Clouse would probably experience great difficulty in relating to Stephanie, if the child failed to make a rapid adjustment.

*418Despite Mrs. Mulroy’s concern for Mrs. Clouse’s future stability if she encountered problems relating to Stephanie’s return, the only evidence concerning her present emotional condition was her own testimony and a letter from her psychologist which was admitted without objection. The court summarized the psychologist’s opinion for the record: “. . . let the record show that Mr. Szish’s' letter would support what Mrs. Clouse has said about a definite improvement in her ability to manage problems, control her own emotions and impulsiveness. At this point, he doesn’t believe that she’s in need of psychotherapy.” Mrs. Mulroy did, however, admit that Mrs. Clouse’s psychiatric difficulties did not impair her ability to care for the other three children currently residing with her. She testified that they were well cared for, and expressed the opinion that Mrs. Clouse was perfectly capable of seeing to Stephanie’s physical needs.

At the close of the hearing, the attorney appointed to represent Stephanie’s interest2 expressed his opinion that Mrs. Clouse’s view of the effectiveness of visitation was essentially correct, and that the worst solution would be a continuation of the status quo: “I don’t think that a continued existence, going back and forth the way it’s been going now, is going to help this child at all, if every six months, a year, this same thing comes up. This child’s going to have severe emotional problems. I think if this child is going to be returned, there has to be a great conscientious effort made at this time to have that child returned. And if not, then I think perhaps this thing should be referred to Orphans’ Court for adoption proceedings to be pursued.”

At the conclusion of the hearing, the lower court ordered that placement be continued in the foster home, *419but that an intensive effort be made to establish a relationship between the child and her natural parents through an accelerated program of visitation. The lower court made two findings. First, * it determined that Stephanie would be a deprived child if returned to the Clouses; second, it concluded that Stephanie’s welfare would best be promoted by continued placement in the Dunmeyer home combined with a concerted effort by CWS to establish a relationship between Stephanie and her natural parents. It reasoned “[t]he foster parents . are the only parents Stephanie has known. As between the foster parents and the natural parents, present physical environment, wealth and material things are not at issue. The life styles of the two families is considerably different. The approach to child rearing is admittedly different with Appellant father admitting that his wife screams at the children more than most parents, whereas the Dunmeyers are much quieter and exercise better supervision and control. They also acknowledge that Stephanie fits into the Dunmeyer family very well, whereas they can only speculate with some concern as to her place in their family. Mr. Clouse places his wife’s well being above Stephanie’s and to protect the stability of his home, he is probably justified. Mrs. Clouse’s ambivalence is extremely pronounced and despite her firm statements of intent to have Stephanie come to her home and to remain, the stress, anxiety and instability presently exhibited by this transition, saturates the case. The Court feels Stephanie's bests interests would always be secondary to that of Mrs. Clouse and the pressure on her to adjust would produce trauma and disturbance in her which would in turn aggravate the stress, anxiety and hypochondriasis which underlies Mrs. Clouse’s personality. Stephanie would not long remain in that home.” (Emphasis added). The lower court framed its two findings in the alternative believing that even if the evidence of deprivation were insufficient, it was free to make an award of custody by applying the “best interests” test *420enunciated in Stapleton v. Dauphin County Child Care Service, 228 Pa.Super. 371, 324 A.2d 562 (1974).3

I stated what I believe to be the applicable law in my Opinion in Support of Remand in In re LaRue, 244 Pa.Super. 218, 366 A.2d 1271 (Filed Dec. 15, 1976). In LaRue I stated the belief that when a natural parent has relinquished the custody of a child to a social service agency under an entrustment agreement, the court must first determine whether there is clear and convincing evidence that the child will be deprived within the meaning of the Juvenile Act4 if returned to the natural parent. See also In re DeSavage, 241 Pa.Super. 174, 360 A.2d 237 (1976). If the court determines that the child will be deprived, the court must then determine what disposition is best suited to the protection and physical, mental, and moral welfare of the child as required by the Act.5 If the court determines that the child will not be deprived, then it must determine whether there are, nevertheless, compelling reasons for continuing custody of the child with the foster parents.

As I stated in LaRue, if the court determines that the child will not be deprived, based upon prognostic evidence, it “must attempt to reconcile the important rights *421of the parent to custody with the interests and welfare of the child.” In re LaRue, supra, 244 Pa.Super. at 252, 366 A.2d at 1288 (Opinion in Support of Remand by HOFFMAN, J.) (Filed Dec. 15, 1976). I emphasized in La-Rue that the court must not simply compare the homes of the foster and natural parents; it must examine all relevant facts and circumstances to harmonize, if possible the competing interests of parents and child. The court will inquire into the circumstances surrounding the signing of the agreement to determine if the natural parents’ rights have been abused. It will examine the efforts of the natural parents to preserve a relationship with their child and the effects of continued foster placement on the child. Lastly, it will consider the ability of the natural parents to meet the needs of the child for stability and continuity. A court must not remove a child from the custody of its parents except upon a showing of clear necessity. See In re LaRue, supra at 218-235, 366 A.2d 1271 (Opinion in Support of Remand by HOFFMAN, J.). (Filed Dec. 15, 1976).

Under both statutory and case law, the scope of this Court’s review in child custody cases is quite broad and, while we cannot nullify the fact-finding function of the hearing judge, we are not bound by a finding which is unsupported by the evidence. Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (Filed March 29, 1976); Commonwealth ex rel. Morales v. Morales, 222 Pa.Super. 373, 294 A.2d 782 (1972). In order to justify separating the natural parent from his child, we will require a demanding standard of “compelling” evidence. Cf. In re Adoption of R. I., 468 Pa. 287, 361 A.2d 294 (Filed July 6, 1976).

In the instant case, the lower court felt that Stephanie should not be returned to the Clouses because it believed that Mrs. Clouse’s previous instability and ambivalence toward Stephanie’s return indicated an inability to foster the child’s emotional well-being adequately. It, there*422fore, held that Stephanie would be deprived if returned to the natural parents. I cannot agree; and would, therefore, determine whether the court’s order may be sustained under the tests I enunciated in LaRue.

The evidence of deprivation, even under the “prognostic evidence” test enunciated in In re DeSavage, su/pra, is simply not clear and convincing. Although the court below and Mrs. Mulroy, the CWS social worker, were both skeptical about Mrs. Clouse’s capacity to cope with the difficult adjustments necessary to the process of reintegrating Stephanie into the family unit, the only available evidence on the subject, the letter from Mrs. Clouse’s therapist, contradicts this conclusion and supports Mrs. Clouse’s contention that she will be able to adjust to Stephanie’s return and provide adequate care. Furthermore, it is undisputed that the Clouses’ three older children are well cared for. Stephanie’s older sister, Joyce, was reintegrated into the family when Mrs. Clouse was far less stable than she is now. Although the lower court deemed it significant that Mr; Clouse would not want to effect Stephanie’s return if it would result in a deterioration of his wife’s condition, there is simply no evidence that Mr. Clouse will be forced to make the choice between his wife’s health and the return of his child. The Clouses’ previous ambivalence about Stephanie’s return can be clearly understood as a desire not to have Stephanie returned before Mrs. Clouse’s mental health would permit. Weighing all of the evidence of deprivation, we conclude that it is simply not clear and convincing.

Having determined that the prognostic evidence of deprivation is insufficient when measured by the “clear and convincing” standard, I would determine whether there are, nevertheless, compelling reasons for continuing the child in foster care. In re LaRue, supra.

There is no question in the instant case that the Clouses signed the entrustment agreement voluntarily; there *423is no evidence of duress or coercion by CWS. Further, CWS has attempted from the very beginning of its involvement with the Clouses to effectuate Stephanie’s return. In this sense, the case is distinguishable from the factual situation in LaRue. The natural parents, CWS, and the foster parents all worked to preserve the possibility that Stephanie would be reunited with her parents when Mrs. Clouse’s disability ceased. As I have noted, the Clouses have resisted the efforts of CWS to return Stephanie prematurely, but this cannot be construed as a lack of concern for the welfare of their child. The Clouses only wanted to ensure that Stephanie’s return to° them would be permanent. The Clouses also expressed an interest in having Stephanie’s status resolved by adoption, but this was obviously motivated by their concern for her welfare and by their uncertainty about the speed of Mrs. Clouse’s recovery.

The record supports the court’s conclusion that a strong psychological bond has grown between the foster parents and Stephanie. Stephanie has been in foster care almost continuously from birth. This factor would support the continuation of foster care. There can be no doubt, therefore, that a grant of custody to the Clouses will be upsetting to Stephanie at least as a short-term proposition. On the other hand, the evidence is undisputed that Stephanie’s older sister was satisfactorily reintegrated into the Clouse home, indicating the strength of the Clouse’s willingness and ability to accomplish the same task with Stephanie. Joyce’s return from CWS custody was achieved at a time when Mrs. Clouse’s illness might have impeded the family’s adjustment. With the disability removed, it may be expected that the adjustment will be easier.

I also note that the Clouse’s financial resources will be adequate to give continued care to Stephanie in the future. Mr. Clouse is employed. There is no indication of marital instability between Mr. and Mrs. Clouse. The *424three children in the home are well fed and well loved. All of the available psychiatric evidence supports the conclusion that Mr. and Mrs. Clouse have solved the problem which led to Stephanie’s removal from the home and are now prepared to give her a permanent home.

Thus, weighing all of the facts and circumstances surrounding the entrustment agreement, the potential adverse affects on the child, and the relative abilities of the homes to provide adequate and continuous care in the future, I am unable to conclude that there are compelling/ reasons for continuing Stephanie in foster care. Were I to resolve Stephanie’s future solely on the basis of which custody arrangement would be best suited to her needs, as would be required if there had been a judicial finding of deprivation,6 a different result might be reached, but I do not find that there are compelling reasons for continuing foster care and ignoring the Clouses’ rights to custody. In the absence of such compelling reasons, I would reverse the order , of the lower court and return Stephanie to the natural parents.

JACOBS, J., joins in this dissenting opinion.

. Mrs. Clouse’s psychiatric difficulty apparently dates back to the time of her mother’s death when Mrs. Clouse was fourteen. Her problems were characterized as extreme depression and hypochondriasis. She began therapy in 1970.

. The Juvenile Act, Dec. 6, 1972, P.L. 1464, No. 333, § 20; 11 P.S. § 50-317.

. In Stapleton v. Dauphin County Child Care Service, supra, this Court determined that after a judicial declaration of deprivation, a court should award custody based upon an a'nalysis of the child’s best interest. See also, In re LaRue, 244 Pa.Super. 218, 251-252 n. 12, 366 A.2d 1271, 1288 n. 12 (1976) (Opinion in Support of Remand by HOFFMAN, J.).

. The Juvenile Act defines a “deprived child” as one who: ‘(i) is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals; or (ii) has been placed for care or adoption in violation of law; or (iii) has been abandoned by his parents, guardian, or legal custodian; or (iv) is without a parent, guardian, or legal custodian; or (v) while subject to compulsory school attendance is habitually and without justification truant from school.” Act of December 6, 1972, P.L. 1464, No. 333, § 2; 11 P.S. § 50-102(4).

. Juvenile Act, supra; 11 P.S. § 50-321.

. See Stapleton v. Dauphin County Child Care Service, supra, and Note 3, supra.