dissenting:
This is an appeal from three orders of the lower court, the first adjudicating appellant’s two children dependent; the second awarding custody of the children to the Butler County Children and Youth Agency (hereinafter the Agency); and the third denying rehearing.
The facts are briefly as follows: On March 22, 1979, Katherine, age eight and William, age eleven, the natural children of appellant Katherine P. were taken from their home by the Agency and placed in foster homes. Simulta*396neously appellant’s husband, the children’s step-father, was arrested and charged with contributing to the delinquency of a minor, rape, involuntary deviate sexual intercourse and statutory rape, of one or the other of them. The Agency then filed a dependency petition and pursuant to 42 Pa.C.S.A. § 6332 an informal hearing was held on March 26,1979, at which time it was decided that the children should be detained until a formal hearing on the petition could be held. The petition alleged that the step-father had committed various acts of deviate sexual intercourse with both children, and that they were therefore dependent and abused.
A hearing on this petition was held before Juvenile Court Master Thomas M. Kiermaier on April 6,1979. At this time the 11 year old boy accused his step-father of having had sex with both children on numerous occasions over a period of time.
At this time the court adjudicated the children dependent and ordered that psychiatric, physical and psychological examinations be prepared and submitted at a disposition hearing, which was set for April 26, 1979. Temporary custody was awarded to the Agency.
The final hearing in this sequence took place on April 26, 1979, all before Master Kiermaier, at which time an opinion was submitted, and adopted by the court, stating:
“The recommendations indicate that it is in the best interest of the juveniles to be placed in foster care with counseling to be participated in by the parents and that reasonable visitation be established and a firm plan to return the children to be established.”
This conclusion was based on evidence that the children were prone to erratic, hyperkenetic behavior, and needed a structured environment which the mother’s home did not provide, as well as the evidence of abuse.
Subsequent to this hearing, the District Attorney for Butler County entered a nolle prosequi on the charges against the step-father, based on the results of a polygraph test.
*397Appellant then moved for rehearing and an order was issued on May 7, 1979, denying such motion.
Appellant now appeals the decisions contained in the lower court orders, as relating to her daughter only, of April 6, 1979, April 26, 1979, and May 7, 1979.
Appellant contends that the finding of dependency was improper because there was no showing that the appellant was incapable of providing proper care for her daughter, in terms of protecting her from the step-father, once she had been put on notice of the alleged abuse, and that the law requires a present tense finding of dependency.
The applicable section of the Juvenile Act, 42 Pa.C.S.A. § 6302 (1978) reads,
“Dependent Child” A child who:
(1) 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
Appellant testified that she was unaware of any alleged incidents of sexual abuse until her husband was arrested. It is her contention that she presently is capable of providing proper care for her daughter in that she would in the future take steps to insure that her husband would not be left alone with her daughter.
I am unpersuaded by this argument. As a step-parent living in the same residence it is highly unlikely that the mother’s efforts to keep her husband away from her daughter at all times would prove successful. She in fact testified that she frequently suffers from severe headaches which require her to go to a hospital for injections, and that at such times she left her husband alone with the children.
Appellant’s other contention regarding the dependency finding is that it was improper for the court to hear evidence of sexual abuse by the step-father without first proving that the mother was aware of such activity. Appellant argues that it is unfair to make a “finding of dependency against her,” where she cannot be shown to have been *398aware of the pertinent acts of abuse. I would remind appellant however that one purpose of the Juvenile Act is to protect the welfare of the children, (42 Pa.C.S.A. § 6301(b)(3)). As a common sense matter the enforcement mechanism of the Act would be severely emasculated if proof were required in all abuse cases of the complicity of both parents.
I agree with appellant, however, that the lower court erred by applying the wrong standard in determining whether the daughter should be returned to her mother, and I further find that application of the correct standard would not require removing the child from her mother, hence I would reverse the lower court order of April 26, 1979.
The lower court granted custody of the daughter to foster care on the basis of the Master’s finding that such was “in the best interest” of the child. In so doing the court has violated the well established rule that a child may not be taken from his parents except upon proof of “clear necessity.” Stapleton v. Dauphin County Child Care Service, 228 Pa.Super. 371, 324 A.2d 562 (1974); Matter of DeSavage, 241 Pa.Super. 174, 360 A.2d 237 (1976).
A finding of dependency does not mandate removing the juvenile from the home. This Court affirmed a finding of dependency in In the Interest of Whittle, 263 Pa.Super. 312, 397 A.2d 1225 (1979) where appellant’s infant daughter had received first, second and third degree burns in the bath tub, that required special convalescent care. The Court found that appellant could, with the help of the local Child Welfare Service, learn the techniques necessary to prevent the serious complications which might result if proper care was not provided. The Court reversed the custody order to return the child to appellant and fashioned an Order requiring Child Welfare Service to provide appellant with in-home training and supervision to insure the welfare of the daughter.
I feel from a careful review of the Master’s findings as well as the notes of testimony that there is no clear necessity for the child to be removed from her mother’s home at this *399time. Appellant has evidenced a willingness to cooperate with the Agency and to allow them to monitor her home. In addition she has agreed to participate in counselling and to endeavor to remedy the defects in her home which may have contributed to the daughter’s hyperkenetic behavior. In as much as the allegations of sexual abuse cannot be proven, and in light of the mutual desire of mother and daughter to be reunited I feel the best course of action is to reverse the award of custody.
Appellant’s final contention is that the lower court’s denial of appellant’s Motion for Rehearing was an abuse of discretion. The basis for appellant’s request was the nolle prosequi of the charges against the step-father as the result of a lie detector test.
The rule in Pennsylvania is that reference to a lie detector test which raises an inference of guilt or innocence is inadmissible. Commonwealth v. Camm, 433 Pa. 253, 277 A.2d 325 (1971). I would find therefore that there was no abuse of discretion in denying rehearing.
I would affirm the adjudication by the April 6,1979 Order of Court, finding the daughter, Katherine, dependent.
I would reverse the Order of Court of April 26, 1979, granting custody of Katherine to the Butler County Children and Youth Agency. I would award custody of Katherine to her natural mother, the appellant, on condition that appellant cooperate with the Butler County Children and Youth Agency which I would direct to supervise the custody of Katherine. As a further condition, I would require that appellant furnish the Agency with a telephone number at which the Agency can readily contact her.
I would further provide that in the event appellant should refuse to cooperate as specified hereinabove, then the Butler County Children and Youth Agency might apply to the Court of Common Pleas of Butler County for replacement of Katherine, and this Order would in no way prejudice such application.
I respectfully dissent.