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COMMONWEALTH EX REL. DONIE v. FERREE ET UX. (07/13/54)

July 13, 1954

COMMONWEALTH EX REL. DONIE
v.
FERREE ET UX.



COUNSEL

Gilbert E. Long, New Castle, for appellant.

Herman W. Green, New Castle, for appellee.

Before Hirt, Acting P. J., and Ross, Gunther, Wright, Woodside and Ervin, Jj.

Author: Wright

[ 175 Pa. Super. Page 587]

WRIGHT, Judge.

This is a habeas corpus proceeding involving the custody of a five year old child. The writ issued at the instance of the paternal grandmother, and was directed against foster parents with whom the mother had placed the child, and who have reared and cared for it exclusively since it was two years old. The lower court awarded custody to the grandmother, and this appeal followed.

George Edward Donie and Ruth Evelyn Bright were married in 1938. Their son, William Donie, the subject of this proceeding, was born on December 31, 1948. There were two older children, Edna and George. The parents last resided together in Hubbard, Ohio. On August 19, 1949, the father was committed to Massillon State Hospital, where he is still an inmate. He is suffering from a mental disorder known as schizophrenia. In May 1950, the mother disposed of the home in Hubbard and went to live with her mother in the village of Castlewood, Lawrence County, Pennsylvania. In October of that year, the older boy, George, was placed in Toner Institute and is still there. Edna remained with her mother for a time, then went

[ 175 Pa. Super. Page 588]

    with various other relatives and is presently living with a paternal uncle and his wife, Eugene and Margaret Ann Donie of Youngstown, Ohio. On January 29, 1951, the mother placed William with Lawrence E. and Edna M. Ferree of New Castle, Pennsylvania. She executed a written consent to adoption,*fn1 and the Ferrees instituted a proceeding to adopt William. While the record in that proceeding is not before us, the petition was apparently dismissed because the father had not consented.

In his opinion, the hearing judge stated, 'The fitness of the defendants, who sought the child, is unquestioned. They are individuals of fine character, enjoying an excellent reputation and have formed a deep attachment for the youngster as he undoubtedly holds for them'. However, relying solely upon a statement*fn2 by Judge Stadtfeld in Commonwealth ex rel. Stevens v. Shannon, 107 Pa. Super. 557, 164 A. 352, his conclusion was as follows: 'The Court, after hearing the testimony, felt satisfied that the welfare of the minor would not be endangered were its custody to be given to the paternal Grandmother' (italics supplied). Our consideration of the testimony,*fn3 in the light of the applicable legal principles, brings us to a different result, namely, that the best interests of the child require that he remain in the custody of appellants.

[ 175 Pa. Super. Page 589]

In a proceeding of this nature, the governing criterion is the welfare of the child involved. Commonwealth ex rel. Schofield v. Schofield, 173 Pa. Super. 631, 98 A.2d 437. This was the principle actually applied in the Shannon case, wherein it was stated [107 Pa. Super. 557, 164 A. 353]: 'The guiding star for the court in coming to a conclusion in a case of this character is the welfare of the child. To this the rights of parents and all other considerations are subordinate'. The language relied upon by the lower court was influenced by the Act of June 13, 1836, P.L. 539, which provided that, if a child's parents were deceased, the grandparents were responsible for its support.*fn4 In Rumsey's Case, 135 Pa. Super. 515, 7 A.2d 43, 44, both of the child's parents were deceased, and we awarded custody to the stepfather as against grandparents. Judge Hirt said, 'If the minor were destitute the law would cast upon the grandparents the duty of his maintenance and the correlative right to custody would follow the duty to maintain: Com. ex rel. Stevens v. Shannon, 107 Pa. Super. 557, 164 A. 352. But the child is being maintained without charge upon his estate and the grandparents are not seeking custody because of any duty imposed upon them by law. * * * To remove the child from a home, with all of its advantages, in which he has lived for ...


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