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COCHRAN APPEAL. (06/11/58)

June 11, 1958

COCHRAN APPEAL.


Appeal, No. 59, Oct. T., 1958, from order of Court of Quarter Sessions of the Peace of Cumberland County, May T., 1946, No. 7, in the matter of Barbara Ellen Neff et al., neglected children. Order affirmed.

COUNSEL

Hermas L. Weary, with him Hyman Goldstein, and Weary, Hess & Humer, for appellant.

Charles H. Stone, Special Assistant District Attorney, with him Clinton R. Weidner, District Attorney, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Ervin

[ 187 Pa. Super. Page 80]

OPINION BY ERVIN, J.

On April 10, 1946 the Juvenile Court of Cumberland County adjudged Barbara Ellen Neff, born May 30, 1938, Augusta Ann Neff, born September 9, 1939, Beatrice Diane Neff, born May 19, 1941, and Kenneth R. Neff, Jr., born June 27, 1942, neglected children and committed them to the care and custody of the Child Welfare Service. (Act of June 2, 1933, P.L. 1433, § 2, 11 PS § 244) The children remained in foster homes for approximately two years and on March 5, 1948 the said court by further order committed them to the care of The Methodist Home for Children, where all but Barbara still remain. When they entered the

[ 187 Pa. Super. Page 81]

Methodist Home, they were aged 10, 9, 8 and 6 respectively. When the children entered the Home their father agreed to contribute $55.00 a month to the Home toward their support. He has substantially complied with the agreement. His present salary is $4,100.00 a year. The parents were divorced by a decree entered April 26, 1946. Both parents have since remarried. The father and his second wife now have an additional male child who at the time of the hearing was nearly seven years of age. The father resides in Mechanicsburg, only a few miles from the Home. He and the children attend the Methodist Church in Mechanicsburg nearly every Sunday and sit together. The mother was remarried on March 12, 1949 and now lives in Fair Lawn, New Jersey, in a home valued at $20,000.00, with a mortgage of $12,500.00. Both parents have continued to visit the children at the Home.

On February 11, 1957 the mother presented a petition to the court below to revoke the order of March 5, 1948 and to have custody of the children awarded to her. On June 19, 1957 the court entered an order discharging Barbara Ellen Neff from the care and custody of the Home and placing her in the custody of the mother. Barbara attained the age of 19 on May 30, 1957 and had successfully completed one year in Lycoming College. On August 9, 1957 the court below entered another order refusing the petition of the mother as to the other three children and stated: "This order to be without prejudice to the petitioner to reapply when circumstances so warrant." The mother appealed. It is our duty to review the entire record and to exercise an independent judgment on the merits: Ciammaichella Appeal, 369 Pa. 278, 281, 282, 85 A.2d 406; Rinker Appeal, 180 Pa. Superior Ct. 143, 150, 117 A.2d 780.

[ 187 Pa. Super. Page 82]

A review of the entire record has convinced a majority of this Court that the best interest and welfare of these three children will be attained at the present time by refusing the prayer of the mother's petition.

We would agree that in the usual case a home environment and family care are more desirable than the finest institution, providing, of course, that the home is adequate and the family care wholesome. But this is not the usual case. As Judge WOODSIDE so well said at page 148 in Rinker Appeal, supra: "It is a serious matter for the long arm of the state to reach into a home and snatch a child from its mother. It is a power which a government dedicated to freedom for the individual should exercise with extreme care, and only where the evidence clearly establishes its necessity. Yet, of course, there are cases where such authority must be exercised for the protection and welfare of children." In this case, however, the mother is seeking to remove the children from the place where they have spent their tender years and the major portion of their minority.

While we did not have the privilege of seeing these children in person, as did the court below, the record convinces us that his observation was accurate. Judge SHUGHART said: "It is apparent from the appearance of the three who were in Court that they have received the best in physical care. They were well mannered, cheerful and were attractively dressed. It is obvious that all are progressing well in school, the older one having completed her first year in college. In addition, two of them who have shown some talent for music have received special training. Our own observation of their appearance and demeanor furnishes ...


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