Appeals, Nos. 27 and 28, Feb. T., 1962, from order of Court of Common Pleas of Wayne County, June T., 1958, No. 261, in case of Commonwealth ex rel. Eugene Benson and Lottie Whitby v. Wayne County Child Welfare Service. Order set aside and case remanded.
Milford J. Meyer, for appellants.
David M. Boyd, for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 198 Pa. Super. Page 331]
This is a habeas corpus case brought by the father and paternal grandmother to obtain custody of three children who were placed in foster homes by the Wayne County Child Welfare Service.
The children were placed in the foster homes approximately three years ago shortly after their parents separated. They had been with their mother and maternal grandparents for a short time prior to their placement, but they were unable to care for them. Apparently, without a hearing or a court order and without serious objection from either parent, the county agency took over custody and has been looking after the welfare of the children. A girl, 4 years of age, is in one foster home and the two boys, 6 and 5, are in another foster home.
Before retiring from the bench, President Judge BODIE heard testimony on the writ now before us, and then, without making any findings or writing an opinion, entered an order dismissing the writ. The petitioners appealed from this order.
The case must be remanded for findings of fact and an opinion. We cannot properly pass upon the case without them. In Commonwealth ex rel. Harry v. Eastridge, 374 Pa. 172, 97 A.2d 350 (1953), the Supreme Court said that the broad power of appellate review in custody cases "was never intended to mean that an appellate court is free to nullify the fact-finding function of the hearing judge."
[ 198 Pa. Super. Page 332]
Ordinarily, the court below could make its findings on the basis of testimony already taken, even though the judge who took the testimony is no longer on the bench. However, we think the court below should be permitted, if it so desires, to take additional testimony or even conduct a de novo hearing. It is important in a custody case for the judge to hear and see the witnesses, for as we stated in Commonwealth ex rel. Shroad v. Smith, 180 Pa. Superior Ct. 445, 450, 119 A.2d 620 (1956), a "trial judge, while conducting a hearing which involves the custody of children, is observing every act of the parties, not only to appraise the truth of their testimony, but also to evaluate their fitness to have custody of the children."
This is not the usual custody case where relatives are seeking custody of children from relatives. It is an action brought by relatives against a public agency. As there is frequent evidence of confusion concerning the rules to be applied in actions for custody between relatives and public agencies, ...