Appeal from order of Orphans' Court of Lebanon County, No. 30 of 1966, in re Thomi Georgia Snellgrose, a minor.
Richard W. Davis, with him Davis, Katz, Buzgon & Davis, for appellants.
J. R. Whitman, with him L. E. Meyer, and Meyer, Brubaker & Whitman, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Concurring Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Roberts.
On February 14, 1966, Dr. and Mrs. Albert Harris petitioned the Orphans' Court of Lebanon County to adopt Thomi Georgie Snellgrose (Thomi) and on June 24, 1966, Mrs. Anna Snellgrose, Thomi's natural mother, petitioned the Court of Common Pleas of the same County for a writ of habeas corpus to secure Thomi's custody. The Orphans' Court denied the adoption petition since abandonment had not been proven and the Common Pleas Court determined the custody proceeding in favor of the natural mother. Appeals from both the respective decree and order were heard by this Court and, on April 18, 1967, we affirmed the decree in the adoption proceedings but in the custody proceeding we held that such proceeding came within the exclusive jurisdiction of the Orphans' Court by reason of the Act of August 10, 1951,*fn1 and we vacated the order of the Common Pleas Court and transferred the custody proceeding to the Orphans' Court of the same County for further proceedings. See: Commonwealth ex rel. Snellgrose v. Harris, 425 Pa. 258, 228 A.2d 764 (1967).
Pursuant to our determination, the matter was transferred to the Orphans' Court of Lebanon County which, after taking some additional testimony, awarded custody of the child to her natural mother. From that order the instant appeal was taken.
Thomi was born in Germany on March 5, 1955 to Anna Snellgrose, then unmarried. Believing that Dr. and Mrs. Harris were her aunt and uncle, Anna Snellgrose
arranged with them to come to the United States and the mother and child arrived in September of 1958. Dr. and Mrs. Harris met them and took them to the Harris home in Lebanon. After a week at the Harris home, the mother and child went to Virginia where the mother had secured employment. In the latter part of December 1958, the mother left her employment and, with the child, returned to live at the Harris home remaining there until March 1959. At that time one Luther Case, an American serviceman whom Anna Snellgrose had met in Germany, took the mother and child to his sister's home in Kalamazoo, Michigan, where they lived until Case went to Texas. Having learned that Case was married, Anna Snellgrose broke up her relationship with him and moved to an apartment owned by one Raymond Snellgrose whom Mrs. Snellgrose married on January 8, 1960; of that marriage a child named Reni was born. Snellgrose adopted Thomi who then became known as Thomi Snellgrose. Snellgrose died on January 5, 1963.
In October of 1959, learning of the impending marriage of Mrs. Snellgrose and of her financial difficulties, Dr. and Mrs. Harris offered to take Thomi into their home and keep her until after the marriage and until Mrs. Snellgrose's financial affairs were straightened out. Thomi lived at the Harris home from October 1959 until December 1961 at which time Mrs. Snellgrose came to Lebanon and took the child to live with herself and her husband.
During the early part of the summer of 1963, Mrs. Snellgrose, with Thomi and Reni, stayed at the Harris home for approximately two weeks when Mrs. Snellgrose and Reni returned to Kalamazoo. Thomi remained with Dr. and Mrs. Harris until September, 1963. In June, 1964, Thomi returned to the Harris home in Lebanon where she has remained until the
present time. Mrs. Snellgrose, by reason of her husband's death, became the sole owner of an apartment building previously owned by her husband and continued to reside there and pay off the encumbrances on that property. In June, 1964, she rented an apartment therein to one John Fluty, a married man separated from his wife. Subsequently, she sold the apartment house and with the equity received therefrom purchased a home. Learning in November 1965 that Thomi desired to remain on a permanent basis at the Harris home, Mrs. Snellgrose entered her opposition to Harris' efforts to secure custody and/or to adopt the child. In the court below and this Court the sole inquiry must be to determine which custodian would serve the best interests of this child. See: Commonwealth ex rel. Ruczynski v. Powers, 421 Pa. 2, 5, 219 A.2d 460 (1966).
Upon this appeal, Dr. and Mrs. Harris urge that the best interests of the child would not be served by awarding custody of the child to Mrs. Snellgrose for three reasons: (a) that Mrs. Snellgrose has neglected Thomi and that such neglect, together with repeated immoral associations with men, indicate her unfitness to have custody of this child; (b) that the child (twelve years of age at the time of the additional hearing) has clearly stated her preference to remain with Dr. and Mrs. Harris; (c) that Mrs. Snellgrose, by reason of precarious health and inadequate finances, could not properly take care of this child.*fn2
Presumptively, the interest and welfare of a child is best served when the child is in the custody of its parent or parents and, prima facie, a parent is entitled to the custody of his or her child. Commonwealth Page 163} ex rel. Bendrick v. White, 403 Pa. 55, 169 A.2d 69 (1961). See also: Commonwealth ex rel. Harry v. Eastridge, 374 Pa. 172, 97 A.2d 350 (1953); Brown v. Brown, 206 Pa. Superior Ct. 439, 444, 213 A.2d 395 (1965). However, this is not a fixed or invariable rule and a parent's prima facie right to custody must yield if the child's welfare dictates that custody be given to one other than the parent. Commonwealth ex ...