Appeal from the Order of the Court of Common Pleas of Allegheny County, Family Division at No. J. 2041 of 1975, entered on Oct. 15, 1975. No. 275 April Term 1976.
William G. Staton, McKeesport, for appellant.
James A. Esler, Asst. County Sol., Alexander J. Jaffurs, County Sol., Pittsburgh, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price and Van der Voort, JJ. Price and Van der Voort, JJ., concur in the result. Hoffman, J., files a dissenting opinion in which Jacobs, J., joins.
[ 244 Pa. Super. Page 398]
This is an appeal from the order of the lower court refusing to return a child to her natural parents and continuing custody of that child with her foster parents. We affirm. The hearing judge correctly defined the legal issues; he had a fully developed record; and he has submitted a comprehensive opinion discussing the evidence and explaining his findings and conclusions. As it happens, I agree with him; but even if I did not, we should affirm, for we must defer to a judge who has seen the parties and has a more sensitive feeling for the case than we can possibly achieve simply by reading the record.
In defining the legal issues, the hearing judge did not have the benefit of our recent discussion in In re LaRue, 244 Pa. Super. 218, 366 A.2d 1271 (1976). However, the judge did very well without us, for he arrived at substantially
[ 244 Pa. Super. Page 399]
the same definition of the issues as we did in LaRue.*fn1 It is unnecessary to repeat what was said in LaRue; for the reasons there stated, the issues may be summarized as follows:
First, the hearing judge had to determine whether, by "clear and convincing" evidence, Stephanie was a "deprived" child. The Juvenile Act, 11 Pa.C.S. §§ 50-102(4), 50-320(c). If the judge decided that Stephanie was not deprived, he should return her to her parents. See LaRue. If the judge decided Stephanie was deprived, he had to determine whether it was "necessary" to separate Stephanie from her parents. 11 Pa.C.S. §§ 50-101(b)(3), 50-321. In re Adoption of R. I., 468 Pa. 287, 361 A.2d 294 (1976); Stapleton v. Dauphin County Child Care Service, 228 Pa. Super. 371, 324 A.2d 562 (1974); Rinker Appeal, 180 Pa. Super. 143, 117 A.2d 780 (1955).
Here, the hearing judge decided that Stephanie was deprived, and that it was necessary to separate her from her parents. Before reviewing these findings we must consider whether in a procedural sense they were properly made.
In a child custody case, the hearing judge should receive evidence from all interested parties, and the child should be represented by counsel, for the child's interest may be distinct from any other party's. Stapleton v. Dauphin County Child Care Service, supra. The judge
[ 244 Pa. Super. Page 400]
should also receive evidence from objective, disinterested witnesses. Gunter v. Gunter, 240 Pa. Super. 382, 361 A.2d 307 (1976). His inquiry should be comprehensive and searching, and his decision supported by a full discussion of the evidence. Commonwealth ex rel. Grillo v. Shuster, 226 Pa. Super. 229, 312 A.2d 58 (1973).
If the hearing judge does not comply with these requirements, on appeal the case will be remanded for further proceedings. This is because "in child custody cases [the scope of our review] is quite broad and, while we cannot nullify the fact-finding function of the hearing judge, we are not bound by a finding which has no competent evidence to support it." Commonwealth ex rel. Morales v. Morales, 222 Pa. Super. 373, 376, 294 A.2d 782, 783 (1972). And see Gunter v. Gunter, supra, and cases there cited and discussed. Conversely, however, if the hearing judge does comply with these requirements, on appeal we must defer to his findings. Thus, in Clair Appeal, 219 Pa. Super. 436, 281 A.2d 726 (1971), the hearing judge "held a comprehensive hearing," "compiled an extensive record," id. at 437, 281 A.2d at 726, and made careful findings. Affirming, this Court, by Judge Cercone, said:
Of course, an appellate court must always give great weight to the opinion of the trial judge who has the opportunity to see and hear the witnesses and judge their credibility and talk to the children involved.
Id. at 438, 281 A.2d at 727.
Accord: Commonwealth ex rel. Doberstein v. Doberstein, 201 Pa. Super. 102, 192 A.2d 154 (1963) (decision on custody "surely should remain in the discretion of [hearing judge] . . . [he] being in the best position . . . ." Watkins, J.); Commonwealth ex rel. Dinsmore v. Dinsmore, 198 Pa. Super. 480, 182 A.2d 66 (1962) (appellate court "should give great weight to the opinion of the hearing judge . . . [who] is in a much better position . . . ." Watkins, J.).
[ 244 Pa. Super. Page 401]
In the present case, there can be no question that the hearing judge has fully met the responsibilities imposed upon him. He made his findings only after a full hearing. Four separate counsel appeared and participated in the hearing: one represented Stephanie, one her parents, one the foster parents, and one the child welfare agency. Two representatives of the child welfare agency testified -- both of them intimately familiar with the case -- and Stephanie's mother and father, and her foster mother and father, each testified. Following the hearing, the judge filed an opinion notable for its extensive (18 pages) and sensitive discussion of the case. Accordingly, we must give "great weight," Clair Appeal, supra, to his findings that Stephanie was deprived, and that it was necessary to separate her from her parents.
The Juvenile Act defines a "deprived child" in several ways. The definition pertinent here is that a "deprived child" is a child who "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." 11 Pa.C.S. § 50-102(4)(i). In determining whether Stephanie was a deprived child within this definition, the hearing judge had to decide: (1) what sort of parental care she had received from appellants in the past; and (2) what sort she would receive if appellants were given custody of her. See generally LaRue, supra; see also the thoughtful discussion of the authorities from a number of jurisdictions, at pages 8-11 of the hearing judge's opinion in this case.
Stephanie has never received any proper parental care from appellants, despite the most intensive and
[ 244 Pa. Super. Page 402]
continuous efforts on the part of the child welfare agency. The evidence that this has been the case is not simply "clear and convincing" but overwhelming and unrebutted. The hearing judge summarized it in his opinion, and as the summary is excellent, it is reprinted verbatim, as follows:
Mary Clouse is 25 years of age and she is married to John Clouse, who is 28. Appellants are the parents of four children, Renee, aged 7, Pamela, aged 5, Joyce, aged 4, and Stephanie, subject of this appeal, who was two years and four months at the time of hearing. The three older children reside with appellants, while Stephanie resides with Mr. Thomas and Mrs. Sandra Dunmeyer, foster parents approved by Child Welfare Services.
Appellant, Mary Clouse, was formerly a ward of Child Welfare Services, who appears to have suffered from her own deprivation and the death of her mother, which occurred when she was fourteen years of age. She continued to have emotional problems up to the present time, which required treatment through the Mental Health and Mental Retardation Program in McKeesport, Pa., affiliated with the Allegheny County program.
Prior to the birth of Stephanie, an older sibling Joyce Clouse was admitted to the McKeesport Hospital and was diagnosed as a failure to thrive case secondary to maternal deprivation. Child Welfare Services received a suspected abuse report on March 23, 1972, filed pursuant to the Act of 1967, August 14, P.L. 239 -- "Neglect or Injuries," 11 P.S. [§ 2101 et seq.]. At that time appellant, Mary Clouse, admitted that she had not been feeding Joyce and she was exhibiting severe depression, anxiety and hypochondriacal behavior.
On May 22, 1972, the appellants signed an Entrustment Agreement placing Joyce in the custody of Child Welfare Services. Joyce was returned to the parents on March 6, 1973.
[ 244 Pa. Super. Page 403]
Stephanie was born on June 2, 1973, and was never taken into her parents' care but on June 5, 1973 they signed an Entrustment Agreement placing her in the custody of Child Welfare Services. She was released from McKeesport Hospital on June 7, 1973 directly into foster care as the appellant mother felt incapable of meeting the demands of an infant. Mrs. Clouse was being treated for hypochondriasis at the Mon-Yough Mental Health Clinic and Joyce was still going through a period of adjustment in the parents' home. Stephanie was placed in the Dunmeyer foster home on July 23, 1973, where she has remained to the present.
In July, 1974, Child Welfare Services initiated plans to return Stephanie to the parents by increased visitation with November, 1974 being the time targeted for return. With the increased visitation, the mother exhibited and expressed increased anxiety and ambivalence about Stephanie's return. Her inter-action with Stephanie was poor. In December, 1974, the parents decided against the return of Stephanie as not being in the best interest of Stephanie or the family. They were concerned that they would have to change their lifestyle and that they would be required to meet Stephanie's needs, believing she would have difficulty adjusting to their ways, which are substantially different than those of the foster parents. Appellants believed this would be so because of their experience in reintegrating Joyce in the home. She finally concluded that Stephanie would simply have to adjust to her as any change she would make would cause her to regress.
Appellants at that time were willing to consider placing Stephanie for adoption. Appellant mother testified she felt that with her husband out of work they could not assume the responsibility of another child (T. p. 43). This was later repudiated, or explained (at T. 45) as being in 1973, and that the reason was she felt they were just getting on their feet, and Stephanie appeared to be so attached to the Dunmeyers. In April,
[ 244 Pa. Super. Page 4041973]
after visitation was resumed, appellant mother felt unable to take Stephanie because she was having medical problems, and did not believe she could handle Stephanie (T. 46). The April visits went badly and again Appellants decided against placement and in favor of adoption. Stephanie throughout exhibited emotional disturbance as a result of the visits.
Appellant father testified that in November, 1974, his wife's nervousness increased as the time of return of the child approached (T. 61). He did not want the child back if it upset his wife (T. 63). In April it was decided not to take the child because they were in the process of buying a house and the deal had not yet gone through (T. 65). He also places his wife's health and well being above his children (T. 69). If his wife's condition regressed and Stephanie appeared to be the cause of the aggravation he would ask to have her removed (T. 70).
The Dunmeyers are foster parents to one other child besides Stephanie and they have four children of their own. In April, Appellant mother called Mrs. Dunmeyer and told her she could adopt Stephanie, but in late summer she learned Appellants had changed their minds. She states she wishes to adopt Stephanie.
Mr. Dunmeyer is a postal employee and relates to Stephanie as though she were his own child. Child Welfare advises that they have a good home and they give the appearance of mature, stable, and affectionate parents.
A letter from Mr. John Szish, M.S., Clinical Psychologist, admitted by concurrence of counsel of all parties states:
"I have seen Mary Clouse in individual psychotherapy sessions since 1970. Originally Mary was very impulsive and was at the mercy of her emotions. She has made considerable progress in becoming more aware of her emotions and showing much ...