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COMMONWEALTH EX REL. JANET MURPHY v. KATHLEEN WALTERS AND WILLIAM WALTERS. APPEAL KATHLEEN WALTERS (10/20/78)

decided: October 20, 1978.

COMMONWEALTH EX REL. JANET MURPHY
v.
KATHLEEN WALTERS AND WILLIAM WALTERS. APPEAL OF KATHLEEN WALTERS



No. 271 March Term, 1977, Appeal from the Order of the Court of Common Pleas of York County, at No. 76 - S - 1446.

COUNSEL

Steven C. Lember, York, for appellant.

Kenneth J. Sparler, York, with him William B. Anstine, Jr., York, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Van der Voort and Spaeth, JJ. Jacobs, President Judge, and Spaeth, J., concur in the result. Watkins, former President Judge, and Hoffman and Price, JJ., did not participate in the consideration or decision this case.

Author: Van Der Voort

[ 258 Pa. Super. Page 420]

On May 5, 1976, appellee Janet Murphy filed a habeas corpus petition to obtain custody of her two nephews, Billy and Joey, from their mother Kathleen Walters. Testimony of one witness was taken on August 9, 1976, and a full hearing was held on December 8, 1976. Custody was awarded to Mrs. Murphy by Order dated December 8, 1976, and appellant brought this appeal to our court. We affirm the award of custody to Janet Murphy.

At the hearing on December 8, 1976, the following people gave testimony: Janet Murphy (appellee and sister-in-law of appellant Kathleen Walters), Buelah Creekland (co-owner of one of the trailer parks in which appellant had lived), Joyce Baum (sister of Janet Murphy and girlhood acquaintance of Kathleen Walters), Kathleen Walters (mother of the two children), Joseph Murphy (Kathleen's father), and Hilda Runkle (Kathleen's neighbor in one of the trailer parks). Prior to the date of the hearing, Sister Katherine Alverta, a principal and teacher at the school attended by the two children, gave testimony. In addition, the two children were questioned in chambers, on-the-record, with counsel for both sides present.

The undisputed testimony established that appellant lived for a time with her parents and her two children in the parents' trailer home. Appellant was divorced from her husband and received only infrequent support payments. After appellant's parents moved to Florida, appellant lived in the trailer for a time with the two children and a female friend. For a time, appellant also lived with one or two men. Appellant worked at various jobs for varying periods of time; at times she lived on welfare and collected food stamps. Appellant frequently left the children with Mrs. Murphy, for periods ranging from several hours to one period of five months. When appellant joined her parents in

[ 258 Pa. Super. Page 421]

June of 1975, she once again left the children in the care of Mrs. Murphy, taking the precaution of having Mrs. Murphy agree in writing to give the children back when appellant had found a residence in Florida. Appellant returned to Pennsylvania in April of 1976, along with her parents and third child (an infant son fathered by a man whom appellant had lived with for a time before moving to Florida), in order to get the two children from Mrs. Murphy. Mrs. Murphy refused to give the children back, and instituted this habeas corpus action to obtain legal custody of them.

Mrs. Murphy testified regarding the living conditions in the trailer in which appellant and the children had been living. During one visit she saw "mildewed" hot dogs on the stove, and "manure from one end of the trailer to the other." (The manure came from the twelve or thirteen dogs and cats that were living in the trailer). Mrs. Murphy testified that the children were dirty most of the time she saw them, often smelling of urine, with clothes that were too small for them. On one occasion, appellant purportedly told Mrs. Murphy that she resented Joey (one of the children) a great deal, since she had gotten married because she was pregnant with him. Several times Mrs. Murphy went to the trailer to find appellant away and the children locked out. When appellant left the children with Mrs. Murphy on weekends, the children were generally hungry and dirty. When appellant came for the children in November of 1974 (after having left them with Mrs. Murphy for five months), appellant supposedly told Mrs. Murphy that she had to take the children back or her welfare would stop.

Joyce Baum, who came three or four times a year with Janet Murphy to visit the children, supported Mrs. Murphy's allegations, and gave additional information. She testified that appellant used foul language toward the children, didn't seem to want them around, and generally let them do whatever they wanted provided they didn't bother her. She also testified that during one visit, when appellant and her parents were ...


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