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TREMAYNE QUAME IDRESS R. (04/10/81)

decided: April 10, 1981.

IN THE INTEREST OF TREMAYNE QUAME IDRESS R., A/K/A IYAPO ODE QUAME R., A MINOR. APPEAL OF MRS. CORDELIA R., MATERNAL GRANDMOTHER


No. 764 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Allegheny County, Family Division, Juvenile Section at No. 1898 of 1978.

COUNSEL

Robert P. Deasy, Pittsburgh, for appellant.

Arnold H. Cantor, Pittsburgh, for participating party.

Spaeth, Wickersham and Lipez, JJ.

Author: Spaeth

[ 286 Pa. Super. Page 483]

This is an appeal from an order granting custody of a minor child to his foster-mother instead of to his maternal grandmother. We have concluded that the order was within the lower court's discretion and should be affirmed, except in one respect. The lower court made no provision for any visitation by the child with his grandmother. We have concluded that this was error, and we shall remand the case with instructions to enter an order providing for extensive visitation by the child with his grandmother, for it is in the child's best interest that he develop and enjoy a continuing relationship with both his foster-mother and his grandmother.

Tremayne Quame Idress R., the child with whose custody we are concerned, was born on June 15, 1977. Shortly after his birth, Renee R., his natural mother, herself placed him with Mrs. Irene C. Tremayne continued to live with Mrs. C. until June 1978, when his mother took him back to be with

[ 286 Pa. Super. Page 484]

    her. Tremayne was with his mother, however, for only a few weeks. In early August the police found Tremayne unattended in his mother's apartment, and on August 9 the Allegheny County Child Welfare Services filed a petition alleging that Tremayne was a dependent child under the Juvenile Act.*fn1 Tremayne was placed in a shelter, and then in a temporary foster-home under the supervision of Child Welfare Services. After a hearing on August 16, 1978, the lower court ordered that Tremayne remain in the fosterhome. On September 27, after the dependency hearing, the court found Tremayne to be a dependent child and ordered him placed with Mrs. C. as his foster-mother. On April 4, 1979, the lower court held a review hearing, after which it ordered that Tremayne remain with Mrs. C. The court also set a date six months later for a second review hearing. However, on April 18, 1979, Tremayne's mother was found dead in her apartment. Mrs. C. and Mrs. Cordelia R., Tremayne's maternal grandmother, then each asked the court for custody of Tremayne. A brief hearing was held on May 23, 1979, and a full hearing on July 16. On July 26, 1979, the court filed a memorandum opinion and an order granting custody of Tremayne to Mrs. C. The order made no provision for visitation by Tremayne with Mrs. R., or for any sort of relationship between Tremayne and his grandmother. The case comes before us on Mrs. R.'s appeal, and we shall hereafter generally refer to Mrs. R. as "appellant," and to Mrs. C. as "appellee."

-1-

The lower court's responsibility was to determine what was in Tremayne's best interest:

"It is fundamental that in all custody disputes, the best interests of the child must prevail; all other considerations are deemed subordinate to the child's physical, intellectual, moral and spiritual well being. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972); Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 292 A.2d 380 (1972)." Garrity v. Garrity, 268 Pa. Super. 217, 221,

[ 286 Pa. Super. Page 485407]

A.2d 1323, 1325 (1979). "Among the factors to be considered in determining the best interests of the child are the character and fitness of the parties seeking custody, their respective homes, their ability to adequately care for the child, and their ability to financially provide for the child. Shoemaker Appeal, 396 Pa. 378, 381, 152 A.2d 666, 668 (1959)." Kessler v. Gregory, 271 Pa. Super. 121, 124, 412 A.2d 605, 607 (1979). Commonwealth ex rel. Leighann A. v. Leon A., 280 Pa. Super. 249, 252, 421 A.2d 706, 708 (1980).

In making this determination, the lower court allocated the burden of proof equally between the two parties. The first issue we must consider is whether this allocation was correct. We have concluded that it was.

This court's analysis of how the burden of proof should be allocated in custody cases, in In re Custody of Hernandez, 249 Pa. Super. 274, 376 A.2d 648 (1977), has recently been approved by our Supreme Court. Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980); Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980). In Hernandez, we identified three sorts of cases: When the dispute is between the parents, or a parent, and the state, in which case the state has a very heavy burden of proof; when the dispute is between parents, in which case the parents share the burden of proof equally; and when the dispute is between the parents, or a parent, and a third party, in which case the third party must show "convincing reasons" why the child's best interest will be served by an award to the third party. How should the burden of proof be allocated in cases such as the present one, in which the dispute is between two "third parties?" Should it make any difference if one of the third parties is a relative and one is not?

In Hernandez we refused to draw any distinction between relative and non-relative third parties who are disputing a parent's custody:

It is, of course, true that there are two distinct categories of "third parties": relatives, and non-relatives. However,

[ 286 Pa. Super. Page 486]

    to draw a distinction in the burden of proof allocated to one category as compared with that allocated to the other would be to indulge in over-refinement, which would distract the inquiry from the essential concern of the case -- the child's best interest.*fn1a In this regard, it may be noted that formerly grandparents might be held responsible for the support of their grandchildren, but the statute was amended to eliminate this responsibility. The Act of June 24, 1937, P.L. 2045, § 3; as amended by the act of May 23, 1945, P.L. 864, § 1, 62 P.S. § 1973. With this loss of responsibility went the loss of a superior right to custody of grandchildren. See Commonwealth ex rel. Bradley v. Bradley, 188 Pa. Super. 108, 146 A.2d 147 (1958). This is not to discount the fact of blood relationship altogether; it may undoubtedly create a bond between the adult and child. However, except when the relationship is that of parent and child, how close a bond is a question better left to the hearing judge. Suppose that the third party who seeks custody in preference to the child's mother is a relative who has never had any contact with the child. Next suppose that the third party is a non-relative with whom the child has been living for several years, and that a strong and wholesome relationship has developed between the third party and the child. Comparison of these cases will show that the mere fact of relatedness is not a sufficient reason to impose a lesser burden on the third party relative than on the third party non-relative. Both relative and non-relative should be required to show "convincing reasons" why the mother (in the cases supposed) should not have custody of her child.

Although this was said in the context of disputes between a parent and a third party, we find the reasoning applicable to

[ 286 Pa. Super. Page 487]

    a dispute between two third parties, where one is a relative but not a parent and the other is not a relative. As noted in Hernandez, "relative" is an exceedingly broad, or diffuse, concept, including relatives both close and remote, and relatives who have known the child intimately and those who have never known or shown any interest in the child. To give a relative who is not a parent a possibly decisive procedural advantage, simply because of being a relative, would in no way serve to support the traditional family, which in the sort of case we are considering no longer exists, and might very well interfere with the determination of what is in the child's best interest. We therefore hold that where the custody dispute is between two third parties, one who is a relative but not a parent and one who is not a relative, the burden of proof should be allocated equally between the parties.

Again as noted in Hernandez, "[T]his is not to discount the fact of blood relationship altogether." The fact that one of the contesting parties is a relative is a fact that the hearing judge must always consider in arriving at the determination of what is in the child's best interest. Kinship ties are still very important in our society. A sense of closeness to relatives can be critical to a child's wholesome and happy development. In any given case the hearing judge may decide that on the basis of all the evidence, the child's best interest will be served by awarding custody to the child's relative instead of to a non-relative.

-2-

We may now examine the evidence presented to the lower court and consider the court's response to that evidence.

-a-

Preliminarily, it is well established that the scope of review of this court in such disputes is of the broadest type. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976); In re Custody of Neal, 260 Pa. Super. 151, 393 A.2d 1057 (1978). Although

[ 286 Pa. Super. Page 488]

    we will not usurp the fact-finding function of the trial court, we are not bound by deductions or inferences made by the hearing judge from the facts as found. Trefsgar v. Trefsgar, 261 Pa. Super. 1, 395 A.2d 273 (1978); Commonwealth ex rel. Ulmer v. Ulmer, 231 Pa. Super. 144, 331 A.2d 665 (1974); Commonwealth ex rel. Grillo v. Shuster, 226 Pa. Super. 229, 312 A.2d 58 (1973). Because of the Commonwealth's legitimate and overriding concern for the well-being of its children, we are required to render an independent judgment based on the evidence and testimony and make such order on the merits of the case as to effect a just result. Spells v. Spells, 250 Pa. Super. 168, 378 A.2d 879 (1977); Commonwealth ex rel. Zeedick v. Zeedick, 213 Pa. Super. 114, 245 A.2d 663 (1968). So as to facilitate this broad review, we have consistently emphasized that the hearing court must provide us not only with a complete record, Augustine v. Augustine, 228 Pa. Super. 312, 324 A.2d 477 (1974), but also with a complete and comprehensive opinion which contains a thorough analysis of the record and specific reasons for the court's ultimate decision. Martincheck v. Martincheck, 262 Pa. Super. 346, 396 A.2d 788 (1979); Tobias v. Tobias, 248 Pa. Super. 168, 374 A.2d 1372 (1977); Gunter v. Gunter, 240 Pa. Super. 382, 361 A.2d 307 (1976). Absent an abuse of discretion, we will not reverse a hearing judge who complies with these requirements. In re Custody of White, 270 Pa. Super. 165, 170, 411 A.2d 231, 232-233 (1979).

The second, full, custody hearing, on July 16, 1979, was well-conducted and complete. The lower court heard testimony from both appellant and appellee; from Dr. John B. Reinhart, a psychiatrist at Children's Hospital of Pittsburgh, who at the request of the court had interviewed both parties and Tremayne; from Ronald Heard of the Westmoreland County Children's Bureau, who had investigated appellee's home; and from Margaret Freeman of Allegheny County Child Welfare Services. It also admitted copies of Dr. Reinhart's written reports of his interviews. A report on appellant's home, prepared by the Marion County, Indiana,

[ 286 Pa. Super. Page 489]

Department of Public Welfare, apparently had already been admitted at the April 4, 1979, hearing.*fn2 N.T. at 31.*fn3

On the basis of this record the lower court found that both appellant and appellee were "capable of providing Tremayne with a good home." Slip op. at 3.*fn4 Of appellant the lower court said:

Mrs. R. (age forty-nine and divorced) is a high school graduate who resides in a suburb of Indianapolis, Indiana. She owns her home and has lived in this home for eighteen years. (t. 9-15) In addition to her deceased daughter, she is the mother of a thirty-two year old son who is a college graduate employed as a manufacturer's representative, a twenty-nine year old daughter who is a graduate of a school of design and is presently employed as a secretary and a nineteen year old son who is attending a college of music in Boston. (t. 7-9) Mrs. R. works on the production line of a Chevrolet plant and her income is more than sufficient to meet Tremayne's needs. (t. 10)

A placement in Mrs. R's home offers several advantages. First, Tremayne will have close contact with many family members including a six year old half-sister who will be living with Mrs. R. shortly and a seven year old cousin who will also be living in this home. While blood ties obviously have no meaning to Tremayne at this time, in later years this may be important to him. Second, Mrs. R. has raised children who are highly motivated and successful in academic and artistic endeavors and we would anticipate that she ...


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