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SHANE DAVIS (06/19/81)

filed: June 19, 1981.


No. 2542 October Term, 1979, Appeal from the Order of Court of Common Pleas of Berks County, Juvenile Division, No. 986-S of 1978.


William G. Sherr, Allentown, for appellants.

Robert J. Manara, Reading, for Shane Davis, appellee.

Alan Readinger, Reading, for Berks County, participating party.

Wickersham, Hoffman and Van der Voort, JJ.

Author: Wickersham

[ 288 Pa. Super. Page 457]

This is an appeal from an order granting custody of a child to Berks County Children and Youth Services (hereinafter referred to as Children's Services) for placement in a foster home. The appeal is based on four allegations of error. For the reasons set forth below, we affirm the order of the lower court.

[ 288 Pa. Super. Page 458]

The history of this case is both tragic and lengthy. In the mid-1950's, appellants, Annie S. Miller and Harvey A. Miller, had a farm and peach orchard in Berks County, Pennsylvania. They hired black migrant laborers to help them work the land. Betty Davis Pellot was the daughter of one such laborer. When Betty was abandoned on the farm at the age of two, the Millers took the child in and raised her.*fn1

When Betty was in high school, she apparently began using drugs and evidence was presented that her relationship with the Millers began to deteriorate. At the age of nineteen, Betty left the Millers' household to live on her own. On March 21, 1973, Betty gave birth to Shane Davis, the subject of this appeal. The child was born out-of-wedlock, son of an unknown Caucasian father. Shane was left with the Millers three days after his birth while his mother searched for an apartment. During the following months, Betty moved frequently and the Millers would care for Shane each time he became ill or when his mother was unable to care for him. Eventually, Shane moved in with the Millers on a permanent basis.

On November 24, 1974, Betty Davis Pellot gave birth to twins, Shonda Lynn Davis and Sean Davis. The twins were also born out-of-wedlock, the children of a Caucasian father whose identity was known. Betty moved into a trailer on the Millers' farm after their birth. While the twins lived in the trailer with their mother, Shane continued to live in the house with the Millers.

After a year and a half of living on the farm, Betty married Pedro Pellot. Betty and the twins then moved to Reading, Berks County to live with her new husband. Shane stayed with the Millers.

After an altercation with Annie Miller on November 8, 1977, Betty took Shane to live with the rest of the family in Reading. The Millers then filed a petition for a writ of habeas corpus. The court awarded custody of Shane to

[ 288 Pa. Super. Page 459]

Betty and liberal visitation privileges to the Millers. These visitation privileges soon became a source of conflict and Betty refused to allow the Millers to visit Shane. The Millers responded by petitioning the court to have Betty held in contempt. The court entered a new order on May 23, 1978 which awarded permanent custody of Shane to the mother but gave the Millers temporary custody for two weeks each summer.

Soon thereafter, Shane spent two weeks wit the Millers. On August 14, 1978, less than a month after Shane's return to his mother's household, Betty was murdered by her husband in the presence of her three children.

An emergency court order seeking custody of the three children was filed that same day, August 14, by Children's Services and the children were temporarily placed in the foster home of Iris and Larry Young. The next day, the Millers were awarded temporary custody of Shane pending permanent disposition of the three children. The twins remained with the Youngs.

In orders of the court dated November 13, 1979 and November 20, 1979, Shane, Shonda Lynn and Sean Davis were found to be dependent children within the definition of the Juvenile Act, 42 Pa.C.S. ยง 6301 et seq.*fn2 Custody of the three children was then awarded to Children's Services. On November 30, 1979, the Millers appealed the court's order as to the custody award of Shane. A petition for a stay of the court's order was denied by the court on January 23, 1980. This court also denied a stay of the order on May 6, 1980. The Millers then filed a motion for reconsideration. The court below denied the motion on May 19, 1980 and this court affirmed the decision on July 14, 1980.

We first note that an appellate court's scope of review is very broad in child custody cases. Commonwealth ex rel. Holschuh v. ...

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