defendants to discontinue "voluntariness" hearings vacating this Court's Order of July 14, 1980. Therefore, the exceptions of W. M. and B. M. concerning voluntariness are moot and will not be discussed by this Court.
P. M."s individual habilitation plan provides that adequate habilitation requires that P. M. be transferred from Pennhurst to a community residence which he would share with two other retarded males. The community residence is supervised by a live-in couple. It is a ranch-style dwelling operated by Community Homes, Inc. in Malvern, Pennsylvania. Because of P. M."s ambulation difficulties and his inability to recognize dangerous situations, one staff person in addition to the live-in couple will be assigned to watch over P. M. during waking hours. One staff person will be required to be awake and on duty during the night, in addition to the presence of the live-in couple. The residence has been extensively adapted (e.g., safety gates to the kitchen and hallway, grab bars in the bathroom) to protect P. M. from all known risks.
P. M."s individual habilitation plan provides for an extensive and detailed program for him in the residence, including self-help skill training (e.g., feeding, bathing, toileting, dressing), socialization, pre-language communications, occupational and physical therapy, and recreational activity such as swimming and field trips.
The proposed community program for P. M. results from and is reflected in his individual habilitation plan (Cty. Ex. at Hearing 1, 1A), which was developed at a meeting at Pennhurst on May 11, 1981, attended by P. M."s parents, representatives and staff members of the proposed community residence, his school teacher, Pennhurst staff, and his County case manager. The plan was approved by the Office of the Special Master as offering living arrangements and services which will be more beneficial to P. M."s habilitation than would be his continued residence at Pennhurst. The parents' objections to the plan were submitted to mediation under the auspices of Pennhurst Superintendent George Kopchick; the mediation process allayed some of the parents' concerns (e.g., physical and occupational therapy). The parents, however, requested the November 24 hearing on relative benefit and voluntariness.
Since December 1980, P. M. has made some 20 daytime and overnight visits to the residence without any particular trauma. According to testimony presented at the hearing, he was initially somewhat overactive and anxious on his visits to the residence, but these reactions have lessened and he is now comfortable with the staff and other residents at the proposed community home.
After P. M. is transferred to the community residence, he will continue to attend his public school classes in the Liberty Forge program of the Chester County Intermediate Unit, where he has had the same teacher for six years and where he works on such things as self-awareness, self-concept, socialization, and fine motor skills. Thus, the Hearing Master found that there is no issue as to the adequacy or appropriateness of P. M."s day programs. P. M."s parents engaged in extensive negotiations with the case manager and as a result of these negotiations certain changes were made in the living arrangements for P. M. at the community residence. (Cty. Ex. at Hearing 2, 3). As a result, P. M."s parents no longer have any objections to the education and treatment programs which have been planned for P. M.
In his Report of December 3, 1980, the Hearing Master thoroughly examined the parents' remaining objections to the proposed community placement of P. M. Their remaining objections appear to be that the proposed community home will not be as safe for P. M. as is Pennhurst and that as parents they have an absolute right to prevent his transfer to the community. The County has adopted the exceptions filed by the parents.
Rule 53(e)(2) of the Federal Rules of Civil Procedure declares that "[in] an action to be tried without a jury, the court shall accept the master's findings of fact unless clearly erroneous." The Rule embodies the policy of the Federal Rules that, although use of a master should not lightly be resorted to, when a master is properly used to achieve compliance with a Court's injunctive orders, the master's findings carry a presumption of correctness. See Camden v. Stuart, 144 U.S. 104, 118, 12 S. Ct. 585, 590, 36 L. Ed. 363 (1892); Tilghman v. Proctor, 125 U.S. 136, 149-50, 8 S. Ct. 894, 901-02, 31 L. Ed. 664 (1888). A party attacking a master's finding bears the burden of persuasion to show that the finding is clearly erroneous. Esdale v. Edwards, 28 F.R.D. 390 (D.N.C.1961); Oil Chemical & Atomic Workers International Union v. NLRB, 178 U.S. App. D.C. 278, 547 F.2d 575 (D.C.Cir.1976), cert. den., 431 U.S. 966, 97 S. Ct. 2923, 53 L. Ed. 2d 1062 (1977). Rule 53(e)(2) also provides: "The Court, after hearing, may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions."
The Hearing Master's Report is thorough, detailed, specific, and is supported by evidence in the record as to all findings of fact. The factual findings of the Master are not clearly erroneous, nor are his legal conclusions contrary to law. A matter under review may be considered clearly erroneous when the court is left with the definite and firm impression that a mistake has been made. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 541, 92 L. Ed. 746 (1948). The Court has no such reservations about the Master's Report.
Many of the exceptions to the Report challenge certain language in the document or question the Master's authority. These arguments criticizing the words chosen by the Master are not subject to review by this Court pursuant to Rule 53. Parties objecting to a Master's Report must complain of an error in a finding of fact or a conclusion of law. Second-guessing of the Master's characterization of events and parties or criticism of his writing style is not a proper subject for review by the Court. Similarly, the authority of the Hearing Master to conduct hearings such as that concerning P. M. is well-established. See Memoranda of February 20, 1981 concerning N.T., G.W., L.B., D.M., and P.T.
Furthermore, on December 13, 1979, the Court of Appeals, in remanding the case to this Court, stated: "(T)here may be some individual patients who, because of advanced age, profound degree of retardation, special needs, or for some other reasons, will not be able to adjust to life outside of an institution and thus will be harmed by such a change," and held that there should be hearings to determine the relative habilitative benefit for each resident prior to his or her transfer to the community. 612 F.2d at 114-16.
In Orders issued by this Court on April 24, 1980, the Court appointed a Hearing Master and directed that he "make findings and set forth reasons as to whether the living arrangements and services being provided the residents at Pennhurst are more beneficial to the resident's habilitation than the living arrangements and services which have been made ready in the community." The April 24, 1980 Order also provided that in making such finding, the Hearing Master shall be guided by the presumption in favor of placing individuals in community living arrangements as mandated by the Court of Appeals for the Third Circuit. The Court finds that the Hearing Master was well within the scope of his authority in all proceedings regarding P. M."s community placement.
A brief illustration supports the fact-finding conducted by the Hearing Master. At the Hearing, W. M. and B. M., the parents of P. M., raised questions as to the safety of the proposed community residence as compared to Pennhurst. As the Report notes, P. M. has burned his hand and twice broken his leg while at Pennhurst. (Report at 17). By comparison, the community residence was specially planned to eliminate all known potential hazards to P. M."s safety. A fence was erected to shield P. M. from the danger of a nearby highway, and safety gates were installed in the residence to shield him from areas in the residence which might prove to be sources of danger to P. M. As heretofore pointed out, the community residence will be staffed at all times.
Similarly, P. M."s parents raised questions as to the adequacy of his medical care in the community, especially during emergencies. It was found by the Hearing Master that the Paoli Hospital is no farther from the community residence than the Phoenixville Hospital, which services Pennhurst, is from Pennhurst and that a competent medical staff will be available to P. M. at his community residence. The Hearing Master found that the primary physician in the community who will be responsible for his medical care at the community residence is accomplished in the treatment of retarded patients.
Throughout his Report, the Hearing Master addresses the factual concerns of P. M."s parents and finds that the community living arrangement provided for P. M. is more beneficial to P. M."s habilitation than continued residence at Pennhurst. The Court adopts the factual findings of the Hearing Master. The Court has reviewed the record in this case and has determined that the evidence presented at the hearing supports all of the findings made by the Master.
At the hearing of February 12, 1982, counsel for the parents contended that the parents should have a veto over the determination made by the Hearing Master that programs which have been designed for P. M. in his community living arrangement will be more beneficial to his habilitation than the habilitation P. M. would receive if he remained at Pennhurst.
The law has long recognized that parents have rights concerning decisions which may affect their children. More than six years ago, this Judge observed:
The Supreme Court has repeatedly recognized and afforded great weight to the rights of parental control and custody of their children and has given due respect to the powerful role of the familial relationship in our democratic society. It is plain that the interest of family integrity and the interests of parents in the care, custody and nurture of their children come to the court with a momentum of respect.
[Parents'] interest in directing the upbringing of their children is cognizable and substantial. Those who nurture the child and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. The parents' claim to authority in their own household to direct the rearing of their children has been termed "basic in the structure of our society."