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DESIREE B. (08/27/82)

filed: August 27, 1982.

IN RE DESIREE B., A MINOR. APPEAL OF CONCETTA B., NATURAL MOTHER. CHILDREN AND YOUTH SERVICES OF ALLEGHENY COUNTY (PARTICIPATING PARTY). ELOISE FREEMAN, FOSTER MOTHER (PARTICIPATING PARTY)


COUNSEL

Linda C. Liechty, Pittsburgh, for appellant.

William F. Giarla, Pittsburgh, for Freeman, participating party.

Hester, Johnson and Popovich, JJ. Hester, J., files a dissenting statement.

Author: Johnson

[ 304 Pa. Super. Page 462]

The order appealed from denied the petition by a natural mother [Concetta] for the return to her of her daughter [Desiree], and ordered that Desiree remain in the custody of her foster-mother [Mrs. Freeman].

The facts of this case are as follows. Desiree was born to Concetta, who is not married, on December 25, 1977. In early April 1978 Desiree was admitted to a hospital where her condition was diagnosed as failure to thrive. She was subsequently returned to Concetta for a short while under the supervision of the Allegheny County Children and Youth Services [CYS]. But CYS later petitioned the court to adjudicate Desiree dependent*fn1 and to remove her from Concetta's custody because Concetta's housing was unfit and Concetta was not cooperating with CYS. Ultimately, in November 1978, the lower court adjudicated Desiree dependent and ordered her to remain in the foster home where she had been intermittently since the hospitalization, and where

[ 304 Pa. Super. Page 463]

    she has been ever since. The court concluded the November 1978 hearing with remarks which seem to indicate that it envisioned Desiree's placement in the foster home as longterm.

Nearly two years later, in October 1980, there was another hearing. CYS expressed the view that, although Concetta was managing very well with her second child, a son, now a few months old, and that she had improved greatly since the removal of Desiree, returning Desiree to Concetta might "add stress to a high risk situation." By this time Desiree had been with Mrs. Freeman for two years and three months. The court expressed its concern that Desiree would become psychologically attached to Mrs. Freeman such that removal could be harmful to Desiree. Desiree at this time was seeing her natural mother once a month. The court decided however that Desiree should remain with Mrs. Freeman for a further few months. Further disposition would depend on (1) whether Concetta could be shown to be able to meet Desiree's needs and (2) the extent to which it would be damaging to Desiree to be moved out of the Freeman home.

Then in 1981, after two hearings, in February and April, the court decided that because Mrs. Freeman had become Desiree's psychological mother, it would be damaging to Desiree to remove her, and therefore denied Concetta's petition to have her daughter returned to her, despite testimony as to much improvement in Concetta's mothering and housekeeping skills and to the fact that her second child is flourishing under her care.

In custody cases the scope of our review is very broad. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); Commonwealth ex rel. Oxenreider v. Oxenreider, 290 Pa. Super. 63, 434 A.2d 130 (1981). We do not usurp the fact-finding function of the trial court, but we are not bound by the deductions or inferences made by the trial judge from the facts he has found. We need not accept a finding which has no competent evidence to support it, but are instead required to make an independent judgment based on the evidence and testimony, and make such order

[ 304 Pa. Super. Page 464]

    on the merits of the case as to do right and justice. See Garrity v. Garrity, 268 Pa. Super. 217, 407 A.2d 1323 (1979), and cases cited therein. So as to facilitate this broad review, we consistently emphasize that the hearing court must provide us with a complete record and a comprehensive opinion which contains a thorough analysis of ...


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