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decided: September 19, 1983.


No. 81-3-475, Appeal from the Orders Dated November 13 and 20, 1979 of the Court of Common Pleas, Juvenile, for the County of Berks, at No. 986-S of 197, Dependency, and Order of Superior Court at No. 2542 October Term, 1979, Roberts, C.j., and Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Roberts, C.j., agrees that the case must be remanded for an evidentiary hearing to update the present record. See, e.g., In re: G.r., Author: Larsen

[ 502 Pa. Page 115]


The issue in this case can be stated in simple terms: whether the lower court erred in awarding custody of Shane Davis to the Berks County Children and Youth Services foster home agency. As is too often painfully clear in child placement cases, however, the resolution of this issue is far from simple, as it requires recognition of and provision for the delicate physical, mental, emotional and spiritual needs of a young child, the most exacting and sensitive scrutiny of the entire record, critical weighing and evaluation of numerous, often conflicting, variables reflecting upon the "best interests" of the child, and a solemn judgment, in light of all

[ 502 Pa. Page 116]

    of the variables, predicting which course of future action will be most likely to provide the child with a nurturing environment in which to develop to maturity.*fn1 The "tragic and lengthy" history of Shane Davis' case was set forth in the Superior Court's, 288 Pa. Super. 453, 432 A.2d 600, opinion, per Judge Wickersham, as follows:

In the mid-1950's, appellants, Annie S. Miller and Harvey A. Miller, had a farm and peach orchard in [Stony Run,] 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.

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's features and appearance are that of a black child. Notes of Testimony (N.T.) at 38.] 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.

[ 502 Pa. Page 117]

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 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 with 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. 288 Pa. Super. 458-59, 432 A.2d 602-03.

That day, August 14th, Berks County Children and Youth Services (Children's Services), appellee, filed an emergency custody petition in the Court of Common Pleas of Berks County. The court ordered temporary custody to Children's Services and all three children were then placed in the care of Iris and Larry Young, a married couple residing in Reading. The following day, upon appellants' petition, the court awarded temporary physical custody of Shane to the Millers pending disposition of the custody proceedings. The twins remained with the Youngs.

[ 502 Pa. Page 118]

Evidentiary hearings were held before the Honorable Thomas J. Eshelman on three separate days, March 27, April 5 and August 1, 1979. (There is no clear explanation in the record for the inordinate lapse of time between the filing of the custody petition on August 14, 1978 and the hearings in March, April and August of 1979.) At these hearings, only Shane's custody was in dispute. (No one has ever challenged the court's determination that it was in the best interests of Shonda Lynn and Sean to be placed in the long-term foster care of the Youngs.) Counsel, Central Pennsylvania Legal Services (CPLS), was appointed to represent Shane throughout the proceedings in the lower court and on appeal.

It is important to recognize that, while an award of custody was sought in the name of Children's Services, the proceedings assumed the posture of a determination as to which couple -- appellants or the Youngs -- was most suited to provide for Shane's best interests. This was due to Children's Services' expressed intentions to keep the three Davis children together under the long-term care of foster parents and the Youngs' expressed intentions to raise all three children to maturity, as they had previously done with three other foster children. The appellants, as well, would raise Shane to maturity. Thus, the trial court did not treat the case as one of choosing between the Millers and institutional foster care, but rather, as is warranted by the evidence on the record, on a more personal level, considering the alternatives to be Shane's placement with either the appellants or the Youngs.*fn2

Following the evidentiary hearings, the court issued orders on November 13 and 20, 1979, adjudicating Shane, Shonda Lynn and Sean "dependent" within the meaning of the Juvenile Act, 42 Pa.C.S.A. §§ 6301-6365. Custody of all three children was then awarded to Children's Services

[ 502 Pa. Page 119]

(which, in the posture of this case, meant that physical custody would be with the Youngs). The court's orders also provided liberal summer and weekend visitation rights for appellants with Children's Services to arrange for Shane's transportation. The Millers appealed that determination and filed various applications for stays pending disposition on appeal, which were rejected by the lower court and subsequently affirmed by the Superior Court. It was developed at oral argument before this Court that the Millers have, with the consent of Children's Services, retained physical custody of Shane despite the denials of the applications for stays. On June 19, 1981, the Superior Court affirmed the lower court's award of Shane's custody to Children's Services. This Court granted the Miller's petition for allowance of appeal on October 16, 1981 and oral argument took place on May 27, 1983.

The paramount concern in all custody cases is the best interest and permanent welfare of the child. Commonwealth ex rel. Zaffarano v. Genaro, 500 Pa. 256, 261, 455 A.2d 1180, 1182 (1983); Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 322, 421 A.2d 157, 158 (1980). All other considerations are deemed subordinate to the child's physical, intellectual, moral and spiritual well-being. In the Interest of Tremayne Quame Idress R., 286 Pa. Super. 480, 484, 429 A.2d 40, 43 (1981).*fn3

The scope of appellate review in child custody cases is, traditionally, very broad. Commonwealth ex rel. Zaffarano v. Genaro, supra 500 Pa. 262, 455 A.2d 1183. While such broad review does not grant a reviewing court license to nullify the fact finding functions of the lower court in the first instance, id., it has been held that the appellate court is not bound by the deductions or inferences made from the

[ 502 Pa. Page 120]

    facts found by the lower court, e.g., Tomlinson v. Tomlinson, 248 Pa. Super. 196, 374 A.2d 1386 (1977), nor by findings which are unsupported by competent evidence. In re Desiree B., 304 Pa. Super. 461, 463, 450 A.2d 1003, 1004 (1982). So as to facilitate the appellate court's broad review, it has consistently been required that the hearing court provide a complete record as well as a comprehensive opinion which contains a thorough analysis of the record and specific reasons for the court's ultimate decision. E.g., In the Interest of Tremayne Quame Idress R., supra, 286 Pa. Superior 488, 429 A.2d at 44. It is in light of the foregoing that we review the record and determination.

Preliminarily, appellant raises the threshold argument that the lower court erred in adjudicating Shane to be a "dependent" child under the Juvenile Act, 42 Pa.C.S.A. § 6302. If Shane was not, in fact, "dependent," then the lower court had no authority to order a disposition under § 6351, 42 Pa.C.S.A. § 6351. (" If the child is found to be a dependent child the court may make any of the following orders of disposition . . . .") See In re La Rue, 244 Pa. Super. 218, 366 A.2d 1271 (1976). The Juvenile Act gives nine definitions of a "dependent child" which are stated in the disjunctive. 42 Pa.C.S.A. § 6302. The lower court held, with Superior Court affirming, that Shane was a dependent child within the meaning of subsection (4) which defines such a child as one who "is without a parent, gaurdian or legal custodian." We fully adopt the reasoning of the Superior Court in concluding that Shane is a dependent child as appellants do not fall within any of these categories.

Appellants maintain that the term "parent" should be defined and expanded to include those who stand in loco parentis to a child. There is no indication that the legislature intended "parents" to include anything other than natural, blood relationship parents, and adoptive parents and the Superior Court's opinion refusing to expand the definition is persuasive. 288 Pa. Super. at 462, 432 A.2d at

[ 502 Pa. Page 121604]

-05.*fn4 Furthermore, while appellants could be considered to be "custodians" as that term is defined elsewhere in § 6302, the lower court and Superior Court were correct in stating that the term "legal" must be given equal weight with "custodian" and the two read together. 288 Pa. Super. at 463, 432 A.2d at 605. The Juvenile Act unequivocally discloses that the legislature considered "custodian" and "legal custodian" to be separate and distinct. See 42 Pa.C.S.A. § 6357, Rights and duties of legal custodian ("A custodian to whom legal custody has been given by the court . . . has the right to . . . .").

Having properly adjudicated Shane to be a dependent child, the court was required to enter an order of disposition under 42 Pa.C.S.A. § 6351 which provides, in relevant portion:

Disposition of dependent child

(a) General rule. -- If the child is found to be a dependent child the court may make any of the following orders of disposition best suited to the protection and physical, mental, and moral welfare of the child:

(1) Permit the child to remain with his parents, guardian, or other custodian, subject to conditions and limitations as the court prescribes, including supervision as directed by the court for the protection of the child.

(2) Subject to conditions and limitations as the court prescribes transfer temporary legal custody to any of the following:

(i) Any individual resident within or without this Commonwealth, who, after study by the probation officer or other person or agency designated by the court, is

[ 502 Pa. Page 122]

    found by the court to be qualified to receive and care for the child.

(ii) An agency or other private organization licensed or otherwise authorized by law to receive and provide care for the child.

(iii) A public agency authorized by law to receive and provide care for the child.

It should be obvious that in rendering the disposition "best suited to the protection and physical, mental, and moral welfare of the child," the hearing court and the reviewing court must take into account any and all factors which bear upon the child's welfare and which can aid the court's necessarily imprecise prediction about that child's future well-being. To that end, the legislature has, in the Juvenile Act, instructed the courts in disposition hearings that "all evidence helpful in determining the questions presented, including oral and written reports, may be received by the court and relied upon to the extent of its probative value even though not otherwise competent in the hearing on the petition." 42 Pa.C.S.A. § 6341(d), Evidence on issue of disposition.

A review of appellate precedent in child placement cases illuminates the complexity of the disposition issue and demonstrates that, given the limitless combinations of tangible and intangible variables that produce the human condition, and given that in each custody dispute, at least three such combinations and conditions must be considered (the child and the contesting parties), it would be impossible to formulate any precise, mathematical equation. More so in child custody cases than perhaps in any other, judges must bring to bear all of the wisdom, common sense and sensitivity they can muster to render the disposition "best-suited" to the particular child's welfare, and to do so, they must be informed of all relevant information and weigh each factor, both on its own merits and in conjunction with all other factors. In performing this delicate task, courts have erred

[ 502 Pa. Page 123]

    by ignoring relevant factors*fn5 as well as by exaggerating any one factor.*fn6

Guided by these principles, Judge Eshelman conducted the hearings with complete awareness that, in child placement proceedings, the best course to follow is to be quite liberal in allowing the admission of evidence and testimony that might be helpful to the court's difficult determination of Shane's best interests. Thus, he allowed "everything in the record but the kitchen sink." N.T. at 32. The court heard much evidence concerning the home environments of the appellants and the Youngs and concluded that each home and each couple were equally well-suited to provide for Shane's physical well-being. Appellants had already demonstrated their ability to provide for Shane's physical well-being on their nineteen acre farm in rural Stony Run, where he was well fed and clothed and had his own bedroom. The Youngs had demonstrated their ability to raise children successfully in their large home in Reading, having raised three of their own children to maturity with one minor child still living at home, and three foster children from the ages of seven or eight until their maturity.

The respective ages of the couples was also a consideration below. At the time of the hearings, Annie Miller was 75 (now 79) years and Harvey Miller was 83 (now 87) years. Iris Young was 39 (now 43) years at the time of the hearings. Mr. Young's age was not specified but presumed

[ 502 Pa. Page 124]

    to be under 50. While the court realized that age alone cannot be the determinative factor, see Commonwealth ex rel. Kuntz v. Stackhouse, 176 Pa. Super. 361, 108 A.2d 73 (1954), it did consider the advanced age of the Millers to be an important factor. This was not error. As was stated in Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 444, 292 A.2d 380, 383 (1972), the "age of seventy and beyond is hardly an ideal time of life to be raising two boys on the verge of entering their teenage years."

At trial, the director of social services at Children's Services testified as to its policy of placing children with "natural" age parents. N.T. at 40. The reasons for such a policy are apparent: older foster parents may find it more difficult to maintain the physical effort required to control a young child; older foster parents have a greater likelihood of contracting extended chronic illnesses; the child may encounter peer group difficulties because of the advanced age of the foster parents. In re Adoption of Michelle Lee T., 44 Cal.App.3d 699, 117 Cal.Rptr. 856 (1975). Just as the hearing court would have been remiss in relying on the age factor to the exclusion of all others, so too, the court would have erred in failing to consider it. While no "bright lines" can or should be drawn as to potential foster parents' ages, it cannot be denied that the ages of 75 and 83 years (now 79 and 87) could pose difficulties in the raising of a six (now ten) year old boy.

The other primary factor in the hearing court's determination was the well founded policy that brothers and sisters should be raised together in one household. It has always been a strong policy in our law (and a policy of Children's Services) that, absent compelling reasons to the contrary, siblings should be raised together. Tomlinson v. Tomlinson, supra; Tobias v. Tobias, 248 Pa. Super. 168, 170, 374 A.2d 1372, 1373 (1977); Commonwealth ex rel. Martino v. Blough, 201 Pa. Super. 346, 191 A.2d 918 (1963). This factor is not diluted by the fact that the children involved are half brothers and sisters. Albright v. Commonwealth ex rel. Fetters, supra 491 Pa. at 328, 421 A.2d at 161. "The

[ 502 Pa. Page 125]

    benefits to be derived from the three minors being raised in the same household provided a further factor that could properly be weighed . . . ." by the hearing court. Id. Furthermore, this policy is enunciated in the Juvenile Act itself. 42 Pa.C.S.A. § 6301 states: "(b) Purposes -- This chapter shall be interpreted and construed as to effectuate the following purposes: (1) To preserve the unity of the family whenever possible. . . ."

Again, this factor cannot be automatically elevated above all others, but must be weighed in conjunction with the others. See, e.g., In the Interest of Tremayne Quame Idress R., supra, 286 Pa. Superior 494, 429 A.2d at 43-44, 45. In the instant case, Shonda Lynn and Sean are Shane's only known, living relatives. Prior to the tragic events of August 14, 1978, the three children had lived together for approximately 27 months. The children know each other and, when the twins would visit Shane at the Millers' farm, the three would immediately begin to play with each other. N.T. 102-03, 243. Accordingly, the hearing court properly considered that being raised together with his brother and sister would be a potentially potent, positive influence on Shane's healthy development.

Another factor which played a significant role at the hearings, but which the lower court disregarded in arriving at its custody disposition, was the race of the respective parties. The lower court stated at note 5:

The question of race was also raised during the hearings. The Millers are white; Shane and the Youngs are black. Much of the record developed before the Court dealt with identity crises Betty Jean Davis Pellot allegedly suffered by being raised by white people. Annie Miller and Reverend Fritch both testified that Betty had no racial identity problems while Cheryl Roling, a BCCYS caseworker who for a time counseled Betty, claimed that she had a low self-esteem and a bias against blacks. We found most of this evidence either irrelevant or ...

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