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DONNA W. AND EDWARD W. (02/10/84)

filed: February 10, 1984.

IN RE DONNA W. AND EDWARD W., MINORS. APPEAL OF MARILYN W., MOTHER OF THE MINOR CHILDREN


No. 674 Pittsburgh 1981, Appeal from the Order of the Court of Common Pleas of Allegheny County at No. 2021 of 1977.Juevenile Division

COUNSEL

Eileen D. Yacknin, Pittsburgh, for appellant.

Marc Salo Drier, Pittsburgh, for appellees.

Timothy W. Pawol, Pittsburgh, for participating party.

Cercone, President Judge, and Spaeth, Hester, Brosky, Wieand, Beck and Johnson, JJ. Hester and Beck, JJ., filed concurring and dissenting opinions. Wieand, J. filed a dissenting opinion.

Author: Spaeth

[ 325 Pa. Super. Page 41]

This appeal by a mother seeking custody of her children presents two questions. The first question is: What is the scope of our review in a child custody case? The answer to this question is long-settled; it is: The scope of our review is broad; we must accept the trial court's findings of fact, unless they are unsupported by the evidence, but on those facts we must make such order as our independent judgment

[ 325 Pa. Super. Page 42]

    persuades us right and justice dictate. The second question is: On the facts of this case, as the trial court has found them to be, what order do right and justice dictate? While we acknowledge that the answer to this question is very difficult, we have concluded that the children should remain with the foster parents, but that appropriate steps should be taken to ensure that the mother will receive training and support, in the hope that after continued contact with the children and further enhancement of her abilities as a parent, she may be awarded custody. We therefore affirm the trial court's award of custody to Allegheny County Children and Youth Services, but remand for further proceedings.

-1-

-(a)-

By way of clearing the ground, it should be noted at the outset that it is pointless to try to reconcile the decisions of this court. While some members of this court have insisted that the scope of review in custody cases is broad, other members have insisted that it is narrow, and that we should reverse only if the trial court has abused its discretion. The intensity and duration of this struggle may no doubt be explained by the depth of the emotions evoked by child custody cases. Nevertheless, whatever may be the law in other jurisdictions, the law in Pennsylvania is long-settled, and we should do well to accept it as settled, and cease struggling to escape the responsibility -- admittedly, difficult and painful to fulfill -- that it imposes upon us.

The Pennsylvania Supreme Court has succinctly defined the scope of review in child custody cases:

[ 325 Pa. Super. Page 43]

Our scope of review in a custody matter is of the broadest type, and we are not bound by deductions or inferences made by a trial court. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 295, 368 A.2d 635, 637 (1977). We must exercise an independent judgment based on the evidence and make such an order on the merits of the case as right and justice dictate. Adoption Page 43} of Farabelli, 460 Pa. 423, 433, 333 A.2d 846, 851 (1975); Snellgrose Adoption Case, 432 Pa. 158, 163 247 A.2d 596, 599 (1968).

Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 295-297, 426 A.2d 555, 557 (1981).

Relying on this and other, similar, statements, this court has said:

[ 325 Pa. Super. Page 44]

It is clear that our scope of review in custody cases is of the broadest type. Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981); Commonwealth ex rel. Oxenreider v. Oxenreider, 290 Pa. Super. 63, 434 A.2d 130 (1981); Commonwealth ex rel. Berman v. Berman, 289 Pa. Super. 91, 432 A.2d 1066 (1981). We are required to exercise independent judgment based on the evidence and make such an order on the merits of the case as to do right and justice. Commonwealth ex rel. Pierce v. Pierce, supra; Commonwealth ex rel. Oxenreider v. Oxenreider, supra; Commonwealth ex rel. Berman v. Berman, supra. While we cannot nullify or usurp the fact-finding function of the trial court, we are not bound by the deductions or inferences made by them. Robert H.H. v. May L.H., 293 Pa. Super. 431, 439 A.2d 187 (1981); In re Davis, 288 Pa. Super. 453, 432 A.2d 600 (1981); Garrity v. Garrity, 268 Pa. Super. 217, 407 A.2d 1323 (1979). Therefore, if the issue is whether we should reverse the lower court's findings of fact, we must defer to the lower court and reverse only where, in making the findings, the lower court has abused its discretion. Commonwealth ex rel. Berman v. Berman, supra; In re Custody of Hernandez, 249 Pa. Super. 274, 376 A.2d 648 (1977). However, because of our requirement to exercise independent judgment, we will not adhere to an abuse of discretion standard in reviewing the determination of the lower court. See Robert H.H. v. May L.H., supra; Commonwealth ex rel. Berman v. Berman, supra; In re Arnold, id. 286 Pa. Super. [171] id. at 176, 428 A.2d [627] at 629 [(1981)] (HOFFMAN, J., concurring); Commonwealth Page 44} ex rel. E.H.T. v. R.E.T., 285 Pa. Super. 444, 457, 427 A.2d 1370, 1376 (1981) (HOFFMAN, J., concurring). Commonwealth ex rel. Newcomer v. King, 301 Pa. Super. 239, 244-245, 447 A.2d 630, 633 (1981).

[ 325 Pa. Super. Page 45]

This broad scope of review has its origins in the Habeas Corpus Act of July 11, 1917, P.L. 817 § 1, and the Orphans Court Act of June 7, 1917, P.L. 363 § 22(b). The Habeas Corpus Act provided that in reviewing a custody award, the Superior Court "shall consider the testimony and make such order upon the merits of the case . . . as to right and justice shall belong." The Orphans Court Act similarly provided that the Supreme and Superior Courts "shall, in all cases of appeal from the definitive sentence or decree of the orphans' court, hear, try, and determine the same as to right and justice may belong, and decree according to the equity thereof . . . ." Although these statutory provisions were amended, and in fact eventually repealed, the scope of review has always remained the same.*fn1 See, e.g., Commonwealth Page 45} ex rel. Davenport v. Montgomery County Children and Youth Services, 501 Pa. 472, 476, 462 A.2d 221, 223 (1983) ("[W]e have held that the scope of review in custody matters is of the broadest type . . ."); Commonwealth ex rel. Zaffarano v. Genaro, 500 Pa. 256, 262, 455 A.2d 1180, 1183 (1983) ("[A]ppellate courts possess a broad scope of review in custody cases."); Commonwealth ex rel. Pierce v. Pierce, supra 493 Pa. at 295-97, 426 A.2d at 557 ("Our scope of review in a custody matter is of the broadest type . . ."); Albright v. Commonwealth ex rel. Fetters, supra 491 Pa. at 324, 421 A.2d at 158 (1980) ("We have traditionally embraced the view that the scope of review to be applied by appellate courts in custody cases is very broad."); Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 294-296, 368 A.2d 635, 637 (1977) ("[O]ur law has long recognized that the scope of review of an appellate court reviewing a custody matter is of the broadest type.").

In Ciammaichella Appeal, 369 Pa. 278, 85 A.2d 406 (1952), the Supreme Court expressly rejected the argument, which this court had embraced, that the scope of review should be limited to inquiring whether the trial court has abused its discretion. Ciammaichella involved a custody dispute between a mother and foster parents. The trial court awarded custody to the mother. This court affirmed. The Supreme Court allowed an appeal "because . . . the Superior Court misconceived its reviewing function." Id., 369 Pa. at 280, 85 A.2d at 407. The Court stated that the appellate "scope of review extends to the fullest review

[ 325 Pa. Super. Page 46]

    consistent with equitable principles," id., 369 Pa. at 281, 85 A.2d at 408, and that "[d]espite the broad power thus conferred upon the Superior Court, it held that the scope of its review was limited to ascertaining only whether the lower court had abused its discretion in making its award of custody . . . . Where so important an issue as the welfare of a child is involved, in which the State has a paramount interest, the Superior Court should not in this case have limited its review but have exercised its independent judgment after consideration of the entire record." Id., 369 Pa. at 280-282, 85 A.2d at 408. Exercising its independent judgment, the Supreme Court concluded: "After examination of the entire record in this case, a careful review of all the testimony and full consideration of the able briefs and argument by counsel, we have independently arrived at the same conclusion reached by the lower court, that the welfare of this child is best served in the home of her mother and sister . . . . Under all the facts and circumstances of this case, with full consideration given to the effect of the necessitated change of environment from the home of the foster parents to that of the mother, we would have arrived at the same conclusion reached by the lower court had we in the first instance been charged with the duty imposed upon it." Id., 369 Pa. at 287, 291, 85 A.2d at 411, 412. See also, Commonwealth ex rel. Bendrick v. White, 403 Pa. 55, 169 A.2d 69 (1961) ("It is our duty not simply to determine from the record whether the trial court has abused its discretion but to examine all the evidence and reach an independent determination . . .") (emphasis in original) (citation omitted). Having thus been specifically, even, one may say, pointedly, corrected by the Supreme Court, we should not again attempt to embrace the abuse of discretion standard.

-(b)-

Those who suggest an abuse of discretion standard often emphasize the fact that the trial court has seen and heard the witnesses. For example, Judge WIEAND speaks of "the trial judge's observations of the witnesses, of glances exchanged between the children and their parents, of a

[ 325 Pa. Super. Page 47]

    grimace, a nod of the head, or a blinking of the eye." WIEAND, J., at 83. But an appellate court exercising a broad scope of review may be equally aware of, and quite as sensitive to, these considerations. As the Supreme Court has repeatedly emphasized, the appellate court is not "free to nullify the fact-finding function of the hearing judge" but, rather, is bound by, and must accept as its point of departure, the facts as found by the trial judge.

A rather dramatic illustration of this principle is the Supreme Court's decision in Commonwealth ex rel. Harry v. Eastridge, 374 Pa. 172, 97 A.2d 350 (1953). There the trial court had awarded the custody of two children to their mother, despite testimony that the mother was unfit to have custody. The mother denied that she was unfit and the trial court believed her. This court, however, reversed the trial court's award. On appeal, the Supreme Court reversed this court. "Decision of the present case," the Supreme Court said, "depended largely upon a determination of the credibility of the witnesses." Id., 374 Pa. at 175, 97 A.2d at 352. Noting that this court had accepted as credible the testimony indicating that the mother was unfit, and had based its decision on that testimony, the Supreme Court said: "But in so doing [the Superior] Court rejected the unqualified denial by [the mother] which was believed by the judges who saw her in the courts below . . . ." Id., 374 Pa. at 175, 97 A.2d at 352. (emphasis in original). The Court continued: "The Superior Court's decision was thus based on a categorical rejection of the conclusions on credibility reached by the two hearing judges who observed the witnesses and listened to their testimony." Id., 374 Pa. at 176, 97 A.2d at 352. In reversing this court, the Supreme Court went to some pains to dispel the mistaken belief, which also underlies Judge WIEAND's opinion, that the duty to exercise a broad scope of review permits the appellate court to act as fact-finder. To the contrary, said the Court, the broad scope of review "was never intended to mean that an appellate court is free to nullify the fact-finding function of the hearing judge. It is a principle which

[ 325 Pa. Super. Page 48]

    runs through all our cases that the credibility of the witnesses and the weight to be given to their testimony by reason of their character, intelligence, and knowledge of the subject can best be determined by the judge before whom they appear." Id., 374 Pa. at 177, 97 A.2d at 353. The Supreme Court concluded that this court had "failed to give such weight to the opinions of the two judges who heard the witnesses in the present case", id., 374 Pa. at 178, 97 A.2d at 353, and therefore reversed our order.

Thus admonished, we have repeatedly acknowledged our duty to defer to the trial court's appraisal of the witnesses' credibility. Nor, it should be emphasized, has this acknowledgment been at all grudging; we know that by far the best way to appraise credibility is to see the witnesses. Thus we have said that in applying our broad scope of review, we apply it to the facts as the trial court has found them. In re Desiree B., 304 Pa. Super. 461, 450 A.2d 1003 (1982) (appellate court will not nullify fact-finding of trial court); Commonwealth ex rel. Strunk v. Cummins, 258 Pa. Super. 326, 392 A.2d 817 (1978) (same); In re Leskovich, 253 Pa. Super. 349, 385 A.2d 373 (1978) (same); Tomlinson v. Tomlinson, 248 Pa. Super. 196, 374 A.2d 1386 (1977) (same). Tobias v. Tobias, 248 Pa. Super. 168, 374 A.2d 1372 (1977) (same).

Those who suggest an abuse of discretion standard seem not to appreciate this interplay between, on the one hand, accepting the trial court's determinations of credibility, and on the other hand, exercising a broad scope of review. They seem to regard a broad scope of review as "usurp[ing] the function of the trial court." WIEAND, J., at 83. But there is neither inconsistency nor usurpation in accepting the facts as the trial court has found them, and then applying to those facts a broad scope of review. For example, in Snellgrose Adoption Case, 432 Pa. 158, 247 A.2d 596 (1968), the Supreme Court accepted the trial court's findings of fact, but, exercising its independent judgment, reversed the trial court's award. The trial court did not regard the evidence of the mother's relationship

[ 325 Pa. Super. Page 49]

    with a married man and her conduct while in the presence of her daughter as sufficient reason for not awarding custody of the daughter to the mother. The Supreme Court disagreed, stating that the mother's conduct was "such as to deprive a home where a young girl is being raised a healthy moral atmosphere." Id., 432 Pa. at 164, 247 A.2d at 599. While accepting the trial court's findings, the Court, exercising its broad scope of review, drew its own inferences and deductions, and concluded: "From an independent examination of the record, then, we must disagree with the lower court's conclusion that there are no compelling reasons which warrant depriving [the mother] of custody of her child." Id., 432 Pa. at 168, 247 A.2d at 601. Similarly, the Supreme Court has on occasion exercised its broad scope of review to reverse this court. In Hooks v. Ellerbe, 257 Pa. Super. 219, 390 A.2d 791 (1978), this court reversed the trial court's award of custody. That case involved a custody dispute between the father and maternal grandmother of an eleven year-old child. We held that in awarding custody to the grandmother the trial court had applied an improper legal standard, failing to give the parent-child relationship sufficient consideration. Exercising its independent judgment, the Supreme Court reversed our decision and awarded custody to the grandmother. Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980). The Court explained that even though it agreed with us that the trial court had applied an improper legal standard, still, "our [ i.e., the Supreme Court's] review of the record convinces us that the trial court's determination may still stand." Id., 490 Pa. at 371, 416 A.2d at 515.

-(c)-

A broad scope of review is essential if the appellate court is to fulfil its responsibility to children. To state the point conversely: an appellate court deciding that it will reverse a custody award only for abuse of discretion abdicates its responsibility. After all, an "abuse of discretion" is a very serious matter, coming close to judicial misconduct. "It is not a mere error of judgment . . . . [A] court's judicial

[ 325 Pa. Super. Page 50]

    discretion in a given situation is governed by the legal principles that are applicable to that situation; and if in reaching a conclusion the law is departed from, overridden or misapplied, or the judgment exercised by the lower court is manifestly unreasonable, or is the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record, discretion is abused, and it is the duty of the appellate court to correct the error." 16 Stand.Pa.Prac.2d 464-465 (footnotes omitted). This is the least exacting standard of appellate review, reserved for cases of the most routine sort. Universal Builders Supply Inc., v. Shaler Highlands Corp., 409 Pa. 334, 186 A.2d 30 (1962); (order granting or refusing petition to open judgment will be reversed only for abuse of discretion); Commonwealth ex rel. Alexander v. Alexander, 445 Pa. 406, 289 A.2d 83 (1971), (support). A person accused of crime receives far greater appellate protection, for in criminal cases we reverse unless satisfied beyond a reasonable doubt that error was harmless. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). To be sure, considering the threat that prosecution for crime poses to reputation and liberty, we owe the accused this consideration. But surely we owe our children no less.

In this regard, it is important to recognize that those who suggest an abuse of discretion standard would go even further than putting child custody cases at the bottom of the appellate pile. As pointed out in McQuiddy v. McQuiddy, 238 Pa. Super. 390, 393, 358 A.2d 102, 104 (1976);

[W]hen the court has come to a conclusion by the exercise of its discretion, the party complaining of it on appeal has a heavy burden; it is not sufficient to persuade the appellate court that it might have reached a different conclusion if, in the first place, charged with the duty imposed on the court below; it is necessary to go further and show an abuse of the discretionary power.

[ 325 Pa. Super. Page 51]

Thus, to adopt an abuse of discretion standard would precisely reverse our obligation to children: instead of "mak[ing] such an order on the merits of the case as right Page 51} and justice dictate," Commonwealth ex rel. Pierce v. Pierce, supra, (emphasis added), we should have to affirm an order that we believed wrong.

-(d)-

Finally, those who suggest an abuse of discretion standard seem not to appreciate the complexity of the appellate process that has been developed under the rubric, "broad scope of review." They seem to imagine only two, very different, alternatives: either we must reverse only for abuse of discretion, or we will find ourselves on some sort of uncharted sea, where we must make an unguided independent judgment. The reality is quite different.

Perhaps the most useful way to think of the appellate process in a child custody case is as proceeding in four stages. The first stage may be described as the procedural stage; the second, as the fact-finding stage; the third, as the conclusion of law stage; and the fourth, as the inferences and deductions stage.

At the first, procedural, stage of the appellate process, the appellate court examines the record to determine whether the trial court has satisfied the several procedural requirements incident to the entry of a custody award. To enable the appellate court to exercise its independent judgment, the trial court must make a complete record. Garrity v. Garrity, 268 Pa. Super. 217, 407 A.2d 1323 (1979); Augustine v. Augustine, 228 Pa. Super. 312, 324 A.2d 477 (1974). This means that the record must contain testimony adequate to illuminate the circumstances of the parties. Sipe v. Shaffer, 263 Pa. Super. 27, 396 A.2d 1359 (1979); Gunter v. Gunter, 240 Pa. Super. 382, 361 A.2d 307 (1976). There should be testimony by interested and disinterested witnesses alike. J.F.G. v. K.A.G., 278 Pa. Super. 25, 419 A.2d 1337 (1980); Lewis v. Lewis, 267 Pa. Super. 235, 406 A.2d 781 (1979). The testimony must describe the parties' respective homes, and sometimes expert testimony is necessary. Rupp v. Rupp, 268 Pa. Super. 467, 408 A.2d 883

[ 325 Pa. Super. Page 52]

(1979) (remand for psychiatric testimony and disinterested testimony on homes).

If, at the procedural stage, the appellate court determines that the record is incomplete, ordinarily the case will be remanded to the trial court for further hearing. This very case illustrates such a remand. When it was first appealed to this court, we remanded because "the record [was] totally devoid of any evidence regarding the nature and quality of the children's foster placements, the degree of attachments which the children have formed in foster care, and the effect which return of the children would have on them." In Re Donna W., 284 Pa. Super. 338, 349, 425 A.2d 1132, 1137 (1981).

The appellate court also considers at the procedural stage whether the trial court has filed a complete and comprehensive opinion, including findings of fact and reasons for the award. Strapple v. Strapple, 263 Pa. Super. 187, 397 A.2d 809 (1979); Commonwealth ex rel. Grillo v. Shuster, 226 Pa. Super. 229, 312 A.2d 58 (1973). If the record is otherwise complete, it may not be necessary to remand for a comprehensive opinion, Commonwealth ex rel. Husack v. Husack, 273 Pa. Super. 192, 417 A.2d 233 (1979), Tomlinson v. Tomlinson, supra, but often remand is necessary to enable us to exercise our independent judgment, Strapple v. Strapple, supra; Commonwealth ex rel. Forrester v. Forrester, 258 Pa. Super. 397, 392 A.2d 852 (1978).

Once satisfied that the trial court has made no procedural errors requiring remand, the appellate court proceeds to the second, fact-finding, stage of the appellate process. At this stage the appellate court examines the trial court's findings of fact. As has already been discussed, the appellate court is bound to accept the trial court's findings, see e.g., Commonwealth ex rel. Harry v. Eastridge, supra, but this of course assumes that the findings are supported by evidence of record. Generally, they are. But if examination discloses that findings determinative of the award are unsupported

[ 325 Pa. Super. Page 53]

    by the record, it may be necessary to reverse.*fn2 Jon M.W. v. Brenda K., 279 Pa. Super. 50, 420 A.2d 738 (1980).

If no procedural errors requiring remand have occurred, and the trial court's findings of fact are supported by the record, the appellate court proceeds to the third stage of the appellate process. At this stage the appellate court determines whether the trial court has committed an error of law. For as is true in all appeals, not only in child custody cases, the appellate court is never bound by the trial court's conclusions of law. Thus, the trial court's award will be reversed where based on the tender years presumption, Haraschak v. Haraschak, 268 Pa. Super. 173, 407 A.2d 886 (1979), or on the application of an improper burden of proof, Ellerbe v. Hooks, supra; In Re Custody of Hernandez, 249 Pa. Super. 274, 376 A.2d 648 (1977). Where the trial court commits an error of law, the appellate court will usually remand to allow the trial court to rectify its error, Schall v. Schall, 251 Pa. Super. 262, 380 A.2d 478 (1977), but in some cases, depending on the evidence, the appellate court may make an award without remand, In Re Custody of Hernandez, supra.

It is only if no errors requiring remand are disclosed at any of the first three stages of the appellate process that the appellate court proceeds to the fourth stage. It is at this fourth stage that the appellate court must consider what inferences and deductions to draw from the facts as found by the trial court. In doing this we are not bound by the inferences and deductions of the trial court, as we are bound by its findings of fact. Rather, as the Supreme Court and this court have said:

[ 325 Pa. Super. Page 54]

Our scope of review in a custody matter is of the broadest type, and we are not bound by deductions or inferences made by a trial court. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 295, 368 A.2d 635, 637 (1977). We must exercise an independent judgment based on the evidence and make such an order on the merits of the case as right and justice dictate. Adoption of Farabelli, 460 Pa. 423, 433, 333 A.2d 846, 851 (1975); Snellgrose Adoption Case, 432 Pa. 158, 163, 247 A.2d 596, 599 (1968).

Commonwealth ex rel. Pierce v. Pierce, supra, 493 Pa. at 295-297, 426 A.2d at 557.

And see: Commonwealth ex rel. Newcomer v. King, supra; Robert H.H. v. May L.H., 293 Pa. Super. 431, 439 A.2d 187 (1981).

This process of an appellate court drawing its own inferences and deductions is illustrated in Snellgrose Adoption Case, discussed supra at p. 48-49. See, concurring opinion by Chief Justice BELL 432 Pa. at 168-169, 247 A.2d at 601, explaining reason for the Court's reversal: "An appellate Court is not bound to accept so-called findings of fact which are in reality deductions, inferences and conclusions found by the lower court . . . ." (citations omitted). It is also illustrated in In Re Custody of Temos, 304 Pa. Super. 82, 450 A.2d 111 (1982), where this court, exercising its independent judgment, drew its own inferences and deductions and reversed the order of the trial court. The case involved a custody dispute between the parents of two minor children. The trial court, in awarding custody to the father, relied on three factors:

     that the mother "maintained a close relationship with a married man;" that the mother was involved in two questionable financial transactions; and that since the parties' divorce, "the mother has become increasingly career-oriented [and] has placed heavy reliance on babysitters."

Id., 304 Pa. Superior Ct. at 85, 450 A.2d at 112.

[ 325 Pa. Super. Page 55]

This court examined each factor and concluded that none of them supported an award of custody to the father. We therefore reversed, awarded custody to the mother, and remanded the case so that the trial court could provide for the father's visitation.

-2-

-(a)-

When this case was last before us, our review proceeded only so far as the first stage of the appellate process required by the application of a broad scope of review. Examining the record to determine whether the trial court had made any procedural error, we discovered that indeed it had: the record was devoid of any evidence regarding the quality of the children's foster care, the degree of the children's attachment to the foster parents, or the probable effect on the children of returning them to their mother. We therefore reversed and remanded with instructions to make a complete record. In re Donna W., supra. On remand the trial court did make a complete record. It is therefore now in order to proceed to the second stage of the appellate process, and determine whether the trial court's findings of fact are supported by the record.

This determination is complicated by the fact that the trial court has made no findings of fact as such, instead simply delivering its decision in narrative form. As a result, the basis of the trial court's award is somewhat obscure, as will be more fully discussed in a moment. However, it is plain enough that the findings of fact implied in the trial court's narrative are supported by the record. Therefore, accepting the findings as binding, we may proceed to the third stage of the appellate process, and determine whether the trial court correctly applied to the facts as it found them the pertinent principles of law.

In making this determination, we may start with Judge HESTER's statement of the case, HESTER, J., at 68-74, for it admirably summarizes the conflicting positions taken by the respective parties, thereby making plain the

[ 325 Pa. Super. Page 56]

    poignance of the situation we must do our best to resolve. (Judge WIEAND's statement of the case is also very fine, but we refer particularly to Judge HESTER's because of its description of the expert testimony.) Without repeating or paraphrasing Judge HESTER's statement, it seems fair to identify three aspects of that situation as dominant.

First: The children, Donna, now seven, and Edward, now six, have, in the opinion of all three of the expert witnesses, developed strong "psychological bonds" to their foster parents. This has occurred because of the fact, recited by the trial court, that "[t]he children have been out of the custody of the mother from May 23, 1978, and before that, Donna had been placed by the mother with Children and Youth Services in April, 1977 because of her instability and threats of abuse from the children's father, who is presently in prison." Slip op. of the trial court, at 3.

Second: During this period the mother has continued to visit her children consistently. She has also improved her circumstances. "Undeniably, appellant [the mother] can now provide the physical accommodations to meet the material needs of her children." HESTER, J., at 72. "There is no contention on the part of Children and Youth Services or the Child Advocate that the mother's living conditions at this time are inadequate, and testimony received from the Children and Youth Services investigators from Washington County indicated that she is in a clean, suitable physical environment . . . ." Slip op. of trial court, at 15.

Third: The three experts were in sharp disagreement regarding how best to resolve, or accommodate to, the tension thus created between the children's desire to be with their foster parents and the mother's desire to have them with her. One expert, a clinical child psychologist retained by Children and Youth Services, was of the opinion that Donna was an emotionally insecure child, that the relationship between her and her mother was insecure, and that her foster mother could provide the care she needed better than her mother could, and that Edward had so close an attachment to his foster father and manifested so much

[ 325 Pa. Super. Page 57]

    resistance to his mother that for him to leave his foster parents for his mother would be harmful to his long-term adjustment. The two other experts, one a child developmental specialist retained by the mother, the other a child psychologist whose independent evaluation was requested by the trial court, were of the opinion that the "bonding" was not nearly so firm, and that the best interests of the children required their immediate return to their mother. It is plain from the experts' testimony that this difference in opinion represented a clash between two different philosophies or schools of thought regarding child development -- and indeed, the witnesses themselves so characterized their ...


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