Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

DAMON B. (02/01/85)


filed: February 1, 1985.


No. 01444 Pittsburgh, 1983, Appeal from the Order of the Court of Common Pleas, Allegheny County, Juvenile Division, at No. 256-78.


Lorraine D. Taylor, McKeesport, for appellant.

Mark P. Cancilla, Pittsburgh, for appellee.

Spaeth, President Judge, and Brosky and Olszewski, JJ.

Author: Brosky

[ 338 Pa. Super. Page 598]

This appeal is from an order*fn1 continuing custody with the foster parents, providing for visitation with the natural

[ 338 Pa. Super. Page 599]

    mother every 90 days and directing Children and Youth Services to "take appropriate action to achieve the goals of its permanent plan for said child consistent with the above findings." Those findings concluded with the following:

(35) This child's primary need at this time is security in his placement with the Krepineviches.*fn2

(36) Though not guaranteed, termination of parental rights and adoption by the Krepineviches can best meet this need.

We affirm those portions of the order continuing custody and scheduling visitation and reverse as to the permanent plan. Given that there were no findings of fact which would, in the future, justify termination of parental rights; and given that there was a finding of fact that the natural mother is a fit mother, we can only conclude that a permanent plan leading to termination of the natural mother's rights is inappropriate and that a permanent plan leading to the ultimate return of the child to his natural mother is indicated.


Damon B., the child who is the subject of the appealed from order, was born in 1977. At the age of seven months he was adjudicated dependent and returned to his mother's custody. When he was 15 months old he was removed from his home and has been in the custody of CYS and in the foster home of the Krepineviche's since shortly thereafter through the present. In 1981 an order substantially identical to the present one was appealed to this court.

This court affirmed the visitation portion of the order, vacated the portion of the order directing that a permanency

[ 338 Pa. Super. Page 600]

    plan be formulated and remanded for further consideration of permanency planning.*fn3

Following that remand a hearing was held and the instant order issued. The natural mother, Joan B. has appealed and briefs have been filed by CYS, foster parents and on behalf of Damon B.

Scope of Review

Initially, it must be made clear that the order appealed from is not one terminating parental rights, but a custody order mandating planning with termination as a goal. Within the context of a custody case, our appellate scope of review is dependent on what is being examined. As to the lower court's findings of fact, the following scope obtains: if the issue is whether we should reverse the lower court's findings of fact, we must defer the lower court and reverse only where, in making the findings, the lower court abused its discretion." Commonwealth ex rel. Newcomer v. King, 301 Pa. Super. 239 at 244, 447 A.2d 630 at 633 (1981) as quoted in In re Donna W., 325 Pa. Super. 39 at 43, 472 A.2d 635 at 637 (1984) (en banc). However, as to the inferences and deductions to be made from those facts -- the ultimate conclusions -- the scope is different. "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. . . . 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." Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292 at 295-7, 426 A.2d 555 at 557 (1981) as quoted in In re Donna W., supra, 325 Pa. Superior Ct. at 42, 472 A.2d 635 at 637 (1984). This statement is totally consonant with that stated in Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984).

In disposing of this appeal we conclude that the findings of fact are supported by the evidence and thus do not constitute an abuse of discretion. Accepting, then, the factual findings of the court below, we review, using our

[ 338 Pa. Super. Page 601]

    independent judgment, the conclusions that were drawn from them. We find them to be incorrect.

Termination Plan

In a child custody proceeding the guiding standard is the best interests of the child. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972). In determining what those best interests are, the court should take into account certain considerations; among these are the stated purposes of the Juvenile Act. "To preserve the unity of the family whenever possible . . ." 42 Pa.C.S. 6301(b)(1). That policy is echoed in the well-detailed and restrictive requirements that must be met in order for parental rights to be terminated. 23 Pa.C.S. ยง 2511.*fn4 None of the factual findings of the court below establish or even relate to any of these requirements. In view of this it is

[ 338 Pa. Super. Page 602]

    both unrealistic and undesirable that a permanent plan leading to termination of parental rights be formulated. What then is the alternative?

We note with approval the following statement made by the Pennsylvania Department of Public Welfare. "No child should be allowed to drift in an out-of-home placement without the specific decision that he will be returned to his/her parents or be freed from parental custody and placed for adoption." 10 Pa.Bull. 1046-54. Since termination of parental rights is not a permissible option here, the alternative is to formulate a permanent plan to return Damon B. to his natural mother. Some factors to be evaluated in this regard are laid down in In re: Donna W., 284 Pa. Super. 338 at 346, 425 A.2d 1132 at 1136 (1981) (Hoffman, J.). Among those factors are ". . . the fitness of the party or parties seeking custody . . . . The latter consideration is, of course, especially, important when a parent is seeking the return of a dependent child, since in many cases the original finding of dependency and removal of the child resulted from the parent's past unfitness to retain custody." Relevant to this factor is the lower court's finding of fact: "(20) As evidenced by the satisfactory adjustment of the five children in her home, Ms. Brown has alleviated the problems which necessitated their removal and is a fit parent." Also noteworthy are the statements regarding the bonding of children with their foster parents made in In re: Donna W., 325 Pa. Super. 39, 472 A.2d 635 (1984) (en banc).

Our conclusions may be simply stated. A child should not exist in a permanent state of limbo in a foster home. When the alternative of termination of parental rights is in no way indicated, the other alternative, return to the natural parent, must be actively planned for. In this case, given the natural mother's current fitness as a parent and the child's advancing age, such a plan should include periodic reevaluation of the desireability of increasing the frequency of visits.

Order affirmed as to custody and visitation and reversed as to the permanent plan leading to termination of parental

[ 338 Pa. Super. Page 603]

    rights. A permanent plan leading to the return of Damon B. is to be formulated and implemented and we remand for that purpose. Jurisdiction relinquished.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.