Appeal from Order of the Court of Common Pleas, Family Division, of Philadelphia County, No. 2185 November, 1986.
Samuel C. Totaro, Jr., Feasterville, for appellant.
William W. Norvell, III, Assistant Public Defender, Philadelphia, for appellee.
Cavanaugh, Wieand and Del Sole, JJ.
[ 376 Pa. Super. Page 616]
In this custody dispute between the mother and great-grandmother of David L.C., the trial court awarded custody of David to his great-grandmother. The mother appealed.
Edna C. had been abandoned by an alcoholic mother and had been raised, together with her two brothers, by her grandmother. Edna was a superior athlete, with a demonstrated skill in the game of basketball. While attending school in Pittsburgh, she became pregnant at the age of
[ 376 Pa. Super. Page 617]
fourteen. At the age of fifteen, on February 23, 1984, she gave birth to David. She took her infant child to Philadelphia and left him with her grandmother, Jane M., until she could find an apartment in Pittsburgh. After several weeks, the child was returned to Pittsburgh where Edna had obtained an apartment and a baby-sitter. In July, however, Edna took the child back to Philadelphia and left him with Jane M. Subsequently, Edna went to live with her basketball coach in Pittsburgh and made plans to continue her education. The child remained in Philadelphia with Jane M., where he has continued to live. The parties agree that the child has been adequately cared for, is physically and emotionally well, and that a strong and loving relationship has developed between David and his great-grandmother. In the latter part of 1984, Edna completed counseling and decided to surrender the child for closed adoption. Jane M. objected to a closed adoption, and when Edna sought to take the child back to Pittsburgh for that purpose, Jane refused to surrender him. Jane M. made arrangements for the child to be cared for by the Pringles, who were friends of hers, when she worked nights (11 p.m. to 7 a.m.) as a practical nurse and, in May, 1986, took early retirement so that she could care for the child full time.
In April, 1985, Jane M. filed a petition to confirm custody; and in July of 1985, Edna filed a petition for writ of habeas corpus.*fn1 The two actions were consolidated and were heard before the Honorable Nicholas Cipriani. Edna testified that if she were awarded custody, she would deliver the child to an adoption agency, surrender all rights to the child, and terminate all relationship and contact with the child. Jane M. is now 64 years of age, and David is four years of age.
In this case, as in all custody determinations, a court's paramount concern must be for the best interests of the child. In reviewing a trial court's determination, an
[ 376 Pa. Super. Page 618]
appellate court is not bound by the legal conclusions made by the trial court, nor must a reviewing court accept facts unsupported by competent evidence on the record. Robinson v. Robinson, 505 Pa. 226, 236, 478 A.2d 800, 806 (1984), quoting Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 295-296, 368 A.2d 635, 637 (1977). Issues of credibility or weight of testimony, however, must be left to the trial court, which has had the opportunity to observe the parties and witnesses. Id. "Only where we are constrained to hold that there was a gross abuse of discretion should an appellate court interfere with the decisions of the hearing judge." Lombardo v. Lombardo, 515 Pa. 139, 148, 527 A.2d 525, 529 (1987), quoting Commonwealth ex rel. Rainford v. Cirillo, 222 Pa. Super. 591, 597-598, 296 A.2d 838, 841 (1972). On appeal, we may only modify a custody determination if we find that the trial court's judgment is "manifestly unreasonable as shown by the evidence of record." ...