Ciammaichella Appeal

169 Pa. Super. 240 | Pa. Super. Ct. | 1951

Opinion by

Arnold, J.,

This is an appeal from an order of the juvenile court (Juvenile Division of the Municipal Court of Philadelphia) made under circumstances hereinafter stated.

The appellee and one Peter Salemno, her former husband, had two children, — Donna, aged 7, and Nancy, aged 6. The parents did not live together after February, 1946, and were divorced. In December, 1946, the juvenile court committed Donna, the elder child, to the custody of her mother. Mrs. Salemno remarried in 1948 and that child now lives with her mother and step-father;

Nancy, the child involved in the present case, was committed by the juvenile court to the custody of the Catholic Children’s Bureau. Later the order was changed to permit the Bureau to place the child in a “free home.”

It will thus be seen that the jurisdiction of the juvenile court had attached and the powers of the court been exercised. It follows that matters concerning the welfare of said dependent child are for that court. Barely, if ever, would the jurisdiction be transferred to the court of common pleas under a habeas corpus proceeding.

In October, 1947, the father of the child had executed a formal document giving consent to her adoption by a person found suitable to the Catholic Children’s Bureau; and on November 3, 1947, the mother executed a similar document. On November 22, only 19 days thereafter, the mother requested the Catholic Children’s Bureau to return the child to her. In November, 1947, the child was placed by the Bureau with the Ciammaichellas for adoption. Nancy was then two years of age, and at the present hearing she was about five years old.

On December 4, 1948, the mother petitioned the juvenile court to return this child to her. This is a matter of right under the act.¹ Although the Ciammaichellas bad no notice of tbis proceeding, they were later permitted to intervene. After full bearing and rebearing, tbe juvenile court directed that the child be given to ber mother. Prom tbis order tbe Ciammaichellas prosecuted tbe present appeal. They also contend that tbe mother bad abandoned tbe child when she executed tbe surrender to tbe Catholic Children’s Bureau. Tbe court below correctly held that there was no abandonment.

Tbe scope of our review is limited.² In Weintraub Appeal, 166 Pa. Superior Ct. 342, 348, 71 A. 2d 823, President Judge Rhodes, stated tbe rule: “ ‘When tbe [juvenile] court has come to a conclusion by tbe exercise of its discretion, ... it is not sufficient to persuade tbe appellate court that it might have reached a different conclusion if, in the first place, charged with tbe duty imposed on tbe court below; it is necessary to . . . show an abuse of tbe discretionary power. “An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion tbe law is overridden or misapplied, or tbe judgment exercised is manifestly unreasonable, or tbe result of partiality, prejudice, bias or ill-will, as shown by tbe evidence or tbe record, discretion is abused.” ’ ” It was also pointed out that orders of tbe juvenile court are not final and are subject to modification or revocation.

In tbe instant appeal it is not suggested that tbe court below acted out of partiality, prejudice, bias or ill-will.

Tbe opinion of tbe court below states: “. . . tbe record clearly paints tbe picture of a harassed mother, who only gave up ber rights in tbe child because of circumstances which she could not control. . . We are firmly convinced that the best interests of Nancy will be served by placing her with her mother . . . where she will have the benefit, not only of the love of her mother, but of the comradeship and society of her sister” (Italics supplied).

The records of the juvenile court are sealed and secret, and we point out that persons or organizations having physical custody of a child, under a valid order made by the juvenile court, should not transfer the custody elsewhere except under an order of the juvenile court naming the persons given custody.

The order is affirmed.

1 Under The Juvenile Court Law of 1933, P. L. 1433, §16, 11 PS §258.

2 See 11 PS §§250, 254, and the amendatory Act of 1933, P. L. 1433, 11 PS §257.