Commonwealth ex rel. Ruczynski et ux., Appellants,
v.
Powers.
Superior Court of Pennsylvania.
*416 Bеfore ERVIN, P.J., WRIGHT, WATKINS, MONTGOMERY, JACOBS, and HOFFMAN, JJ. (FLOOD, J., absent).
James J. McEldrew, for appellants.
Raymond L. McConemy, Jr., with him Thorn, McConemy & Ohrenstein, for appellees.
*417 OPINION BY HOFFMAN, J., September 16, 1965:
Robert Anthony Gunther was born out of wedlock to the wife-appellant, Renee Gunther Ruczynski, on May 20, 1960. He remained in the custody of the natural mother until October 27, 1962, when, аt her request, he was placed by an intermediary in the custody of the appellees for adoption. The natural mother consented in writing to the adoption at that time. The сhild remained in appellees' custody until April 19, 1963 a period of less than six months at which time, the natural mother requested the return of her son. Four months later, on August 16, 1963, she again surrendered her son to appellees. On December 25, 1963, she requested his return a second time, but this request was refused.
A petition for adoption was filed by appellees and granted by the lower сourt upon a theory of abandonment by the natural mother. On appeal, the Supreme Court of Pennsylvania vacated the decree of adoption because thе evidence failed to establish, as required by statute, (1) any conduct on the part of the natural mother which evidenced a settled purpose to relinquish her claim to the child, and (2) any continuity of such conduct for a period of at least six months. Accordingly, the matter was remanded to the court below with instructions to determine the custody of the child.[1]
*418 Appellants then filed a petition for writ of habeas corpus to recover custody of the child. Following a hearing, the lower court dismissed appellants' petition and awarded сustody to the appellees.
Appellants contend that one of the strongest presumptions of law is that a natural mother has a prima facie right to her children over аny other person, and, ordinarily, should not be deprived of the custody of her child of tender years. See Commonwealth ex rel. Lovell v. Shaw,
As our Supreme Court indicated when it remanded this сase to the lower court,[2] in awarding the custody of a child, the court must be guided in its decision by the child's welfare and best interests. Commonwealth ex rel. Graham v. Graham,
This rule of law holds true whether the contest be between parents or between a parent and a third person. Commonwealth ex rel. Shaak v. Shaak, supra; Commonwealth ex rel. Shamenek v. Allen,
We have often noted the importance of the trial judge in these cases. In Commonwealth ex rel. Shroad v. Smith, supra, we said at p. 450:
"Any experienced trial judge, while conducting a hearing which involves the custody of children, is observing every act of the parties, not only to appraise the truth of their testimony, but аlso to evaluate their fitness to have custody of the children. An appellate court lacks this opportunity to pass upon the ability and character of the partiеs. Com. ex rel. Hubbell v. Hubbell,
"An appellate court is not free to nullify the fact-finding function of the hearing judge. The credibility of witnesses and the weight to be given to their testimony by reason of their сharacter, intelligence and knowledge of the subject can best be determined by the judge before whom they appear. Com. ex rel. Harry v. Eastridge,
Judge BROWN, in her long and distinguished career on the bench of the County Court of Philadelphia, has heard thousands of these cases. It is significant, therefore, that she had the advantage of seeing and hearing the partiеs at both the adoption and custody proceedings. In awarding custody to the appellees, Judge BROWN stated: "We have observed the parties and their demeanor on the witnеss stand. We regret that we have little or no confidence in the sincerity of the mother. Her actions in the past in her relationship to this child belie her protestations. Too readily and too quickly did she relinquish parental control of this child when it was inconvenient for her to keep its *420 custody. Even when the child was with her for brief periods, she would entrust the child's care to others."
Judge BROWN concluded: "We are well impressed with the character, good intentions and sincerity of purpose of the foster parents. The child surely has grown to love them, аnd has a strong feeling of belonging and security in their home. To his childish mind, home is with the foster parents with whom he has resided most of his young life. The foster parents have given good and loving carе to the boy. Strong emotional bonds of affection, loyalty and love have already been firmly established between the child and the foster parents. The latter have given him the mаterial comforts, security, good care, love and affection in a good home and wholesome environment. To disturb him now and place him with Petitioners, who no doubt would appear perfect strangers to him, might work irreparable psychological and emotional harm. We believe and find, therefore, that the best interests and welfare of the child wоuld be promoted and best served by leaving him where he is."
We find nothing in the record which would cause us to upset the determination of the lower court. The record reflects that when аppellees first took custody of the child, he was over two years of age. Yet, he could barely walk and could only speak his first name. He was emaciated, poorly сlothed and showed signs of neglect. His emotional condition was described as frightened and detached. While with appellees, however, the child has thrived. The record further reflects that the child has now established strong emotional ties with both the appellees and their adopted daughter.
We agree with appellants' contention that the issue is the mother's present fitness and not the nature or extent of her past misconduct. However, her past conduct can certainly be examined and evaluated by the *421 courts in attempting to determine her probable future actions. See Commonwealth ex rel. Keer v. Cress,
Three times in his short life, this child has been subjected to the severe emotional experience of being shunted from one home to another because of his mother's vacillating conduct. We find no reason to expose him to the possibility of another such upheaval. While the intended relinquishment of the child by the natural mother is not binding on her, it is a matter to be taken into consideration; when it appears that his welfare and interest will best be served by his remaining with his foster parents who havе reared him, it is of weight and importance. See Commonwealth ex rel. Settlemire v. Stephens,
Order affirmed.
DISSENTING OPINION BY MONTGOMERY, J.:
I respectfully dissent because the majority has placed too little importance on the right of a natural mother to have custody of her child. The lower court made much of the fact that the child had benefited by the care of the foster parents over an extended period of time. Howevеr, it is noted that it was a relatively short time after the second placing of the child with the foster parents that the mother requested its return, i.e., from August 16, 1963, to December 25, 1963. The balance of said extended period following December 25, 1963, covered the period of litigation by which the mother was attempting to secure her child.
Commonwealth ex rel. Logue v. Logue,
The mother, now married, is in a different situation than she was at the time she placed the child with appellees and she should have the opрortunity of loving and caring for her child. Her husband, by joining in this proceeding, indicates his desire to aid in this effort.
The opinion of the Supreme Court written by Mr. Justice JONES in the adoption proceeding referred to in footnote I of the majority opinion clearly states that this child was not abandoned by its mother but that the record portrays a picture "of a mother, in the midst of many difficulties, some self-created, vacillating in her conduct; at times convinced that her circumstances were such that she could not continue to take care of the child and at other times evidencing a sincere desire to care for and support the child." In the light of such a record she should not be denied her child.
NOTES
Notes
[1] Gunther Adoption Case,
[2] See note 1, supra.