*1 savings a stock ac- account, for a account had failed misrepresented doctor bills. certain had count apposite. presently Rafferty gam, nor Wo Neither Unfortunately, the execu- removed the court below animosity finding solely of the existence on a trix animosity showing any had per that such se without present any the estate or future, loss, resulted recognize stepmother’s We interest. or in- file an had failed to her co-executrix Groom pay ventory of debts and deductions or a statement Groom failures inheritance tax, transfer removal attempted for in her answer to the to account promptly petition. rec- could have been failures Such part counsel on the of Mrs. Beichner’s action tified inventory, etc. to file an been cited had the executrices unexplained were not reason such remedies For some resorted to. impact showing any absent a this record,
On arising management handling and of this estate existing ill-feeling any Groom and between Mrs. from stepmother or that Mrs. Beichner’s interest jeopardized by animosity, such been has estate Groom. not have removed Mrs. below should on Mrs. Beichner. Costs Decree reversed. in the concurred result. Mr. Justice Roberts Musmanno did not participate Mr. Justice ease. of this decision Adoption Case. *2 Bell, C. Mus- Before J., January
Argued Roberts, Eagen, O’Brien Cohen, manno, Jones, JJ. Busgon him Davis, Eats,
Richard W. with Davis, appellants. for é Davis, Meyer, Meyer, him E. R. L. Whitman,
J. appellee. Brubaker & Whitman, 1968: November Opinion Mb. Jones, Justice February Harris On Dr. and Albert Orphans’ County petitioned Court Lebanon adopt Georgie Snellgrose (Thomi) June moth natural Mrs. Anna Thomi’s petitioned the same the Court of Common er, Pleas corpus County Thomi’s for a writ of to secure habeas pe Orphans’ adoption custody. The Court denied the proven tition since abandonment had not been *3 proceed custody Common Pleas Court determined the Appeals ing from of the mother. both favor natural by respective the decree and order were heard April Court on we affirmed the decree and, pro adoption proceedings custody but in ceeding proceeding held within the we that such came Orphans’ jurisdiction exclusive of the Court reason August of of and the or the Act we vacated 1951,1 10, der of the Common Pleas Court and transferred proceeding Orphans’ same to the Court County proceedings. for further See: Commonwealth Snellgrose ex rel. 228 A. 2d Harris, 258, (1967). to our the matter was
Pursuant determination, Orphans’ County Court Lebanon transferred taking testimony, additional after some award- which, to her natural mother. ed of the child From appeal the instant was taken. that order Germany born in on March Thomi was 1955 to 5, Believing unmarried. then that Dr. Anna and her aunt Harris were Anna uncle, Snell- 1p. amended, §301, 1163, Ill, §2080.301. art. 20 P.S. L. with them to come to the States grose arranged United in September the mother and child arrived them 1958. Dr. and took Mrs. Harris met them and to the home in After at the Harris Lebanon. a week Harris the mother child went to Virginia home, In where the mother had secured employment. latter of December mother left her em- part at with the returned to live ployment and, child, At until 1959. Harris home March remaining that Luther serviceman time one an American Case, whom took the Anna had met Snellgrose Germany, mother and child to home in Kalamazoo, his sister’s to Texas. where lived until Case went Michigan, they learned that Case Anna Snell- Having was married, with him and moved up relationship broke grose to an one apartment Raymond owned 1960; married on January whom Mrs. Snellgrose Reni born. Snell- a child named marriage became as Thomi adopted who then known grose January died Snellgrose. Snellgrose mar- impending October of learning financial difficul- and of her riage into take and Mrs. Harris offered to Dr. ties, marriage her until after the keep their home and were straight- financial affairs Snellgrose’s until Mrs. from Octo- home Thomi lived at the Harris out. ened Snell- time Mrs. December 1961 which ber 1959 until *4 to live with and took the child to Lebanon came grose her husband. herself and summer of Mrs. part the early
During the Har- stayed Reni, with Snellgrose, two weeks when Mrs. approximately home ris to Kalamazoo. Reni returned Snellgrose until September, Mrs. Harris Dr. and with remained Thomi returned to the Harris June, In she has remained until where Lebanon home present Snellgrose, by her hus time. reason of Mrs. apartment of an owner band’s became the sole death, building previously by her and con owned husband pay off encumbrances tinued to there and reside apart property. In she rented on that June, 1964, sepa Fluty, a married man ment therein to one John apart Subsequently, from rated his wife. she sold equity therefrom and with the received ment house purchased Learning in that a home. November 1965 permanent at the Thomi desired to remain basis a opposition Mrs. entered her Harris home, adopt custody Harris’ efforts to secure and/or Court the sole the child. below this inquiry would must be determine which custodian the best interests of this child. See: serve Ruczynski x rel. e Powers, (1966). A. 2d 460
Upon urge appeal, Dr. and Mrs. this Harris the best interests the child would not be served awarding custody Snellgrose for of the child to Mrs. (a) neglected that Mrs. three reasons: has repeated neglect, together Thomi and that such with unfitness immoral indicate her associations men, (twelve (b) custody of that the child child; to have age hearing) years has at the time the additional preference clearly to remain with Dr. and stated (c) that Mrs. reason Harris; inadequate precarious health and could not finances, properly care of this child.2 take
Presumptively, the interest and welfare of a child the child is of its when best served prima parent parents parent facie, a is en- and, or of his her child. Common- titled to Syndrome, daughter from Reni suffers Marfan’s fact expense greater poses potential future Snell- grose.
163
wealth ex rel. Bendrick v.
403 Pa.
169 A.
White,
55,
2d 69
See
(1861).
also: Commonwealth ex rel. Harry
Eastridge,
Pa.
2d
97 A.
Brown
172,
(1953);
v. Brown, 206 Pa. Superior Ct.
ex rel. McKee v. Reitz,
Superior
193 Pa.
Ct.
128,
125,
The lower court has found that
no com
pelling reasons which warrant depriving Mrs. Snell
grose
of Thomi.
do
in
While we
not
vade the fact finding province of
judge,
we are
obliged
examine the record and reach an in
dependent determination. Commonwealth ex rel. Ben
drick v.
at
White,
p. 59; Shoemaker
supra,
Appeal,
In our determination of the best interests and wel
fare
we must view the matter
Thomi,
with regard
to the
development and
happiness,
training,
moral,
physical
spiritual
of the child.
well-being
Com
monwealth ex rel. Kraus v.
Kraus,
Superior
Ct.
After the instant rec- compelled disagree we are with the ord, lower court’s determination. past and present Snellgrose’s conduct leaves in a mother to be desired who to provide
much for a training teenage girl. proper years nineteen she unmarried, bore age later, six years of a married Germany; child man American relationship result an illicit *6 ap- she and Thomi; presently, she bore serviceman, relationship in a questionable to be pears engaged there though John a married man. Even Fluty, Mrs. no relations between is clear evidence of illicit to de- such as Snellgrose and their conduct is Fluty, a raised being a home a is prive young girl where has On atmosphere. Fluty moral occasions healthy in at 6:35 been seen Mrs. home leaving Snellgrose’s ex- this was Snellgrose stating true, Mrs. morning; Fluty no because improper conduct plained go- in coffee before morning to her home for came Mr. to Mrs. also testified ing work. him regularly her home and she sees Fluty frequented mother sit- had seen her and Thomi testified that she him. lap kissing and Fluty’s hugging ting in relationship with persisted her the time of the after remand up hearing even Fluty in- Court evinced at no and she such high- such conduct. conduct is ceasing tention Such impression- an improper Thomi, intelligent ly conduct impropriety. realized its Such able youngster, her upon and adverse effect profound have would in her might of moral values and even instill concept live if required her mother she were contempt atmosphere. in the midst of such are not sufficient past lapses It true that moral is of her child deprive (Com mother of ex rel. Batch v. Pa. Barber, Supe monwealth 2d 47 when (1947)) 54 A. such con but, rior Ct. it impossible is to dis persistent flagrant, is duct in considering what is best for the child regard ex rel. Tavoletti v. Tavoletti, (Commonwealth A. 2d 427 (1964); Commonwealth Ct. 4, Superior 169 Pa. Superior Ct. Birch, 83 A. rel. Burke ex (1951)). present 2d 426 conduct of Snell- grose grave upon any casts doubt reform her con- cept practice. of standard moral very aptly
As the stated Superior ex rel. Davis v. Davis, 97 Ct. 442, 446, (1929) : “We believe that a woman who behaved person bring up so is not fit a as child man who has behaved as the relator this case has done. Her standard of in which value she morals, marriage holds the marital oath not relations high they and it would be most were unfortunate passed daughter. on to this We realize that the child impression- young, but we also believe that she is consciously age, able and even her tender would, subconsciously be influenced the characters and ac- *7 living tions of those with whom she would the family relation.”
Commonwealth ex rel. Staunton v. 209 Pa. Austin, Superior upon (1966), Ct. 223 2dA. 892 relied presented an unusual set of facts clearly distinguishable and is from the case at bar. although living In Staunton, the natural mother was productive relationship, in an illicit was of five proved children and to be durable de relation- facto ship. expressed unequivocally Thomi has her Moreover, desire to with Dr. and remain Mrs. Harris. It is well preference intelligent settled that the an child of maturity determining to sufficient be considered in Sage custody. Sage, Commonwealth ex rel. v. (1894); Brown A. v. 863 206 Pa. Su Brown, perior (1965); A. 2d 385 Ct. Superior Reitz, McKee
ex rel. Ct. 125, 130, (1960). We are 163 A. 2d satisfied that Thomi, original when she testified at was eleven hear who ing testified when she and twelve the second hear- mature little girl. and intelligent ing, highly testi to her weight did not much judge give to she was induced mony he felt because apparently so the Harrises.3 testify by
Thomi’s to be well-founded. preference appears correspond gifts While Mrs. did and send per- Thomi her at the Harris during stay home, minimal. Even sonal contacts between were two times many when Mrs. visited Lebanon she spent fact that she neglected Thomi; illustrative is their in Au- of her time during most with visit Fluty Thomi since even she had not seen though gust, child her provide 1964. The mother’s failure June, her created physical with and emotional needs daily At a void which filled Harrises. admirably by aware same has become extremely time, im- and her mother’s activities with realized Fluty of the whole affair. This is additional propriety with the Harrises. why prefers reason to remain no have alternative Under we circumstances, Every- but Thomi’s great weight attach wishes. and one involved is that Dr. Mrs. Harris agreed “Dr. As court stated suitable custodians. the lower have love affection unquestioned Mrs. Harris for Thomi. are suitable custodians. have They They her love affection furnished supplied material needs.” *8 a for not as cus-
Appellants assign awarding basis precari- of to Mrs. tody Snellgrose latter’s objected taking testimony of had Thomi’s Counsel objection taking made and also her wishes to the determine judge’s testimony in the chambers out of mother’s her of preferences presence. her entitled to as child was have heard This proceedings Secondly, of the of because nature these noted. testimony having objection the child’s taken out of no is parties. present contending presence Counsel was had of the Willingham Willing opportunity the witness. See: v. to examine an (1941) §13, p. 2d ham, and 67 15 S.E. C.J.S. 192 Ga. inadequate ons health and finances; with this conten- disagree. kidney Snellgrose tion we Mrs. did have a removed and a series of re- illnesses some of which quired surgery. hearing, at the additional However, conducting physical Dr. Suter after of examination good concluded that she was health. laboratory hospital She is able to return to work as plus salary security technician and with her social payments provide adequate she be would able to daughters. sum for herself and two if these Thus, only why were the reasons be should custody grant denied her we would have to Thomi, petition. for the reasons stated However, heretofore presently dowe not believe that she is entitled to cus- tody of Thomi.
Appellee argues although appellants that, contend they she is unfit to have have Thomi, sought Ap never to have Reni taken from her mother. pellants’ position they is understandable since have had Thomi in their even before Reni’s birth, they provided have Thomi with her material and spiritual very and have needs become attached They has become attached to them. never custody.4 had Reni their it Also, must be under seeking it stood that was Mrs. who re gain custody appellants of her child from the appellants seeking is not the to have Thomi taken from her mother’s home. policy family It law that children of the same kept together. rule But this is not fixed absolute. Each case depend facts. on its own Commonwealth eat
must rel. McKee Superior only Reitz, Ct. 129. Thomi had lived with period time Beni for a short she testified that she doesn’t very Moreover, previously well. Beni factors outlined know policy outweigh keep the law far seeks to children family together. same *9 independent record, of the
From an examination disagree conclu court’s the lower we must with then, compelling war which reasons that are no sion depriving of her child. rant of Snellgrose custody grant Thomi would seri of To develop well-being jeopardize ously future Thomi’s expose prepared happiness.5 We are not ment and Thomi to such a rsk. of
Order reversed appellants. awarded to Opinion
Concurring : Mr. Bell Chief Justice Opinion agree fol- with with Justice I Jones's exception: lowing for child interest
It will often be the best Judge cham- in his the child examine parents, presence or of the child's without bers adoption custody, person seeking counsel or of parties. question custody, any es- for especially parents pecially if between the issue is may young, delicate issues if child raises seriously or love and well- child’s affection, affect a years being many for to come. Opinion dissenting disagree Justice
I what other It overlooks members Roberts. namely, overlooked, sometimes have likewise Court finding a true of fact— between there is a distinction competent adequate supported by evidence, if which, approved by en especially a Court confirmed or when appeal not be disturbed on will Court, or a lower banc only findings except which are clear error—and from other or conclu- facts or deductions inferences reasoning. from facts or from sions very very, unhappy would if she she testified her mother. live with were ordered An appellate Court is not to accept bound so-called *10 findings fact which are in in- reality deductions, ferences or conclusions found Court: by the lower Selheimer v. Manganese 423 Pa. 224 Corp., 563, 581, A. 2d 634; Watt 409 Pa. 185 Estate, 781; A. 2d 44, 50, Liggins 393 Estate, Pa. 143 A. 2d Pruner 500, 509, 349; 400 Estate, Pa. 162 A. 2d 629, 637, 626; Gongaware’s 265 Pa. Estate, 109 Atl. 512, This distinc- tion has been overlooked the by dissenting Opinion.
Dissenting Opinion by Mr. Justice Roberts: In overturning orphans’ decision of the court, I believe that this Court its has extended wrongly scope of review decided factual issues incorrectly which an appellate court should not determining. I dissent. Accordingly,
The majority states that “while we do not invade the fact finding province of the are we judge, obliged examine the record and reach an independ- ent conclusion.” Of course we should examine record. IAnd agree that not majority has invad- ed the “fact finding province” of orphans’ court— it has it ignored altogether. It is not clear entirely what is the scope review by this Court of orphans’ court factual determinations; but it must be that orphans’ court of fact are findings entitled to some where weight, especially credibility is at issue. it true that Although is rel. ex Bendrick v. 169 White, A. 2d 69 (1961) scope indicates a broad of orphans’ review court de more recent terminations, decisions cast doubt Ben In drick’s viability. Hookey Adoption Case, Pa. 419 A. 2d 862 Mr. 583, 589, (1966), Justice Jones, for a unanimous writing court, indicated that this based on decision was whether Court’s “there was suf to sustain the . . . finding ficient evidence .” Dettra 202 A. 2d Will, stat Mr. Justice per Court, again (1964), Jones, as in a court decision orphans’ ed that will case the “con influence is undue testamentary capacity and upon legally provided such are based trolling findings of re and our competent scope and sufficient evidence of fact findings view is to determine whether court evidence and whether the supported by sufficient discre an law or abused its below committed error of controlled In a orphans’ tion.” is will case, adoption just P.S. by §2080.773, 20 P.S. custody proceeding. resulting §2080.773 on in Bendriek, here relied cited majority in cases broad this Court require review supra, *11 statutory the exact of But to that same type. say this orphans’ court de demands broad of language review in is anoma not another cisions one case but type be no distinguishes The statute itself way lous. its adoption by tween will cases, applicable “orphans’ terms to all court decrees.” is 2d Adoption Hunter 421 Pa. A. Case, inquiry our again once characterized (1966), we find- could support whether the record the merely this And our most recent statement of below. ing Adoption Case, in Snellgrose issue, litiga- disposition 2d current (1967) (prior A. Mr. Chief per again this Justice Court, tion), Bell, ... is whether question that “the sole stated court support finding evidence to adequate . .” below . . in this case decision evidences majority’s
The this Court review anew a cold record of having folly orphans’ court findings judge, factual presence experience and his his both virtue to observe the opportunity witnesses, hearing to make. The majority relies equipped peculiarly strongly Snellgrose’s alleged immorality. Judge on Mrs. relationship Snellgrose’s Gates here found that Mrs. “proven Fluty likely not was to be immoral nor to have an adverse effect on Thomi’s future.” Fluty stopped merely testified way coffee judge on his to work. The chose Snellgrose, noting to believe Mrs. that she “testified apparent honesty with candor, frankness and about Certainly her conduct.” reading a cold Court, reliably contrary cannot make record, a determination orphans’ judge to that of the court toas Mrs. Snell- grose’s credibility. majority also relies on the statements of the which the being
child, court below in- dismissed as spired by Mr. and Mrs. Harris. This Court did not opportunity have the to observe Thomi; little can- orphans’ judge not as the know, if her could, appeared to answers be schooled. The fact that hardly Harrises filled a “void” is relevant. That “void” by agreement created between previously the Harrises. We have held that there was Certainly no abandonment here. Harrises, Snellgrose’s course with Mrs. were consent, custodians, give right keep but that does not now them the child from her natural mother.
Accordingly, majority’s I must conclude that *12 “independent nothing examination of the record” speculation. prefer rely I more than would much hearing judge on the conclusions who able litigants especially to observe the in a witnesses, personality this where situation such as and demeanor supports certainly record crucial. The his find- ings, I dissent. and thus,