In Re Desiree B.

450 A.2d 1003, 304 Pa. Super. 461, 1982 Pa. Super. LEXIS 6120
CourtSuperior Court of Pennsylvania
DecidedAugust 27, 1982
Docket576
StatusPublished
Cited by18 cases

This text of 450 A.2d 1003 (In Re Desiree B.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Desiree B., 450 A.2d 1003, 304 Pa. Super. 461, 1982 Pa. Super. LEXIS 6120 (Pa. Ct. App. 1982).

Opinions

JOHNSON, Judge:

The order appealed from denied the petition by a natural mother [Concetta] for the return to her of her daughter [Desiree], and ordered that Desiree remain in the custody of her foster-mother [Mrs. Freeman].

The facts of this case are as follows. Desiree was born to Concetta, who is not married, on December 25, 1977. In early April 1978 Desiree was admitted to a hospital where her condition was diagnosed as failure to thrive. She was subsequently returned to Concetta for a short while under the supervision of the Allegheny County Children and Youth Services [CYS]. But CYS later petitioned the court to adjudicate Desiree dependent1 and to remove her from Concetta’s custody because Concetta’s housing was unfit and Concetta was not cooperating with CYS. Ultimately, in November 1978, the lower court adjudicated Desiree dependent and ordered her to remain in the foster home where she had been intermittently since the hospitalization, and where [463]*463she has been ever since. The court concluded the November 1978 hearing with remarks which seem to indicate that it envisioned Desiree’s placement in the foster home as long-term.

Nearly two years later, in October 1980, there was another hearing. CYS expressed the view that, although Concetta was managing very well with her second child, a son, now a few months old, and that she had improved greatly since the removal of Desiree, returning Desiree to Concetta might “add stress to a high risk situation.” By this time Desiree had been with Mrs. Freeman for two years and three months. The court expressed its concern that Desiree would become psychologically attached to Mrs. Freeman such that removal could be harmful to Desiree. Desiree at this time was seeing her natural mother once a month. The court decided however that Desiree should remain with Mrs. Freeman for a further few months. Further disposition would depend on (1) whether Concetta could be shown to be able to meet Desiree’s needs and (2) the extent to which it would be damaging to Desiree to be moved out of the Freeman home.

Then in 1981, after two hearings, in February and April, the court decided that because Mrs. Freeman had become Desiree’s psychological mother, it would be damaging to Desiree to remove her, and therefore denied Concetta’s petition to have her daughter returned to her, despite testimony as to much improvement in Concetta’s mothering and housekeeping skills and to the fact that her second child is flourishing under her care.

In custody cases the scope of our review is very broad. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); Commonwealth ex rel. Oxenreider v. Oxenreider, 290 Pa.Super. 63, 434 A.2d 130 (1981). We do not usurp the fact-finding function of the trial court, but we are not bound by the deductions or inferences made by the trial judge from the facts he has found. We need not accept a finding which has no competent evidence to support it, but are instead required to make an independent judgment based on the evidence and testimony, and make such order [464]*464on the merits of the case as to do right and justice. See Garrity v. Garrity, 268 Pa.Super. 217, 407 A.2d 1328 (1979), and cases cited therein. So as to facilitate this broad review, we consistently emphasize that the hearing court must provide us with a complete record and a comprehensive opinion which contains a thorough analysis of the record and specific reasons for the court’s ultimate decision. Garrity v. Garrity, supra.

The evidence on which the lower court relied for its decision was in part the testimony of a child development specialist who had participated in an evaluation of the quality and intensity of the relationship between Desiree and Mrs. Freeman, and also the reports made to the court by a psychiatrist and a child therapist who had examined, respectively, Desiree and Mrs. Freeman and Desiree and Concetta. The child therapist who testified was particularly opposed to separating Desiree from Mrs. Freeman.

The standard which the lower court used to reach its decision was whether the best interests of the child would be served by the award of custody to her natural mother.2 However, the court below did not consider the initial step of the standard which is to be applied in cases where the dispute is between natural parents and third parties. In In re Donna W., 284 Pa.Super. 338, 425 A.2d 1132 (1981), a case in which a natural mother was petitioning for the return to her custody of her two children who had been adjudicated dependent, this court showed how and why the test is different in this type of dispute. Quoting from Stapleton v. Dauphin County Child Care Service, 228 Pa.Super. 371, 391, 324 A.2d 562, 572 (1974), and also from other cases, q.v., this court explained that the fact that one of the disputants is the natural parent must be considered by the court as a weighty, though not controlling, factor:

[O]nce the child has been taken from the parents, the court will appraise the evidence, and award custody, according to the child’s best interests. In applying this [465]*465standard the court will recognize the natural parents’ claim to custody. In a given case this claim may prove of decisive weight; the particular circumstances of each case, including such facts as the length of time the child has been separated from the parents, must be taken into account ...

As we have noted . .. “the natural parents’ claim to custody” is a significant, and sometimes decisive factor in custody disputes such as this one. Indeed, our cases have long recognized “that depriving a parent of [his or] her child is one of the most serious interferences that the state can impose on an individual.” .. . Moreover, in a slightly different context, our courts have acknowledged the importance of natural parents’ claims to custody by requiring third parties seeking custody to meet a substantial evidentiary burden. Accordingly, “[w]hen the judge is hearing a dispute between the parents, or a parent, and a third party, ... [t]he question still is, what is in the child’s best interest? However, the parties do not start out even; the parents have a ‘prima facie right to custody,’ which will be forfeited only if ‘convincing reasons’ appear that the child’s best interest will be served by an award to the third party. Thus, even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the parents’ side. What the judge must do, therefore, is first, hear all evidence relevant to the child’s best interest, and then, decide whether the evidence on behalf of the third party is weighty enough to bring the scale up to even, and down on the third party’s side.” Ellerbe v. Hooks 490 Pa. 363, 367-68, 416 A.2d 512, 513-14 (1980).... In adopting this standard, our Supreme Court has pertinently noted that “deference to the parental relationship is not an archaic adherence to any property rights theory of the family .. .

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Bluebook (online)
450 A.2d 1003, 304 Pa. Super. 461, 1982 Pa. Super. LEXIS 6120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-desiree-b-pasuperct-1982.