In Re Donna W.

472 A.2d 635, 325 Pa. Super. 39, 1984 Pa. Super. LEXIS 3954
CourtSupreme Court of Pennsylvania
DecidedFebruary 10, 1984
Docket674
StatusPublished
Cited by59 cases

This text of 472 A.2d 635 (In Re Donna W.) is published on Counsel Stack Legal Research, covering Supreme 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 Donna W., 472 A.2d 635, 325 Pa. Super. 39, 1984 Pa. Super. LEXIS 3954 (Pa. 1984).

Opinions

SPAETH, Judge:

This appeal by a mother seeking custody of her children presents two questions. The first question is: What is the scope of our review in a child custody case? The answer to this question is long-settled; it is: The scope of our review is broad; we must accept the trial court’s findings of fact, unless they are unsupported by the evidence, but on those facts we must make such order as our independent judg[42]*42ment persuades us right and justice dictate. The second question is: On the facts of this case, as the trial court has found them to be, what order do right and justice dictate? While we acknowledge that the answer to this question is very difficult, we have concluded that the children should remain with the foster parents, but that appropriate steps should be taken to ensure that the mother will receive training and support, in the hope that after continued contact with the children and further enhancement of her abilities as a parent, she may be awarded custody. We therefore affirm the trial court’s award of custody to Allegheny County Children and Youth Services, but remand for further proceedings.

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By way of clearing the ground, it should be noted at the outset that it is pointless to try to reconcile the decisions of this court. While some members of this court have insisted that the scope of review in custody cases is broad, other members have insisted that it is narrow, and that we should reverse only if the trial court has abused its discretion. The intensity and duration of this struggle may no doubt be explained by the depth of the emotions evoked by child custody cases. Nevertheless, whatever may be the law in other jurisdictions, the law in Pennsylvania is long-settled, and we should do well to accept it as settled, and cease struggling to escape the responsibility — admittedly, difficult and painful to fulfill — that it imposes upon us.

The Pennsylvania Supreme Court has succinctly defined the scope of review in child custody cases:

Our scope of review in a custody matter is of the broadest type, and we are not bound by deductions or inferences made by a trial court. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 295, 368 A.2d 635, 637 (1977). We must exercise an independent judgment based on the evidence and make such an order on the merits of the case as right and justice dictate. Adoption [43]*43of Farabelli, 460 Pa. 423, 433, 333 A.2d 846, 851 (1975); Snellgrose Adoption Case, 432 Pa. 158, 163 247 A.2d 596, 599 (1968).
Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 295-297, 426 A.2d 555, 557 (1981).

Relying on this and other, similar, statements, this court has said:

It is clear that our scope of review in custody cases is of the broadest type. Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981); Commonwealth ex rel. Oxenreider v. Oxenreider, 290 Pa.Super. 63, 434 A.2d 130 (1981); Commonwealth ex rel. Berman v. Berman, 289 Pa.Super. 91, 432 A.2d 1066 (1981). We are required to exercise independent judgment based on the evidence and make such an order on the merits of the case as to do right and justice. Commonwealth ex rel. Pierce v. Pierce, supra; Commonwealth ex rel. Oxenreider v. Oxenreider, supra; Commonwealth ex rel. Berman v. Berman, supra. While we cannot nullify or usurp the fact-finding function of the trial court, we are not bound by the deductions or inferences made by them. Robert H.H. v. May L.H., 293 Pa.Super. 431, 439 A.2d 187 (1981); In re Davis, 288 Pa.Super. 453, 432 A.2d 600 (1981); Garrity v. Garrity, 268 Pa.Super. 217, 407 A.2d 1323 (1979). Therefore, if the issue is whether we should reverse the lower court’s findings of fact, we must defer to the lower court and reverse only where, in making the findings, the lower court has abused its discretion. Commonwealth ex rel. Berman v. Berman, supra; In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977). However, because of our requirement to exercise independent judgment, we will not adhere to an abuse of discretion standard in reviewing the determination of the lower court. See Robert H.H. v. May L.H., supra; Commonwealth ex rel. Berman v. Berman, supra; In re Arnold, id. 286 Pa.Super. [171] id. at 176, 428 A.2d [627] at 629 [(1981)] (HOFFMAN, J., concurring); Common[44]*44wealth ex rel. E.H.T. v. R.E.T., 285 Pa.Super. 444, 457, 427 A.2d 1370, 1376 (1981) (HOFFMAN, J., concurring). Commonwealth ex rel. Newcomer v. King, 301 Pa.Super. 239, 244-245, 447 A.2d 630, 633 (1981).

This broad scope of review has its origins in the Habeas Corpus Act of July 11, 1917, P.L. 817 § 1, and the Orphans Court Act of June 7, 1917, P.L. 363 § 22(b). The Habeas Corpus Act provided that in reviewing a custody award, the Superior Court “shall consider the testimony and make such order upon the merits of the case ... as to right and justice shall belong.” The Orphans Court Act similarly provided that the Supreme and Superior Courts “shall, in all cases of appeal from the definitive sentence or decree of the orphans’ court, hear, try, and determine the same as to right and justice may belong, and decree according to the equity thereof ____” Although these statutory provisions were amended, and in fact eventually repealed, the scope of review has always remained the same.1 See, e.g., Common[45]*45wealth ex rel. Davenport v. Montgomery County Children and Youth Services, 501 Pa. 472, 476, 462 A.2d 221, 223 (1983) (“[W]e have held that the scope of review in custody matters is of the broadest type ... ”); Commonwealth ex rel. Zaffarano v. Genaro, 500 Pa. 256, 262, 455 A.2d 1180, 1183 (1983) (“[Ajppellate courts possess a broad scope of review in custody cases.”); Commonwealth ex rel. Pierce v. Pierce, supra 493 Pa. at 295-97, 426 A.2d at 557 (“Our scope of review in a custody matter is of the broadest type ...”); Albright v. Commonwealth ex rel. Fetters, supra 491 Pa. at 324, 421 A.2d at 158 (1980) (“We have traditionally embraced the view that the scope of review to be applied by appellate courts in custody cases is very broad.”); Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 294-296, 368 A.2d 635, 637 (1977) (“[0]ur law has long recognized that the scope of review of an appellate court reviewing a custody matter is of the broadest type.”).

In Ciammaichella Appeal, 369 Pa. 278, 85 A.2d 406 (1952), the Supreme Court expressly rejected the argument, which this court had embraced, that the scope of review should be limited to inquiring whether the trial court has abused its discretion. Ciammaichella involved a custody dispute between a mother and foster parents. The trial court awarded custody to the mother. This court affirmed. The Supreme Court allowed an appeal “because ... the Superior Court misconceived its reviewing function.” Id., 369 Pa. at 280, 85 A.2d at 407. The Court stated that the appellate “scope of review extends to the fullest review [46]*46consistent with equitable principles,” id., 369 Pa.

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Bluebook (online)
472 A.2d 635, 325 Pa. Super. 39, 1984 Pa. Super. LEXIS 3954, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-donna-w-pa-1984.