In Re Interest of Clouse

368 A.2d 780, 244 Pa. Super. 396, 1976 Pa. Super. LEXIS 2224

• Court: Superior Court of Pennsylvania
• Decided: December 15, 1976
• Docket: 275
• Status: Published

Opinions

SPAETH, Judge:

This is an appeal from the order of the lower court refusing to return a child to her natural parents and continuing custody of that child with her foster parents. We affirm. The hearing judge correctly defined the legal issues; he had a fully developed record; and he has submitted a comprehensive opinion discussing the evidence and explaining his findings and conclusions. As it happens, I agree with him; but even if I did not, we should affirm, for we must defer to a judge who has seen the parties and has a more sensitive feeling for the case than we can possibly achieve simply by reading the record.

I

In defining the legal issues, the hearing judge did not have the benefit of our recent discussion in In re LaRue, 244 Pa.Super. 218, 366 A.2d 1271 (1976). However, the judge did very well without us, for he arrived at substantially the same definition of the issues as we did in LaRue.1 It is unnecessary to repeat what was said in LwRue; for the reasons there stated, the issues may be summarized as follows:

First, the hearing judge had to determine whether, by “clear and convincing” evidence, Stephanie was a “deprived” child. The Juvenile Act, 11 Pa.C.S. §§ 50-102(4), 50-320(c). If the judge decided that Stephanie was not deprived, he should return her to her parents. See LaRue. If the judge decided Stephanie was deprived, he had to determine whether it was “necessary” to separate Stephanie from her parents. 11 Pa.C.S. §§ 50-101 (b) (3), 50-321. In re Adoption of R. I., 468 Pa. 287, 361 A.2d 294 (1976); Stapleton v. Dauphin County Child Care Service, 228 Pa.Super. 371, 324 A.2d 562 (1974); Rinker Appeal, 180 Pa.Super. 143, 117 A.2d 780 (1955).

II

Here, the hearing judge decided that Stephanie was deprived, and that it was necessary to separate her from her parents. Before reviewing these findings we must consider whether in a procedural sense they were properly made.

In a child custody case, the hearing judge should receive evidence from all interested parties, and the child should be represented by counsel, for the child’s interest may be distinct from any other party’s. Stapleton v. Dauphin County Child Care Service, supra. The judge should also receive evidence from objective, disinterested witnesses. Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (1976)'. His inquiry should be comprehensive and searching, and his decision supported by a full discussion of the evidence. Commonwealth ex rel. Grillo v. Shuster, 226 Pa.Super. 229, 312 A.2d 58 (1973).

If the hearing judge does not comply with these requirements, on appeal the case will be remanded for further proceedings. This is because “in child custody cases [the scope of our review] is quite broad and, while we cannot nullify the fact-finding function of the hearing judge, we are not bound by a finding which has no competent evidence to support it.” Commonwealth ex rel. Morales v. Morales, 222 Pa.Super. 373, 376, 294 A.2d 782, 783 (1972). And see Gunter v. Gunter, supra, and cases there cited and discussed. Conversely, however, if the hearing judge does comply with these requirements, on appeal we must defer to his findings. Thus, in Clair Appeal, 219 Pa.Super. 436, 281 A.2d 726 (1971), the hearing judge “held a comprehensive hearing,” “compiled an extensive record,” id. at 437, 281 A.2d at 726, and made careful findings. Affirming, this Court, by Judge Cercone, said:

Of course, an appellate court must always give great weight to the opinion of the trial judge who has the opportunity to see and hear the witnesses and judge their credibility and talk to the children involved.

Id. at 438, 281 A.2d at 727.

Accord: Commonwealth ex rel. Doberstein v. Doberstein, 201 Pa.Super. 102, 192 A.2d 154 (1963) (decision on custody “surely should remain in the discretion of [hearing judge] . . . [he] being in the best position . . ..” Watkins, J.); Commonwealth ex rel. Dinsmore v. Dinsmore, 198 Pa.Super. 480, 182 A.2d 66 (1962) (appellate court “should give great weight to the opinion of the hearing judge . . . [who] is in a much better position . . ..” Watkins, J.).

In the present ease, there can be no question that the hearing judge has fully met the responsibilities imposed upon him. He made his findings only after a full hearing. Four separate counsel appeared and participated in the hearing: one represented Stephanie, one her parents, one the foster parents, and one the child welfare agency. Two representatives of the child welfare agency testified —both of them intimately familiar with the case — and Stephanie’s mother and father, and her foster mother and father, each testified. Following the hearing, the judge filed an opinion notable for its extensive (18 pages) and sensitive discussion of the case. Accordingly, we must give “great weight,” Clair Appeal, supra, to his findings that Stephanie was deprived, and that it was necessary to separate her from her parents.

Ill

A

The Juvenile Act defines a “deprived child” in several ways. The definition pertinent here is that a “deprived child” is a child who “is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals.” 11 Pa.C.S. § 50-102(4) (i). In determining whether Stephanie was a deprived child within this definition, the hearing judge had to decide: (1) what sort of parental care she had received from appellants in the past; and (2) what sort she would receive if appellants were given custody of her. See generally LaRue, supra; see also the thoughtful discussion of the authorities from a number of jurisdictions, at pages 8-11 of the hearing judge’s opinion in this case.

Stephanie has never received any proper parental care from appellants, despite the most intensive and continuous efforts on the part of the child welfare agency. The evidence that this has been the case is not simply “clear and convincing” but overwhelming and unrebutted. The hearing judge summarized it in his opinion, and as the summary is excellent, it is reprinted verbatim, as follows:

Mary Clouse is 25 years of age and she is married to John Clouse, who is 28. Appellants are the parents of four children, Renee, aged 7, Pamela, aged 5, Joyce, aged 4, and Stephanie, subject of this appeal, who was two years and four months at the time of hearing. The three older children reside with appellants, while Stephanie resides with Mr. Thomas and Mrs. Sandra Dunmeyer, foster parents-approved by Child Welfare Services.

Appellant, Mary Clouse, was formerly a ward of Child Welfare Services, who appears to have suffered from her own deprivation and the death of her mother, which occurred when she was fourteen years of age. She continued to have emotional problems up to the present time, which required treatment through the Mental Health and Mental Retardation Program in McKeesport, Pa., affiliated with the Allegheny County program.

Prior to the birth of Stephanie, an older sibling Joyce Clouse was admitted to the McKeesport Hospital and was diagnosed as a failure to thrive case secondary to maternal deprivation. Child Welfare Services received a suspected abuse report on March 23, 1972, filed pursuant to the Act of 1967, August 14, P.L. 239 —“Neglect or Injuries,” 11 P.S. [§ 2101 et seq.]. At that time appellant, Mary Clouse, admitted that she had not been feeding Joyce and she was exhibiting severe depression, anxiety and hypochondriacal behavior.

On May 22, 1972, the appellants signed an Entrustment Agreement placing Joyce in the custody of Child Welfare Services. Joyce was returned to the parents on March 6,1973.

Stephanie was born on June 2, 1973, and was never taken into her parents’ care but on June 5, 1973 they signed an Entrustment Agreement placing her in the custody of Child Welfare Services. She was released from McKeesport Hospital on June 7, 1973 directly into foster care as the appellant mother felt incapable of meeting the demands of an infant. Mrs. Clouse was being treated for hypochondriasis at the Mon-Yough Mental Health Clinic and Joyce was still going through a period of adjustment in the parents’ home. Stephanie was placed in the Dunmeyer foster home on July 23, 1973, where she has remained to the present.

In July, 1974, Child Welfare Services initiated plans to return Stephanie to the parents by increased visitation with November, 1974 being the time targeted for return. With the increased visitation, the mother exhibited and expressed increased anxiety and ambivalence about Stephanie’s return. Her inter-action with Stephanie was poor. In December, 1974, the parents decided against the return of Stephanie as not being in the best interest of Stephanie or the family. They were concerned that they would have to change their lifestyle and that they would be required to meet Stephanie’s needs, believing she would have difficulty adjusting to their ways, which are substantially different than those of the foster parents. Appellants believed this would be so because of their experience in reintegrating Joyce in the home. She finally concluded that Stephanie would simply have to adjust to her as any change she would make would cause her to regress.

Appellants at that time were willing to consider placing Stephanie for adoption. Appellant mother testified she felt that with her husband out of work they could not assume the responsibility of another child (T. p. 43). This was later repudiated, or explained (at T. 45) as being in 1973, and that the reason was she felt they were just getting on their feet, and Stephanie appeared to be so attached to the Dunmeyers. In April, 1973 after visitation was resumed, appellant mother felt unable to take Stephanie because she was having medical problems, and did not believe she could handle Stephanie (T. 46). The April visits went badly and again Appellants decided against placement and in fav- or of adoption. Stephanie throughout exhibited emotional disturbance as a result of the visits.

Appellant father testified that in November, 1974, his wife’s nervousness increased as the time of return of the child approached (T. 61). He did not want the child back if it upset his wife (T. 63). In April it was decided not to take the child because they were in the process of buying a house and the deal had not yet gone through (T. 65). He also places his wife’s health and well being above his children (T. 69). If his wife’s condition regressed and Stephanie appeared to be the cause of the aggravation he would ask to have her removed (T. 70).

The Dunmeyers are foster parents to one other child besides Stephanie and they have four children of their own. In April, Appellant mother called Mrs. Dunmeyer and told her she could adopt Stephanie, but in late summer she learned Appellants had changed their minds. She states she wishes to adopt Stephanie.

Mr. Dunmeyer is a postal employee and relates to Stephanie as though she were his own child. Child Welfare advises that they have a good home and they give the appearance of mature, stable, and affectionate parents.

A letter from Mr. John Szish, M.S., Clinical Psychologist, admitted by concurrence of counsel of all parties states:

“I have seen Mary Clouse in individual psychotherapy sessions since 1970. Originally Mary was very impulsive and was at the mercy of her emotions. She has made considerable progress in becoming more aware of her emotions and showing much greater control over them.....At this time it is not necessary that Mary remain in psychotherapy since she is stable.”

Slip Opinion of lower court at 8-6.

It does not appear that the dissent disagrees with what has been said so far, i. e., that the evidence is overwhelming and unrebutted that Stephanie has never received any proper parental care from appellants. The next question, therefore, is, What sort of parental care would Stephanie receive if appellants were given custody of her?

As nearly as can be determined, the dissent never answers this question except in negative terms. Thus at the end of its opinion the dissent says, “ [We are] unable to conclude that there are compelling reasons for continuing Stephanie in foster care.” Dissenting Opinion 244 Pa.Super. at -, 368 A.2d at 794. The dissent does note several facts favorable to appellants: their “financial resources will be adequate to give continued care to Stephanie”; “[t]here is no indication of marital instability”; their three older children are “in the home and well fed and well loved”; and “[a] 11 of the available psychiatric evidence supports the conclusion that [appellants] have solved the problem which led to Stephanie’s removal from the home and are now prepared to give her a permanent home.” Id. The dissent never affirmatively states, however, that if appellants were given custody of Stephanie, she would receive from them proper parental care.

This may well be a misreading of the dissent’s opinion; it is perhaps the dissent’s intention to make an affirmative finding of fact that appellants would give Stephanie proper parental care. If that is the case, it would seem that the dissent has simply substituted its finding of fact for the hearing judge’s. In the opinion of the hearing judge, the evidence was clear and convincing that appellants would not give Stephanie proper parental care. Again, the judge’s opinion needs no improvement, and we shall therefore simply repeat it. It is as follows: .

On several occasions visitation with Stephanie was attempted, producing anxiety and emotional upset for the mother and the child. On two occasions, the parents agreed to permit the foster parents to adopt Stephanie. As late as the day of the hearing, Appellant mother was indicating her ambivalence. The day before she indicated to Mrs. Mary Jayne Mulroy, Caseworker for Child Welfare Services, that she wanted to go along with the adoption (T. 4). Appellant father seems intent on having his child returned and it is the impression of the Court that Mrs. Clouse is now firmly requesting return of Stephanie because of the desire of Mr. Clouse.

Both Mr. and Mrs. Clouse acknowledge that Stephanie lives in a considerably different emotional environment than their own and that substantial adjustments would have to be made. At various times they indicated a reluctance to change their life style and resolved that Stephanie would need to make the adjustment.

Appellant father also testified that his interest in his wife was superior to his interest in his children and that if Stephanie presented a problem resulting in the regression of his wife, he would ask for Stephanie’s removal.

The total record in this case presents a picture of substantial personal and family dysfunction over many years. While there is greater stability now than in the past, the attempts at establishing a parenting relationship with Stephanie invariably produced sufficient stress and anxiety on both the mother and child to result in termination of visitation and moves toward relinquishment for adoption.

The fact that other children in the home appear to be adjusting satisfactorily does not mean that a child who has never been in the home and who has a different set of adjustment patterns, will do likewise.

The ambivalence is obvious and unresolved. This court attempted to provide a further opportunity to explore the establishment of this relationship, but Appellants elected not to proceed in that manner but rather to have the matter resolved on appeal.

The evidence to this court is clear and convincing that the family functioning of appellant is not sufficiently stable to provide for the proper emotional care necessary for the emotional health of Stephanie. Integrating Stephanie in. the home of her parents, who have shown such ambivalence toward her return, with the strong likelihood that if the effect was detrimental to the mother, that Stephanie would be removed, places all of the risks, trauma and adjustment requirements on a 21/2 year old child. The appellants have given Stephanie nothing in her young life and they now require her to carry the impossible burden of a satisfactory transition into their family. To rip this child from the warm, loving and stable embrace of the only family she has known, her foster parents who express a desire to adopt her, would be unconscionable.

Slip Opinion of lower court at 11-13.

B

It follows from the foregoing that Stephanie was a “deprived” child. The only remaining question, therefore, is whether it was “necessary” to separate her from appellants — or, more accurately, the question is: Since the hearing judge has found that it was necessary to separate Stephanie from her parents, and since he arrived at that finding after the most careful procedure, should we not defer to that finding?²

In LcuRue, supra, we discussed the sort of inquiry the hearing judge should make in deciding whether it was necessary to separate a deprived child from her parents. There we said, 244 Pa.Super. at 230, 366 A.2d at 1277 (1976):

Many factors must be taken into account. Among them should be: the age and mental development of the child; the extent to which a relationship with its parents has been preserved, and the nature of that relationship; the extent to which a relationship with the child’s foster parents has been established, and the degree to which that relationship has become like that of a natural family.

Here, the hearing judge took all of these factors into account. Having done so he found it clear — and the record supports him — that Stephanie enjoys a healthy and natural relationship with the Dunmeyers, her foster parents, and an unhappy and strained relationship with appellants.

Again it does not appear that the dissent disagrees. Rather, the dissent hopes that if appellants are given custody of Stephanie, matters will improve. The record, however, does not afford a sufficient basis for this hope —or, again more accurately, the hearing judge was not in error because the evidence persuaded him that there was little substance to the hope.

The critical point that the dissent overlooks is that appellants do not want Stephanie except on conditions that may do her great harm.

Stephanie’s mother says she wants Stephanie, but her actions belie her words. Twice she wanted Stephanie adopted; the day before the hearing she wanted her adopted. This ambivalence is hardly surprising. Her past experience has not only made her afraid of what will happen if she has Stephanie, but has seriously undermined her confidence in her ability to cope with the problems she fears will arise. She recognizes that Stephanie regards her as a stranger and is unhappy with her; that the Dunmeyer home is very different from hers, and that Stephanie is happy there; and that she has herself had serious psychological problems in the past. Consider this answer to her attorney, when he asked whether she felt incapable of caring for Stephanie:

A. No, I do not feel that I am incapable. What I’m saying is, I just hope the child will be capable you know, being able to stay with me. You know, I would change for the child, probably. I would have to make some changes, and I’m hoping that the baby will, too. That has been the problem. I’ve just been so frightened that I cannot be like Sandy. If I act like her for a little while, eventually I’m going to return to myself again, so I’m going to have to be like myself to this baby as soon as she comes home, because she’s going to have to accept me if she comes home, and I cannot pull no punches with children because they’re going to catch on. Children catch on right away. But I feel capable of taking care of her and putting up with it. If I really put my mind to it like I have been, I believe I can do it. (N.T. 39)

This is deeply affecting. One would like to believe that Stephanie’s mother has the ability to care for Stephanie, but the evidence seems strongly against finding that she does. A mother who really wants her child would never say that if the child comes home, “she is going to have to accept me.”

Assume, however, that Stephanie’s mother if left to herself, might somehow find within herself the resources to raise Stephanie; the fact is, she will not be left to herself, for she is married to Stephanie’s father; and for me, the father’s testimony removes any doubt about what our decision should be. The father acknowledged that in November, 1974, he had not wanted Stephanie at home, saying that “[m]y wife[’s] . . . nerves were still not what they should have been.” (N.T. 61.) His wife’s problems steadily decreased, however, he said, and by April, 1975, he and his wife wanted Stephanie back, only delaying her return because- of delays in buying a new house. By October, 1975, the date of the hearing, he said that his wife was “completely well.” (N.T. 63.) There then ensued the following exchange with the hearing judge:

BY THE COURT:

Q. I feel the distinct feeling that your testimony concerning this April situation is different than your wife’s. She said that she was sick and she didn’t feel up to taking the child back.

A. She was, she had personal things.

Q. But your answer was different. You’re saying that you were trying to get a house and it didn’t come through, and you didn’t feel that . . .

A. That was part of the problem, yes. There was a number of things. There was no one single factor.

Q. A second point that I would like to ask you about is that you seem to put your wife's well-being and health above everything else, is that true?

A. Yes, I do.

Q. And do you put her health and well-being above Stephanie?

A. Yes, that’s why the baby is in the foster care now. Q. Now, say this child is back and your wife can’t manage her, and she becomes distraught and nervous. Say that she has a breakdown or some other kind and as a result, Stephanie begins to suffer. What are you going to do about that?

A. Well, as I stated, none of my children have ever suffered.

Q. Well, Stephanie’s a different child.

A. I know it would be strange for her, coming in. But I don’t think my wife — I think my wife is beyond her nervous . . .

Q. We can only judge the future by experience in the past in terms of what our expectations are, and that’s what we’re trying to do. We’re trying to protect [sic; “project”?] in the future what is good for this child. Now, if there comes a point where your wife is more or less set up against the good of Stephanie, how are you going to decide?

A. You mean if the baby were sent back to the home and my wife would regress ?

Q. Sure.

A. Well, my wife — I don’t know, the baby would be back. I don’t see any problem why my wife would regress. I know you have to expect it, but I can’t answer that because I can’t see it.

Q. Say I return the child today, and three months from now there’s a problem and Stephanie seems to be part of the aggravation? Would you want Stephanie removed ?

A. If Stephanie was the sole condition of the aggravation, yes.

(N.T. 68-70.)

Again, this is deeply affecting. However, one cannot help but share the hearing judge’s opinion of what is likely to happen if Stephanie is returned to appellants. Stephanie will have great difficulty accepting the drastic change. The resulting tensions will lead to a recurrence of the mother’s emotional difficulties. The father will react by expecting Stephanie, not much more than an infant, to adapt to her mother, rather than expecting the mother to adapt to Stephanie. Sooner or later there will be discussion about whether perhaps after all it would not be better if Stephanie were adopted.

It is difficult to imagine a more shattering experience for a child. Surely — the dissent cannot doubt— Stephanie will learn — she will be told — that if she doés not adapt to her mother’s ways — so different from anything she has known — she will be sent away. In LaRue, supra, it was pointed out that the fundamental decision the hearing judge must make in deciding whether it is necessary to separate a deprived child from her parents is whether the “natural family [is] able to afford [the child] the security and love it needs.” 244 Pa. Super, at 231, 366 A.2d at 1278. Therefore we find, with affectionate respect for our colleagues in the dissent and with sorrow that appellants find themselves in so difficult á position, that the more persuasive conclusion is that Stephanie’s family is not able to afford her security and love. To return Stephanie to her parents would represent a great unkindness, mostly to Stephanie, but to her parents too, who would some day regret what they would do to her.

Order of the lower court affirmed.

PRICE and VAN der VOORT, JJ., concur in the result. HOFFMAN, J., files a dissenting opinion in which JACOBS, J., joins.

1 . At the very end of his opinion, the hearing judge based his decision on the alternative ground that it was in the best interest of the child. Slip Opinion of lower court at 16-18. For the reasons that we have discussed in LaRue, the best interest test is not appropriate here. LaRue, however, is the first case that expressly says this. It was therefore natural for the hearing judge to consider how the case should be decided by the best interest test. His opinion makes clear that he. did not himself regard that test as appropriate, but he could not know what we might do on appeal.

2 . The dissent never asks this question, for it defines the legal issues differently than we do. This difference is discussed in La-Rue, supra.