Com. ex rel. Lucas v. Kreischer

• Decision Date: 24 March 1972
• Citation: 289 A.2d 202,221 Pa.Super. 196
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH of Pennsylvania ex rel. Bonita G. LUCAS, Appellant, v. Zane B. KREISCHER.

Page 202

289 A.2d 202

221 Pa.Super. 196

COMMONWEALTH of Pennsylvania ex rel. Bonita G. LUCAS, Appellant, v. Zane B. KREISCHER.

Superior Court of Pennsylvania.

March 24, 1972.

Application for Allocatur Granted June 1, 1972.

Gailey C. Keller, Bloomsburg, for appellant.

Robert E. Bull, Berwick, for appellee.

Before WRIGHT, P.J., and WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING and CERCONE, JJ.

PER CURIAM.

Order affirmed.

HOFFMAN, J., files a dissenting opinion in which SPAULDING and CERCONE, JJ., join.

HOFFMAN, Judge (dissenting):

This is an appeal by the mother of three minor children from the order of the lower court awarding custody of the children to their father.

Three children were born of the marriage of the parties; Kelly, age 9; Ricky, age 8; and Tammy, age 6. In January, 1969, the parties separated and the children remained with their mother for approximately three and one-half weeks. The mother, at that time, because she was unable to find a place to live, placed the children with their maternal grandmother in Columbia County, Pennsylvania.

In March, 1969, the parties agreed that the children should live temporarily with the paternal grandparents in Columbia County until either of the parties decided to bring the matter into court. In May, 1969, the father quit his job in Chester County and returned to Columbia County where he purchased a house trailer. The children then moved into his house trailer with him.

The mother was denied the right to see her children until September, 1969, when she received a phone call from the father advising her that he could not afford to take care of the children and that she should come and get them. At this time the mother was residing at her present address in Willow Grove, Montgomery County, Pennsylvania, with a black man whom she subsequently married in June, 1970, following the parties' divorce in January, 1970. The parties to this action are both white.

The children remained with the mother and her second husband until June, 1970. The father, although he remarried in January, 1970, made only two attempts to see the children until June, 1970, when he requested that he be permitted to have the children visit him for a week. The mother agreed to this request with the understanding that the father would return the children at the end of the period.

On June 13, 1970, the father took the children to his home in Columbia County, and he refused all requests by the mother to return them to her. From June, 1970, until the lower court's first order of January 25, 1971, the mother was permitted to see her children only four times. The father conditioned her visits on her coming alone. During the visits the father did not allow her to take the children from the house nor at any time was she permitted to be alone with them.

The lower court, noting in its opinion that 'there is little or no conflicting evidence in the record,' found that the mother and her black second husband 'are fit persons to have custody of children.' The mother testified at the hearing below that she and her second husband 'have a two bedroom apartment with a large living room, a dining area and a kitchen, an automatic dishwasher, garbage disposal, (and) bath.' She also testified that the apartment was in 'a nice neighborhood,' and that if she received custody of her children she would move into an available 'three bedroom apartment with the same type of accomodations' in the same apartment house.

It is apparent from the record that both parties are in similar economic circumstances, with both spouses in each family working and therefore requiring a baby-sitter during the day. Their situations would be identical except for two factors: 1) the mother of the children lives in a suburb of Philadelphia while the father lives in a more rurally oriented area (Berwick, Columbia County, Pennsylvania), and 2) the mother is married to a black man.

The trial judge considered the first factor, but did not find it significant: '(w)e believe it is logical to conclude that present day children in a good rural home have many advantages urban children do not have and the problems of growing up are greater in the city than in the country. This is a highly controversial issue, however, and is not conclusive one way or the other.'

Having dispensed with the rural-urban issue, the lower court then approached the mother's interracial marriage: '(t)he second social sickness has existed for centuries and though some in-roads are being made today, the almost universal prejudice and intolerance of interracial marriage is real and undeniable. This bias, however silly and unreasonable, is also exhibited toward the children (of interracial marriages); and it must be admitted the plight of these children in the past has not been a happy one and in our opinion, this ancient phobia merits consideration in this case.'

The trial court then concluded that the best interest and welfare of the children would be best served by leaving them with their father. The lower court made no mention of Pennsylvania's presumption that children of tender years should remain with their natural mother. Edinger v. Edinger, 374 Pa. 586, 98 A.2d 182 (1953). However, this rule of law is so well established, that it must be assumed that the court implicitly considered it and decided that prospective racial bias against the children of an interracial marriage would overcome the presumption.

I have carefully examined the record in this case and have found no indication whatsoever that the children were unhappy or that they were subjected to any bias, prejudice, or social injustice while they resided with their mother and her second husband. The conclusion of the lower court, therefore, must have been based solely upon the court's belief that the placement of the children in an interracial household would necessarily result in injury to their welfare. I cannot accept this conclusion of the lower court as correct either in fact or in law.

In recent years there has been a marked increase in the number of interracial marriages and trans-racial adoptions. See Marmor, Some Psychodynamic Aspects of Trans-racial Adoptions, published in Social Work Practice, 1964, Columbia University Press, New York, 1964. It is virtually a certainty that the number of interracial families will continue to increase in the near future, as many adoption agencies and other social agencies are currently promoting trans-racial adoptions. Kenneth and Roberta Knowlton, Raising Kids from Seed and Seedling, presented at the forty-fifth annual meeting of the American Orthopsychiatric Association, 1968.

All the sociological studies which I have found concern trans-racial adoption--the adoption of non-white children by white parents. These studies have shown that such families can function effectively and provide happy and healthy homes for the adopted children. Mixed Race Adoptions, the Open Door Society First International Conference, Address of Mr. Clayton H. Hagen, Supervisor, Adoption Unit, Lutheran Social Service of Minnesota, 1970. My research has disclosed no authoritative studies in the behavioral sciences which would indicate that a child in such an interracial household is subject to hurt or injury. Cf. Potter v. Potter, 372 Mich. 637, 127 N.W.2d 320 (1964).

In the instant case, however, we have a different situation which involves the placement of white children with their natural mother and a black stepfather. I can find no reason why children placed with their natural mother and a stepfather of another race would be subject to any greater stress than children placed in a household with parents of another race. The considerations in the two situations are almost identical, and barring an actual showing that such placement would not be in the best interest of the children, the lower court's conclusion cannot be supported in fact.

The question of law which is presented in this case is a complex one which requires careful analysis. On the one hand is the Commonwealth's overriding interest in the welfare of children within its jurisdiction. On the other is the constitutional condemnation of virtually all racial classifications, except those which can be justified by a State showing that such classification is a public necessity.

I do not believe that either of these interests is subordinate to the other. It is apparent that a special rule must be created to govern the determination of custody where racial considerations are involved. To create an appropriate rule, it is first necessary to consider the constitutional dimensions of State attempts to regulate family structure by racial classification.

The question of whether a State could constitutionally forbid the adoption of a child by a parent or parents of different race has been considered only once in the reported cases. In the case of In re Gomez, the Texas Court of Civil Appeals held that a black man who had filed a petition for leave to adopt the two white minor daughters of his wife and had the petition denied because of a statutory prohibition against interracial adoption was entitled to adopt the children. The Texas court quoted from Hamm v. Virginia Board of Elections, 230 F.Supp. 156, 157 (U.S.D.C., E.D.Virginia, 1964), affirmed 379 U.S. 19, 85 S.Ct. 157, 13 L.Ed.2d 91 (1964):

'The 'separate but equal' racial doctrine was condemned a decade ago in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). Subsequent decisional law has made it axiomatic that no State can directly dictate or casually promote a distinction in the treatment of persons solely on the basis of their color. To be within the condemnation, the governmental action need not effectuate segregation of facilities directly. Cf. Anderson v. Martin, 375 U.S. 399, 402, 84 S.Ct. 454, 11 L.Ed. 430 (1964). The result of the statute or policy must not tend to separate individuals by reason of difference in race...