Commonwealth ex rel. Donie v. Ferree

• Decision Date: 13 July 1954
• Citation: 175 Pa.Super. 586,106 A.2d 681
• Parties: COMMONWEALTH ex rel. DONIE v. FERREE et ux.
• Court: Pennsylvania Superior Court

106 A.2d 681

175 Pa.Super. 586

COMMONWEALTH ex rel. DONIE v. FERREE et ux.

Superior Court of Pennsylvania.

July 13, 1954

Habeas corpus proceeding involving custody of a five year old child. The Common Pleas Court of Lawrence County at No. 35, December Term, 1952, M.D., John G. Lamoree, J., awarded custody to paternal grandmother of child, and foster parents of child appealed. The Superior Court, No. 116, April Term, 1954 Wright, J., held that record warranted conclusion that best interests of child would be served by leaving him in custody of foster parents.

Order reversed and order and decree in accordance with opinion.

Gilbert E. Long, New Castle, for appellant.

Herman W. Green, New Castle, for appellee.

Before HIRT, Acting P. J., and ROSS, GUNTHER, WRIGHT, WOODSIDE and ERVIN, Jj.

WRIGHT Judge.

This is a habeas corpus proceeding involving the custody of a five year old child. The writ issued at the instance of the paternal grandmother, and was directed against foster parents with whom the mother had placed the child, and who have reared and cared for it exclusively since it was two years old. The lower court awarded custody to the grandmother, and this appeal followed.

George Edward Donie and Ruth Evelyn Bright were married in 1938. Their son, William Donie, the subject of this proceeding, was born on December 31, 1948. There were two older children Edna and George. The parents last resided together in Hubbard, Ohio. On August 19, 1949, the father was committed to Massillon State Hospital, where he is still an inmate. He is suffering from a mental disorder known as schizophrenia. In May 1950, the mother disposed of the home in Hubbard and went to live with her mother in the village of Castlewood Lawrence County, Pennsylvania. In October of that year, the older boy, George, was placed in Toner Institute and is still there. Edna remained with her mother for a time, then went with various other relatives and is presently living with a paternal uncle and his wife, Eugene and Margaret Ann Donie of Youngstown, Ohio. On January 29, 1951, the mother placed William with Lawrence E. and Edna M. Ferree of New Castle, Pennsylvania. She executed a written consent to adoption,^[1] and the Ferrees instituted a proceeding to adopt William. While the record in that proceeding is not before us, the petition was apparently dismissed because the father had not consented.

In his opinion, the hearing judge stated, ‘ The fitness of the defendants, who sought the child, is unquestioned. They are individuals of fine character, enjoying an excellent reputation and have formed a deep attachment for the youngster as he undoubtedly holds for them’ . However, relying solely upon a statement^[2] by Judge Stadtfeld in Commonwealth ex rel. Stevens v. Shannon, 107 Pa.Super. 557, 164 A. 352, his conclusion was as follows: ‘ The Court, after hearing the testimony, felt satisfied that the welfare of the minor would not be endangered were its custody to be given to the paternal Grandmother’ (italics supplied). Our consideration of the testimony,^[3] in the light of the applicable legal principles, brings us to a different result, namely, that the best interests of the child require that he remain in the custody of appellants.

In a proceeding of this nature, the governing criterion is the welfare of the child involved. Commonwealth ex rel. Schofield v. Schofield, 173 Pa.Super. 631, 98 A.2d 437.This was the principle actually applied in the Shannon case, wherein it was stated [ 107 Pa.Super. 557, 164 A. 353]:‘ The guiding star for the court in coming to a conclusion in a case of this character is the welfare of the child. To this the rights of parents and all other considerations are subordinate’ . The language relied upon by the lower court was influenced by the Act of June 13, 1836, P.L. 539, which provided that, if a child's parents were deceased, the grandparents were responsible for its support.^[4]In Rumsey's Case, 135 Pa.Super. 515, 7 A.2d 43, 44, both of the child's parents were deceased, and we awarded custody to the stepfather as against grandparents. Judge Hirt said, ‘ If the minor were destitute the law would cast upon the grandparents the duty of his maintenance and the correlative right to custody would follow the duty to maintain: Com. ex rel. Stevens v. Shannon, 107 Pa.Super. 557, 164 A. 352.But the child is being maintained without charge upon his estate and the grandparents are not seeking custody because of any duty imposed upon them by law. * * * To remove the child from a home, with all of its advantages, in which he has lived for years, and from the wholesome environment to which he has made a complete adjustment, could not be done in the interests of the child’ . In Commonwealth ex rel. Barnett v. Currie, 165 Pa.Super. 477, 69 A.2d 154, decided after the responsibility of grandparents for support had been eliminated,^[5] the child's parents were both deceased. The lower court awarded custody to the stepmother as against the maternal grandmother. In affirming, we distinguished the Shannon case, and rejected appellant's contention that she had an inherent common-law right as natural guardian which was superior to that of a mere stranger.

Helen Euphemia Donie is a widow some seventy years of age. She lives in a single room in a private house in Youngstown Ohio, and is regularly employed. She admittedly does not have facilities to care for William herself. Her avowed intention is to place the child in the home of her son Eugene, although she did not feel that Eugene was financially able without ‘ some help from the rest of us'. Eugene lives with his wife and three small children in a house with four and one-half rooms, but testified that he is in the process of adding two more bedrooms. As previously set forth, William's sister also lives in this home. While related by blood, Eugene is not a party to this proceeding, and is a complete stranger to William. He evidenced no prior interest in the child, and has not seen it since the baptismal ceremony. As a matter of fact, the grandmother has not maintained contact with the child, having seen it last in December, 1951. The child never formed a part of her household, as was the situation for a period of sixteen months in the Shannon case. It clearly appears from the testimony that the grandmother's paramount purpose is to prevent William from being reared in a different religious faith. This is not a determining factor. Commonwealth ex rel. Kelley v. Kelley, 83 Pa.Super. 17.Religion is an important matter and should be given consideration, but it does not determine the right to custody. Oelberman Adoption Case, 167 Pa.Super. 407, 74 A.2d 790, 794.As was said by President Judge Rhodes in that case, ‘ Unquestionably, the child will be given religious training by respondents, and its home will not be devoid of a religious atmosphere’ . And see Commonwealth ex rel. Burke v. Birch, 169...