Donna W., In re

• Decision Date: 10 February 1984
• Citation: 472 A.2d 635,325 Pa.Super. 39
• Parties: In re DONNA W. and Edward W., Minors. Appeal of MARILYN W., Mother of the minor children.
• Court: Pennsylvania Superior Court

Page 635

472 A.2d 635

325 Pa.Super. 39

In re DONNA W. and Edward W., Minors Appeal of MARILYN W., Mother of the minor children.

Superior Court of Pennsylvania.

Argued May 10, 1983.

Filed Feb. 10, 1984.

Eileen D. Yacknin, Pittsburgh, for appellant.

Marc Salo Drier, Pittsburgh, for appellees.

Timothy W. Pawol, Pittsburgh, for participating party.

Before CERCONE, President Judge, and SPAETH, HESTER, BROSKY, WIEAND, BECK and JOHNSON, JJ.

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 judgment 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 of 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. id. at 176, 428 A.2d at 629 [ (1981) ] (HOFFMAN, J., concurring); Commonwealth 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., Commonwealth ex rel. Davenport v. Montgomery County Children and Youth Services, 501 Pa. 472, ---, 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, ---, 455 A.2d 1180, 1183 (1983) ("[A]ppellate 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) ("[O]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. at 280, 85 A.2d at 407. The Court stated that the appellate "scope of review extends to the fullest review consistent with equitable principles," id. at 281, 85 A.2d at 408, and that "[d]espite the broad power thus conferred upon the Superior Court, it held that the scope of its review was limited to ascertaining only whether the lower court had abused its discretion in making its award of custody.... Where so important an issue as the welfare of a child is involved, in which the State has a paramount interest, the Superior Court should not in this case have limited its review but have exercised its independent judgment after consideration of the entire record." Id. at 280-282, 85 A.2d at 408. Exercising its independent judgment, the Supreme Court concluded: "After examination of the entire record in this case, a careful review of all the testimony and full consideration of the able briefs and argument by counsel, we have independently arrived at the same conclusion reached by the lower court, that the welfare of this child is best served in the home of her mother and sister.... Under all the facts and circumstances of this case, with full consideration given to the effect of the necessitated change of environment from the home of the foster parents to that of the mother, we would have arrived at the same conclusion reached by the lower court had we in the first instance been charged with the duty imposed upon it." Id. at 287, 291, 85 A.2d at 411, 412. See also, Commonwealth ex rel. Bendrick v. White, 403 Pa. 55, 169 A.2d 69 (1961) ("It is our duty not simply to determine from the record whether the trial court has abused its discretion but to examine all the evidence and reach an independent determination ...") (emphasis in original) (citation omitted). Having thus been specifically, even, one may say, pointedly, corrected by the Supreme Court, we should not again attempt to embrace the abuse of discretion standard.

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Those who suggest an abuse of discretion standard often emphasize the fact that the trial court has seen and heard the witnesses. For example, Judge WIEAND speaks of "the trial judge's observations of the witnesses, of glances exchanged between the children and their parents, of a grimace, a nod of the head, or a blinking of the eye." WIEAND, J., at 657. But an appellate court exercising a broad scope of review may be equally aware of, and quite as sensitive to, these considerations. As the Supreme Court has repeatedly emphasized, the appellate court is not "free to nullify the fact-finding function of the hearing judge" but, rather, is bound by, and must accept as its point of departure, the facts as found by the trial judge.

A rather dramatic illustration of this principle is the Supreme Court's...