Cochran Appeal , 187 Pa. Super. 79 ( 1958 )

Opinion by

Ervin, J.,

On April 10, 1946 the Juvenile Court of Cumberland County adjudged Barbara Ellen Neff, born May 30, 1938, Augusta Ann Neff, born September 9, 1939, Beatrice Diane Neff, born May 19, 1941, and Kenneth R. Neff, Jr., born June 27, 1942, neglected children and committed them to the care and custody of the Child Welfare Service. (Act of June 2, 1933, P. L. 1433, §2, 11 PS §244) The children remained in foster homes for approximately two years and on March 5, 1948 the said court by further order committed them to the care of The Methodist Home for Children, where all but Barbara still remain. When they entered the Methodist Home, they were aged 10, 9, 8 and 6 respectively. When the children entered the Home their father agreed to contribute $55.00 a month to the Home toward their support. He has substantially complied with the agreement. Plis present salary is $4,100.00 a year. The parents were divorced by a decree entered April 26, 1946. Both parents have since remarried. The father and his second wife now have an additional male child who at the time of the hearing was nearly seven years of age. The father resides in Mechanics-burg, only a few miles from the Home. He and the children attend the Methodist Church in Mechanics-burg nearly every Sunday and sit together. The mother was remarried on March 12, 1949 and now lives in Fair Lawn, New Jersey, in a home valued at $20,000.00, with a mortgage of $12,500.00. Both parents have continued to visit the children at the Home.

On February 11, 1957 the mother presented a petition to the court below to revoke the order of March 5, 1948 and to have custody of the children awarded to her. On June 19, 1957 the court entered an order discharging Barbara Ellen Neff from the care and custody of the Home and placing her in the custody of the mother. Barbara attained the age of 19 on May 30, 1957 and had successfully completed one year in Lycoming College. On August 9, 1957 the court below entered another order refusing the petition of the mother as to the other three children and stated: “This order to be without prejudice to the petitioner to reapply when circumstances so warrant.” The mother appealed. It is our duty to review the entire record and to exercise an independent judgment on the merits: Ciammaichella Appeal, 369 Pa. 278, 281, 282, 85 A. 2d 406; Rinker Appeal, 180 Pa. Superior Ct. 143, 150, 117 A. 2d 780.

A review of the entire record has convinced a majority of this Court that the best interest and welfare of these three children will be attained at the present time by refusing the prayer of the mother’s petition.

We would agree that in the usual case a home environment and family care are more desirable than the finest institution, providing, of course, that the home is adequate and the family care wholesome. But this is not the usual case. As Judge Woodside so well said at page 148 in Rinker Appeal, supra: “It is a serious matter for the long arm of the state to reach into a home and snatch a child from its mother. It is a power which a government dedicated to freedom for the individual should exercise with extreme care, and only where the evidence clearly establishes its necessity. Yet, of course, there are cases where such authority must be exercised for the protection and welfare of children.” In this case, however, the mother is seeking to remove the children from the place where they have spent their tender years and the major portion of their minority.

While we did not have the privilege of seeing these children in person, as did the court below, the record convinces us that his observation was accurate. Judge Shughart said: “It is apparent from the appearance of the three who were in Court that they have received the best in physical care. They were well mannered, cheerful and were attractively dressed. It is obvious that all are progressing well in school, the older one having completed her first year in college. In addition, two of them who have shown some talent for music have received special training. Our own observation of their appearance and demeanor furnishes clear and unmistakable proof of the splendid care they have received at the Home from Reverend Victor Hann, the Superintendent, and his staff. These children, their appearance, their excellent records, are the best evidence of the high quality of the care they have received.” At the time of the hearing in June of 1957, the children had spent nine years at the Home and two years theretofore in foster homes. At the time of the filing of this opinion the youngest child, Kenneth, Jr., is approximately 16 years of age and Augusta is nearing 19 years of age and probably has completed high school and is ready to enter a hospital for training as a nurse, if she is still of that mind. Beatrice and Kenneth, Jr. should have respectively one year and two years to go to complete high school and will then be ready for college. Dr. Hann testified that all of the children are college material. The girls expressed a desire to go with their mother. This is understandable but their preference must be based on good reasons: Com. ex rel. Shamenek v. Allen, 179 Pa. Superior Ct. 169, 176, 116 A. 2d 336. They would undoubtedly enjoy a greater freedom at the home of their mother than they have at the Methodist Home. We are not at all convinced, however, that greater freedom would improve their welfare. Much of the juvenile delinquency present today may be traceable to the enlarged freedom of youth. Some people firmly believe that juvenile delinquency could be reduced by a greater discipline and stricter supervision. Be this as it may, this record convinces us that these children have not been unduly restricted and that they have received a fine religious training which certainly will stand them in good stead in days to come. This is not a ease like Com. ex rel. Shamenek v. Allen, supra, where the child, because of the father’s treatment of her deceased mother, developed so great an antipathy toward the father that it actually caused her to become ill.

Our conclusion in this case is largely based (as it was in the court below) upon the belief that the mother and her present husband do not fully appreciate the enormity of the expense necessary to keep four children in high school and college at the same time. The mother and her present husband have annual gross earnings of $12,700.00. The husband receives $5,000.00 from his present employment at Curtis-Wright and $8,200.00 retirement pay as an army officer and the mother receivés $4,500.00 from her employment. The mother intends to give up her employment to take care of the children if they are awarded to her. This will reduce their gross annual income to $8,200.00 a year. It costs approximately $1,200.00 a year to keep Barbara in college, thus reducing the annual income to $7,000.00 a year. Out of this the two adults must live and then find money to put three more children through high school and college. With costs as they are today, this will be a very difficult thing to do. The failure to do all or any of it will seriously affect the best welfare of the children. If they remain at the Home they will be adequately provided for and their college training will be assured. As was so well said in Com. ex rel. McNamee v. Jackson, 183 Pa. Superior Ct. 522, 526, 132 A. 2d 396, “By permitting these children to reside . . . [where they are] we are not gambling with their future welfare and happiness, as we would be doing were we to . . . [remove them from their present custody].”

It must be remembered that the court below did not finally foreclose the possibility of releasing all or some of the three remaining children from the present wardship and giving them to the mother. Judge Shughart said, in reference to the order giving Barbara to the mother: “Under the circumstances it might be advisable to see the results of this expense upon the mother and her husband before making a final decision on the other three.” At the conclusion of his opinion, he furtlier said: “The petition as to the younger children will, therefore, be dismissed without prejudice to the petitioners to petition again when circumstances war-ant.” It may very well be that changed circumstances might now dictate the release of Augusta Ann from the present wardship and the award of her custody to the mother if another petition be now presented to the court below.

Our conclusion is that the court below handled a very difficult case in an admirable way and our independent conclusion is that we cannot improve upon it.

Order affirmed.