In Re Donna W.

HESTER, Judge,

concurring and dissenting:

In this case, we are called upon to settle, once and for all, the question of the appropriate standard of review to be applied in custody matters. Several members of this Court advocate the adoption of a broad scope of review which inherently involves the exercise of our own independent judgment. I believe that the proper standard of review is one which defers to the lower court except in those instances where the hearing judge abused his discretion.

The Pennsylvania Supreme Court has cited this standard of review which has been previously articulated by our Court:

"... [W]e have recognized that the trial judge is in a position to evaluate the attitudes, sincerity, credibility, and demeanor of the witness. Because we are not in such a position, we have recognized that a trial judge’s determination of custody should be accorded great weight. Only where we are constrained to hold that there was a gross abuse of discretion should an appellate court interfere with the decisions of the hearing judge.” Commonwealth ex rel. Rainford v. Cirillo, 222 Pa.Super. 591, 597-98, 296 A.2d 838, 841 (1972).

Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 295-6, 368 A.2d 635, 637 (1977) (Plurality Opinion by Nix, J., with three Justices concurring). See also In re Custody of *64J.S.S., 298 Pa.Super. 428, 444 A.2d 1251 (1982); Commonwealth ex rel. E.H.T. v. R.E.T., 285 Pa.Super. 444, 427 A.2d 1370 (1981); In re Custody of White, 270 Pa.Super. 165, 411 A.2d 231 (1979). We are not here to engage in de novo review of custody cases. See Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980); In re Custody of Neal, 260 Pa.Super. 151, 393 A.2d 1057 (1978); Tobias v. Tobias, 248 Pa.Super. 168, 374 A.2d 1372 (1977). Although we are never bound by findings of fact which lack sufficient support in the record, this Court has often stated in past opinions that we are also not bound by inferences or deductions adduced by the lower court from the facts. However, when those factual findings are based upon competent evidence, I submit that those inferences and deductions which flow therefrom must be upheld, absent an abuse of judicial discretion.

This standard appears to be that employed by the Supreme Court recently in Commonwealth ex rel. Zaffarano v. Genaro, 500 Pa. 256, 455 A.2d 1180 (1983). Therein, the hearing judge refused to grant temporary custody of a minor to the natural grandparents after the death of her own mother in a automobile accident. The hearing judge found as a fact that “there [was] some underlying bitterness between the Zaffaranos and Richard resultant from Carmella’s untimely death.” He therefore concluded that “ ‘[t]he present hard feelings which unhappily exist may well serve to place Shannon [the child] in a cross-fire between conflicting adults which would certainly not be in her best interest.’ ” Id., 500 Pa. at 259, 455 A.2d at 1181-1182. Visitation and temporary custody rights were denied.

A panel of this Court (SPAETH, BROSKY and HOFFMAN, JJ.) reversed. See Commonwealth ex rel. Zaffarano v. Genaro, 286 Pa.Super. 436, 429 A.2d 17 (1981). In doing so, the panel rejected the lower court’s finding of fact with respect to the feelings and attitudes displayed by the parties in their relationships with each other, and substituted its own finding that “there does not exist between these *65parties an ‘irreconcilable animosity’____” Rather, it analogized the situation to a “temporary falling out rather than a permanent estrangement.” Id., 286 Pa.Superior Ct. at 442, 429 A.2d at 20. This Court went on to reject the deduction of the lower court that the requested relief would be inappropriate, and again substituted its own conclusion that partial custody with her grandparents was in the minor’s best interests.

The Pennsylvania Supreme Court reversed, holding that the Superior Court erred in substituting its factual finding for that of the trial court, and in rejecting the conclusion of the hearing judge which was based upon competent evidence. Thus, the Supreme Court upheld the deductions and inferences of the trial court, which were founded upon sufficient evidence and which were free from any abuse of discretion, and rejected the independent judgment of the Superior Court.

In another recent case, Commonwealth ex rel. Davenport v. Montgomery County Children & Youth Services, 501 Pa. 472, 462 A.2d 221 (1983), the hearing judge concluded that the best interests of a four-year old child would be served by placing her in the custody of her maternal grandparents. The mother of the child had executed a voluntary placement agreement giving custody to Children and Youth Services of Montgomery County after the child had been abused by the mother’s boyfriend. That agency then placed her with the maternal grandparents. The natural father, who sought custody, was granted visitation rights. The lower court based its decision on the fact that the father’s interest in his daughter, as evinced by her attendance at a day care center for 10 hours a day while he remained unemployed and his few visits with her during a lengthy separation, was minimal.

A panel of this Court rejected the lower court’s deductions about the father’s fitness as custodian and awarded custody of the child to him. Our Court held that the father’s right to custody was paramount, that he had not *66forfeited that right, and further, that the best interests of the child mandated that she be placed with her father.

The Supreme Court reversed, stating:

The hearing court’s determination that the maternal grandparents will provide a stable and loving home which will serve Kathy Ann’s best interests is amply supported by the record and should not be disturbed.

Id., 501 Pa. at 476-77, 462 A.2d at 224. Further, it observed that the “Superior Court’s rejection of the lower court’s factual determination and substitution of its own conclusion constituted impermissible appellate fact-finding on this record.” Id. The Supreme Court, once it determined the findings of fact of the hearing court were supported by competent evidence, upheld the decision of that tribunal which was based upon those facts.

Regardless of the copious rhetoric which has defined our scope of review as an abuse of discretion standard or a broad scope of review, I simply submit that the task the Supreme Court performed in the above cases is what we should also do: examine the record to determine if the foundation for the lower court’s decision — that is, the facts upon which it relies — is supported by the record. If so, and if the disposition logically flows therefrom, it should be upheld.

There are numerous sound reasons for such a course of conduct. While these have been addressed in Judge WIE-AND’s scholarly compendium sub judice, there are two grounds which I would like to stress. First, this deference to the lower court’s decision acknowledges the unique vantage point occupied by the trial judge. As the Supreme Court eloquently observed:

the feelings and attitudes exhibited by the parties towards one another ... are sometimes discernable only by the hearing judge who has an opportunity to observe the witness. The mere fact that a witness says he harbors no ill will towards another individual does not establish that fact; particularly in cases such as this in which the emotions of the parties are relevant to a determination of *67the child’s best interest, the demeanor of the witness is crucial in judging his sincerity and truthfulness.

Commonwealth ex rel. Zaffarano v. Genaro, supra, 500 Pa. at 262-63, 455 A.2d at 1183. In custody cases, where the course of a child’s life hangs in the balance, the hearing judge and not the appellate bench is in a position to assess the veracity of the witnesses and to determine whether the witness’ eyes reflect what mere words often do not.

Secondly, by adopting this standard, it instills in the lower court order a degree of finality which creates an aura of assurance that the decision will be an abiding one. The parties can begin to live their lives as decreed by the lower court, and not in anticipatory hope that an independent review by an appellate court will find in an opposite fashion than the hearing judge.

President Judge SPAETH characterizes the above scope of review as the least exacting and as an abdication of our responsibility (Opinion by SPAETH, P.J., at 49-50). I most wholeheartedly disagree. President Judge SPAETH fails, I submit, to appreciate that this standard comports with our function as a court of review and not one of original jurisdiction, and with the need to protect the helpless parties, the children, from endless protracted proceedings. If our Court were to exercise President Judge SPAETH’s standard of independent judgment, the parties would be forced to put their lives on hold while we second-guess the decision of the hearing judge. For the foregoing reasons, I must' disagree with President Judge SPAETH in his belief as to the appropriate standard of review for our court in child custody matters.

However, for the following reasons, my review of this case', pursuant to the abuse of discretion standard, leads me to join President Judge SPAETH in his final disposition.

Once a child has been declared “dependent” pursuant to the Juvenile Act, 42 Pa.C.S.A. § 6301(b)(3), and separated from his parent or parents, the court must thereafter make a determination of custody premised solely upon the best interests of the child. See Stapleton v. Dauphin County *68Child Care Service, 228 Pa.Super. 371, 324 A.2d 562 (1974); In re Donna W., 284 Pa.Super. 338, 425 A.2d 1132 (1981). Although this standard can be succinctly expressed, the actual determination as to what constitutes the best interests of a particular child defies such facile articulation. Numerous factors must be considered, foremost of which is the natural parents’ claim to custody. As we observed in Stapleton, supra 228 Pa.Super. at 391, 324 A.2d at 573, “[i]n a given case this claim may prove of decisive weight.” Other facts which must be analyzed include:

the nature and quality of the children’s foster placements, the degree of attachments which the children have formed in foster care and the effect which return of the children would have on them. Such evidence should come from both interested and disinterested witnesses.

In re Donna W., supra 284 Pa.Super. at 349, 425 A.2d at 1137. In addition, the court should recognize the acknowledged preference of this Commonwealth that siblings be reared together whenever possible. Albright v. Commonwealth ex rel. Fetters, supra.

So directed, the trial court examined the nature and quality of the placements, the degree of attachments, and the effect upon the children if they were removed from those environments. To assist the trial court in evaluating the degree of attachment of the children to the foster parents, psychological evaluations and observations were ordered of Edward and Donna. Three experts offered testimony concerning the degree of attachment between the children and their foster parents. While all three agreed that both children have developed psychological bonds to their foster families, with Edward strongly attached to his foster parents, opinions varied as to whether the children should be returned to the custody of their natural mother.

Dr. Neil Rosenblum, the clinical child psychologist retained by Children and Youth Services of Allegheny County (hereinafter CYS), testified that the best interests of the children required that they remain with their foster parents. The psychologist based his recommendation upon sessions *69with the children, formal testing, observations of the children with appellant and with their foster parents, CYS records, and his own interactions with all of the parties involved.

In his evaluation of Donna, who was then 4V2 years old, Dr. Rosenblum initially tested her alone and then observed her in the company of both her natural mother and her foster mother. As a result of his interview, he opined that Donna clearly had a stronger attachment to her foster mother than with her natural mother, that she required a strong, assertive type of approach in order to get her to work at a maximum level of effectiveness, that appellant was not very secure in her role or in her relationship with Donna, and that the foster mother was more successful in redirecting Donna’s behavior. He concluded that Donna was an emotionally insecure child who was experiencing developmental delays and that the foster mother had the ability to provide the type of environmental and individual constructive attention which Donna needed.

Edward, 3 years old, was also evaluated in a setting which included both appellant and his foster parents. Dr. Rosenblum observed that Edward had formed an extremely close attachment to his foster father, exhibited unusual resistance to his natural mother, and displayed separation anxiety with respect to leaving his foster parents. Dr. Rosenblum concluded that such a move would be deleterious to Edward’s long-term emotional adjustment. In his opinion, it was highly unlikely that Edward could form an acceptable attachment to his natural mother in light of his age.

In direct contrast to Dr. Rosenblum’s testimony, Dr. Mark King and Dr. Robyn Woods, engaged by appellant, opined that the best interests of the children required an immediate return to their natural mother. These experts testified that she displayed love, affection, and nurturance towards her children. From the appropriate and positive *70responses of the children, the doctors believed that psychological bonding did in fact exist between appellant and each of her children.

Dr. King and Dr. Woods attributed the children’s present behavioral problems, which are manifested immediately after visits with their mother, to the unsettled and unresolved nature of the custodial situation. Dr. Woods is a psychologist whose particular area of expertise is bonding and attachment of children to non-biological parents. When questioned specifically about the children’s behavior after visits with their mother, she said:

I think the reactions you’re seeing are indications of children who are needing a final decision made, and these children also, they’re very young. If you were to aslr them to somehow tell you, whether through behavior or otherwise, what their life situation is, they know their life situation is being decided in court, outside the jurisdiction of their mother or foster parents. They know there is tremendous instability. They know that they don’t know what’s going to happen, and what you see happening with them and their behavior is a reaction to the fact that they don’t know what’s going on.

Dr. Woods strongly urged that the children be returned to appellant, although she cautioned that continued contact with the foster parents was vital to the transition process.

At the hearing, Dr. King espoused a philosophical bias:

I am starting off with a professional opinion, which the Court can accept or reject, and that is that the biological parents and the biological homes and the biological siblings over the long term of their development in life are the best for the children.

This belief served as the foundation for his evaluation and recommendations that Donna and Edward be returned to the custody of their natural mother. Dr. Woods also admitted that while she.has a strong bias in favor of psychological parents,

*71I have a very strong bias in favor of biological parents, as well ... so, there is definitely an attachment to one’s natural forces, whatever those are .... That is related to biology, and not psychology.

The trial judge rejected the theoretical approaches of both Dr. King and Dr. Woods.

As the arbiter of fact, the hearing judge may properly refuse to credit the experts’ assumptions and the testimony which flows from them. Expert testimony in custody disputes, while often enlightening, must be viewed in its proper perspective. As (now President) Judge SPAETH, observed in Commonwealth ex rel. Grimes v. Yack, 289 Pa.Super. 495, 528, 438 A.2d 1363, 1381 (1981):

[t]he interests of a doctor caring for a patient are not always the same as the interests of the law---- Thus, the medical concept of illness is not the same as the legal and moral concept of culpability. The same may be said of a child’s “best interests”; it is a legal concept and is not to be defined in psychiatric terms.

Consequently, the opinions of the psychologists cannot in and of themselves determine the ultimate issue. The conclusion of the experts must be evaluated as one part of the complicated legal process which seeks to define the best interests of the child.

It is true that the hearing judge heavily weighed the degree of attachments which the children have formed with their respective foster parents, as well as the apparent effect upon them if returned at this time to their natural mother. The testimony of Dr. Rosenblum that Donna’s and Edward’s regressive behavior was causally connected to the visits with their mother was deemed credible by the hearing judge, and served as one basis for his conclusion that the children should remain in their foster placements.

Unarguably, the natural parent’s claim to custody

“come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements----”

*72Ellerbe v. Hooks, 490 Pa. 868, 369, 416 A.2d 512, 514 (1980), quoting Kovacs v. Cooper, 336 U.S. 77, 95, 69 S.Ct. 448, 458, 93 L.Ed. 513 (1949) (Frankfurter, J., concurring). However, in the search for the best interests of the child, it is only one of many factors to be carefully evaluated. As we stated in our initial review of this case, “the natural parents’ claim to custody is a significant and sometimes decisive factor in custody disputes.” In re Donna W., supra 284 Pa.Super. at 343, 425 A.2d at 1134 (1981) (Emphasis added). In the case at bar, appellant’s claim to custody simply did not carry the “decisive weight” that this claim does in many cases.

Appellant anticipated the return of her children in January, 1980. However, due to events immediately prior to that,1 the trial court abandoned the plan to return the children to appellant. Thereafter, appellant continued to visit her children consistently. In August, 1980, during one of her visits with the children, appellant removed the children from the CYS office to her home and did not return them for five days. Subsequent to their return to their foster homes, both children suffered behavior problems which the trial judge concluded was a result of “poor judgment on [appellant’s] part.” This incident and appellant’s failure to recognize the psychological damage to the children as a result of their abduction seriously undermined the trial judge’s perception of appellant’s custodial fitness.

Undeniably, appellant can now provide the physical accommodations to meet the material needs of her children. However, appellant’s custodial fitness, when viewed by the lower court in the bright light of the best interests of the children, failed to reflect sufficient benefits to the children to outweigh the perceived harm which they would suffer in being removed from their foster homes. The hearing judge’s decision not to relinquish custody of the children to their natural mother was thus supported by competent *73evidence and did not constitute an abuse of discretion.2 As such, I believe that the foster parents should retain physical custody of Donna and Edward with legal custody vested in CYS.

That is not to say that appellant should never prevail in her effort to obtain custody of Donna and Edward. Her parental rights have not been terminated; custody of her children has merely been removed to CYS until her fitness as a custodian has been re-established. This Court, and I am certain, the hearing court, is well aware of the characterization by the Juvenile Act of any transfer of legal custody of a dependent child as “temporary.” 42 Pa.C.S.A. § 6351(a)(2).

At the hearing, Dr. Rosenblum commented on the feasibility of returning the children to appellant:

I do feel that there is a possibility that the attachment between Donna and the natural mother would grow, but only if the natural mother was involved both individually and with Donna in some consistent professional counseling program, which would attempt to try to help her learn more effective parenting skills, which could help in the building of the small amount of attachment that I saw in the relationship between Donna and the natural mother____

Similarly, steps could be taken to reduce the separation trauma that Edward would experience if returned to appellant. In addition to continued contact with the foster parents, Dr. Rosenblum recommended:

If the mother were able to imitate or learn some of the types of ways in which the foster parents relate to Edward, that probably' would help her and help reduce *74the discrepancy between the type of experience that he would have with, you know, the discrepancy of going from one type of home environment to another type.

Appellant admittedly is not a stranger to Donna and Edward. Through her parental interest, she has remained a constant in their young lives and can nurture and encourage the growth of the delicate bonds of attachment which exist between each child and herself. Appellant should continue to receive support and training in the development of her parenting skills. When, through continued contact with her children and the enhancement of her custodial fitness, the best interests of the children warrant their return to appellant, then she should be awarded custody.

I therefore concur in the disposition of this case as drafted by President Judge SPAETH, which directs that the natural mother be offered every available assistance in her efforts to formulate appropriate parental skills. While these years cannot be recouped, it is our belief and hope that Donna and Edward have experienced the type of nurturing love and care from their foster parents which their natural mother will one day bestow upon them.

. Appellant was raped in early January, 1980, by a sixteen-year old acquaintance whom she met in a restaurant and invited home one evening.

. While I note that the hearing judge failed to consider the recognized preference that siblings be reared together, a review of the record indicates that neither child mentioned the other when questioned on the members of their families. Moreover, Edward became annoyed in the presence of his mother’s six-month old son who often accompanied her on visits to the children. Although the law recognizes the desirability of brothers and sisters living together, that fact alone is not of sufficient import to alter a custodial decision.