In Re Donna W.

BECK, Judge,

concurring and dissenting:

I join Judge Spaeth’s opinion as to the scope of appellate review but disagree as to the disposition. I would reverse the disposition made by the trial court and return custody to the natural mother with the instruction that the foster parents be awarded visitation rights and that CYS establish a plan so as to continue to offer supportive service to the natural mother.

As other authors in the instant case have made clear, this appeal is being heard for the second time. On the first remand, In Re Donna W., 284 Pa.Super. 338, 425 A.2d 1132, 1137 (1981) the lower court was directed to make an inquiry, inter alia, into the quality of the children’s foster care. Judge Spaeth now characterizes this deficiency in the record as an example of procedural error; the error being that the record revealed that the trial court did not examine *75“(t)he nature and quality of the children’s foster placements ...” (Opinion of Spaeth, J., at 52).

This instruction, it seems to me, placed an unintended but erroneous focus on this matter. In child custody cases where the natural parent is a party and the other party is not a natural parent, the initial and primary inquiry should normally be the quality of the natural parent’s care and not a comparative inquiry into the natural parent’s care and the third party’s care. If the natural parent’s care is found to be adequate and appropriate for the needs of the child, then an inquiry into the quality of alternative care, in this case, foster care, becomes irrelevant as to the question of custody. The parties in the instant litigation are the state (Children and Youth Services of Allegheny County) and a natural parent. If testimony reveals that the natural mother can provide adequate and appropriate care for the child’s needs, then a comparative study is irrelevant as to the question of custody. The posture of the instant case is far different from one in which the two competing parties are natural parents. In that situation the primary focus would be a comparative study.

In a custody dispute between a natural parent and third party the situation is not one in which both parties have an equal interest. In such a situation, the natural parent has a prima facie right to custody which may be forfeited only if there are convincing reasons that make it appear that the child’s best interest will be served by an award of custody to a third party. Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980); In re Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977). Before an inquiry is made as to the best interests of the child, there must be evidence adduced from which an inference can be drawn that the natural parent cannot provide adequate and appropriate care for the child’s needs.

The trial court’s decision that the children remain in the custody of their foster parents was premised upon their bonding to their respective foster parents and the trauma that will result from their separation from those foster *76parents. While I have no doubt that the separation from those foster parents with whom the children had lived for three years at the time of the order appealed from will be unsettling, I do not find that trauma to constitute a convincing reason supporting the denial of appellant’s application for custody of her children. As we noted in Commonwealth ex rel. Staunton v. Austin, 209 Pa.Super. 187, 193-94, 223 A.2d 892, 895-96 (1966) (citation omitted):

We recognize, as [the psychiatrist] testified, that uprooting of Christina from the home of the [foster parents] at this time would undoubtedly be a shocking experience. To a certain extent, of course, this results from the protracted litigation for Christina’s custody which has been in progress for over one and one half years. We believe, however, that Christina will be more than compensated for the shock resulting from this separation by the benefits she will receive from the opportunity to grow up in a family unit composed of her natural parents, brothers and sisters.

Likewise, I believe that whatever trauma will result from removal of appellant’s children from their foster homes and return to appellant’s care will be outweighed by the benefits they will receive from being raised and nurtured together in a home comprised of a mother who strongly desires their return as well as a step-brother. I emphasize that the longer custody to the natural parent is delayed, the more difficult the transition will be for the children.

The record reveals ample competent evidence supporting appellant’s strong interest in the return of Donna and Edward. For example, appellant’s neighbor, Donna Meyers, testified that appellant has expressed to her repeatedly that she desires the return of her children. Notes of Testimony (“N.T.”) 4/1/81 at 93. Meyers additionally testified to the difficulties appellant, a resident of Washington County, faced in visiting her children in Pittsburgh. Appellant does not own a car, yet she made arrangements to either ride the bus or ride with Meyers the thirty-six miles each way in order to see her children. Id. at 102. Donna *77Meyers had substantial contact with appellant inasmuch as they live in the same building.

Similarly, her Allegheny County CYS caseworker stated that appellant had visited her children conscientiously and acknowledged that the visits reflected her concern for her children and a sense of responsibility toward them. N.T. 5/13/81 (afternoon session) at 32. The Allegheny County CYS caseworker further stated that appellant has not wavered in her desire for their return. Id. at 33. Her strong interest in their return has not attenuated despite the difficulties in visiting them. Id. at 155-56.

In addition, denying the natural mother custody would serve to continue the separation of these two siblings who have been placed in different foster homes and undermine the “strong policy in our law that in the absence of compelling reasons to the contrary, siblings should be raised together whenever possible.” Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 327, 421 A.2d 157, 160 (1980) (citations omitted). The lower court advanced no reasons why keeping the children in separate foster homes furthered their best interests, and this omission served to undermine this Court’s explicit instruction to consider as a factor that “return of the children to appellant would serve the policy of keeping siblings together whenever possible[.]” In Re Donna W., 284 Pa.Super. at 349 n. 5, 425 A.2d at 1137 n. 5 (citation omitted).

Evidence was also adduced at trial from appellant’s Washington County caseworker that the natural mother had made adequate physical arrangements for her children’s return. The lower court acknowledged the testimony of the caseworker as to the adequacy and suitability of the appellant’s large two bedroom apartment. Her caseworker observed appellant with her third child Damon in the setting of her home.1 He stated that “[h]e was alert and appeared healthy and was appropriately dressed.” N.T. 4/1/81 at 80. In addition, the caseworker stated that *78“he contacted [appellant’s Allegheny County CYS caseworker] and told her that there was no evidence or any indication of services that needed to be offered.” Id. at 81. I conclude that her skill in taking care of Damon is indicative of her increased maturity and parenting skills and is predictive of her ability to care for Donna and Edward.

The Washington County caseworker’s testimony was supported by the testimony of Donna Meyers, appellant’s aforementioned neighbor. Meyers testified that she sees appellant and Damon on an average of twice per week and she characterized their relationship as a “nice” and “happy” one. Id. at 90. She testified that appellant exhibited responsibility toward Damon and is a responsible tenant. Id. at 93-94. She stated that Damon is never left alone. When she is away from her home, appellant either asks Meyers’ mother to babysit for the child or finds another babysitter. Id. at 94. She testified that she has raised two teen-aged children and that Damon behaves like an ordinary six-month-old child. The trial judge concluded that Meyers’ experience as a mother qualified her to make that conclusion.

The trial judge acknowledged in his questioning of Donna Meyers that appellant has matured and has shown responsibility toward Damon:

So I think that she has shown with this six-month-old child, if it is true, and I have no reason to believe it is not true, she has shown that she has grown and developed since the time when she had these two children in terms of her mothering capacity; but the issue as to Donna and Edward is again somewhat different than the issue of dealing with Damon, and I wanted to make sure we are clear about that.

Id. at 100.

In the trial court’s view, though, the central question was the lack of bonding to Donna and Edward. The trial judge stated: “[T]here is a significant difference in taking a six-month-old from birth and bonding to that child and mothering and growing, so to speak, with that child, and *79taking a three-and-a-half-year-old and a four-and-a-half-year-old who have been out of the home for a considerable period of time[.]” Id. at 99.

Donna’s mother voluntarily requested Children and Youth Services to provide temporary care for Donna in 1977, and again in 1978, at times of physical difficulty and emotional stress in her own life. We must always be on guard lest we place mothers or fathers with meager financial and psychological resources in the painful position of requesting temporary care for their children at the peril of losing those very children. Justice Nix sensitively addressed this problem in In re William L., 477 Pa. 322, 364 n. 4, 383 A.2d 1228, 1249 n. 4 (Nix, J., concurring and dissenting), cert. denied, 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978):

Financially secure parents suffering from the same mental or intellectual deficiencies as appellant ... conceivably could hire nurses or seek the services of a private agency to aid in their childrearing. Thus, wealthy parents of families may avoid even the possibility of losing their parental rights. On the other hand, indigent parents similarly afflicted must seek aid from public agencies in order to provide for their children. It is indeed ironic that in seeking the only assistance available to them indigent involuntarily incapacitated parents expose themselves to the threat of losing the very reason for the quest for help — their children.

William L. was a termination proceeding, but the same considerations are relevant to this custody case. As Justice Nix points out, maternal relationships should not be set aside because another mother may be brighter, better trained, more affluent and more proficient in the discharge of parental responsibilities.

Because I find that the hearing judge determined that the strong bonding to the foster parents precluded an award of custody to appellant2 and did not give adequate weight to: 1) appellant’s continued desire for the return of her chil*80dren, 2) the law’s preference for raising siblings together, 3) the suitable nature of appellant’s home environment, 4) the absence of evidence supporting a finding that appellant is incapable of providing care for her children, and 5) the testimony of her experts that custody can be successfully transferred to appellant3, I would reverse the order and return custody to appellant with instructions to the court to provide visitation with the foster parents and with instruction to establish a plan so as to continue with supportive services to the natural mother.

. Damon was born in October, 1980. N.T. 5/13/83 (afternoon session) at 155. It was uncontroverted that appellant had provided a suitable home for him since that time.

. We do not believe that a psychologist’s testimony as to the psychological bonding between the foster parents and appellant’s children *80should be the determinative factor in deciding with whom custody will be reposed. See In re Desiree B., 304 Pa.Super. 461, 450 A.2d 1003 (1982); Commonwealth ex rel. Grimes v. Yack, 289 Pa.Super. 495, 433 A.2d 1363 (1981).

. I take special note of the experts’ recommendation of continued contact with the children’s foster parents to whom the children are undeniably attached.