Snellgrose Adoption Case

Dissenting Opinion by

Mr. Justice Roberts:

In overturning the decision of the orphans’ court, I believe that this Court has wrongly extended its scope of review and decided incorrectly factual issues which an appellate court should not be determining. Accordingly, I dissent.

The majority states that “while we do not invade the fact finding province of the hearing judge, we are obliged to examine the record and reach an independent conclusion.” Of course we should examine the record. And I agree that the majority has not invaded the “fact finding province” of the orphans’ court— it has ignored it altogether. It is not entirely clear what is the scope of review by this Court of orphans’ court factual determinations; but it must be that the orphans’ court findings of fact are entitled to some weight, especially where credibility is at issue.

Although it is true that Commonwealth ex rel. Bendrick v. White, 403 Pa. 55, 169 A. 2d 69 (1961) indicates a broad scope of review of orphans’ court determinations, more recent decisions cast doubt on Bendrick’s viability. In Hookey Adoption Case, 419 Pa. 583, 589, 215 A. 2d 860, 862 (1966), Mr. Justice Jones, writing for a unanimous court, indicated that this Court’s decision was based on whether “there was sufficient evidence to sustain the finding . . . .”

In Dettra Will, 415 Pa. 197, 201, 202 A. 2d 827, 830 (1964), this Court, again per Mr. Justice Jones, stated that in a will case the orphans’ court decision as to testamentary capacity and undue influence is “controlling provided such findings are based upon legally competent and sufficient evidence and our scope of review is to determine whether the findings of fact are supported by sufficient evidence and whether the court below committed an error of law or abused its discretion.” In a will case, the orphans’ court is controlled by 20 P.S. §2080.773, just as it is in an adoption or resulting custody proceeding. 20 P.S. §2080.773 is cited by the majority here and relied on in Bendriek, supra, to require broad review by this Court in cases of this type. But to say that the exact same statutory language demands broad review of orphans’ court decisions in one type of case but not in another is anomalous. The statute itself in no way distinguishes between will and adoption custody cases, and by its terms is applicable to all “orphans’ court decrees.”

In Hunter Adoption Case, 421 Pa. 287, 218 A. 2d 764 (1966), we once again characterized our inquiry as merely whether the record could support the finding below. And in our most recent statement of this issue, in Snellgrose Adoption Case, 425 Pa. 258, 228 A. 2d 764 (1967) (prior disposition of current litigation), this Court, per Mr. Chief Justice Bell, again stated that “the sole question ... is whether there is adequate evidence to support the finding of the court below . . . .”

The majority’s decision in this case evidences the folly of having this Court review anew on a cold record factual findings which an orphans’ court judge, by virtue both of his experience and his presence at the hearing and opportunity to observe the witnesses, is peculiarly equipped to make. The majority relies strongly on Mrs. Snellgrose’s alleged immorality. Judge Gates here found that Mrs. Snellgrose’s relationship with Fluty was not “proven to be immoral nor likely to have an adverse effect on Thomi’s future.” Mrs. Snellgrose testified that Fluty merely stopped by for coffee on his way to work. The hearing judge chose to believe Mrs. Snellgrose, noting that she “testified with candor, frankness and apparent honesty about her conduct.” Certainly this Court, reading a cold record, cannot reliably make a determination contrary to that of the orphans’ court judge as to Mrs. Snellgrose’s credibility.

The majority also relies on the statements of the child, which the court below dismissed as being inspired by Mr. and Mrs. Harris. This Court did not have the opportunity to observe little Thomi; it cannot know, as the orphans’ court judge could, if her answers appeared to be schooled. The fact that the Harrises filled a “void” is hardly relevant. That “void” was created by agreement between Mrs. Snellgrose and the Harrises. We have held previously that there was no abandonment here. Certainly the Harrises, of course with Mrs. Snellgrose’s consent, were custodians, but that does not now give them the right to keep the child from her natural mother.

Accordingly, I must conclude that the majority’s “independent examination of the record” is nothing more than speculation. I would much prefer to rely on the conclusions of the hearing judge who was able to observe the litigants and witnesses, especially in a situation such as this where personality and demeanor are crucial. The record certainly supports his findings, and thus, I dissent.