DocketNumber： 674
Judges： Cercone, Spaeth, Hester, Brosky, Wieand, Beck, Johnson
Filed Date： 2/10/1984
Status： Precedential
Modified Date： 10/19/2024
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 judg
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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*43 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. [171] id. at 176, 428 A.2d [627] at 629 [(1981)] (HOFFMAN, J., concurring); Common*44 wealth 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.
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., 369 Pa. at 280, 85 A.2d at 407. The Court stated that the appellate “scope of review extends to the fullest review
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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
A rather dramatic illustration of this principle is the Supreme Court’s decision in Commonwealth ex rel. Harry v. Eastridge, 374 Pa. 172, 97 A.2d 350 (1953). There the trial court had awarded the custody of two children to their mother, despite testimony that the mother was unfit to have custody. The mother denied that she was unfit and the trial court believed her. This court, however, reversed the trial court’s award. On appeal, the Supreme Court reversed this court. “Decision of the present case,” the Supreme Court said, “depended largely upon a determination of the credibility of the witnesses.” Id., 374 Pa. at 175, 97 A.2d at 352. Noting that this court had accepted as credible the testimony indicating that the mother was unfit, and had based its decision on that testimony, the Supreme Court said: “But in so doing [the Superior] Court rejected the unqualified denial by [the mother] which was believed by the judges who saw her in the courts below____” Id., 374 Pa. at 175, 97 A.2d at 352. (emphasis in original). The Court continued: “The Superior Court’s decision was thus based on a categorical rejection of the conclusions on credibility reached by the two hearing judges who observed the witnesses and listened to their testimony.” Id., 374 Pa. at 176, 97 A.2d at 352. In reversing this court, the Supreme Court went to some pains to dispel the mistaken belief, which also underlies Judge WIEAND’s opinion, that the duty to exercise a broad scope of review permits the appellate court to act as fact-finder. To the contrary, said the Court, the broad scope of review “was never intended to mean that an appellate court is free to nullify the fact-finding function of the hearing judge. It is a principle which
Thus admonished, we have repeatedly acknowledged our duty to defer to the trial court’s appraisal of the witnesses’ credibility. Nor, it should be emphasized,.has this acknowledgment been at all grudging; we know that by far the best way to appraise credibility is to see the witnesses. Thus we have said that in applying our broad scope of review, we apply it to the facts as the trial court has found them. In re Desiree B., 304 Pa.Super. 461, 450 A.2d 1003 (1982) (appellate court will not nullify fact-finding of trial court); Commonwealth ex rel. Strunk v. Cummins, 258 Pa.Super. 326, 392 A.2d 817 (1978) (same); In re Leskovich, 253 Pa.Super. 349, 385 A.2d 373 (1978) (same); Tomlinson v. Tomlinson, 248 Pa.Super. 196, 374 A.2d 1386 (1977) (same). Tobias v. Tobias, 248 Pa.Super. 168, 374 A.2d 1372 (1977) (same).
Those who suggest an abuse of discretion standard seem not to appreciate this interplay between, on the one hand, accepting the trial court’s determinations of credibility, and on the other hand, exercising a broad scope of review. They seem to regard a broad scope of review as “usurppng] the function of the trial court.” WIEAND, J., at 83. But there is neither inconsistency nor usurpation in accepting the facts as the trial court has found them, and then applying to those facts a broad scope of review. For example, in Snellgrose Adoption Case, 432 Pa. 158, 247 A.2d 596 (1968), the Supreme Court accepted the trial court’s findings of fact, but, exercising its independent judgment, reversed the trial court’s award. The trial court did not regard the evidence of the mother’s relationship
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A broad scope of review is essential if the appellate court is to fulfil its responsibility to children. To state the point conversely: an appellate court deciding that it will reverse a custody award only for abuse of discretion abdicates its responsibility. After all, an “abuse of discretion” is a very serious matter, coming close to judicial misconduct. “It is not a mere error of judgment____ [A] court’s judicial
In this regard, it is important to recognize that those who suggest an abuse of discretion standard would go even further than putting child custody cases at the bottom of the appellate pile. As pointed out in McQuiddy v. McQuiddy, 238 Pa.Super. 390, 393, 358 A.2d 102, 104 (1976);
[W]hen the court has come to a conclusion by the exercise of its discretion, the party complaining of it on appeal has a heavy burden; it is not sufficient to persuade the appellate court that it might have reached a different conclusion if, in the first place, charged with the duty imposed on the court below; it is necessary to go further and show an abuse of the discretionary power.
Thus, to adopt an abuse of discretion standard would precisely reverse our obligation to children: instead of “mak[ing] such an order on the merits of the case as right
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Finally, those who suggest an abuse of discretion standard seem not to appreciate the complexity of the appellate process that has been developed under the rubric, “broad scope of review.” They seem to imagine only two, very different, alternatives: either we must reverse only for abuse of discretion, or we will find ourselves on some sort of uncharted sea, where we must make an unguided independent judgment. The reality is quite different.
Perhaps the most useful way to think of the appellate process in a child custody case is as proceeding in four stages. The first stage may be described as the procedural stage; the second, as the fact-finding stage; the third, as the conclusion of law stage; and the fourth, as the inferences and deductions stage.
At the first, procedural, stage of the appellate process, the appellate court examines the record to determine whether the trial court has satisfied the several procedural requirements incident to the entry of a custody award. To enable the appellate court to exercise its independent judgment, the trial court must make a complete record. Garrity v. Garrity, 268 Pa.Super. 217, 407 A.2d 1323 (1979); Augustine v. Augustine, 228 Pa.Super. 312, 324 A.2d 477 (1974). This means that the record must contain testimony adequate to illuminate the circumstances of the parties. Sipe v. Shaffer, 263 Pa.Super. 27, 396 A.2d 1359 (1979); Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (1976). There should be testimony by interested and disinterested witnesses alike. J.F.G. v. K.A.G., 278 Pa.Super. 25, 419 A.2d 1337 (1980); Lewis v. Lewis, 267 Pa.Super. 235, 406 A.2d 781 (1979). The testimony must describe the parties’ respective homes, and sometimes expert testimony is necessary. Rupp v. Rupp, 268 Pa.Super. 467, 408 A.2d 883
If, at the procedural stage, the appellate court determines that the record is incomplete, ordinarily the case will be remanded to the trial court for further hearing. This very case illustrates such a remand. When it was first appealed to this court, we remanded because “the record [was] totally devoid of any evidence regarding 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.” In Re Donna W., 284 Pa.Super. 338, 349, 425 A.2d 1132, 1137 (1981).
The appellate court also considers at the procedural stage whether the trial court has filed a complete and comprehensive opinion, including findings of fact and reasons for the award. Strapple v. Strapple, 263 Pa.Super. 187, 397 A.2d 809 (1979); Commonwealth ex rel. Grillo v. Shuster, 226 Pa.Super. 229, 312 A.2d 58 (1973). If the record is otherwise complete, it may not be necessary to remand for a comprehensive opinion, Commonwealth ex rel. Husack v. Husack, 273 Pa.Super. 192, 417 A.2d 233 (1979), Tomlinson v. Tomlinson, supra, but often remand is necessary to enable us to exercise our independent judgment, Strapple v. Strapple, supra; Commonwealth ex rel. Forrester v. Forrester, 258 Pa.Super. 397, 392 A.2d 852 (1978).
Once satisfied that the trial court has made no procedural errors requiring remand, the appellate court proceeds to the second, fact-finding, stage of the appellate process. At this stage the appellate court examines the trial court’s findings of fact. As has already been discussed, the appellate court is bound to accept the trial court’s findings, see e.g., Commonwealth ex rel. Harry v. Eastridge, supra, but this of course assumes that the findings are supported by evidence of record. Generally, they are. But if examination discloses that findings determinative of the award are unsup
If no procedural errors requiring remand have occurred, and the trial court’s findings of fact are supported by the record, the appellate court proceeds to the third stage of the appellate process. At this stage the appellate court determines whether the trial court has committed an error of law. For as is true in all appeals, not only in child custody cases, the appellate court is never bound by the trial court’s conclusions of law. Thus, the trial court’s award will be reversed where based on the tender years presumption, Haraschak v. Haraschak, 268 Pa.Super. 173, 407 A.2d 886 (1979), or on the application of an improper burden of proof, Ellerbe v. Hooks, supra; In Re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977). Where the trial court commits an error of law, the appellate court will usually remand to allow the trial court to rectify its error, Schall v. Schall, 251 Pa.Super. 262, 380 A.2d 478 (1977), but in some cases, depending on the evidence, the appellate court may make an award without remand, In Re Custody of Hernandez, supra.
It is only if no errors requiring remand are disclosed at any of the first three stages of the appellate process that the appellate court proceeds to the fourth stage. It is at this fourth stage that the appellate court must consider what inferences and deductions to draw from the facts as found by the trial court. In doing this we are not bound by the inferences and deductions of the trial court, as we are bound by its findings of fact. Rather, as the Supreme Court and this court have said:
*54 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, supra, 493 Pa. at 295-297, 426 A.2d at 557.
And see: Commonwealth ex rel. Newcomer v. King, supra; Robert H.H. v. May L.H., 293 Pa.Super. 431, 439 A.2d 187 (1981).
This process of an appellate court drawing its own inferences and deductions is illustrated in Snellgrose Adoption Case, discussed supra at p. 48-49. See, concurring opinion by Chief Justice BELL 432 Pa. at 168-169, 247 A.2d at 601, explaining reason for the Court’s reversal: “An appellate Court is not bound to accept so-called findings of fact which are in reality deductions, inferences and conclusions found by the lower court — ” (citations omitted). It is also illustrated in In Re Custody of Temos, 304 Pa.Super. 82, 450 A.2d 111 (1982), where this court, exercising its independent judgment, drew its own inferences and deductions and reversed the order of the trial court. The case involved a custody dispute between the parents of two minor children. The trial court, in awarding custody to the father, relied on three factors:
that the mother “maintained a close relationship with a married man;” that the mother was involved in two, questionable financial transactions; and that since the parties’ divorce, “the mother has become increasingly career-oriented [and] has placed heavy reliance on babysitters.”
Id., 304 Pa.Superior Ct. at 85, 450 A.2d at 112.
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When this case was last before us, our review proceeded only so far as the first stage of the appellate process required by the application of a broad scope of review. Examining the record to determine whether the trial court had made any procedural error, we discovered that indeed it had: the record was devoid of any evidence regarding the quality of the children’s foster care, the degree of the children’s attachment to the foster parents, or the probable effect on the children of returning them to their mother. We therefore reversed and remanded with instructions to make a complete record. In re Donna W., supra. On remand the trial court did make a complete record. It is therefore now in order to proceed to the second stage of the appellate process, and determine whether the trial court’s findings of fact are supported by the record.
This determination is complicated by the fact that the trial court has made no findings of fact as such, instead simply delivering its decision in narrative form. As a result, the basis of the trial court’s award is somewhat obscure, as will be more fully discussed in a moment. However, it is plain enough that the findings of fact implied in the trial court’s narrative are supported by the record. Therefore, accepting the findings as binding, we may proceed to the third stage of the appellate process, and determine whether the trial court correctly applied to the facts as it found them the pertinent principles of law.
In making this determination, we may start with Judge HESTER’S statement of the case, HESTER, J., at 68-74, for it admirably summarizes the conflicting positions taken by the respective parties, thereby making plain the
First: The children, Donna, now seven, and Edward, now six, have, in the opinion of all three of the expert witnesses, developed strong “psychological bonds” to their foster parents. This has occurred because of the fact, recited by the trial court, that “[t]he children have been out of the custody of the mother from May 23, 1978, and before that, Donna had been placed by the mother with Children and Youth Services in April, 1977 because of her instability and threats of abuse from the children’s father, who is presently in prison.” Slip op. of the trial court, at 3.
Second: During this period the mother has continued to visit her children consistently. She has also improved her circumstances. “Undeniably, appellant [the mother] can now provide the physical accommodations to meet the material needs of her children.” HESTER, J., at 72. “There is no contention on the part of Children and Youth Services or the Child Advocate that the mother’s living conditions at this time are inadequate, and testimony received from the Children and Youth Services investigators from Washington County indicated that she is in a clean, suitable physical environment____” Slip op. of trial court, at 15.
Third: The three experts were in sharp disagreement regarding how best to resolve, or accommodate to, the tension thus created between the children’s desire to be with their foster parents and the mother’s desire to have them with her. One expert, a clinical child psychologist retained by Children and Youth Services, was of the opinion that Donna was an emotionally insecure child, that the relationship between her and her mother was insecure, and that her foster mother could provide the care she needed better than her mother could, and that Edward had so close an attachment to his foster father and manifested so much
It is at this point that the above-mentioned obscurity in the trial court’s opinion, arising from the court’s failure to make findings of fact, becomes important. For its opinion may be read as resolving the problem presented by the conflicting expert testimony by holding as a matter of law that where the evidence discloses strong “psychological bonding” to the foster parents, an award to the natural parent is contrary to the children’s best interests. This was in substance the position of the trial court when it first heard the case. Then, as we remarked in reversing and remanding, the trial court, despite the fact that the record was devoid of any evidence regarding the children’s foster care or the probable effect of their return to their mother, expressed its unwillingness to order the children’s “removal ... from a stable, healthy environment which they have known for two years.” In re Donna W., supra 284 Pa.Super. at 349, 425 A.2d at 1137 (quoting the trial court). One interpretation of the trial court’s opinion is that nothing happened on remand to change the trial court’s position: the court remained convinced that where bonding has occurred, children should not be moved.
One of the greatest mistakes we can make is to regard as simple what is complex. If psychiatrists and psychologists knew how to achieve a child’s best interests, deciding child custody cases would be comparable to diagnosing and treating a known medical condition. But psychiatrists and psychologists don’t know — as the record of their disagreement in this case amply demonstrates. They can help by enriching the court’s understanding of the complexities of how children develop, and the court may sometimes gain assurance from their counsel. But never may a court escape its
Thus, this case may be regarded as like a case in which the trial court has resolved the dilemma presented by conflicting testimony by resorting to the tender years presumption, or by improperly allocating the burden of proof— in other words, as a case in which in exercising our scope of review we need not proceed past the third, conclusion of law, stage. As we would reverse for error of law where the trial court applied the tender years presumption, so we may reverse for error of law where the trial court has applied a “psychological bonding presumption.”
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Judge HESTER is of the view that the trial court’s decision should not be read in the manner just discussed, that is, as based on a “psychological bonding presumption.” While he acknowledges that the trial court “heavily weighed” the fact of bonding, HESTER, J. at 651, he believes that the court regarded bonding as only one of the grounds of its decision. He may well be right. If he is, it is in order to proceed to the fourth stage of the appellate process: the trial court having made no error of law, we must, in the exercise of our independent judgment, draw our own inferences and deductions, and make such order as right and justice dictate.
The trial court explained the basis for its award as follows:
[I]t is the conclusion of the court that taking all the evidence presented through the various hearings and looking at the case carefully from the point of view of the best interest of the child, and taking into consideration fully the rights that the natural parents have to the custody of their children, except in exceptional circumstances, the court believes that at this time that to return the children because of these developmental, interactional and attachment factors, would be contrary to their best interest.
The trial court determined that an award of custody to the mother was precluded by the following factors: 1) the factor that the mother could not deal with Donna’s developmental problem; 2) the observation that during supervised visitations there was little interaction between the mother and her children, and 3) the strong bonding between the children and the foster parents. We have concluded that these factors do not support an order awarding exclusive custody to the foster parents.
The trial court’s order makes no provision for support services for the mother, thus indicating that the court believes that the mother can never learn how to deal with Donna’s problem. We disagree with this conclusion. The mother stated at the hearing that she was willing to work with the social agencies. N.T. 5/13/81, Vol. II at 158. The trial court, however, did not give her the chance to prove that she can learn to deal with Donna’s problem, despite the acknowledged fact that the mother has already made considerable progress in achieving her own stability.
We also do not place much weight on the second factor — that during supervised visitations there was little interaction between the mother and her children. Each visit was supervised by a case worker and a foster parent. It is difficult to conceive of a more inhibitive environment. The mother testified that her visits with the children were much better before they were supervised. N.T. 5/13/81, Vol. II at 155.
Finally, as we have already discussed, we do not assign to the factor of bonding the heavy weight assigned by the trial court. See discussion at pp. 55-57, supra. The mother has not had the opportunity to form bonds with her children, for she has been limited to one hour visits twice a month. N.T. 5/13/81, Vol. I at 108. We realize that the children have been in foster care for about five years now, and that stability is important to their welfare.
There can be no question that stability is important to a child’s welfare, and that in deciding who should have custody of the child it will therefore always be essential to consider how long the child has spent with the third party. Commonwealth ex rel. Bankert v. Children’s Services, 224 Pa.Super. 556, 307 A.2d 411 (1973); Commonwealth ex rel. Kraus v. Kraus, supra [185 Pa.Super. 167, 138 A.2d 225 (1958) ]. This consideration, however, must take into account all of the evidence, including the reasons why the child has been so long with the third party. It has repeatedly been held that the fact that a child has been away from a parent for a long time will not by itself defeat the parent’s right to custody. In re: Adoption of Farabelli, 460 Pa. 423, 333 A.2d 846 (child had lived with grandparents from birth until age of eight); Commonwealth ex rel. Johnson v. Pinder, 217 Pa.Super. 180, 269 A.2d 511 (1970) (during child’s nineteen months of life father in Illinois working and attending college and able to visit child only three times); Commonwealth ex rel. Lovell v. Shaw, 202 Pa.Super. 339, 195 A.2d 878 (1963) (five year old child with grandfather and step-grandmother since age of ten months).
In large part the courts — including this court — are to blame for the delay in this case; the mother has been trying to regain custody of her children for four years, and we cannot in good conscience forever deny her custody because of this delay. Yet that is the effect of the trial court’s order granting exclusive custody to the foster parents. The very essence of the order is that the award of custody is permanent. The trial court makes no provision for visitation; it contemplates no eventual return of the children to the mother. To the contrary, in the trial court’s view the position of the children must be stabilized, once and for all; having been formed, the “psychological bond[s]” are not to be broken.
Appellant [the mother] 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.
HESTER, J., at 74 (emphasis added).
It is unquestioned that the mother has overcome problems most of us never encounter; that, in the trial court’s words, “there has been an improvement in the mother’s ability to maintain a stable living environment ----,” slip op. of trial court at 5; that the mother’s relationship with Damon, the mother’s youngest child, is “very happy,” N.T. 4/1/81 at 90; that Damon is healthy and the mother’s home in good condition, N.T. 4/1/81 at 79, 80; and that the mother wants her children back “very badly,” N.T. 5/13/81, Vol. II at 156, and is willing to allow them to keep in touch with their foster parents, N.T. 5/13/81, Vol. II at 157. Exercising our independent judgment, as we must do, and drawing our own inferences and deductions from the facts as the trial court has found them, and as the record shows them to be, we have concluded that while on the one hand, the importance of stability in the children’s lives justifies an order providing that the children remain in the homes of their foster parents, on the other hand, the mother should be given the chance Judge HESTER would give her. We shall therefore affirm the award of custody to Allegheny County Children & Youth Services but remand the case with instructions to the trial court to provide, after such
So ordered.
. The Habeas Corpus Act of 1917 was repealed by the Act of June 3, 1971, P.L. 128 § 509(a)(66)), 17 P.S. § 211.509(a)(66), retroactive to the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, 17 P.S. §§ 211.101 et seq. The effect was to make habeas corpus appeals in custody cases like any other habeas corpus appeal. Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 443 n. 4, 292 A.2d 380, 383 n. 4 (1972). The scope of review, however, remained the same: "Notwithstanding recent changes in the habeas corpus statutes pertaining to appeals in child custody proceedings, the scope of review of this Court and of the Superior Court remains that of the broadest type." Id., 448 Pa. at 443, 292 A.2d at 383 (footnote omitted).
The Orphans Court Act of 1917 was repealed by the Orphans Court Act of 1951, Act of August 10, 1951, P.L. 1163, 20 P.S. §§ 2080.101 et seq., but the Act of 1951 contained a similar provision, 20 P.S. § 2080.773, and while this provision was repealed by the Probate Estates and Fiduciaries Code of 1972, Act of June 30, 1972, P.L. 508, the Probate Code also contained a similar provision, 20 P.S. § 794:
The Supreme Court of the Commonwealth shall, in all cases of appeal from a decree of the orphans’ court division, hear, try and determine the same as to right and justice may belong, and decree according to the equity thereof, and may place or allocate the record costs, including printing costs, upon an appellant or appellee or upon the estate or trust.
(At the time the Supreme Court had exclusive jurisdiction of appeals from the orphans' court, 17 P.S. § 211.202(3)). This provision was repealed by the Judiciary Act Repealer Act of April 28, 1978, P.L. 202,
An appellate court may affirm, modify, vacate, set aside or reverse any order brought before it for review, and may remand the matter and direct the entry of such appropriate order, or require such further proceedings to be had as may be just under the circumstances.
While this provision makes no mention of the scope of review, it is apparent that the Supreme Court has continued to apply the broad scope of review in custody cases. Thus the various cases decided under the repealed statutes remain valid and in fact are still cited by the Court, see, e.g., Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980).
. Sometimes it is said, inaccurately and misleadingly, that the trial court’s findings will be "reverse[d] where in making the findings the [trial] court has abused its discretion." Commonwealth ex rel. Berman v. Berman, 289 Pa.Super. 91, 93, 432 A.2d 1066, 1067 (1981). The accurate statement is that the findings may not be nullified unless unsupported by the record. This principle, it may be added, includes findings regarding "the parties’ emotional feelings and attitudes towards one another.” Commonwealth ex rel. Zaffarano v. Genaro, supra 500 Pa. at 256, 455 A.2d at 1180. See also, Commonwealth ex rel. Davenport v. Montgomery County Children and Youth Services, supra.