Commonwealth ex rel. Ruczynski v. Powers

Dissenting Opinion by

Montgomery, J.:

I respectfully dissent because the majority has placed too little importance on the right of a natural mother to have custody of her child. The lower court made much of the fact that the child had benefited by the care of the foster parents over an extended period of time. However, it is noted that it was a relatively short time after the second placing of the child with the foster parents that the mother requested its return, i.e., from August 16, 1963, to December 25, 1963. The balance of said extended period following December 25, 1963, covered the period of litigation by which the mother was attempting to secure her child.

Commonwealth ex rel. Logue v. Logue, 194 Pa. Superior Ct. 210, 166 A. 2d 60 (1960), and the cases following it, in my opinion, compel the return of this child to its mother: viz., Commonwealth ex rel. O’Hey v. McCurdy, 196 Pa. Superior Ct. 79, 173 A. 2d 672 (1961); Commonwealth ex rel. Lovell v. Shaw, 202 Pa. Superior Ct. 339, 195 A. 2d 878 (1963).

The mother, now married, is in a different situation than she was at the time she placed the child with appellees and she should have the opportunity of loving and caring for her child. Her husband, by joining in this proceeding, indicates his desire to aid in this effort.

The opinion of the Supreme Court written by Mr. Justice Jones in the adoption proceeding referred to in footnote I of the majority opinion clearly states that this child was not abandoned by its mother but that the record portrays a picture “of a mother, in the midst of many difficulties, some self-created, vacillating in her conduct; at times convinced that her circumstances were such that she could not continue to take care of the child and at other times evidencing a sincere desire to care for and support the child.” In the light of such a record she should not be denied her child.