Filed: July 16, 1993
Charleston, West Virginia
Attorney for Appellants
Homer A. Speaker
Martinsburg, West Virginia
Attorney for Appellees
This Opinion was delivered Per Curiam.
Neely, J., dissents.
1. "'"A parent has the natural right to the custody of his or
her infant child and, unless the parent is an unfit person because
of misconduct, neglect, immorality, abandonment, or other
dereliction of duty, or has waived such right, or by agreement or
otherwise has permanently transferred, relinquished or surrendered
such custody, the right of the parent to the custody of his or her
child will be recognized and enforced by the courts." Syl. pt. 2,
Hammack v. Wise, 158 W. Va. 343, 211 S.E.2d 118 (1975); Syllabus,
State ex rel. Kiger v. Hancock, 153 W. Va. 404, 168 S.E.2d 798
(1969); Syllabus, Whiteman v. Robinson, 145 W. Va. 685, 116 S.E.2d
691 (1960).' Syl. pt. 1, Leach v. Bright, 165 W. Va. 636, 270
S.E.2d 793 (1980)." Syllabus, Ford v. Ford, 172 W. Va. 25, 303
S.E.2d 253 (1983).
2. "'When a parent, by agreement or otherwise, has
transferred, relinquished or surrendered the custody of his or her
child to a third person and subsequently demands the return of the
child, the action of the court in determining whether the custody
of the child shall remain in such third person or whether the child
shall be returned to its parent depends upon which course will
promote the welfare and the best interests of the child; and the
parent will not be permitted to reclaim the custody of the child
unless the parent shows that such change of custody will materially
promote the moral and physical welfare of the child.' Point 4
Syllabus, State ex rel. Harmon v. Utterback,  W. Va. ,
[108 S.E.2d 521] [(1959)]." Syl. Pt. 1, Davis v. Hadox, 145 W. Va.
233, 114 S.E.2d 468 (1960).
3. "If a child has resided with an individual other than a
parent for a significant period of time such that the non-parent
with whom the child resides serves as the child's psychological
parent, during a period when the natural parent had the right to
maintain continuing substantial contact with the child and failed
to do so, the equitable rights of the child must be considered in
connection with any decision that would alter the child's custody.
To protect the equitable rights of the child in this situation, the
child's environment should not be disturbed without a clear showing
of significant benefit to him, notwithstanding the parent's
assertion of a legal right to the child." Syl. Pt. 4, In re
Brandon L.E., 183 W. Va. 113, 394 S.E.2d 515 (1990).
4. "The granting of temporary custody of a child by its
natural parent to a third person is not tantamount to a divestiture
of the right of the parent to custody of the child." Syl. Pt. 1,
McCartney v. Coberly, ___ W. Va. ___, 250 S.E.2d 777 (1978).
5. "When a parent transfers temporary custody of a child to
a third person, the parent may reclaim custody without showing that
the change of custody will materially promote the moral and
physical welfare of the child." Syl. Pt. 2, McCartney v. Coberly,
___ W. Va. ___, 250 S.E.2d 777 (1978).
The Appellant, Gretchen Smith Snyder, appeals from a December
6, 1991, order of the Circuit Court of Jefferson County denying her
petition for habeas corpus to regain custody of her son, Daniel
John Smith. The Appellant contends that the lower court erred in
concluding that she was medically unfit and in allowing custody to
remain with the Appellant's sister, Nancy H. Scheerer, and her
husband Paul E. Scheerer. We agree and reverse the decision of the
The Appellant, presently age forty-three, has suffered
repeated episodes of mental illness throughout the past twenty
years. In 1979, her condition was diagnosed as bi-polar disorder,
commonly known as manic-depressive disorder. This disorder was
treated with therapy and closely monitored lithium medication. The
Appellant discontinued her use of lithium in 1983, however, due to
weight gain associated with the drug. Upon discontinuation of the
drug, the Appellant became ill and was hospitalized.
The Appellant also smoked marijuana at times during the course
of her illness, diminishing the effectiveness of the lithium
treatments. She contends, however, that she has not used marijuana
or other illegal drugs since August 1987. The Appellant again
discontinued her lithium treatment in 1987 in order to attempt to
have a child. A substitute medication was prescribed but was
ineffective. The Appellant became pregnant in December 1987 while
residing in a board and care facility as a ward of a Butte County,
California court. The Appellant contends that she is uncertain as
to the identity of the father.
While pregnant, the Appellant began to fear that the State of
California would remove her child from her custody after the child
was born. Thus, she contacted her mother and discussed plans to
reside at her mother's home in Wisconsin. During the pregnancy,
however, the Appellant's mother died, and the Appellant thereafter
resided in Shepherdstown, West Virginia, with Appellees Nancy and
Paul Scheerer. The Appellant began residing with them on May 31,
1988, during her fifth month of pregnancy. She delivered her son,
Daniel John Smith, at Jefferson Memorial Hospital in Charles Town,
West Virginia, on September 10, 1988.
Based upon her desire to breast-feed her son, the Appellant continued to abstain from her lithium medication after the child's birth. She subsequently suffered another episode of mental illness in November 1988 and was hospitalized in Winchester Medical Center, Winchester, Virginia, for approximately twenty days. On January 4, 1989, the Appellant attempted suicide and was hospitalized again until March 2, 1989. Upon her release, she signed a custody agreement granting temporary custody of Daniel to the Appellees.
Although a permanent custody arrangement was discussed and the
Appellees' attorney drafted such a permanent agreement, the
Appellant agreed only to temporary custody. She contends that she
recognized the limitations of her ability to care for her infant
during the pendency of her struggle with mental illness and desired
only a temporary custody arrangement with her sister.
Specifically, the agreement provided that the Appellant was "unable
to care for said Daniel John Smith, an infant, because she has been
recently hospitalized and a period of recuperation will be required
before she can properly care for her son. . . ." The Appellees
were given "temporary custody of the said Daniel John Smith. . ."]
and the Appellant was given visitation for four hours every week.
Further, the Appellant was not required to provide any monetary
support for Daniel, and the agreement could "be changed or modified
by the parties or by an Order of a court of competent jurisdiction
upon a showing that the best interests of said Daniel John Smith
would be served by a change or modification of the terms hereof."
Upon the Appellant's March 2, 1989, release from the hospital,
the Appellees informed her that she could not continue to reside in
their home. The Appellant thereafter resided in Winchester,
Virginia, in order to obtain work, allowing her son to remain in
the custody of her sister. In June 1989, the Appellant obtained
employment as a certified nursing assistant at a nursing care
facility. She began her initial attempts to regain custody of
Daniel in September 1989, approximately six months after the
temporary custody agreement had been signed and when Daniel was
approximately one year of age. The Appellees were uncooperative
with the Appellant's attempts to gradually transfer custody back to
her. When the Appellant realized that her informal attempts seemed
fruitless, she retained an attorney to contact the Appellees
regarding a plan for a gradual transition of custody. On September
28, 1989, the attorney wrote to the Appellees and proposed expanded
visitation affording a gradual transition of custody back to the
Appellant. The Appellees, responding through their own attorney,
indicated that they were not interested in negotiating additional
visitation. The restricted visitation provided in the temporary
custody agreement continued for an additional year. During this
period, the Appellant suffered two orthopedic injuries unrelated to
her mental condition. After recovering, the Appellant filed a
petition for a writ of habeas corpus with the Circuit Court of
Jefferson County on August 31, 1990, requesting custody of Daniel.
On October 29, 1990, the lower court denied the Appellant's motion,
but expanded her visitation rights to include overnight and weekend
visits. Visitation was further expanded in subsequent orders
entered June 5, 1991, and August 8, 1991.
The Appellant enrolled in community college courses and was
accepted by the Shenandoah University School of Nursing for the
fall 1991 term. She has continued her lithium therapy and has not
suffered a recurrence of her condition since her release from
hospitalization on March 2, 1989. Her treating psychiatrist, Dr.
A. C. Kiczales, testified that her prognosis is excellent and that
she is fully capable of caring for Daniel, meeting his daily needs,
providing adequate supervision, and handling the stress associated
with coping with a child of his age. Dr. Kiczales also testified
that the Appellant is motivated to continue taking her medication
and is no longer a suicide risk.
The Appellant currently resides with Mr. Jim Butler in Cross
Junction, Virginia. Although the Appellant and Mr. Butler
apparently have no present plans for marriage, they testified
regarding their devotion to one another and to Daniel and regarding
the possibility of marriage in the future. Mr. Butler has been a
high school teacher for approximately twenty years and is presently
teaching marketing and management supervision at Warren County High
School in Front Royal, Virginia. He has two children, ages twenty
and twenty-four, from a previous marriage.
The Appellees were married in 1954, divorced in February 1970,
and remarried in August 1970. Mrs. Scheerer is fifty-eight years
of age, and Mr. Scheerer is fifty-nine years of age. Mr. Scheerer
has been employed as Vice President of Operations by Martin-Marietta Magnesia Specialties in Baltimore, Maryland, for twenty-seven years. The Appellees have three grown children who no longer
live at home. Mr. Scheerer has placed Daniel on his health
insurance policy and has established a savings account in Daniel's
name in which the Scheerers have placed $10,000 in various bonds
which were the proceeds of social security benefits received by
Daniel as a result of his mother's disability.
Psychologist Bradley Soule testified on behalf of the
Appellees. He concluded that Daniel should remain in the custody
of the Appellees because they have provided a stable environment,
Daniel regards them as his parents, and the nature of the
Appellant's disease raises serious concerns regarding her future
well-being. Marcie Kemner, a legal assistant with the Department
of Health and Human Resources and an employee of the Tri-County
Pastoral Counselling Center, testified regarding the bond between
Daniel and the Scheerers. Ms. Kemner, hired by the Appellees to
assess Daniel's situation, related difficulties with Daniel's
behavior subsequent to visitation with the Appellant. Ms. Kemner
visited the Appellees' home on two occasions, observed Daniel's
interaction with the Appellees, and concluded that the Appellees
provided Daniel with a stable environment.
The only negative information presented with regard to the
Appellees consisted of the instability of the marriage in the late
1960's and early 1970's and Mrs. Scheerer's alleged excessive
alcohol consumption. Mrs. Scheerer contends that although she and
her husband drink regularly, neither consumes alcohol in amounts
which would in any manner endanger Daniel or affect their
relationship with him.See footnote 1
The lower court found that the Appellees were the
psychological parents of the child and that the "real issue" was
the Appellant's lack of medical fitness to regain custody.
Although the court found that the Appellant would make an excellent
parent when healthy, the court concluded that her mental disorder
was insidious and characterized by repeated relapses. The court
therefore determined that custody of Daniel should remain with the
Appellees with reasonable visitation rights to the Appellant, to be
mutually agreed upon by the parties.
The Appellant contends that the lower court abused its
discretion by finding her medically unfit to gain custody of her
son and by applying the psychological parent test. In adjudging
parental fitness, we held the following in the syllabus of Ford v.
Ford, 172 W. Va. 25, 303 S.E.2d 253 (1983):
"'A parent has the natural right to the
custody of his or her infant child and, unless
the parent is an unfit person because of
misconduct, neglect, immorality, abandonment,
or other dereliction of duty, or has waived
such right, or by agreement or otherwise has
permanently transferred, relinquished or
surrendered such custody, the right of the
parent to the custody of his or her child will
be recognized and enforced by the courts.'
Syl. pt. 2, Hammack v. Wise, 158 W. Va. 343,
211 S.E.2d 118 (1975); Syllabus, State ex rel.
Kiger v. Hancock, 153 W. Va. 404, 168 S.E.2d
798 (1969); Syllabus, Whiteman v. Robinson,
145 W. Va. 685, 116 S.E.2d 691 (1960)." Syl.
pt. 1, Leach v. Bright, 165 W. Va. 636, 270
S.E.2d 793 (1980).
While are mindful of the natural parent's right to custody of his own child absent compelling circumstances necessitating a contrary result, we must also be cognizant of the fact that the right of a natural parent must not be examined in a vacuum; it must be tempered by the rights of the child and balanced against those rights in some fashion. As we recognized in syllabus point 1 of Davis v. Hadox, 145 W. Va. 233, 114 S.E.2d 468 (1960):
'When a parent, by agreement or
otherwise, has transferred, relinquished or
surrendered the custody of his or her child to
a third person and subsequently demands the
return of the child, the action of the court
in determining whether the custody of the
child shall remain in such third person or
whether the child shall be returned to its
parent depends upon which course will promote
the welfare and the best interests of the
child; and the parent will not be permitted to
reclaim the custody of the child unless the
parent shows that such change of custody will
materially promote the moral and physical
welfare of the child.' Point 4 Syllabus,
State ex rel. Harmon v. Utterback,  W.
Va. , [108 S.E.2d 521] [(1959)].
More recently, in In re Brandon L.E., 183 W. Va. 113, 394
S.E.2d 515 (1990), we explained the following at syllabus point 4:
If a child has resided with an individual
other than a parent for a significant period
of time such that the non-parent with whom the
child resides serves as the child's
psychological parent, during a period when the
natural parent had the right to maintain
continuing substantial contact with the child
and failed to do so, the equitable rights of
the child must be considered in connection
with any decision that would alter the child's
custody. To protect the equitable rights of
the child in this situation, the child's
environment should not be disturbed without a
clear showing of significant benefit to him,
notwithstanding the parent's assertion of a
legal right to the child. (emphasis added)
(emphasis added). These concerns are indicative of our continuing
emphasis on the best interests of the child as a guiding force in
all custody matters, as well as a recognition that the child has
his own individual rights. We have consistently held that the
"child's welfare is the paramount and controlling factor in all
custody matters." David M. v. Margaret M., 182 W. Va. 57, 60, 385
S.E.2d 912, 916 (1989). "[A]ll parental rights in child custody
matters are subordinate to the interests of the innocent child."
The best interests and welfare of the child are indeed the "polar star" by which the discretion of the court will be guided in custody matters. Utterback, 144 W. Va. at 428, 108 S.E.2d at 527. Yet, as we recognized in Hammack, the "'polar star' concept will not be invoked to deprive an unoffending parent of his natural right to the custody of his child." 158 W. Va. at 347, 211 S.E.2d at 121. We also explained that "[t]he right of a parent to have the custody of his or her child is founded on natural law and, while not absolute, such right will not be taken away unless the parent has committed an act or is guilty of an omission which proves his or her unfitness." Id. at 348, 211 S.E.2d at 121.
In McCartney v. Coberly, ___ W. Va. ___, 250 S.E.2d 777
(1978), a mother had attempted to regain custody of her daughter
from individuals with whom she had entered into a written custody
agreement. Id. at ___, 250 S.E.2d at 778. The lower court had
concluded that she was not entitled to regain custody because she
had not shown that a change in custody would benefit the child.
Id. We determined that the written agreement was only temporary in
nature. In addressing the issue of the nonoffending parent in
syllabus point 1, we held that "[t]he granting of temporary custody
of a child by its natural parent to a third person is not
tantamount to a divestiture of the right of the parent to custody
of the child." Id. at ___, 250 S.E.2d at 777. Further, we
explained that "[w]hen a parent transfers temporary custody of a
child to a third person, the parent may reclaim custody without
showing that the change of custody will materially promote the
moral and physical welfare of the child." Id. at ___, 250 S.E.2d
at 777-78, Syl. Pt. 2.
In Whiteman, we encountered a situation in which a father,
confronted with a family emergency, granted temporary custody of
his child to a third party until he could provide a suitable home
for the child. 145 W. Va. at 687, 116 S.E.2d at 693. We
acknowledged the general principle that a parent, subsequent to
relinquishing custody, may not regain custody of his child without
a showing that a change in custody would promote the moral and
physical welfare of the child. Id. at 691, 116 S.E.2d at 695.
Under such circumstances of an unoffending parent, however, we
found that the principle which precludes a parent from regaining
custody without such a showing does not apply. Id. at 692-93, 116
S.E.2d at 695.
We encountered another unoffending parent in Honaker v.
Burnside, 182 W. Va. 448, 388 S.E.2d 322 (1989). In that case, we
reiterated that the concept of best interests of the child "'will
not be invoked to deprive an unoffending parent of his natural
right to the custody of his child.'" Id. at 451, 388 S.E.2d at 324
(quoting Hammack, 158 W. Va. at 347, 211 S.E.2d at 121). In
Honaker, a natural father sought to regain custody of his six-year-old daughter after her mother's death. The child's step-father,
with whom the child had resided for over three years, objected,
claimed that it was in the child's best interests to remain with
him, and offered evidence that he was the child's psychological
parent. In that case, as in the present case, it was undisputed
that the child had a close, loving relationship with the step-father and a stability of surroundings with a younger half-brother
in her step-father's home. Nonetheless, we held that the strong
bond between the child and her step-family "cannot alter the
otherwise secure natural rights of a parent." Id. at 452, 388
S.E.2d at 325. Absent a showing of unfitness or abandonment,
denial of the natural father's right to custody "'would permit any
person who obtains possession of a child and forms an attachment
for it to take and keep permanently the child of any worthy parent.
. . .'" Id. at 451, 388 S.E.2d at 325 (quoting Whiteman, 145 W.
Va. at 696, 116 S.E.2d at 697).
A review of our methodology for determining custody in
situations similar to the present case reveals our emphasis upon
the nature of parental conduct in relinquishing custody or
abandoning the child. In In re Custody of Cottrill, 176 W. Va.
529, 531, 346 S.E.2d 47, 50 (1986), for instance, we hinged our
decision to a significant degree upon the fact that the mother
"implicitly surrendered custody" of her child to the child's
grandparents. We determined that the best interests of the child
would be served by awarding custody of the child to the
grandparents rather than to the mother. Id. at 532, 346 S.E.2d at
51. The mother's relinquishment of custody was not forced by any
compelling circumstances such as the Appellant's mental illness in
the present case. Furthermore, she made no attempt to regain
custody until several years had passed and maintained no regular
contact with the child during those years. Id. at 531, 346 S.E.2d
By contrast, the Appellant in the present case entered the
initial custody agreement in order to provide the child with a
stable environment until she was able to take care of him herself.
Within six months after the temporary placement, she began her
initial steps to regain custody. Throughout the entire time, she
maintained as much contact with her son as the custody arrangement
permitted. Pursuant to that arrangement, the Appellant was able to
visit her son for four hours every week. Mrs. Scheerer testified
that the Appellant exercised those visitation rights approximately
eighty percent of the time and was unable to visit Daniel for only
a brief period of time due to an automobile accident and the
resulting injuries. Overall, however, the Appellant maintained
regular contact with her son during their separation.
The Appellant contends that the Appellees have essentially
conceded that she is not unfit based upon her medical condition and
the speculative nature of its possible recurrence. The Appellees,
while not devoting substantial effort arguing the unfitness claim,
have not formally conceded that point. The lower court explained
that the unfitness claim was the "real issue" of this case and
based its decision, at least to some extent, on that issue.
The lower court's investigation into the Appellant's history
of mental illness and the effect it could potentially have on
Daniel was well-justified. However, after such investigation into
the details of the illness and extensive testimony by her treating
physician, the lower court found the Appellant to be "currently
well," found that she was "making a gallant effort to deal with
this illness," and held that she was an "intelligent, caring and
responsible individual." Further, the lower court found that if
healthy, the Appellant would be "an excellent parent." No
presently existing evidence of mental incapacity was established,
and no presently existing detrimental effects of the illness on the
Appellant's parenting skills were identified.See footnote 2
Dr. Soule, having never examined the Appellant, consulted with
the Appellees for only ninety minutes and admitted to being
"without present knowledge of Gretchen Snyder's state of mind."
Based upon his interviews of the Appellees and Daniel, Dr. Soule
testified that he felt that it was in the best interest of Daniel
to remain with the Appellees. He further explained that the
Appellees and Daniel seemed to engage in attachment and bonding
behaviors and appeared comfortable with one another.
Dr. Kiczales, the Appellant's treating psychiatrist since
November 1988, testified that the Appellant had been "remarkably
stable" since her discharge and had been "very faithful about
taking" her medication. Dr. Kiczales also explained that the
Appellant's prognosis was excellent and that if she suffered a
relapse, "[i]t's not a switch thing where you go to bed well and
wake up sick." In Dr. Kiczales' opinion, although the Appellant
might not realize she was having a relapse, there would be
sufficient opportunity for her employer, co-workers, friends, and
family to intervene in the event of a relapse.
We have had the opportunity to address the impact of a
parent's mental illness upon a custody decision in a variety of
contexts. In State v. Scritchfield, 167 W. Va. 683, 280 S.E.2d 315
(1981), for instance, we rejected the use of a history of
hospitalization for mental illness as per se grounds for
termination of parental rights. Id. at 691, 280 S.E.2d at 320.
More recently, we upheld a termination of parental rights in In re
Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991), upon evidence
that the mother was presently suffering violent mood swings and had
"demonstrated her unwillingness to seek treatment or therapy for
her condition." 185 W. Va. at 630, 408 S.E.2d at 382.
While Scritchfield and Carlita B. involved termination of
parental rights, they are illustrative of our approach to the
effect of the issue mental illness on custody decisions. The
Appellant has also directed our attention to cases from various
other jurisdictions wherein speculation regarding future mental
problems was not permitted to form the basis for a decision to deny
custody to a parent. In Meyer v. Meyer, 375 N.W.2d 820 (Minn. Ct.
App. 1985), for instance, a mother's history of schizophrenia was
found insufficient to justify an award of custody to the father.
As in the present case, the mother in Meyer required prolonged
treatment and medication to maintain a stable mental condition.
Id. at 823. In Committee ex rel. Gorto v. Gorto, 298 Pa. Super.
509, 444 A.2d 1299 (1982), the court held that the facts as they
existed at the time of the hearing were to be the foundation for
the decision. 298 Pa. Super. at ___, 444 A.2d at 1301 (citing
Augustine v. Augustine, 228 Pa. Super. 3121, 324 A.2d 477 (1974)).
The Gorto court explained that "[p]ast conduct is not relevant
unless it will produce an ongoing negative effect on the child's
welfare." Id. (citing In re Leskovich, 253 Pa. Super. 349, 385
A.2d 373 (1978)).
As we held in syllabus point 1 of In re Adoption of
Schoffstall, 179 W. Va. 350, 368 S.E.2d 720 (1988), "'the standard
of proof required to support a court order limiting or terminating
parental rights to custody of minor children is clear, cogent and
convincing proof.' Syllabus Pt. 6, In re Willis, 157 W. Va. 225,
207 S.E.2d 129 (1973)." We also explained in Rowsey v. Rowsey, 174
W. Va. 692, 695, 329 S.E.2d 57, 61 (1985), that "[a] change of
custody based on a speculative notion of potential harm is an
impermissible exercise of discretion." After thorough review of
the testimony of the two physicians rendering opinions in this
case, we find little support for the lower court's conclusion that
the potential for future harm justifies the denial of custody to
the Appellant. Such a conclusion, while laudable in its obvious
intent to protect the innocent child, infringes too profoundly upon
the rights of this natural parent to her child and is based upon
mere speculation as to the future course of the Appellant's
disorder. The evidence is insufficient to prove the medical
unfitness of the Appellant.
Accordingly, we reverse the decision of the Circuit Court of
Jefferson County and remand this case with directions that the
custody of Daniel be awarded to the Appellant and with further
directions that the Appellees be awarded extensive and meaningful
visitation rights. We have recognized the right of a child to
continued association with those individuals to whom the child has
formed an attachment. Clearly, such an attachment exists between
Daniel and the Scheerers, and they have been too important in
Daniel's life for him to be deprived of a continued relationship
with them. Furthermore, we have recognized the following in
syllabus point 3 of In re James M., 185 W. Va. 648, 408 S.E.2d 400
It is a traumatic experience for children
to undergo sudden and dramatic changes in
their permanent custodians. Lower courts in
cases such as these should provide, whenever
possible, for a gradual transition period,
especially where young children are involved.
Further, such gradual transition periods
should be developed in a manner intended to
foster the emotional adjustment of the
children to this change and to maintain as
much stability as possible in their lives.
Upon remand, the lower court should endeavor to fashion a plan
of gradual transition of custody designed to minimize disturbance
of Daniel's life. As we recognized in Honaker v. Burnside, 182 W.
Va. 448, 452, 388 S.E.2d 322, 326 (1989), stability in a child's
life is a major concern when formulating custody arrangements.
The Honaker case involved a custody dispute (after the death
of the mother) between a natural father and a step-father with whom
the child had formed a close bond. In directing the circuit judge
to develop a plan of gradual transition in that case, this Court
No matter how artfully or deliberately the trial court judge draws the plan for these coming months, however, its success and indeed the chances for . . . [the child's] future happiness and emotional security will rely heavily on the efforts of these two fathers. The work that lies ahead for both of them is not without inconvenience and sacrifice on both sides. Their energies should not be directed even partially at any continued
rancor at one another, but must be fully
directed at developing compassion and
understanding for one another, as well as
showing love and sensitivity to the children's
feelings at a difficult time in all their
The mission for these mothers is the same.
Footnote: 1The Appellant testified that Mrs. Scheerer's driving abilities were sometimes impaired due to her consumption of alcohol. Mary Francis Hockman, a personal friend of the Appellees, testified that she was present during the driving incident the Appellant specifically referenced. Mrs. Hockman indicated that she had never witnessed anything which caused her concern about the drinking habits of Mrs. Scheerer and that the particular driving incident was unrelated to alcohol consumption. Mrs. Hockman also testified that she had witnessed the Appellant french-kissing Daniel when he was five or six weeks of age. Although these issues were not discussed extensively in the briefs of the parties, the lower court did address the issue of Mrs. Scheerer's alcohol consumption in its final order, as follows:
There is evidence suggesting that Ms. Scheerer may be more than just a social drinker and that the Respondents' domestic life has not always been stable. However, it appears to this Court that such evidence is of aberrations in what appears overall to be a long-term stable relationship, both from a nurturing standpoint and a financial standpoint.
Footnote: 2The Appellant recognizes the legitimate concern for Daniel's safety and contends that such concern could properly have been addressed by granting visitation to the Appellees, assuring continued observation of the Appellant's mental state. Other suggestions by the Appellant include monthly blood analysis and therapy. The Appellant has indicated her willingness to participate in a variety of procedures designed to monitor her mental well-being.