decided: May 23, 1973.
Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Butler County, No. 111 of 1972, in re adoption of Robbie Sheaffer.
A. R. Cingolani, Jr., with him Cingolani & Cingolani, for appellant.
Frank P. Krizner, with him McCandless, Chew & Krizner, for appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones.
[ 452 Pa. Page 166]
The appellant gave birth to a male child on February 6, 1970. The child, Robbie, was conceived and born out of wedlock. During her pregnancy appellant was referred to the Butler County Bureau of Children's Services ("Bureau"). Appellant gave custody to the Bureau and her son was placed in foster care on February 17, 1970. Appellant signed a "Parent's Placement Agreement" on February 20, 1970, which provided for temporary placement of the child, but permitted removal from foster care by appellant upon ten days' prior notice to the Bureau. On the same date appellant
[ 452 Pa. Page 167]
signed a "consent to adoption".*fn1 On June 9, 1970, at the Bureau's request, appellant signed a "specific consent of [the] mother" to adoption by the foster parents.*fn2
On December 31, 1970, appellant changed her relinquishment decision and contacted an attorney to determine whether she could recant her approval of adoption proceedings. In January of 1971 appellant manifested her change of position by informing Bureau caseworker, Diann Morse, that she intended to keep her child. By January of 1972 the appellant had manifested a definite plan to regain custody of her child by April 1, 1972, and was told that the Bureau would "work toward that date".*fn3
A petition for involuntary termination of parental rights, filed by the Bureau on March 23, 1972, charged the following:
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"A. That the said [appellant] has, by conduct continuing for two years, evidenced a settled purpose of relinquishing parental claim to the child and has refused or failed to adequately fulfill the role of parent. . . .
"B. That the repeated and continued incapacity, abuse, neglect or refusal of [appellant] which cannot or will not be remedied, has caused said Child [sic] to be without essential parental care. . . ." The court below determined that appellant abandoned her child within the meaning of the Adoption Act of 1970,*fn4 and its precursor,*fn5 and terminated her parental rights. Though raised by the appellee in its petition for involuntary termination, the court below did not pass upon the question of whether appellant has exhibited such a continued and irremedial parental incapacity as to justify the termination of parental rights. Act of July 21, 1970, P. L. 620, § 311, 1 P.S. § 311(2); see Jones Appeal, 449 Pa. 543, 297 A.2d 117 (1972). Thus, the only question properly before us is whether the appellant has abandoned her child within the meaning of Section 311 of the 1970 Adoption Act.*fn6
While there was considerable evidence in the court below respecting the appellant's emotional instability and physical handicap,*fn7 the welfare of the child and the appellant's fitness as a parent have no relationship to the issue of abandonment in adoption proceedings.
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that there is no abandonment under these circumstances.
In addition to involuntary termination for parental incapacity or abandonment, the legislature promulgated a procedure for voluntary relinquishment by the written consent of the natural parent. Act of July 24, 1970, P. L. 620, § 301, 1 P.S. § 301. To insure an intelligent, voluntary and deliberate consent to the termination of parental rights (see Watson Appeal, 450 Pa. 579, 301 A.2d 861 (1973)), the legislature has required a hearing on the petition for voluntary relinquishment. Id. § 303. In the present case, pursuant to the Adoption Act, appellant placed her son in the care of the Butler County Bureau of Children's Services on February 17, 1970, and twice furnished written consent to the child's adoption. Before the hearing and decree of termination by the court, the appellant manifested an intent to halt the voluntary termination proceedings. The appellee urges that the child's placement in the Bureau's custody for a period of more than six months "has evidenced a settled purpose of relinquishing parental claim to [the] child" and justifies a decree of involuntary termination. We disagree.
An adjudication of abandonment necessitates a finding of neglect coupled with an affirmative indication of a positive intent to abandon the child. Vaders Adoption Case, supra; Hangartner Adoption Case, 407 Pa. 601, 181 A.2d 280 (1962); Harvey Adoption Case, supra. We find neither neglect nor the intent to abandon in this situation. Appellant placed her child with the Bureau pending a final decree in her petition for voluntary relinquishment. She properly withdrew her petition before a final decree was entered. That the period of time between the child's placement in foster care and the withdrawal of appellant's consent exceeded six months cannot, in itself, support a decree of involuntary termination. Accordingly, we vacate the decree of
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involuntary termination of parental rights by abandonment. However, the appellee, petitioner in the court below, properly raised the issue of parental incapacity as an alternative basis for a decree of involuntary termination. The court, by its decree and opinion, did not speak to the issue. We believe the court below should permit the appellee to have the opportunity to pursue the issue of whether the appellant has evidenced a continued and irremedial parental incapacity as would justify a decree of involuntary termination under Section 311(2) of the Adoption Act of 1970.
Decree vacated and case remanded for action consistent with this opinion. Each party to pay own costs.
Decree vacated and case remanded.