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SANDERS APPEAL (11/26/73)

SUPREME COURT OF PENNSYLVANIA


decided: November 26, 1973.

SANDERS APPEAL

Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Greene County, No. 14 of 1971, in re Sanders Children.

COUNSEL

Ewing B. Pollock, with him James B. F. Rinehart, and Pollock, Pollock & Thomas, for appellants.

R. Wallace Maxwell, with him Maxwell & Davis, for appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones. Concurring and Dissenting Opinion by Mr. Justice Pomeroy. Mr. Justice Eagen joins in this concurring and dissenting opinion.

Author: Jones

[ 454 Pa. Page 350]

This is an appeal from a decree of the Court of Common Pleas, Orphans' Court Division, of Greene County,

[ 454 Pa. Page 351]

    declaring the involuntary termination of appellants' parental rights as to six of their thirteen children.*fn1 This action is the latest event in a series involving appellants, Roland and Gladys Sanders, and appellee, Child Welfare Service of Greene County. Appellants' family initially came to appellee's attention in the fall of 1965. After a number of unsuccessful attempts to ameliorate conditions in the Sanders home, appellee petitioned the Juvenile Court of Greene County for custody of the children. As of December 1969, six children had been placed in foster care pursuant to court orders and a petition by the appellee for the similar placement of four more children was pending. On December 23, 1969, the court issued an order declaring that indications of improvement in the attitude of the parents and the conditions in the home warranted keeping the four children with their parents but directing appellee to continue

[ 454 Pa. Page 352]

    its supervision of the family. Subsequently, the court recanted its prior position and by October 1970 six additional children had been placed in foster homes pursuant to court order. Thus, all twelve children then living had been removed from appellants' custody and temporarily placed elsewhere.

On May 20, 1971, appellee commenced the present proceeding by petitioning the Orphans' Court Division for involuntary termination of parental rights as to the six youngest children then living. On August 23, 1971, following hearings on June 21 and June 25, 1971, the petition was granted, subject to the filing of exceptions, which appellants duly filed. On September 25, 1971, the court received additional testimony at appellants' request.*fn2 On July 11, 1972, the decree of August 23, 1971, was made final. This appeal followed.*fn3

The lower court's determination was based on Section 311(2) of the Adoption Act,*fn4 which provides:

"The rights of a parent in regard to a child may be terminated after a petition filed pursuant to Section 312, and a hearing held pursuant to section 313, on the ground that:

". . . .

[ 454 Pa. Page 353]

"(2) The repeated and continued incapacity, abuse, neglect, or refusal of the parent has caused the child to be without essential parental care, control, or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect, or refusal cannot or will not be remedied by the parent. . . ." In the court below, appellee sought to prove that appellants had drinking problems, that they failed to maintain a clean home and furnish adequate food and clothing for their children, and that they were generally neglectful in their parental care. In their case, appellants attempted to discredit appellee's evidence as well as demonstrate their own recent efforts at self-improvement.*fn5 Obviously, the lower court was unimpressed with these recent developments as it concluded that appellants lacked the capacity to consistently provide "essential parental care."

Appellants contest the admissibility of some of the evidence on which the court relied in making this determination. They argue that the lower court erred in admitting into evidence the contents of a summary report of one of appellee's caseworkers.*fn6 While testifying

[ 454 Pa. Page 354]

    as to the agency's experience with the Sanders family, the caseworker, Wilma Johnson, mentioned a report of child neglect from the Department of Public Assistance which was handled by two other employees of the appellee. At this point in the hearing, the record shows the following: "By the Court: Q. What does the record show as to the program [sic] made at that time? A. At the time the children were left with their parents and conditions, as I understand, progressed for a very short time and within a three weeks' period after the last hearing, conditions weren't better. The parents had been gone overnight and there was no food in the home. [Counsel for the Appellants]: We object to his [sic] unless she knows of this. By the Court: She is only testifying from her records. [Counsel for the Appellants]: Mr. Knight's and Mrs. Sutton's. By the Court: Let the record show [counsel for the appellants] objects and the objection is overruled." The above quoted testimony is classic hearsay. The witness' first-hand knowledge of some of the facts contained in the report cannot justify the admission of otherwise incompetent hearsay testimony drawn from the same report. This conclusion is mandated by our decision in Jones Appeal, 449 Pa. 543, 297 A.2d 117 (1972), wherein we held that a summary report "permeated with hearsay" could not support a decree of involuntary termination of parental rights. Furthermore, while appellee might possibly have avoided this hearsay problem by compliance with the Uniform Business Records as Evidence Act,*fn7

[ 454 Pa. Page 355]

    it failed to do so.*fn8 Accordingly, we hold that this decree, similar to that in Jones, was based, at least partially, on inadmissible evidence.

While the contested evidence discussed above constituted only a minor part of appellee's case, we cannot say that without this evidence the lower court would have reached the same result. Because of the serious impact attending the termination of parental rights, it is important that a judicial decree extinguishing such rights be based solely on competent evidence. In light of appellant's significant evidence of self-improvement, it is quite possible that the incompetent evidence accepted below provided the "swing factor" in that court's determination. Appellants are entitled to a hearing and decision free from such taint. Hence, we will remand this matter to the court below for the purpose of conducting a proceeding consistent with this opinion.*fn9

Decree vacated and matter remanded. Costs on appellee.

Disposition

Decree vacated and matter remanded.

Concurring and Dissenting Opinion by Mr. Justice Pomeroy:

My reading of the record satisfies me that in this case, unlike Jones Appeal, 449 Pa. 543, 549, 297 A.2d 117 (1972), the trial court had before it adequate, competent and reliable evidence upon which to base its decree.

[ 454 Pa. Page 356]

I accordingly respectfully dissent from the holding of the Court to the contrary. For the reason hereafter given, however, I concur in the order of remand.

In Jones, supra, we concluded that the summary there introduced by the Greene County Child Welfare Service was "so permeated with hearsay that it could not justify the findings of the court below." The summary there -- "a recounting of 'facts' accumulated by the service" -- was prepared by two persons other than those who had knowledge of the accumulated facts. Thus "[t]he report escaped the test of cross-examination with respect to the 'facts' which underpin its conclusions . . ." (449 Pa. at 549). In the case at bar, on the other hand, the witness who prepared and testified from the summary report had had direct, first-hand knowledge of the Sanders family and conditions in their home going back six years before the hearing. As she testified, the report was made up "mainly from what I myself observed". While admittedly other caseworkers had also had contact with the family, and these are referred to in the summary, such references comprised only a small portion of the total report.*fn* As our Jones opinion recognized,

[ 454 Pa. Page 357]

    we "normally will concede broad discretion to the court, sitting as a trier of fact, to sift through evidence which is unreliable in part to consider that which is trustworthy". Jones Appeal, supra, at 549. While in Jones none of the facts alleged in the summary was proved by direct evidence, in the case before us the agency produced not only the testimony of its caseworker, based on her personal knowledge, but also the testimony of the school principal and of the school nurse, and friends and drinking companions of Mrs. Sanders. All of these witnesses were subjected to cross-examination.

While I thus conclude that the decree of involuntary termination was justifiably entered on the evidence before the court, I recognize the possibility that during the more than two years which have elapsed since the last hearings in this case, new factors bearing on the present advisability of such a course of action may have arisen. Accordingly, I concur in the order of remand, but would limit further proceedings to a determination by the trial court as to whether the conduct of the appellants and the conditions in their home have shown substantial improvement since September 25, 1971, the date of the last hearing herein. Should the court find that the situation has changed substantially for the better, so that the test of § 311(2) of the Adoption Act, 1 P.S. § 311(2), is no longer met, then the petition for involuntary termination should be dismissed, notwithstanding the decree appealed from. If such improvement is not found to have occurred, then a new final decree of termination should be entered.


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