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CHESTER COUNTY CHILDREN'S SERVICES APPEAL (10/16/74)

decided: October 16, 1974.

CHESTER COUNTY CHILDREN'S SERVICES APPEAL


Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Chester County, Adoption Docket No. 1, pages 429 and 472, in re Lumiere Castel Cassen, a minor.

COUNSEL

Susan P. Windle, with her James E. McErlane, and Lamb, Windle & McErlane, for appellant.

No oral argument was made nor brief submitted for appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones.

Author: Jones

[ 457 Pa. Page 526]

This appeal stems from the lower court's denial of the Chester County Children's Services' (appellant's) petition for involuntary termination of parental rights of Jacqueline Cassen, the natural mother of Lumiere Castel Cassen. The principal question presented herein involves an interpretation of Section 311(1) of the Adoption Act of 1970:

"ยง 311. Grounds for involuntary termination

"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:

"(1) The parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claim to a child, or has refused or failed to perform parental duties. . . ."*fn1 The court below held that refusal or failure

[ 457 Pa. Page 527]

    to perform parental duties alone, without evidence of a settled purpose to relinquish parental claim, was insufficient to support an involuntary termination of rights. In so doing, however, we believe the court erred. The facts underlying this action are as follows:

Lumiere Castel Cassen, the subject of these proceedings, was born in 1968 from the union of Mrs. Cassen, the appellee, and one Rudolf Stern, although the birth certificate recited Anthony Cassen as the father.*fn2 The child lived with her mother until October 30, 1971, when the appellee-mother contacted her ex-husband and desperately urged him to take custody of Lumiere because she was unable to properly care and provide for the child. Mr. Cassen accepted the child, but the development of certain emotional problems in his household soon caused him to turn the child over to the appellant agency. Meanwhile, Mrs. Cassen had departed to England in order to pursue a course of study in scientology.

Between December 1971 and September 1972, there was correspondence between the Children's Services and Mrs. Cassen. In addition, there were two letters during that period from Mrs. Cassen which were directed to the child. However, between September 13, 1972, and March 19, 1973, the date the instant petition ...


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