Norman M. Yoffe, Harrisburg, for appellant.
Peter Andrews, York, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a dissenting opinion in which Jones, C. J., joins.
Decree affirmed. Each party to pay own costs.
ROBERTS, Justice (dissenting).
In my view, the trial court applied an incorrect legal standard in drawing conclusions from the record evidence. Therefore, I dissent.
Appellants are husband and wife who are seeking to adopt the wife's two children by a former marriage. Her former husband is appellee. Appellants petitioned for the involuntary termination of appellee's parental rights under section 311 of the Adoption Act.*fn*
The trial court found as a fact that appellee had failed to make any support payments since December, 1969, approximately 32 months prior to the filing of appellants' petition for adoption. That court concluded, however, that this failure to support was an insufficient ground to terminate appellee's parental rights. It stated:
"The duty of support is a primary and necessary duty for a father; however, we do not believe that the mere failure to support, in itself, is now a new and sufficient ground for the termination of parental rights under Section 311 of the new Adoption Act . . . . [S]uch dereliction, standing alone, was not sufficient to evidence an intention to relinquish parental rights under the former Adoption Act, and it would appear to us that if the Legislature had intended so radical a change in the law regarding the forfeiture of parental rights it would have clearly so stated in plain and simple language."
The Legislature has plainly and simply said so. The statute is absolutely clear that parental rights may be terminated upon proof that "[t]he parent by conduct continuing for a period of at least six months . . . has . . . failed to perform parental duties . . . ." Because parents indisputably have a duty to support their children, Appeal of Diane B., 456 Pa. 429, 433, 321 A.2d 618, 620 (1974), it is difficult to conceive of how the ...