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decided: January 27, 1975.



William F. Donatelli, Pittsburgh (Court appointed), for appellant.

F. Peter Dixon, Pittsburgh, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix, and Manderino, JJ. Pomeroy, J., concurs in the result.

Author: Jones

[ 460 Pa. Page 212]


This case is a direct appeal from the entry of a decree of the Orphans' Court Division of the Court of Common Pleas of Allegheny County allowing the adoption of Mahlon Nichelle McCray (hereinafter called Nichelle), minor child of appellant, Leonard McCray, and involuntarily terminating Mr. McCray's parental rights and duties. After the hearing below, the petition for adoption of appellee, Larue McKenzie, was denied and an order was entered directing that Mr. McKenzie and his wife, Nichelle's mother, remain in custody of the child. Shortly thereafter, following argument before the court en banc, the original decree was unanimously reversed and a decree of adoption was entered. The only question

[ 460 Pa. Page 213]

    properly before this Court*fn1 is whether the evidence clearly warrants a finding that appellant "either has evidenced a settled purpose of relinquishing parental claim . . . or has refused or failed to perform parental duties" for a period of at least six months.*fn2 We find that there was sufficient evidence of appellant's failure to perform parental duties to justify the entry of a decree of involuntary termination under Section 311(1) of the 1970 Adoption Act and therefore affirm.

The facts in this case were as follows: Appellant married Lee Olar Forrest some time prior to February 1968. On February 7, 1968, appellant's wife gave birth to Nichelle and for approximately three months following the birth the McCray family remained together in their Pittsburgh home. After May of 1968, Nichelle's parents separated and the child stayed with her mother.*fn3 During 1968, appellant was employed briefly between periods when the family went on relief. In January of 1969, Mr.

[ 460 Pa. Page 214]

McCray was sentenced to six-months' imprisonment for violating the Uniform Firearms Act and in December of the same year he was sentenced to three months for rape or fornication. A few months after being released, appellant was convicted on two counts of armed robbery and since August of 1970 has been serving a five to ten year sentence in the State Correctional Institution.

Six months after appellant's first conviction, Nichelle and her mother went to live with an aunt in Charleston, South Carolina. Nichelle's mother returned in Pittsburgh in August of 1969 and on January 30, 1970, was divorced from appellant. On December 31, 1970, Mrs. McKenzie married the appellee. Nichelle rejoined her mother in November of 1971 and has resided with the McKenzie family ever since. On March 17, 1973, Mrs. McKenzie gave birth to a second child. Mr. McKenzie is financially able to support both children and has testified that he is anxious to care for and educate his stepdaughter.

Since May of 1968, Mr. McCray has spent little or no time with his daughter. Since his first conviction, McCray's only "contact" with Nichelle consisted of a birthday card, sent on Nichelle's first birthday, and a $10.00 or $20.00 gift handed to the child's mother in August of 1969. Although appellant admitted lack of contact with Nichelle, he testified that he loved his child, thought of her constantly and did in fact make inquiries regarding her health and well-being. In defense of his alleged disinterest in Nichelle, he stated that he had not always known of Nichelle's whereabouts and that attempts to communicate with his daughter were thwarted by prison officials. McCray's testimony was the subject of much dispute and, at best, indicated that since his 1970 conviction he made only two attempts to contact Nichelle, the first occurring some time in May of 1972.

Based on the preceding facts, the lower court concluded that Mr. McCray had evidenced a lack of regard

[ 460 Pa. Page 215]

    for his daughter and a settled purpose of relinquishing his parental claim. Although we have not disturbed the lower court's findings (in accordance with Girard Trust Bank v. Sweeney, 426 Pa. 324, 231 A.2d 407 (1967)), based on such findings we have difficulty justifying the termination of McCray's rights on the ground of a "settled purpose to abandon."*fn4 Nevertheless, we need not consider the sufficiency of the evidence on this ground since we believe that the present factual situation is exactly what the legislature intended to cover by the latter part of Section 311, subsection 1, of the 1970 Adoption Act*fn5 -- namely, a "refusal or failure to perform parental duties."*fn6

[ 460 Pa. Page 216]

This Court has recently taken the view that it is in the child's best interest to require that a parent "exert himself to take and maintain a place of importance in the child's life" (Appeal of Diane B., supra, 456 Pa. at 433, 321 A.2d at 620, quoting In Re: Adoption of J R F, 27 Somerset L.J. 295 [298], 304-305 (Pa.C.P.1972). With this in mind, we have held that the parent has an affirmative duty to love, protect and support his child and to make an effort to maintain communication and association with that child. See Appeal of Diane B., supra; Jacono Adoption Case, 426 Pa. 98, 231 A.2d 295 (1967); and In Re: Adoption of J R F, supra. Since in all adoption proceedings the ultimate determination is based on an examination of the particular facts, our inquiry must turn to whether this appellant has performed his affirmative duties as fully as possible under his particular circumstances.

Initially, we note that performance was made more difficult for this appellant as he was in prison and unable to support his family for most of the period under consideration. However, a parent's absence and/or failure to support*fn7 due to incarceration*fn8 is not conclusive on the issue of abandonment. Nevertheless, we are not willing to completely toll a parent's responsibilities during

[ 460 Pa. Page 217]

    his or her incarceration. Rather, we must inquire whether the parent has utilized those resources at his or her command while in prison in continuing a close relationship with the child. Where the parent does not exercise reasonable firmness "in declining to yield to obstacles," his other rights may be forfeited. See In Re: Adoption of J R F, 27 Somerset L.J. at 304.

The testimony adduced at the hearing below evidences that Mr. McCray had no direct contact with his child for well over two years. Although most of this time was spent in prison, the preponderance of the evidence reveals that while in prison, he did not take advantage of his visitation rights or his personal counselors nor did he make sincere or persistent efforts to locate or inquire about his daughter.*fn9

Furthermore, although appellant evidenced renewed interest in his daughter after acquiring knowledge of appellee's plans to adopt Nichelle, the courts have held that such a renewal of interest as in the instant case after the six-months' statutory period has passed will not revive parental rights toward that child. See Smith Adoption Case, 412 Pa. 501, 505, 194 A.2d 919, 922 (1963). Cf. Harvey Adoption Case, 375 Pa. 1, 99 A.2d 276 (1953). This Court indicated in Davies Adoption Case, 353 Pa. 579, 587, 46 A.2d 252, 256 (1946):

"Abandonment is not an ambulatory thing the legal effects of which a delinquent parent may dissipate at will by the expression of a desire for the return of the discarded child. . . ."

Even if we accept that until recently appellant felt inhibited by the obstacles confronting him in prison, as we reemphasized in the Smith Adoption Case, supra, 412 Pa. at 505, 194 A.2d at 922: "Parental rights may not be

[ 460 Pa. Page 218]

    preserved . . . by merely waiting for some . . . convenient time for the performance of parental duties and responsibilities (while others adequately provide the child with her immediate and continuing physical and emotional needs)." Since an affirmative response to the needs of the child is required and since at least six months passed during which time appellant did not perform any parental duties, we find the forfeiture of his rights permissible under the 1970 Adoption Act.

Decree affirmed. Each party to pay own costs.

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