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MATTER INVOLUNTARY TERMINATION PARENTAL RIGHTS TO JOSEPHINE FRANCES KAPCSOS AND MICHAEL PHILIP KAPCSOS. APPEAL JOHN KAPCSOS. MATTER INVOLUNTARY TERMINATION PARENTAL RIGHTS TO JONATHAN DANA KAPCSOS. APPEAL CAMBRIA COUNTY CHILD WELFARE SERVICES (07/06/76)

decided: July 6, 1976.

IN THE MATTER OF THE INVOLUNTARY TERMINATION OF PARENTAL RIGHTS TO JOSEPHINE FRANCES KAPCSOS AND MICHAEL PHILIP KAPCSOS. APPEAL OF JOHN KAPCSOS. IN THE MATTER OF THE INVOLUNTARY TERMINATION OF PARENTAL RIGHTS TO JONATHAN DANA KAPCSOS. APPEAL OF CAMBRIA COUNTY CHILD WELFARE SERVICES


COUNSEL

Kenneth A. Magar, Cambria County Legal Aid, Johnstown, for appellant at No. 194.

Francis J. Leahey, Jr., Ebensburg, for appellant at No. 4.

Francis J. Leahey, Jr., Ebensburg, for appellee at No. 194.

Kenneth A. Magar, Johnstown, for appellee at No. 4.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., filed a concurring opinion. Manderino, J., filed a dissenting opinion in which Nix, J., joined. O'Brien, J., dissents from part II of the opinion.

Author: Roberts

[ 468 Pa. Page 53]

OPINION OF THE COURT

On September 11, 1974, Cambria County Child Welfare Services ("welfare services") petitioned the Court of Common Pleas, Orphans' Court Division, to terminate the parental rights of John Kapcsos ("John") to his two children, Josephine (age eight) and Michael (age six),

[ 468 Pa. Page 54]

    and the parental rights of Rochelle Kapcsos ("Rochelle") to her son Jonathan (age three). After a hearing, the court entered a decree terminating John's parental rights to his two children but refused to terminate Rochelle's parental rights to Jonathan. Welfare services and John both appealed the orphans' court decree.*fn1 We affirm.

Welfare services' petition for involuntary termination of John's and Rochelle's parental rights were made pursuant to section 311(1) of the Adoption Act, which states:

"The rights of a parent in regard to a child may be terminated . . . 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 . . . ."

Act of July 24, 1970, P.L. 620, art. III, § 311(1), 1 P.S. § 311(1) (Supp.1975).

The hearing court, which hears the testimony and determines the credibility of witnesses, makes the initial determination whether abandonment has been established. The scope of our review is limited to determining from the record whether the hearing court's findings are supported by competent evidence. Re: Adoption of M. T. T., 467 Pa. 88, 354 A.2d 564 (1976); Shaeffer Appeal, 452 Pa. 165, 305 A.2d 36 (1973); Vaders Adoption Case, 444 Pa. 428, 282 A.2d 359 (1971); cf. Fickert Estate, 461 Pa. 653, 658, 337 A.2d 592, 594 (1975). If such evidence appears in the record, we must affirm the hearing court even though the record could support an opposite result. Schwab's Adoption Case, 355 Pa. 534, 50 A.2d 504 (1947).

[ 468 Pa. Page 55]

The record contains the following evidence in support of the orphans' court decree. In March 1973, John was charged with committing certain crimes and fled Pennsylvania to New York. John and Rochelle were caring for three children at that time -- Josephine and Michael, born out of wedlock to John and Muriel Kapcsos,*fn2 and Jonathan, born out of wedlock to John and Rochelle. Shortly after John left Pennsylvania, Rochelle became ill, and, because her illness was believed to have been caused by an attempted suicide, she was placed in a mental hospital for observation. On March 13, an employee of welfare services visited Rochelle at the hospital and asked her to consent to welfare services taking custody of the three children. Welfare services was not aware at that time that Rochelle was the mother of only one of the children -- Jonathan. Rochelle acceded to welfare services' request. She stated that she was planning to move to New York City to reunite with John as soon as she left the hospital and would want to be reunited with the children after she set up housekeeping.

On May 29, 1973, Rochelle telephoned welfare services and requested custody of Jonathan. Neither John nor Rochelle made any inquiries concerning the two older children. Welfare services instructed her to appear before the New York City welfare department so that an investigation could be made of her living conditions. Rochelle followed these instructions and, in July 1973, the New York City welfare ...


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