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INVOLUNTARY TERMINATION PARENTAL RIGHTS AND ADOPTION BABY GIRL FLEMING (02/28/77)

decided: February 28, 1977.

IN RE INVOLUNTARY TERMINATION OF PARENTAL RIGHTS AND ADOPTION OF BABY GIRL FLEMING, A MINOR. APPEAL OF FRANK J. YELINKO AND ELIZABETH J. YELINKO


COUNSEL

Gross & Brown, Malcolm J. Gross, Allentown, for appellant.

William Congreve, III, Allentown, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a dissenting opinion in which Eagen and O'Brien, JJ., joined.

Author: Jones

[ 471 Pa. Page 74]

OPINION

This is an appeal by the prospective adoptive parents from the denial of their Petition for Involuntary Termination of the parental rights of the natural mother. The child in question was born December 6, 1973. The father has consented to the adoption by petitioners.

Appellee, the natural mother, and the child's father were married and lived together for about a week until appellee ousted him from their residence. She later moved in with her parents until after the baby was born. Prior to the birth, appellee sought assistance from various

[ 471 Pa. Page 75]

    agencies regarding placing her child for adoption. In November 1973, she made an appointment, through her physician, with Boyd Walker, Esquire, concerning the arrangement of a private adoption.

Both appellee and her mother attended this meeting during which appellee was informed about the process and the payment of expenses. It was appellee's understanding at the end of the meeting, that when she delivered the baby to the intermediary, all rights to recover the child would terminate. Appellee delivered the baby to an intermediary at the hospital on December 10, 1973, four days after her birth. She has not seen the child since that date.

The mother received no further word, nor did she make any inquiries, concerning the adoption until August 1974 when she contacted Mr. Walker to find out what was the cause of the delay in finalizing the adoption. In that month, Donald Zamborsky, Esquire, representing the adoptive parents, called appellee to ascertain the whereabouts of the baby's father. Subsequently, in April 1975, Mr. Zamborsky again contacted her in order to have her sign a consent to the adoption. Appellee signed the consent, but, as a result of this meeting, she apparently thought she may have an opportunity to get her child back. Appellee notified Mr. Zamborsky, in June 1975 prior to the hearing on the voluntary proceedings, that she would not go through with the voluntary termination proceedings. A petition for involuntary termination was filed by the persons having custody of the child. After a hearing, the court below refused to terminate appellee's rights and denied the petition. This appeal followed.*fn1

Appellants sought to terminate the mother's rights solely upon the first part of Section 311(1) of the Adoption

[ 471 Pa. Page 76]

Act, Act of July 24, 1970, P.L. 620, No. 208, art. III, § 311(1), 1 P.S. § 311(1) (Supp.1976). That section reads in pertinent part:

"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 . . . ."

Id.

Section 311(1) "has been interpreted as requiring a deliberate decision on the part of the parent to terminate the parental relationship and that parent must persist in that determination throughout the six-month period." In re Adoption of Farabelli, 460 Pa. 423, 430-431, 333 A.2d 846, 850 (1975). The term "settled purpose" implies a finality of purpose. Wolfe Adoption Case, 454 Pa. 550, 312 A.2d 793 (1973). In our efforts to determine if such a purpose was present, this Court has required an "affirmative indication of a positive intent" to sever the parental relationship before we have upheld an involuntary termination. In re Adoption of McAhren, 460 Pa. 63, 70, 331 A.2d 419, 423 (1975); Wolfe, supra.

This Court has recognized that because of the serious emotional impact and irreversible nature of an involuntary termination decree, such action should be taken only when it is clearly warranted by a preponderance of the evidence. McAhren, supra, at 69-70, 331 A.2d at 422; Sarver Adoption Case, 444 Pa. 507, 281 A.2d 890 (1971). We have also placed this burden of proof upon those seeking termination. See In re Adoption of McCray, 460 Pa. 210, 215 n. 4, 331 A.2d 652, 654 n. 4 (1975). Thus, this Court has held that evidence of parental inaction and lack ...


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