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ADOPTION MELISSA P. APPEAL PATRICIA D. (10/28/77)

decided: October 28, 1977.

IN RE ADOPTION OF MELISSA P. APPEAL OF PATRICIA D.


COUNSEL

Legal Aid of Chester County, Robert L. Keogh, West Chester, for appellant.

Lamb, Windle & McErlane, Edwin Craig Kalemjian, West Chester, for appellee, Chester County Children's Service.

Eagen, C. J., and O'Brien, Roberts, Nix and Manderino, JJ. Jones, Former C. J., and Pomeroy, J., did not participate in the decision of this case. Roberts, J., filed a dissenting opinion in which Eagen, C. J., joins. Each party to bear own costs.

Author: Nix

[ 475 Pa. Page 199]

OPINION

This is an appeal from a decree of the Court of Common Pleas of Chester County, Orphans' Court Division, which involuntarily terminated the parental rights of Mrs. Patricia D. to her daughter, Melissa P.*fn1 The case arose as a result of a petition filed in November, 1975, by the Chester County Children's Services requesting the termination of parental rights pursuant to the Adoption Act of 1970, July 24, P.L. 620, No. 208, art. III, § 311, 1 P.S. § 311 (Supp. 1977-78) (hereinafter referred to as "Section 311"). The lower court took its action based on the authority of Section 311(1) of the Adoption Act which permits the rights of a parent to be terminated on the ground that:

[ 475 Pa. Page 200]

"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 . . ."*fn2

This Court has often held that Section 311(1) must be read in the disjunctive and that termination may be ordered either if the parent has evidenced for a period of six months a "settled purpose" of relinquishing parental claims or has, for the same length of time, "refused or failed to perform parental duties." In re Howard, 468 Pa. 71, 360 A.2d 184 (1976); In re Adoption of M.T.T., 467 Pa. 88, 93, 354 A.2d

[ 475 Pa. Page 201564]

, 567 (1976); In re Lumiere Castel Cassen, 457 Pa. 525, 527, 326 A.2d 377, 379 (1974); Wolfe Adoption Case, 454 Pa. 550, 554, 312 A.2d 793, 795 (1973). Although the hearing court failed to specify the precise portion of the subsection upon which it relied in terminating appellant's rights, a close reading of the opinion convinces us that he ordered the action because he felt that the "refusal or failure to perform" test had been complied with.*fn3

The facts surrounding this appeal, as found by the hearing judge, are that in August, 1974, Melissa P., then approximately ten months of age, and her mother, the instant appellant, were living with Roland D., husband of the appellant and stepfather of Melissa, at the home of a family friend in Downingtown. On August 13th of the same year, following at least three apparently unrelated instances of physical abuse of Melissa by Roland D., the child was admitted to the Coatesville Hospital with severe bruises and discolorations on her body. Chester County Children's Services, the instant appellee, was contacted and thereafter filed a petition in the Court of Common Pleas requesting temporary custody of the child. An order was entered on September 20, 1974, fixing temporary custody of the child in the appellee agency. Later, on October 1, 1974, a hearing was held and the court found that the child was "deprived" within the meaning of the Juvenile Court Act of December

[ 475 Pa. Page 2026]

, 1972, P.L. 1464, No. 333, 11 P.S. § 50-101 (Supp. 1977-78) and temporary custody was again awarded to Children's Services. A third such order was entered on January 30, 1975, which additionally directed a review of the child's progress within six months upon the petition of any party.

In September, 1974, about the time of the first custody hearing in this matter, appellant Patricia D. moved with her husband to Ohio where the latter had an opportunity for employment. She resided there with her husband until January, 1976, when she returned to Pennsylvania for the involuntary termination proceeding which is the basis of this appeal. During the sixteen-month period between the time the child was taken from her custody and the date the involuntary termination proceeding commenced, appellant saw her child only once -- in January, 1975, at the offices of the appellee agency. During the same interval the appellant corresponded by mail with the agency twice, once in November, 1974, and once in March, 1975. In both letters she expressed love and concern for her daughter and in the latter said she hoped to regain custody of Melissa. In the November letter she invited the agency to investigate her Ohio home to ascertain "what kind of parents we are." As a result of this communication, Children's Services of Chester County contacted an Ohio children's agency and from January, 1975 to August, 1975, (approximately three months prior to the filing of the involuntary termination petition) this Ohio agency made numerous unannounced visits to appellant's home. Additionally, during this time appellant and her husband participated in several prearranged counseling sessions with the Ohio agency. The court found that at no time during the sixteen-month period had appellant actually sent any "money, gift or other remembrance" to the child through the Chester County agency, noting, however, that for most of that time appellant and her husband were living on a $170.00 per month public assistance grant.*fn4 Once

[ 475 Pa. Page 203]

    a month Melissa's maternal grandmother and aunt (appellant's sister) visited the child at the agency bringing presents, such as clothing, toys and food. Christmas and birthday parties were also given for the child on these visits. Barbara P., appellant's sister, requested more frequent visiting privileges but this proposal was denied due to the difficulties in arranging additional visits with the foster family with whom Melissa was living. Since January, 1976, until at least the date of the hearing, Mrs. D. has been living with her sister, Barbara, in a two-bedroom apartment in Downingtown with the intention of remaining apart from her husband.

Appellant raises a two-part argument in this appeal to support her contention that the trial court committed error in concluding that the "demanding standard" necessary to support involuntary termination was met. First of all, appellant argues that the court failed to properly consider the "particular circumstances" of appellant's situation and to recognize that appellant had utilized the resources at her command in declining to yield to obstacles preventing her from performing her affirmative parental duties. Secondly, Mrs. D. maintains that the court incorrectly ascertained that appellant's mother and sister were not acting as her "proxy" in appellant's absence and in concluding that even if they were, appellant did not act reasonably under the circumstances.*fn5 We believe that the lower court failed to properly apply the facts of the case to the law and that, as a result, we agree with the appellant that the agency fell short of proving by a clear preponderance of the evidence

[ 475 Pa. Page 204]

    that the parental rights of Patricia D. to her daughter Melissa should be terminated.*fn6

This Court, in an assessment of whether a natural parent's rights to his/her child should be involuntarily terminated, has given careful and concerned thought to the role of a parent in a child's life.

"Parenthood is not . . . a mere biological status, or passive state of mind which claims and declines to relinquish ownership of the child. It is an active occupation, calling for constant affirmative demonstration of parental love, protection and concern . . . [A parent] must exert himself to take and maintain a place of importance in the child's life . . . ." Appeal of Diane B., 456 Pa. 429, 433, 321 A.2d 618, 620 (1974), quoting from In re: Adoption of JRF, 27 Somerset L.J. 298, 304-05 (Pa.C.P.1972).

See also Matter of Kapcsos, 468 Pa. 50, 360 A.2d 174 (1976).

On the other hand we have constantly been sensitive to the fact that the finality of termination of a natural parent's rights to his child and the harsh connotations thereof carry great emotional impact on both child and parent and for that reason the law has been unwilling to terminate a natural parent's rights unless the record clearly warrants such a finding. In re Adoption of Sarver, 444 Pa. 507, 509,

[ 475 Pa. Page 205281]

A.2d 890, 891 (1971). Because of the gravity and irreversible nature of involuntary termination this Court has required the party petitioning for involuntary termination to prove by a preponderance of clear and competent evidence that the statutory requirements have been fulfilled. Adoption of Baby Girl Fleming, 471 Pa. 73, 369 A.2d 1200 (1977); In re Adoption of McAhren, 460 Pa. 63, 331 A.2d 419 (1975); In re Adoption of McCray, 460 Pa. 210, 331 A.2d 652 (1975); In re Adoption of RI, 455 Pa. 29, 312 A.2d 601 (1973).

In discussing how best a parent can maintain a place of importance in a child's life, we have held that a 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." In re Adoption of McCray, supra, 460 Pa. at 216, 331 A.2d at 655; see also, Appeal of Diane B., 456 Pa. 429, 321 A.2d 618 (1974).

Even if we were to concede, which we expressly do not, that the agency proved that for the requisite statutory period of six months, appellant, by her failure to contact her child directly or to send a gift or remembrance to her through the Chester County Children's Services*fn7 or to contact that agency,*fn8 thereby failed to perform these affirmative parental duties, we agree with appellant that the lower court did not accord proper weight to the individual circumstances of the mother and the explanations offered by her as to why her claim to her child should be honored.

"Where . . . the evidence clearly establishes that the parent has failed to perform his affirmative parental duties for a period in excess of six months, this Court then must examine ...


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