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MATTER INVOLUNTARY TERMINATION PARENTAL RIGHTS TO T. M. S. AND D. R. S. APPEAL H. S. AND R. S. (12/24/77)

decided: December 24, 1977.

IN THE MATTER OF INVOLUNTARY TERMINATION OF PARENTAL RIGHTS TO T. M. S. AND D. R. S. APPEAL OF H. S. AND R. S.


COUNSEL

James M. Gdula, Johnstown, for appellant.

Francis J. Leahey, Jr., Ebensburg, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Roberts, Justice, affirming termination. Eagen, C. J., and O'Brien, J., join in this opinion. Pomeroy, Justice, concurring and dissenting. Nix, Justice, in support of reversal. Manderino and Packel, JJ., join this opinion.

Author: Per Curiam

[ 476 Pa. Page 140]

ORDER

NIX, J., joined by MANDERINO and PACKEL, JJ., would reverse the decree of the lower court and dismiss the petition as to the involuntary termination of the parental rights of H. S.

POMEROY, J., concurs in the reversal of the lower court's decree terminating the parental rights of H. S. under Section 311(1) of the Adoption Act, but would remand the cause to the lower court for a determination as to whether grounds exist for involuntary termination of H. S.'s parental rights under the incapacity provisions of Section 311(2) of the Adoption Act. Act of July 24, 1970, P.L. 620, No. 208, art. III, § 311(2), 1 P.S. § 311(2) (Supp.1977-78).

ROBERTS, J., joined by EAGEN, C. J., and O'BRIEN, J., would affirm the lower court's decree terminating the parental rights of H. S.

ROBERTS, J., joined by EAGEN, C. J., and O'BRIEN, J., would affirm the lower court's decree terminating the parental rights of R. S.

POMEROY, J., in a separate opinion, would also affirm the lower court's decree terminating the parental rights of R. S.

NIX, J., joined by MANDERINO and PACKEL, JJ., would reverse the decree of the lower court and dismiss the petition as to the involuntary termination of the parental rights of R. S.

Each party to bear own costs.

[ 476 Pa. Page 141]

OPINION AFFIRMING TERMINATION*fn1

ROBERTS, Justice.

In urging reversal of the decree of the orphans' court terminating parental rights under section 311(1) of the Adoption Act of 1970, the Opinion of Mr. Justice Nix (joined by Manderino and Packel, JJ.) commits at least six jurisprudential errors: (1) it misapplies this Court's scope of review on appeal and invades the province of the factfinder by making its own findings of fact; (2) it misreads the record in which there is clear and convincing evidence supporting the decree of the orphans' court; (3) it misapprehends and misuses controlling decisions of this Court interpreting section 311(1) of the Adoption Act as amended in 1970; (4) it fails to recognize that the Legislature in 1970 amended the Adoption Act to establish a firm public policy of genuine concern for the essential parental and family needs of children; (5) it misconstrues the express legislative language of section 311(1) of the Adoption Act as amended in 1970 with the result that the Opinion of Mr. Justice Nix reads that section as though the amendatory language had not been enacted; and (6) it disregards the primary role of the Legislature in fixing public policy in adoptions and creates a policy of its own prohibiting adoption whenever the Opinion of Mr. Justice Nix gleans from the record some indication that a parent had a subjective desire to maintain a parental relation with a child even though that desire never surfaced in any affirmative parental conduct demonstrating a discernible and good faith interest in the child.

In August, 1972, appellant H. S., with the apparent consent of her husband, appellant R. S., voluntarily placed her

[ 476 Pa. Page 142]

    two youngest children, T. M. S., then age four, and D. R. S., then age one, in the custody of appellee, Cambria County Children's Services (Children's Services). Children's Services placed the two children in foster care, where they have since remained. Despite repeated warnings from Children's Services to appellants that their parental rights would be terminated if they failed to make greater efforts to maintain contact with the children and work for the children's eventual return to the home, appellant H. S. managed to visit them only eight times over a three year period. Appellant R. S. visited them only twice in the 21 months before the orphans' court hearing. He last visited them more than a year before the hearing. Upon Children's Services' petition, the orphans' court terminated appellants' parental rights pursuant to section 311(1) of the Adoption Act, which provides for termination of parental rights when it is demonstrated that, for at least six months, a parent has either evidenced a settled purpose to relinquish parental claims to a child, or failed or refused to perform parental duties. Act of July 24, 1970, P.L. 620, art. III, § 311, 1 P.S. § 311(1) (Supp.1977).

The Opinion of Mr. Justice Nix, heedless of this Court's obligation to affirm a decree of the orphans' court supported by competent evidence, selectively re-evaluates the record to substitute its own findings of fact for those of the orphans' court. By this process, the Opinion of Mr. Justice Nix reads the record to conclude that while the children were in foster care, appellant H. S. continuously attempted to reunite her family. Thus, the Opinion of Mr. Justice Nix would reverse the decree terminating her parental rights. The Opinion of Mr. Justice Nix would also reverse the decree terminating the parental rights of appellant R. S., without any attempt to explain why his nearly total indifference to his children while they remained in foster care does not justify the orphans' court's decree.

Moreover, the Opinion of Mr. Justice Nix asserts that a finding that a parent has failed or refused to perform parental duties justifying termination of parental rights pursuant to section 311(1) must be supported by evidence

[ 476 Pa. Page 143]

"equating the dereliction with an intentional abandonment." Such a requirement plainly thwarts the clear intent of the Legislature expressed in the language of section 311(1). Our cases have consistently recognized that parental rights may be terminated when a parent fails to perform parental duties, regardless of the parent's subjective desire to retain the parental relationship.

Our scope of review is limited to determining whether the orphans' court's conclusion that appellants failed or refused to perform parental duties for at least six months is supported by competent evidence. E. g., In re: Involuntary Termination of Parental Rights of S. C. B. and Kelly Taylor, 474 Pa. 615, 625, 379 A.2d 535, 539 (1977); Adoption of M.T.T., 467 Pa. 88, 91, 354 A.2d 564, 566 (1976); Adoption of Farabelli, 460 Pa. 423, 333 A.2d 846 (1975) (plurality opinion); Shaeffer Appeal, 452 Pa. 165, 305 A.2d 36 (1973). Findings of the orphans' court supported by evidence of record are entitled to the same weight accorded a jury verdict and must be sustained unless the court committed an error of law or abused its discretion. Garges Estate, 474 Pa. 237, 378 A.2d 307 (1977); In re Wertman Estate, 462 Pa. 195, 197, 340 A.2d 429, 430 (1975); Button Estate, 459 Pa. 234, 239, 328 A.2d 480, 483 (1974); Cohen Will, 445 Pa. 549, 284 A.2d 754 (1971); Holtz Will, 422 Pa. 540, 222 A.2d 885 (1966); Hunter Will, 416 Pa. 127, 205 A.2d 97 (1964). The record clearly supports the determination of the orphans' court that appellants failed to perform parental duties for a period well in excess of the six month statutory minimum.

I

We recently discussed the considerations involved in determining whether parental duties have been met:

"Parental duty is best understood in relation to the needs of a child. A child needs love, protection, guidance, and support. These needs, physical and emotional, cannot be met by a merely passive interest in the development of the child. Thus, this Court has held that the parental obligation is a positive duty which requires affirmative performance.

[ 476 Pa. Page 144]

    children would be returned. The Opinion of Mr. Justice Nix ignores the more pertinent and essentially uncontradicted evidence, upon which the orphans' court relied, of appellants' indifferent efforts to maintain any substantial relationship with the children throughout the three years preceding the petition for termination of parental rights.

After T. M. S. and D. R. S. were placed in foster care in August, 1972, appellants did not visit the children for more than four months, until December 26, 1972. Appellants next visited the children in February, 1973, and April, 1973. Appellants did not again visit the children until October, 1973, a period of more than six months.

Rebecca Carlin became the S. family caseworker in October, 1973. The Opinion of Mr. Justice Nix states that "as such her objective should have been the reunification of the family" (emphasis added) and unfairly implies that such an effort was not made and that appellants' indifferent efforts to maintain contact with their children were the result of the duplicity of Children's Services. To reach its conclusion, the Opinion of Mr. Justice Nix ignores the bulk of the record and incorrectly presents most of the rest.

The record plainly establishes that, shortly after becoming the S. family caseworker, Carlin repeatedly and vigorously sought to spur appellants to establish more frequent communication with T. M. S. and D. R. S. and take the steps necessary for their eventual return to the home.

On November 2, 1973, shortly after assuming responsibility for the case, Carlin wrote to appellants to instruct them on visitation procedures, to express her willingness to arrange visits and to urge them to see the children:

"I would just like to outline for you what the visiting procedures are so that there won't be any misunderstanding between us in the future concerning this.

"I will be glad to arrange family visits for you if you or your husband call or drop me a note. It will be necessary for me to have at least a week to 10 days notice however. You will then receive a letter giving you the time and date of the visit. Since all of this will be done well in advance

[ 476 Pa. Page 146]

    of the visit, I will be expecting you to make your plans carefully too, and to make certain that you have transportation so that the visit doesn't have to be called off at the last minute.

"I have some friends working on finding some clothing for the kids. I don't know what will turn up but we'll wait and see.

"Remember to check when open house at the school is and see if there isn't some way you could plan to be there. I know the kids would really love that."

Appellants' next visit was in December, 1973,*fn3 after which five months elapsed before another visit in May, 1974. On April 2, 1974, Carlin frankly informed appellant H. S. that, unless she was willing to increase her visits and make a genuine effort to locate adequate housing, she faced a serious possibility of losing her parental rights. Carlin repeated these concerns in a series of letters to H. S. in April and May, 1974, more than a year before Children's Services filed the petition to terminate parental rights.

On April 5, 1974, Carlin wrote:

"I would like to review with you our conversation of April 2, 1974 concerning the future plans for your two children still in foster care. It is our agency's position that we feel you should make some definite move towards securing more adequate and larger housing before we can consider the return of your children. This has been our goal even prior to the time I became your caseworker so that we feel this has dragged on for some time now.

[ 476 Pa. Page 147]

As we discussed, if you do not attempt to make the necessary changes it may be necessary for us to file for involuntary relinquishment of your children so that they can be assured of what the future will be for them. I do not feel it is fair for them to linger in foster care.

As you know, visiting is at your request. I ask only that you give me adequate notice."

Carlin wrote again on April 26:

"If it is convenient, I would like to visit on Tuesday, April 30, 1974, at about 3:00 P.M. I'm hoping that you will perhaps have some word about the possibility of a new apartment. I think that both of us realize that [T. M. S.] and [D. R. S.] can not come home until you do have larger quarters. Since summer is now approaching I hope you will set a goal of finding a place before school starts in the fall. The weather will be better and this should be to your advantage. You know that we talked before about how long this has been dragging on. It's only fair to your children to do something one way or the other."

Carlin testified she believed it was a result of her urgings that appellant asked her to arrange another visit with the children. Carlin also related, however, that, despite her suggestions concerning agencies and realtors appellant might contact regarding housing, appellant failed to follow up on house hunting efforts. Carlin's letter of May 7, 1974, again reflects concern with appellant's indifference toward the children:

"I have been able to arrange a family visit for you on Wednesday, May 15, 1974 at 1:30 P.M. here in the Court House in Ebensburg. I know that you have always been able to get transportation in the past and there is bus service, however, if you do have difficulty with transportation, please contact me.

I'm hoping to hear that you really did get out and make some personal contacts about a larger apartment after our talk last week. In reality it has been seven months since you and I agreed this was necessary and I know it was a goal of yours even before I became your worker."

[ 476 Pa. Page 148]

Appellant did not request another visit with the children for more than three months and made no substantial effort to secure improved housing. On August 15, 1974, Carlin wrote again:

"I would like to stress to you again how important it is that you make a real effort to find new housing. At the beginning of school vacation we talked about how you must make every effort to get adequate housing. During that entire three month period you had only one apartment for me to look at and even that did not come off as planned. Sleeping arrangements are not satisfactory even for the children who are at home now. If you have any real intention to have your family together, you must begin to show that you care enough to see that you do find a suitable place.

As we discussed before, your children cannot linger in foster care indefinitely. This same situation has continued at least since October of 1973, when I became your worker, until the present. I feel this is more than adequate time for you to have made more suitable arrangements. If this situation continues, I will have no alternative but to go to the Court."

This warning was repeated in a letter to appellant in September, 1974.

Appellant did not visit the children again, however, until December 30, 1974, more than four months after her previous visit. Following the December visit, appellant did not again request that a visit be arranged until after Children's Services filed the petition to terminate parental rights in June, 1975, more than five months later.

Appellant had located larger quarters in October or November, into which she moved in December, 1974. She requested Carlin to inspect the home to see if it was adequate for the return of the children. Carlin visited the home in January, 1975. The Opinion of Mr. Justice Nix attributes to Carlin testimony that a promise was made to appellant at this visit that if she could maintain the house for a couple of months, the children would be returned.

[ 476 Pa. Page 149]

Carlin denied making any such promise. Rather, in relation to appellant's inquiry about when the children might ...


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