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ADOPTION S. M. ADOPTION M. M. APPEAL E. M. (03/23/78)

decided: March 23, 1978.

ADOPTION OF S. M. ADOPTION OF M. M. APPEAL OF E. M.


Appeal Nos. 496 & 497 January Term, 1977, from Decree dated May 13, 1977, of the Court of Common Pleas of Montgomery County at Orphans' Court Division, Nos. 233 & 234 of 1976; Alfred L. Taxis, Jr., Judge, and Edwin H. Satterthwaite, Special Judge.

COUNSEL

Michael Yanoff, Norristown, for appellants.

Peter J. Verderame, Renato S. DeLuca, Langhorne, for appellee.

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

Author: Per Curiam

[ 477 Pa. Page 313]

OPINION OF THE COURT

Decree affirmed. Each party pay own costs.

[ 477 Pa. Page 314]

MANDERINO, Justice, dissenting.

I join in the dissenting opinion of Mr. Justice Larsen. In addition, I must point out that this Court has today abandoned its own strict requirements in cases terminating parental rights. We have always required proof by "a preponderance of clear and convincing evidence" that the statutory requirements have been fulfilled before we will take the grave and irreversible action of terminating a parent's rights to his or her natural children. In re Adoption of P., 475 Pa. 197, 380 A.2d 311 (1977); 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).

Under Section 311(1), the finding that a parent has "refused or failed to perform parental duties" does not require proof of intent. This does not mean, however, that a parent's intent may be ignored. When, as here, the evidence warrants the conclusion that the absent parent did intend and did attempt to maintain contact with the children, and was precluded from doing so by the actions of the custodial parent, he has not failed to perform. He has been prevented from performing. This can not form a basis for termination of his rights.

"[Even] [w]here . . . 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 the individual circumstances and any explanation offered by the parent to determine if that evidence, in light of the totality of the circumstances, clearly warrants ...


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