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MATTER ADOPTION DAVID C. APPEAL GERTRUDE U. (04/28/78)

decided: April 28, 1978.

IN THE MATTER OF THE ADOPTION OF DAVID C. APPEAL OF GERTRUDE U.


No. 20 May Term, 1977, Appeal from the Decree of the Court of Common Pleas, Orphans' Court Division of Dauphin County dated April 13, 1976, at No. 2541

COUNSEL

Jerome T. Foerster, Richard W. Cleckner, Harrisburg, for appellant.

James H. Cawley, Harrisburg, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case. Nix, J., did not participate in the consideration or decision of this case. Manderino, J., filed a dissenting opinion.

Author: Roberts

[ 479 Pa. Page 4]

OPINION OF THE COURT

This is an appeal from a decree of the Orphans' Court Division of the Court of Common Pleas of Dauphin County denying appellant Gertrude U.'s petition for adoption of

[ 479 Pa. Page 5]

David C., now twelve years old, because of its refusal to involuntarily terminate the parental rights of appellee, the natural father of David C.*fn1 Appellant challenges the sufficiency of the evidence to support the decree and contends the record does not support the orphans' court conclusion that involuntary termination of parental rights pursuant to section 311(1) of the Adoption Act*fn2 was not justified because the natural father had not "refused or failed to perform parental duties" or "evidenced a settled purpose of relinquishing parental claim." We agree with appellant and reverse the decree of the orphans' court.

I

The scope of our review is limited to determining whether the decree of the orphans' court is supported by competent evidence. E. g., In re: Involuntary Termination of Parental Rights of S.C.B. and K.T., 474 Pa. 615, 624, 379 A.2d 535, 539 (1977); Adoption of M.T.T., 467 Pa. 88, 91, 354 A.2d 564, 566 (1976); Shaeffer Appeal, 452 Pa. 165, 169, 305 A.2d 36, 39 (1973). Even with this narrow scope of review, however, we conclude the decree of the orphans' court must be reversed because its determination that "no ground whatsoever upon which to base a decree of involuntary termination exists" is not supported by this record. To the contrary, appellant has established by uncontradicted evidence grounds justifying involuntary termination of appellee's parental rights. In re Farabelli, 460 Pa. 423, 333 A.2d 846 (1975).

II

The basic facts are undisputed. Appellee married Starr M., the mother of David, on May 1, 1965, and lived with his

[ 479 Pa. Page 6]

    wife for one weekend in Harrisburg. He then went to Troy, New York, where he was employed, returning home at the end of the week to find his wife had left him. Subsequently he moved to Troy, New York. On December 10, 1965, David was born. In 1966, appellee moved to Toledo, Ohio. In August, 1967, appellee divorced his wife. Appellee remarried in 1969 and, in 1973, moved to Florida with his second wife and their daughter. David's mother died in May, 1973.

From the time of his birth, David lived with his mother in Harrisburg in a house owned and occupied by appellant, a friend of the mother. Appellant has at all times since the death of David's mother in 1973, supported David and has exercised custody, discipline and control over him in her home. In the summer of 1973, a court, following a full hearing, denied appellee custody of David and awarded custody to appellant, who at the time of the adoption hearing was a 58 year old woman employed with the Pennsylvania Association for the Blind for twenty-six consecutive years.

From December 10, 1965, until May 5, 1973, appellee visited David only once. That visit, lasting approximately ten minutes, occurred in the summer of 1967 when appellee was in Harrisburg in connection with his divorce proceedings. During this period, appellee sent his son no letters and sent birthday or Christmas cards or gifts only sporadically. During these seven and one-half years, appellee communicated with David's mother only twice concerning his desire to visit David.

From the death of David's mother on May 5, 1973, until the adoption hearing on November 1, 1974, appellee visited David only twice: once when attending the mother's funeral in May, 1973, and once in July, 1973, while pursuing custody of David. No visits were made in 1974. Appellee called David twice in December, 1973, but not at all in 1974. During 1973 and 1974, appellee wrote six letters to David and sent him Christmas and birthday cards.

Prior to April, 1973, although appellee was under a court order to support David, arrearages occurred in 1969, 1970,

[ 479 Pa. Page 71971]

and 1972. From April, 1973, until November 1, 1974, the date of the adoption hearing, appellee paid no support. As the orphans' court found, appellee's income had ranged "from approximately $7,800 annually in 1966 to $13,000 annually at the time of the hearing" in 1974.

III

There is no competent evidence supporting the orphans' court's finding that appellee affirmatively performed the essential parental duties of "care, control, love, protection, support, and subsistence." Appeal of Diane B., 456 Pa. 429, 435, 321 A.2d 618, 621 (1974). Rather, there is abundant evidence to the contrary. While the orphans' court recognized that appellee visited David only three times in nine years and that he made almost no other efforts to communicate, the orphans' court nonetheless concluded that appellee "adequately performed what would be expected of him for purposes of preserving his right to object to an adoption of his child." This unsupported conclusion renders Section 311 of the 1970 Adoption Act a nullity and cannot stand.

Section 311(1) of the 1970 Adoption Act provides that parental rights may be terminated if:

"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; . . ."

Because the section is written in the disjunctive, parental rights may be terminated if a parent either evidenced a settled purpose of relinquishing parental rights or the parent has refused or failed to perform parental duties. In re Adoption of M.T.T., 467 Pa. 88, 354 A.2d 564 (1976).

Although this Court, in interpreting section 311(1), has recognized "that the measures taken by the parent to demonstrate his interest and affection must be viewed in light of the existing circumstances," Adoption of R.I., 468 Pa. 287, 297 n. 10, 361 A.2d 294, 299 n. 10 (1976); In re Adoption of McCray, 460 Pa. 210, 216, 331 A.2d 652, 655 (1975), certain parental responsibilities must be satisfied.

[ 479 Pa. Page 8]

As this Court stated in In re: Involuntary Termination of Parental Rights of S.C.B. and K.T., supra:

"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 and uninvolved interest in the development of the child. Thus, this Court has held that the parental obligation is a positive duty which requires affirmative performance. In re Adoption of Orwick, 464 Pa. 549, 347 A.2d 677 (1976); In re Adoption of McCray, 460 Pa. 210, 331 A.2d 652 (1975); Appeal of Diane B., 456 Pa. 429, 321 A.2d 618 (1974); In re Smith's Adoption, 412 Pa. 501, 194 A.2d 919 (1963). This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child. In re Adoption of McCray, supra; Appeal of Diane B., supra; In re Adoption of Jagodzinski, 444 Pa. 511, 281 A.2d 868 (1971). Because a child needs more than a benefactor, parental duty requires that a parent 'exert himself to take and maintain a place of importance in the child's life.' Appeal of Diane B., supra, 456 Pa. at 433, 321 A.2d at 620, quoting In re: Adoption of J.R.F., 27 Somerset L.J. 298, 304-05 (Pa.C.P.1972)."

Id. 474 Pa. at 624, 379 A.2d at 540. Based on this record, it cannot be said that appellee took affirmative action to provide his son with the necessary "love, protection, guidance and support," all of which was being provided by appellant.

Appellee's failure to visit with his son is significant. From the time of David's birth to the adoption hearing, nine years later, appellee visited David only three times. Moreover, these visits, occurring at the time of appellee's divorce proceeding, the mother's death and the custody action, appear not to have been triggered by appellee's interest in his son, but rather by outside events necessitating travel to Harrisburg. One of these visits lasted only ten minutes. While the geographical distance separating appellee and

[ 479 Pa. Page 9]

David might excuse the lack of frequent visits, it cannot justify the almost total absence of visits by appellee with his young son over a nine year period.

Appellee testified that he failed to take any affirmative action to visit David because: (1) the distance between Harrisburg and his residences in Troy, New York, Toledo, Ohio and Tampa, Florida were too great; (2) his former wife and appellant were hostile toward him; and (3) he did not know what to say to his son. The record reveals the following testimony by appellee:

"Q. Let me summarize then to see if I understand it. For the first two years when you lived in Troy, New York [a six-hour drive], your reasons for not visiting with the child was because he was too ...


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