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A. M. B. (06/05/78)

decided: June 5, 1978.

IN RE A. M. B., K. E. B., J. B., K. B., AND M. B., MINOR CHILDREN. APPEAL OF J. D. B. AND A. M. K. B., NATURAL PARENTS OF SAID INFANT CHILDREN


No. 95 March Term, 1976, Appeal From the Order Dated February 6, 1976, of the Court of Common Pleas of Greene County at No. 36 Orphans' Court of 1974

COUNSEL

Thomas H. Newbraugh, Southwestern Pa. Legal Aid Society, Waynesburg, Jon L. Friedman, Pittsburgh, for appellant.

R. Wallace Maxwell, Waynesburg, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. O'Brien, Roberts and Pomeroy, JJ., would affirm the decree. Nix, J., files an opinion in support of reversal, in which Manderino, J., joins. Eagen, C. J., would reverse the decree.

[ 479 Pa. Page 194]

ORDER

The Court being equally divided, the decree of the lower court is affirmed.

Each party to pay own costs.

Opinion IN SUPPORT OF REVERSAL

NIX, Justice.

[ 479 Pa. Page 195]

This is an appeal from a decree of the Greene County Court of Common Pleas, Orphans' Court Division, which involuntarily terminated the parental rights of J.D.B. and A.M.K.B. to their five minor children.*fn1 The lower court appears to have relied on subsection (1) of the Adoption Act of 1970, July 24, P.L. 620, No. 208, art. III, § 311(1), 1 P.S. § 311(1) (Supp.1977-78) for the termination of appellant's parental rights.*fn2 The basis for a finding of involuntary termination must be established by a preponderance of the evidence. Matter of S., 476 Pa. 138, 381 A.2d 1263 (1977); In re Adoption of Baby Girl Fleming, 471 Pa. 73, 369 A.2d 1200 (1977); In re Howard, 468 Pa. 71, 360 A.2d 184 (1976); 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). Our scope of review is limited to determining whether the Orphans' Court's terminations of appellants' parental rights are supported by competent evidence. In the Matter of the Page 195} Adoption of David C., 479 Pa. 1, 387 A.2d 804 (1978); In re William L., Frank L., and Mark L., 477 Pa. 322, 383 A.2d 1228 (1978); In re Involuntary Termination of Parental Rights of S.C.B. and K.T., 474 Pa. 615, 379 A.2d 535 (1977); In re Adoption of M.T.T., 467 Pa. 88, 354 A.2d 564 (1967).

The history underlying this appeal is that in 1973, after complaint, the Child Welfare Service of Greene County began working with the family by offering day care services to them. Having found the conditions of the home and the family "deplorable" and determining after thirteen months that there was no sustained improvement, the Service petitioned the court for foster home placement on May 3, 1974. Two of the five children were subsequently placed in the custody of the Child Welfare Service for placement. After working with the parents and believing they were ready to accept their role, the Service returned the two children. However, within a month the complaints started again and on January 20, 1975 all five children were placed in foster care.

Section 311(1)*fn3 consists of two grounds in the disjunctive so that the establishment of either ground would support a termination. In the Matter of the Adoption of David C., supra; Matter of S., supra (Opinion in Support of Reversal); In re Adoption of M.T.T., supra. With regard to the first ground, requiring that the parents, by conduct continuing for at least six ...


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