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


decided: June 5, 1978.


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


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]


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

Each party to pay own costs.


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 months, evidence a settled purpose of relinquishing parental claim to a child, this Court has stated:

"The term 'settled purpose' implies a finality of purpose. Wolfe Adoption Case, 454 Pa. 550, 312 A.2d 793 (1973). In our efforts to determine if such a purpose was present, this Court has required an 'affirmative indication of a positive intent' to sever the parental relationship before

[ 479 Pa. Page 196]

    we have upheld an involuntary termination. In re Adoption of McAhren, 460 Pa. 63, 70, 331 A.2d 419, 423 (1975); Wolfe, supra." In re Adoption of Baby Girl Fleming, supra, 471 Pa. at 76, 369 A.2d at 1202.

We have also held that "even inaction or lack of interest in a child for a period in excess of six months will not conclusively establish the required settled purpose of relinquishment." In re Adoption of Farabelli, 460 Pa. 423, 430, 333 A.2d 846, 850 (1975).

The lower court in the instant case recited in its opinion the fact that "both parents are limited by their own educational and environmental background, so much so that they are themselves struggling against considerable odds." The court noted, "On several occasions after the children were placed in custody [the parents] were separated, each having gone to live with another mate, and the programs for attendance at parent education courses, mental health therapy and job training assistance arranged for by the Child Welfare Service were not carried out." "[T]he father never obtained steady work [and] could not . . . pay support for the children. . . ." The court further noted that after each visit with the parents, the children became uncontrollable. The court concluded from these facts that the parents "abandoned" the children. In light of the requirement that there be an affirmative indication of a positive intent to sever the parental relationship, it is clear this evidence does not support the conclusion of abandonment.

The fact of the parents' educational deficiencies and the fact that they were separated bear no relevance with regard to their intent to relinquish their claim to their children. The finding that the parents failed to carry out the programs available to them may be remotely reflective of an intent to abandon the children, but this fact alone is not enough on which to make such a conclusion.

On the contrary, there was substantial probative evidence to support a finding that there was no positive intent to abandon the children. The record reveals and the court below accepted as a fact that since the children have been in

[ 479 Pa. Page 197]

    foster care, both parents together have made regular monthly visits with the children and have maintained contact with the Service.*fn4 The parents have frequently brought the children gifts and on one occasion had a birthday party for one of the children. We can only conclude that the record fails to support the finding that the parents "'affirmative[ly] indicat[ed] . . . a positive intent' to sever the parental relationship." In re Adoption of Baby Girl Fleming, supra, 471 Pa. at 76, 369 A.2d 1202.

Turning to the second ground for termination under Section 311(1), the parents must have refused or failed to perform parental duties for a period of six months. This Court has commented extensively on this standard as follows:

"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)."

[ 479 Pa. Page 198]

*fn1 Our jurisdiction in this case is based on the Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, § 202(3), 17 P.S. § 211.202(3) (Supp.1977-78).

has refused or failed to perform parental duties; . . ."

*fn2 The court relied on In re Adoption of Orwick, 464 Pa. 549, 347 A.2d 677 (1976) which only involved subsection (1). Additionally, the court made no finding on whether the problem "cannot or will not be remedied by the parent" pursuant to subsection (2).

*fn4 A caseworker testified that she believed that the parents would have been willing to make more visits if the Service had permitted them to do so.

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