No. 25 March Term, 1978, Appeal from Decree of the Court Common Pleas, Orphans' Court, of Lawrence County, at No. 40 of 1976.
Frank J. Piatek, Neighborhood Legal Services Assn., New Castle, for appellant.
Charles W. Garbett, Ellwood City, for Lawrence County Child Welfare Services.
No appearance for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Nix, J., files a dissenting opinion in which Manderino, J., joins. Manderino, J., files a dissenting opinion.
This appeal arises from a final decree, entered in the Orphans' Court Division of the Court of Common Pleas of Lawrence County, involuntarily terminating the parental
rights of appellant, L. W., in Infant Male M. a/k/a J. P. M. This appeal followed.*fn1
The facts surrounding this appeal are as follows: Infant Male M. was born on July 27, 1976. The mother, B. A. M., refused at the time of birth to name the father of the child. On July 28, 1976, the mother signed a voluntary entrustment agreement with the Lawrence County Child Welfare Service (Child Welfare), giving custody of Infant Male M. to Child Welfare. On August 26, 1976, a petition for voluntary relinquishment of parental rights was filed by the mother and joined in by Child Welfare. The mother again refused to name the father of her child. On September 10, 1976, an evidentiary hearing was held on the petition of the mother to voluntarily terminate her parental rights. During the hearing, the mother named appellant, L. W., as the father of the child and testified that she did not know the whereabouts of L. W. The parental rights of the mother were terminated. Subsequent to September 10, 1976, Child Welfare determined that appellant had been detained at the Youth Development Center in New Castle, Pennsylvania, but had escaped from that center.
In February, 1977, Child Welfare discovered that appellant was incarcerated in the Lawrence County Jail. On March 17, 1977, a case worker from Child Welfare contacted appellant and informed him that B. A. M. had named him as the father of Infant Male M. Initially, appellant denied knowing B. A. M. Later, however, he indicated a desire to talk to B. A. M. and to an attorney. The caseworker then informed him of the possibilities of voluntary or involuntary termination of his parental rights. Appellant then stated that he wanted to talk to his mother and explore the possibility that she would care for the child. On March 24, the caseworker had discussions with appellant's mother concerning an arrangement for her to care for the child. Appellant's mother subsequently informed Child Welfare that she would not take care of the child. On March 29, appellant
called Child Welfare and asked that the caseworker go to the jail. Upon the caseworker's arrival, appellant informed her that he did not want to sign a voluntary relinquishment of his parental rights and that he thought that his mother would take the child. Appellant then indicated that he wanted to talk to his parents again. This was the last contact appellant had with Child Welfare. He never again contacted the agency concerning Infant Male M. and he never inquired as to the well-being of the child nor did he attempt to establish the possibility of visitation with the child.
On August 4, 1977, Child Welfare filed a petition for involuntary termination of the parental rights of appellant. He was served with notice of the petition on August 5, 1977, by the Lawrence County Sheriff. The hearing in the case was originally scheduled for August 31, 1977, but on that date, Child Welfare filed a motion for continuance of the hearing, the reason for the continuance being the illness of the caseworker in charge of this case. On October 4, 1977, Child Welfare filed a motion for a hearing date and the court set November 8, 1977. On that date, both parties agreed to continue the case until December 15, 1977. The joint motion for a continuance indicated that "negotiations between the parties were pending." On December 15, 1977, an evidentiary hearing was held on the petition to terminate appellant's parental rights.
In addition to the testimony of the Child Welfare caseworker, appellant testified at the hearing. He indicated that until March 17, 1977, he was unaware that he was the father of Infant Male M. The child's mother never informed appellant of her pregnancy. Appellant indicated that from February, 1976, and continuing to the time of the hearing, December, 1977, he was either in Forestry Camp near Pittsburgh, the Youth Development Center, New Castle, or the Lawrence County Jail. Appellant further testified that he was informed of his right to contest the petition and was also told the baby was in a foster home. Appellant did testify that the caseworker never informed him of his
right to visit the child. He did admit that he never asked about the well-being of the child because he thought he would soon be released from the Lawrence County Jail and then he could take care of the child.
On December 20, 1977, the court below issued a final decree terminating the parental rights of appellant. This appeal followed.
Appellant makes two related arguments:
I. That the six-month requirement of § 311(1) of the Adoption Act was not complied with at the time of the filing of the petition and, therefore, the Court of Common Pleas of Lawrence County lacked subject matter jurisdiction to hear the case.
II. That the record does not support the court's determination that appellant had a "settled purpose of relinquishing parental claim to a child or has refused or failed to perform duties."
We do not agree with either contention.
On August 4, 1977, Child Welfare filed a petition to involuntarily terminate appellant's parental rights. After two continuances, the hearing was held on December 15, 1977, pursuant to which the court issued a final decree terminating the parental rights. Appellant argues that because he did not know of the birth of Infant Male M. until March 17, 1977, and since the petition was filed on August 4, 1977, less than six months, as required by § 311(1) of the Adoption Act, had passed and that the court of common pleas did not have subject matter jurisdiction. We do not agree.
Section 311(1) of the Adoption Act provides:
"The rights of a parent in regard to a child may be terminated after a petition filed pursuant to section 312, and a hearing held pursuant to section 313, on the ground that:
"(1) 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 . . . ."
The six-month limitation is not a jurisdictional fact which affects the power of the court of common pleas to hear this type of case, but rather is a fact which must be alleged and proved before a court with proper subject matter jurisdiction can grant the necessary relief, i. e., the involuntary termination of parental rights.
We are, therefore, of the opinion that the filing of an involuntary termination petition before the six month requirement has elapsed does not affect the subject matter jurisdiction of a court of common pleas but rather goes to the ability of such ...