No. 192 March Term 1978, Appeal from the Decree of the Court of Common Pleas of Allegheny County, Orphans' Court Division at No. 33 of 1977.
Alexander J. Jaffurs, County Sol., James A. Esler, Cheryl Allen Craig, Asst. County Sols., Pittsburgh, for appellant.
Michael W. Burns, Dickie, McCamey & Chilcote, Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Manderino, J., did not participate in the decision of this case.
This is an appeal by the Children and Youth Services of Allegheny County from the final decree of the Court of Common Pleas of Allegheny County, Orphans' Court Division, dismissing its petition seeking the involuntary termination of parental rights and duties of E.F.H. in her son, J.E.F.*fn1
The facts in the record important to this appeal are these:
J.E.F. was born August 25, 1964. In October, 1969, his parents were divorced. On March 8, 1971, J.E.F. was placed under the custody of the Allegheny County Children and Youth Services (Agency) pursuant to an entrustment agreement signed by both parents. The petition to terminate the parental rights was filed on February 11, 1977. Hearings on this petition followed on March 15, 1977 and January 10, 1978.
At the first hearing on March 15, 1977, the appellant-Agency presented its case-in-chief consisting of the testimony of four of its employees. Subsequently, the testimony of these witnesses as to what occurred between March, 1971 and October, 1975, was stricken from the record by the trial court pursuant to Sanders Appeal, 454 Pa. 350, 312 A.2d 414 (1973), since their testimony pertaining to this period was based on a summary of the Agency's records. The witnesses' testimony, relating to events occurring between October, 1975 and February 11, 1977, was ruled competent. This testimony established that the appellee-mother did not contact J.E.F. or the Agency between October, 1975 and May, 1976, a period of seven months.
After the Agency rested its case, the appellee-mother moved for a compulsory non-suit. Appellant-Agency then requested permission to reopen its case to permit the introduction of its records into evidence for the court's consideration. Both motions were denied. A second hearing ensued on January 10, 1978.
At this second hearing, the appellee conceded she had no direct contact with J.E.F. between 1972 and May, 1976, but offered testimony to explain why. On September 26, 1978, the trial court dismissed Agency's petition, ruling it had not met its burden of proof. Exceptions to this adjudication were ...