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MATTER J. F. (12/21/79)

SUPREME COURT OF PENNSYLVANIA


decided: December 21, 1979.

IN RE IN THE MATTER OF J. F., A MINOR. APPEAL OF CHILDREN AND YOUTH SERVICES AGENCY OF THE COUNTY OF DELAWARE

No. 529 JANUARY TERM, 1978, Appeal from the Decree of the Court of Common Pleas of Delaware County, Pennsylvania, Orphans' Court Division, entered on the 14th day of December, 1978, at No. 151 of 1978.

COUNSEL

Alfred Jason Mattei, Media, for appellant.

George A. Pagano, Media, for J. F.

Francis E. Mroz, Alexandria, Virginia, for natural mother.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Manderino, J., did not participate in the decision in this case. Nix, J., concurs in the result.

Author: Flaherty

[ 487 Pa. Page 117]

OPINION OF THE COURT

This is an appeal from a decree of the Orphans' Court Division of the Court of Common Pleas of Delaware County which denied appellant Children and Youth Services Agency of Delaware County's petition to involuntarily terminate the parental rights of appellee, the natural mother of J.F. The court below also decreed that J.F., who is under the custody of the Children and Youth Services Agency, be returned to appellee. No petition for custody was before the court. No opinion was filed by the court. A Supersedeas and a stay of the proceeding pending appeal were granted by this Court.

J.F. was represented in the termination hearing by an appointed counsel who has filed a brief in this appeal approving of appellant's arguments. Asserting that the judge was biased in favor of the natural mother of J.F., appellant contends the petition to terminate parental rights was denied an impartial hearing. Further, appellant contends the judge refused to permit presentation of evidence

[ 487 Pa. Page 118]

    necessary and relevant to completion of appellant's case.*fn1 Findings of the Orphans' Court, if supported by competent evidence, are to be sustained unless the court abused its discretion or committed an error of law. In re: William L., 477 Pa. 322, 383 A.2d 1228 (1978). Such is the extent of our scope of review where the court below has made a thorough review of the evidence. In re: Mintz Trust, 444 Pa. 189, 282 A.2d 295 (1971). Pusey's Estate, 321 Pa. 248, 184 A. 844 (1936). After careful review of the record, this Court finds the appellant was denied a fair opportunity to adequately present evidence necessary and relevant to a petition to terminate parental rights. Appellant was not afforded the thorough hearing of its case that would invoke a narrow scope of review limited to determining whether the decision below was based on competent evidence.

The record, excerpts from which are hereafter discussed, shows statements were made by the judge that appellant argues are indicative of bias. If a record shows that a trial judge has prejudiced a case or has shown bias or a capricious disbelief in the disposition of a case the decree based on such illegal considerations should be set aside. However, these constitute most serious charges against a judge and the record must clearly show prejudice, bias, capricious disbelief, or prejudgment. Pusey's Estate, Id. Many of the judge's comments criticized by appellant are susceptible to an interpretation that the judge misunderstood the grounds for termination of parental rights and became frustrated with appellant's failure to present the kind of evidence the judge erroneously believed was necessary to terminate parental rights.

In a case such as this, where error of law and denial of a full and impartial hearing are asserted, a detailed review of the testimony provides an understanding of the

[ 487 Pa. Page 119]

    context in which statements made by the judge, and now challenged in this appeal, were made.*fn2 Our examination of

[ 487 Pa. Page 120]

    the record indicates that the proceeding below was pervaded by actions of the judge reflecting: 1) a disregard of the evidence presented by the appellant agency and a failure to

[ 487 Pa. Page 121]

    see the relevance of evidence of abuse, neglect, incapacity to parent, and abandonment to grounds for termination of parental rights; 2) exclusion of evidence, not apparently

[ 487 Pa. Page 122]

    repetitive, etc., which would be relevant to grounds asserted for terminating parental rights; and 3) a correct understanding that the petitioner for termination has the burden

[ 487 Pa. Page 123]

    of proof, but an erroneous belief that a petitioner must show a parent is presently abusing the child or wants nothing to do with the child at the time of the termination hearing. It

[ 487 Pa. Page 124]

    is well established that once the six month statutory period of abandonment has passed, mere renewal of interest and

[ 487 Pa. Page 125]

    expression of desire for the return of a discarded child do not negate the abandonment. Matter of Adoption of David C., 479 Pa. 1, 387 A.2d 804 (1978).

Hence, we vacate the decree below and remand for further hearings on grounds that 1) an erroneous legal standard was applied below, and 2) the parties were not given the full hearing due them. Furthermore, transfer of custody was not an issue properly before the court. Finally, we believe the trial judge's aforementioned behavior precludes his further participation in this case.

Decree vacated and case remanded for proceedings consistent with this opinion.

Each party to pay own costs.


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