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ADOPTION Y. S. APPEAL D. J. S. (12/21/79)

decided: December 21, 1979.

IN RE ADOPTION OF Y. S. APPEAL OF D. J. S., JR. AND J. S.


No. 168 March Term, 1978, Appeal from the Decree of the Court of Common Pleas of Beaver County, Pennsylvania, Orphans' Court Division, Entered September 28, 1978, at No. 3063 of 1976

COUNSEL

Gretchen Sohn Reed, Beaver, for appellant.

Edward J. Tocci, Duplaga, Tocci, Palmieri & McMillen, Aliquippa, 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. Nix, J., filed a concurring opinion.

Author: Flaherty

[ 487 Pa. Page 100]

OPINION OF THE COURT

This is an appeal from a decree dated September 28, 1978 of the Orphans' Court Division of the Court of Common Pleas of Beaver County involuntarily terminating the parental rights of appellants, the natural parents of Y. S. This later decree reverses an earlier decree dated July 17, 1978 which upheld the parental rights of appellants in Y. S. We agree with the Orphans' Court decree and therefore, affirm.

Y. S. was born on June 9, 1974. In the early part of 1976, the appellants, the natural parents of Y. S., who lived in Ohio, separated because of marital difficulties. Y. S. continued to live with her mother who was employed. Then, in April of 1976, Y. S. was sent to live with her paternal grandparents in Cleveland, Ohio as Y. S.'s mother was encountering too many difficulties in working and trying to care for Y. S. The paternal grandparents had the natural parents sign a voluntary custody agreement for Y. S. The paternal grandparents then delivered Y. S. to appellees, Mr. and Mrs. H. on April 16, 1976, who resided in Beaver County, Pennsylvania. The transfer to the appellees initially was not for the purpose of adoption. From April 16, 1976 until the latter part of July, 1976, Y. S. resided primarily with appellees. There were ten occasions when Y. S. was returned to the paternal grandparents in Cleveland. On each visit, Y. S. stayed with her grandparents for only a "few

[ 487 Pa. Page 101]

    days". Each time Y. S. was returned to appellees. In July of 1976, the appellees informed the grandparents that these arrangements could no longer persist, and that appellees must either be allowed to adopt Y. S. or they would return her to the grandparents.

As a result, the appellants and the paternal grandparents met with appellees in appellees' attorney's office in Beaver County on August 3, 1976. There, appellants signed a voluntary written consent to Y. S.'s adoption. Later in August, 1976, appellants contacted counsel in Ohio who informed appellees' counsel that appellants were withdrawing their consent, and wanted Y. S. returned to them. When appellees were informed of appellants' change of attitude, they refused to return Y. S.

Appellees provided all the material necessities of life to Y. S. since April 16, 1976. Appellants have not provided any necessities of life to Y. S. during this period. Appellants also have not seen, called, or written to Y. S. from the first week of July, 1976 through the date of the involuntary termination hearing on July 12, 1977.

Appellants assert that the lower court erred because there was insufficient evidence to support the involuntary termination of their parental rights. We disagree with appellants' position. Section 311(1) of the Adoption Act*fn1 states in relevant part:

The rights of a parent to a child may be terminated after a petition 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 . . . (emphasis added) 1 P.S. ยง 311(1).

It is clear from the record that appellants have refused or failed to perform their parental duties for a period of more

[ 487 Pa. Page 102]

    than six months. The Matter of Adoption of David C., 479 Pa. 1, 5, 387 A.2d 804, 809 (1978) sets out this Court's scope of review, which is, "[L]imited to determining whether the decree of Orphans' Court is supported by competent evidence." Matter of Adoption of David C., 479 Pa. at 5, 387 A.2d at 813.

During the period of April 16, 1976 to July, 1977 when Y. S. was in appellees' custody and care, she was returned for several visits requested by her paternal grandparents. The excuse that was given was that appellants wanted to see their child, but there is nothing in the record to indicate that appellants visited Y. S. while she was at her paternal grandparents' house in Cleveland. Appellees then would drive Y. S. back from Pennsylvania to the paternal grandparents' house in Cleveland. These visits were only for a few days, and then Y. S. would be returned to appellees. Once the voluntary adoption petition was signed by appellants on August 3, 1976, the requests for the return of Y. S. stopped completely. During the entire period from the end of July, 1976 to July 12, 1977 and afterwards, appellants had no contact with their daughter. The appellants did not telephone Y. S., send her birthday or Christmas cards, and did not visit her. No financial support was given to Y. S. by appellants during that period. Appellants also did not inquire about Y. S.'s well-being. Litigation was the only active conduct that appellants pursued to maintain their parental rights. The Matter of Adoption of David C., 479 Pa. at 8, 387 A.2d at 814, had held that, "[P]arental obligation [is] a positive duty which requir[es] affirmative performance." In Re Burns, 474 Pa. 615, 624, 379 A.2d 535, 540 (1977) states that, "[p]arental duty is best understood in relation to the needs of a child. A ...


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