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DEBORAH J. C. (PETITION FOR INVOLUNTARY TERMINATION PARENTAL RIGHTS). APPEAL JUDITH C. (04/25/80)

SUPREME COURT OF PENNSYLVANIA


decided: April 25, 1980.

IN RE DEBORAH J. C. (PETITION FOR INVOLUNTARY TERMINATION OF PARENTAL RIGHTS). APPEAL OF JUDITH C.

No. 168 March Term, 1979, Appeal from Final Decree Entered on August 24, 1979, by the Court of Common Pleas of Somerset County, at No. 9 Adoption 1974

COUNSEL

Joseph D. Messina, Johnstown, for appellant.

James R. Cascio, Fike, Cascio & Boose, P. C., Somerset, for The Children's Aid Society of Somerset County.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Eagen, C. J., concurred in the result.

Author: Larsen

[ 489 Pa. Page 8]

OPINION

This appeal is from a final decree entered in the Court of Common Pleas of Somerset County involuntarily terminating the parental rights of the mother, appellant, J.C., in her natural daughter, D.J.C. The essential facts are as follows. D.J.C. was born to appellant on June 4, 1969; on August 16, 1971, the child was placed by the lower court in the custody of Children's Aid Society of Somerset County (hereinafter called appellee). On December 20, 1978, appellee filed a petition with the lower court seeking involuntary termination of appellant's parental rights pursuant to Section 311(1) of the 1970 Adoption Act.*fn1 After hearings on the matter, the lower court entered a final decree dated August 24, 1979, granting the petition and keeping the child in the custody of

[ 489 Pa. Page 9]

    appellee until such time as she is adopted. This direct appeal followed.*fn2

First, appellant contends that the evidence is insufficient to establish by a preponderance that she refused or failed to perform parental duties for a period of six months and that involuntary termination of her parental rights was consequently unwarranted. This Court has stated that the scope of our review in such a matter is to inquire "whether the orphans' court determination that appellant refused or failed to perform parental duties for at least six months is supported by competent evidence." (citations omitted). In re Burns, 474 Pa. 615, 624, 379 A.2d 535, 539-40 (1977). In In Matter of Kapcos, 468 Pa. 50, 360 A.2d 174 (1976), we further elaborated upon this scope of review when we stated:

The hearing court, which hears the testimony and determines the credibility of witnesses, makes the initial determination whether abandonment has been established. . . . If such evidence appears in the record, we must affirm the hearing court even though the record could support an opposite result (citations omitted). Id., 468 Pa. at 54, 360 A.2d at 176.

In light of this standard and our careful scrutiny of the record, appellant's contention lacks all merit. The judge made the following relevant findings of fact upon which he based his conclusion that appellant refused or failed to perform her parental duties for the requisite statutory period:

24. [Appellant] has made no contact with her daughter . . . or with Children's Aid (appellee) from September, 1977 until after the Petition to Terminate was filed on or about January 2, 1979.*fn3

[ 489 Pa. Page 1026]

. [Appellant] has failed to send any gifts or even a letter or postcard to her daughter since January, 1977 . . . .

Our review of the record shows that these findings of fact are adequately supported therein; in fact, the record clearly demonstrates that appellant's own efforts were not directed to rebutting the evidence upon which these findings rested; instead, her efforts were directed solely at attempts to explain them. It is to the cogency of this explanation that we must now turn.

Appellant argues that she was prohibited from visiting her child by an order of a prior court proceeding.*fn4 That order reads: "NOW, Tuesday, August 9th, 1977, we are now suspending all visiting orders until further Order of this Court; and, if [the mother] wants to re-establish visitation, she'll have to come back into court for a further order." Appellant maintains that because of this order she could not maintain an affirmative relationship with her child during the period of time upon which involuntary termination is based. This is clearly without merit. First, this order specifically states that visitation could be re-established if appellant herein would appear before the court to request visitation; this appellant failed to do. The record shows instead that she chose to sit on her rights even though she

[ 489 Pa. Page 11]

    had an attorney available to her.*fn5 Additionally, the record further reveals that appellant failed to express an interest in her child through those avenues which are sometimes urged as a substitute for direct love, care and parenting, such as, the use of cards, letters, gifts and financial support. We are satisfied, as was the lower court, that appellant did little or nothing to seek to preserve an affirmative parental relationship. She chose instead not to avail herself of those resources which were clearly within the ambit of her control. Therefore, she will not be heard now to blame "the system" for what in fact has transpired as a result of her failures to act.*fn6

For the foregoing reasons, the decree of the lower court is affirmed.*fn7 Each party to pay own costs.


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