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M.A.K. AND R.L.K. (05/30/80)

decided: May 30, 1980.

IN RE M.A.K. AND R.L.K., MINORS. APPEAL OF ALLEGHENY COUNTY INSTITUTION DISTRICT


No. 177 March Term 1979, Appeal from the Decree of the Court of Common Pleas of Allegheny County, Orphans' Court Division, at No. 415 of 1978

COUNSEL

James H. McLean, County Sol., Cheryl Allen Craig, Asst. County Sol., Pittsburgh, for appellant.

Rosalia G. Parker, Neighborhood Legal Services, Pittsburgh, for Mrs. Mercedes Kelly-mother.

Shari F. Shink, Child Advocacy Division, Pittsburgh, for intervenors Mercedes Ann Kelly and Rebecca Lee Kelly, minors.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ.

Author: Eagen

[ 489 Pa. Page 599]

OPINION OF THE COURT

On November 20, 1978, appellant, Allegheny County Institution District (the Agency), filed a petition for the involuntary termination of parental rights and duties of appellee, M.A.K., the natural mother, to her children M.K. and R.K. After a hearing on March 12, 1979, both parties filed post-trial briefs, and, on April 11, 1979, the chancellor or hearing judge entered a decree nisi terminating the parental rights of M.A.K. to M.K. and R.K.*fn1 M.A.K. filed exceptions to the decree. After oral argument, the court en banc reversed the decree nisi and entered a final decree dismissing the petition for involuntary termination of parental rights of M.A.K. The Agency filed this appeal.

The Agency complains the court en banc abused its discretion in reversing the decree of the chancellor since it was supported by competent evidence sufficient to justify termination of M.A.K.'s parental rights. If the court en banc was in disagreement with the chancellor before whom the witnesses appeared, there might be merit in this argument, but the Agency has overlooked an important fact, i. e. the chancellor was a member of the court en banc and joined both its findings and final decree. "A chancellor, who

[ 489 Pa. Page 600]

    initially makes findings of fact may subsequently join as a member of a court en banc in making . . . contrary finding[s], if the ultimate finding[s are] supported by adequate evidence: Morgan's Home Equipment Corp. v. Martucci, 390 Pa. 618, 136 A.2d 838 (1957)." McClements v. McClements, 411 Pa. 257, 262, 191 A.2d 814, 816 (1963). "It is the final decision of the chancellor which is to be considered. . . . [T]he last statement made is to be treated as his deliberate conclusion." Piacentino v. Young, 272 Pa. 556, 560, 116 A. 407, 408 (1922). Based on our previous decisions, if the findings of fact of the court en banc are supported by competent evidence, these findings are entitled to the same weight as a jury verdict, and must be sustained unless the court en banc abused its discretion or committed an error of law. In re Adoption of J.A.B., 487 Pa. 79, 408 A.2d 1363 (1979); In re William L., 477 Pa. 322, 383 A.2d 1228 (1978), cert. denied 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192. However, the court's inferences and deductions are subject to review. In re Adoption of J.A.B., supra.

The record in the instant case reveals the parents of M.K. and R.K. were married February 14, 1966 and divorced April 27, 1973. The parents separated some time prior to the divorce, and the mother, M.A.K., has not remarried. On July 21, 1970, M.A.K. requested the Agency to provide shelter for three of her children, including M.K. and R.K., because she was being evicted from her living quarters and could not care for them. Later, the Agency petitioned the court to have the children adjudged dependent and committed to the custody of the Agency because of M.A.K.'s instability, her failure to make a suitable plan for the children, and the possible danger to the children arising from the natural father's presence in the home. In December 1970, M.K. and R.K. were placed in separate foster homes. On April 21, 1971, the court adjudged the children dependent and committed them to the custody of the Agency.

From late 1974 through 1975, M.A.K. followed a regular visitation schedule with M.K. and R.K. in cooperation with the Agency pursuant ...


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