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ADOPTION B. D. S. (07/02/81)

decided: July 2, 1981.

IN RE ADOPTION OF B. D. S., A MINOR. APPEAL OF K.S.L.


No. 42 January Term, 1979, Appeal from Decree of the Court of Common Pleas, Orphans' Court Division, of Wayne County, at No. 12 April Term, 1977

COUNSEL

Z. R. Bialkowski, Jr., Scranton, for appellant.

Walter S. Frankowski, Jr., Honesdale, for appellee.

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

Author: O'brien

[ 494 Pa. Page 173]

OPINION OF THE COURT

This is an appeal by the natural mother from a decree entered in the Court of Common Pleas of Wayne County, Orphans' Court Division, denying the involuntary termination of the natural father's parental rights in their minor child B.D.S. Appellant petitioned the Orphans' Court alleging that the father "failed, neglected and refused to perform parental duties toward said child since September [sic] 1973 [sic] and his conduct toward said child evidences a settled purpose of relinquishing parental claim to said child."*fn1 A hearing was held on the petition on January 4, 1978. On January 23, 1979, the Orphans' Court denied the petition on the grounds that appellant "failed by the fair preponderance of the credible testimony to establish conduct on the part of [appellee] sufficient to terminate his parental rights." Appellant now argues that the findings of the Orphans' Court are not supported by evidence in the record, the testimony of appellee was not believable and appellee's attempts to maintain contact with his child do not evidence a firm refusal to yield to obstacles imposed by appellant. We disagree and affirm the Orphans' Court decree.

The record reveals that at the time the child was born, April 1, 1973, appellant, the natural mother, lived with the paternal grandparents of B.D.S. Appellee, the natural father, was serving in the United States Marine Corps in Quantico, Virginia. The child's parents married April 29, 1973, and appellant continued to reside with her husband's parents until the end of May, 1973. During that time

[ 494 Pa. Page 174]

    appellee was able to come home every week or every other week.

In late May, 1973, during a week when appellee was unable to obtain leave, appellee's father asked appellant to leave their home. She had returned home at 4:00 a.m., in the company of another man (her present husband) after journeying to New York State "to drink." She was not permitted to take the child at that time because of the late hour. Appellee, notified of the incident, came home at his earliest opportunity on emergency leave. Shortly after appellee returned to the Marine base, appellant filed a petition for habeas corpus to regain custody of B.D.S. Prior to the hearing, however, appellant went to appellee's parents' home and removed the child from the premises. That evening appellant moved in with her present husband and his parents. Again, notified of what had occurred, appellee returned home on leave.

The record discloses that at the hearing on the petition appellant's testimony was fraught with inconsistencies. She claimed on direct examination that neither appellee nor his family contacted her about B.D.S. after August, 1973. However, on cross-examination, she admitted, inter alia, that appellee visited her on or near Thanksgiving, 1973, requesting to see B.D.S. and further admitted that an Easter basket for B.D.S. was left on the porch of their trailer the day after Easter, 1974. She testified the basket contained a note signed by appellee which was actually, she claimed, from appellee's mother (she recognized the handwriting). Appellant admitted throwing the Easter basket in the trash. Not only is this testimony contrary to her prior testimony that appellee and his family sent no gifts, it is also directly contrary to her testimony on rebuttal that she did not bother to read the note.

Appellant's present husband, R.M.L., also testified that appellee and his family never telephoned, visited or sent cards or gifts. He too, however, admitted to finding the Easter basket from appellee and throwing it in the ...


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