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MATTER ADOPTION LARRY LEE BARNETT. APPEAL ALICE WAITE (04/28/82)

submitted: April 28, 1982.

IN THE MATTER OF THE ADOPTION OF LARRY LEE BARNETT. APPEAL OF ALICE WAITE


No. 978 Pittsburgh, 1981, Appeal from the Judgment of the Court of Common Pleas, Orphans Court Division, Erie County, at No. 130 In Adoption, 1980.

COUNSEL

William Dubose Taggart, Erie, for appellant.

James E. Beveridge, Erie, for participating party.

Cercone, President Judge, and Beck and Montemuro, JJ.

Author: Cercone

[ 304 Pa. Super. Page 516]

Appellant, Alice Waite, takes this appeal from the Judgment of the court below terminating appellant's parental rights to her son, Larry Lee Barnett, now four-years-old.*fn1 Appellant argues that appellee, Children's Services of Erie County, failed in the court below to meet its burden of proof. We agree and we reverse.

These are the facts adduced before the court. On November 18, 1977, appellant, then fourteen years old and in seventh grade, gave birth to a son, Larry, now the subject of this appeal. During the first year of Larry's life, appellant

[ 304 Pa. Super. Page 517]

    cared for the child while living at home with her own parents, Charles and Dorothy Waite. During this time, Children's Services was not involved in any way with the Waite family. Then, in November of 1978, the Commonwealth, acting in parens patriae, found Alice to be a truant from school; she was found delinquent and sent to Waynesburg Juvenile facility. The baby was left in the custody of Alice's parents, apparently by court order.

Five months later, on March 5, 1979, while Alice was 200 miles from Erie at Waynesburg, an incident involving Larry occurred at the Waite household. Sometime around midnight, Alice's parents found Larry cold and unconscious in the backyard of the Waite's home. The Waites took Larry to the hospital and the child later recovered. However, police and Children's Services were called to investigate, but their inquiries failed to definitely ascertain how the child came to be outside. Immediately upon the child's release from the hospital, Larry was detained in a Children's Services' foster home. Approximately two weeks later, the infant was adjudicated dependent. It was around this time that Alice was permitted, because of this incident, to leave Waynesburg and return home. Whereupon, on April 19, 1979, a further order was entered directing that Alice, not her parents, was to cooperate in a psychological evaluation and in counseling with Georgeann Setcavage, a Children's Services caseworker.

Thereafter, every month for the next nine months, Ms. Setcavage would go to the Waite's home and talk with Alice. Ms. Setcavage established three "goals" that Alice had to meet before Larry was returned to her. First, Alice had to find employment or get a high school equivalency degree. Second, Alice was to attend a parent training course. Third, Alice was to establish a residence apart from her parents.

Because Children's Services felt that Alice had not done enough to reach these goals, on July 22, 1980, a petition to involuntarily terminate appellant's parental rights to Larry was filed by the agency. At that time, Ms. Setcavage advised appellant that she could no longer visit with Larry,

[ 304 Pa. Super. Page 518]

    as she had done every week for the preceeding year, pending disposition of the above petition. For reasons not apparent in the record, hearings were not held on this matter until March 3, 1981 and July 28, 1981. In any event, on July 31, 1981, the court entered its order extinguishing Alice's parental rights based on the court's conclusion that the evidence "clearly demonstrates that she has evidenced a settled purpose of relinquishing her parental rights." The court placed great weight on the fact that during the year between the filing of the petition and the final hearing on this matter, Alice made no attempt to call Ms. Setcavage to inquire about Larry.

At the hearing below, Ms. Setcavage testified regarding the substance of her conferences with Alice. Regarding Alice's search for a job, Alice told Ms. Setcavage that she had applied for work at many restaurants and fast-food chains in Erie, but that nothing seemed to come through. The problem was that Alice, then sixteen, was considered too young by employers. Since Alice reported no luck here, Ms. Setcavage suggested that Alice attend classes at Opportunities Industrialization Center, commonly known as O.I.C. To Ms. Setcavage's knowledge, Alice never followed through on this suggestion. As for the parent training course, Alice enrolled in the course but only attended the first of an unspecified number of classes of the six-week program. With respect to establishing "independent living," Alice, with knowledge of Ms. Setcavage, at first moved into an apartment with her boyfriend. This man was not the infant's father. When that didn't work out, Alice tried moving in with her sister, an arrangement which was deemed overcrowded by her caseworker. Ms. Setcavage was asked at the hearing why she included "independent living" as one of ...


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