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MATTER ADOPTION J. S. H. APPEAL T. V. H. (04/30/82)

filed: April 30, 1982.

IN THE MATTER OF THE ADOPTION OF J. S. H. APPEAL OF: T. V. H.


No. 713 Pittsburgh, 1981, Appeal from the Order of the Court of Common Pleas, Orphans' Court Division, of Erie County at No. 111 In Adoption, 1980.

COUNSEL

Melvin Toran, Erie, for appellant.

William Dopierala, Erie, for participating party.

Beck, Johnson and Popovich, JJ. Beck, J., files concurring opinion. Johnson, J., files dissenting opinion.

Author: Popovich

[ 299 Pa. Super. Page 92]

This appeal is from the final decree of the Court of Common Pleas of Erie County, Orphans' Court Division, involuntarily terminating the parental rights of appellant, T. V. H., in her natural son, J. S. H.

On June 26, 1980, a petition was filed in the Court of Common Pleas of Erie County, Orphans' Court Division, by the Children's Services of Erie County (Children's Services), appellee herein, seeking the involuntary termination of the parental rights of appellant with respect to her son, J. S. H. On October 6, 1980, a hearing was held and the Orphans' Court entered a decree involuntarily terminating appellant's parental rights under § 311(1) and § 311(2) of the Adoption Act. 1 P.S. § 311 (Supp.1976) (current version at 23 Pa.C.S.A. § 2511(a)(1)-(2) (Pocket Part 1981-82)). After exceptions were filed and orally argued, the Orphans' Court ordered that appellant be given another opportunity by Children's Services to visit with her son to determine whether she properly could care for the child. On May 18, 1981, Children's Services filed a motion to terminate visitation. A second hearing was held, and, on June 10, 1981, the Orphans' Court entered a final decree dismissing appellant's exceptions and reinstating the decree of October 6, 1980, thereby terminating appellant's parental rights. This direct appeal followed.

On appeal, appellant first contends that the evidence was insufficient to establish either that she failed or refused to perform her parental duties for a period of at least six months or that conditions and causes of her incapacity, neglect or refusal cannot or will not be remedied. Second, appellant argues that the actions of Children's Services thwarted her efforts to perform parental duties.

For the following reasons, we affirm the lower court's decree.

To begin with, our standard of review in cases of involuntary termination of parental rights is limited to determining whether the lower court's findings are supported

[ 299 Pa. Super. Page 93]

    by competent evidence. In re L.A.G., 490 Pa. 85, 415 A.2d 44 (1980). In making this determination, we are obliged to "[accept] as true all the evidence supporting the findings and all reasonable inferences therefrom." In re D.K.W., 490 Pa. 134, 138, 415 A.2d 69, 71 (1980) (quoting In re William L., 477 Pa. 322, 340, 383 A.2d 1228, 1237, cert. denied, 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978)). Absent an abuse of discretion, findings of the Orphans' Court must be sustained even though the record could support an opposite result. In re D.K.W., supra; In re William L., supra. In applying this standard to the instant case, the record discloses the following facts:

J. S. H. was born on August 19, 1978. When he was six weeks old, J. S. H. was adjudicated a dependent child under the Juvenile Act because of his failure to thrive and appellant's failure to provide adequate medical care.*fn1 42 Pa.C.S.A. § 6302 (1981 Pamphlet). The child was placed in the care and custody of Children's Services and, at the age of seven weeks, was placed in the home of a foster mother with whom he currently resides.

The child has been diagnosed as having neurological disability, developmental delays, and physical problems. It also has been established that the child is not within normal intelligence limits and has a limited intellectual range and capacity.

Following a dispositional hearing on November 22, 1978, the Orphans' Court ordered that the child remain under the care and supervision of Children's Services for an indefinite period. Appellant was ordered to cooperate with mental health counseling and to participate in a child care program designed for mentally handicapped children and their parents.

[ 299 Pa. Super. Page 94]

Appellant attended mental health counseling for a short period of time, failed to recognize any problems and subsequently ceased attending. Appellant did not participate in the court-ordered child care program. Although appellant maintained that the primary reason she did not attend child care classes was because she did not drive and could not obtain a ride, she also stated that at that time, she did not feel that she needed parental training. (N.T. 10/6/80, pp. 38, 43).

In March and October 1979, the court established conditions for the reunification of appellant and her son. Both court orders required appellant to attend various types of counseling and also provided for visitation. Appellant never attended the required parental training program. Moreover, although appellant was afforded liberal visiting privileges, she declined to take full advantage of them. During the visits that took place in appellant's home, appellant often would not pay attention to the child. Overall, appellant's contact with her son was limited because "[appellant] would be off doing other things, getting papers together or playing with the dogs or paying attention to her boyfriend . . . ." (N.T. 10/6/80, p. 11).

From January 18, 1980, through April 7, 1980, appellant failed to contact Children's Services or visit with her son. On April 7, 1980, appellant's request for visitation was denied by Children's Services because of her failure to follow through with counseling or contact the agency.*fn2 Children's Services then filed a petition to terminate parental rights, and, following a hearing on October 6, 1980, the Orphans' Court granted the requested relief. After exceptions were filed and argued, the court ordered that appellant be given

[ 299 Pa. Super. Page 95]

    another opportunity to visit with her son in order to determine whether she properly could care for the child.

Visitations held pursuant to this order took place in the child's foster home. During the first three visits, appellant had no interaction with her son and spent a majority of the allotted time playing with one of the other foster children. Appellant's infrequent attempts to interact with her son during subsequent visits were unsuccessful. The child responded to his mother with displays of erratic physical and emotional behavior. Specifically, the child would hide from and avoid appellant, and scream, kick, cry and pull out his hair when his mother attempted interaction. Appellant consistently failed to react to her son's outbursts and often began to play with one of the other foster children. Despite the unsuccessful and unsettling nature of the visits, appellant informed the caseworker that all the visits were going well, that she and her son had a very good rapport, and that there were no problems.

In May, 1981, Children's Services refused to allow appellant to visit with her son and filed a petition to terminate visitation. This action was prompted by complaints by the foster mother that the visits caused the child severe emotional and physical distress, including voiding and withdrawal symptoms, hyperventilating, bed-wetting, and sleeping difficulties. Following a hearing on appellee's motion to terminate visitation, the Orphans' Court dismissed appellant's exceptions and entered a final decree reinstating its October 6, 1980 order terminating appellant's parental rights.

Currently, appellant is unemployed, does not own or operate an automobile, and lives with her parents at Canadohta Lake, Union City. Appellant testified that she presently is attending parental classes but does not know how they are helping her other than that the classes "[teach her] more of how to . . . try to reason with [a] child." (N.T. 6/3/81, p. 72).

Appellant now contends that the evidence was insufficient to support the Orphans' Court finding that she failed or

[ 299 Pa. Super. Page 96]

    refused to perform her parental duties for a period of at least six months. We disagree.

Section 311(1) of the Adoption Act provides that parental rights may be terminated, following a hearing, when "[t]he parent by conduct continuing for a period of at least six months . . . has refused or failed to perform parental duties." 1 P.S. § 311(1) (Supp.1976) (current version at 23 Pa.C.S.A. § 2511(a)(1) (Pocket Part 1981-82)).

In determining whether a parent has refused or failed to discharge parental duties we must remember that:

"Parental rights may not be preserved by complete indifference to the daily needs of a child or by merely waiting for some more suitable financial circumstance or convenient time for the performance of parental duties and responsibilities (while others adequately provide the child with her immediate and continuing physical and emotional needs). The parental obligation is a positive duty and requires affirmative performance which may not be delayed beyond the statutory period by the parent if the parental right is not to be forfeited."

In re Adoption of Orwick, 464 Pa. 549, 554, 347 A.2d 677, 680 (1975) (quoting In re Smith's Adoption, 412 Pa. 501, 505, 194 A.2d 919, 922 (1963)).

Moreover,

"Parenthood is not . . . a mere biological status, or passive state of mind which claims and declines to relinquish ownership of the child. It is an active occupation, calling for constant affirmative demonstration of parental love, protection and concern . . . [A parent] must exert himself to take and maintain a place of importance in the child's life . . . ." Appeal of Diane B., 456 Pa. 429, 433, 321 A.2d 618, 620 (1974).

In re L.A.G., 490 Pa. 85, 90, 415 A.2d 44, 47 (1980) (emphasis added).

Instantly, our review of the record reveals sufficient evidence to support the Orphans' Court's conclusion that appellant failed to perform parental duties for a period well

[ 299 Pa. Super. Page 97]

    in excess of the six month statutory minimum. Appellant's last visit with her son, prior to the filing of the petition to involuntarily terminate her parental rights, was on January 18, 1980. Children's Services' petition was filed on June 26, 1980, a period of six months and eighteen days after appellant's last visit. We have no doubt that appellant's conduct during the six month statutory period and throughout the two and one half years that her son has been in foster care, demonstrates a failure to perform parental duties within the terms of § 311(1).

At the age of six weeks, appellant's son was adjudicated dependent and placed in the custody of Children's Services. The child was diagnosed as having neurological disability, developmental delays, and some physical problems. Despite an awareness of her son's developmental lag, need for stimulation to promote learning, and physical problems, appellant, prior to the filing of the petition to terminate parental rights, made no attempt to undergo the counseling ordered by the Orphans' Court. Since 1978, appellant has complied only superficially with Children's Services' guidelines and conditions for reunification. Moreover, appellant has not attempted to familiarize herself with the therapy necessary for the child's developmental progress, thereby leaving the onus of this responsibility entirely to J. S. H.'s foster mother. From the time her son was adjudicated dependent, appellant, in effect, has demonstrated repeatedly a failure or refusal to recognize her son's problems and an inability to attend to his special needs. Throughout this time, appellant's only effort to discharge her parental duties has been to visit with her son periodically. See In re William L., 477 Pa. 322, 333, 383 A.2d 1228, 1233, cert. denied, 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978) (parent has affirmative duty to work towards return of child placed in foster home).

When, as in the instant case, the evidence establishes that the parent has failed to perform her affirmative parental duties for a period in excess of six months, we must "examine the individual circumstances and any explanation offered by the parent to determine if that evidence, in light

[ 299 Pa. Super. Page 98]

    of the totality of the circumstances, clearly warrants permitting the involuntary termination." In re Adoption of Orwick, 464 ...


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