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APPEAL G. J. A. (09/03/82)

filed: September 3, 1982.

APPEAL OF G. J. A.


No. 542 Philadelphia, 1981, Appeal from the Court of Common Pleas, Orphans Court, of Chester County at 2 Adoption Docket, page 319, 4057 O C Div

COUNSEL

Richard E. Moose, West Chester, for appellant.

John H. Wollman, West Chester, for participating party.

Hester, Cavanaugh and DiSalle, JJ. DiSalle, J., did not participate in the consideration or decision of this case.

Author: Cavanaugh

[ 304 Pa. Super. Page 22]

This appeal is taken from an order terminating the parental rights of appellant G. J. A. with respect to his son Eric A. For the reasons discussed below, we vacate the order and remand the case to the lower court for reconsideration in light of a recent decision by The United States Supreme Court.

The petition requesting that appellant's rights be terminated was filed by Eric's mother and step-father, appellees

[ 304 Pa. Super. Page 23]

    herein. The lower court terminated appellant's parental rights after finding that appellant had, for a period of at least six months, failed to perform parental duties under section 311(1) of the Adoption Act, 1 P.S. ยง 311(1).*fn1 Under that section, parental rights may be terminated if:

The parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claim to a child, or has refused or failed to perform parental duties . . . .

The evidence presented to the lower court establishes that Eric was born May 24, 1969. His parents were divorced in January 1972, and Eric has resided continuously with his mother since that time. For the first few years following the divorce, appellant apparently visited Eric on a fairly regular basis. In the summer of 1975, Eric moved to Chester County, Pennsylvania, with his mother and her second husband. Appellant continued to reside in Tennessee, where the parties lived before their divorce. Since Eric moved to Pennsylvania, he has seen his father only three times; once in 1975, once in the fall of 1976, and once in August, 1977, when Eric traveled to Tennessee and stayed with appellant and his new family for one week. That visit was apparently unsuccessful and Eric has refused since then to return to Tennessee to visit appellant despite the fact that appellant has on more than one occasion provided a round-trip airplane ticket for such a visit. Since August of 1977, appellant's only contact with his son has been through cards and phone calls at Christmas and on Eric's birthday. Appellant made support payments for several years but, due to a severe financial setback, he has not made a payment since the middle of October, 1979. The instant petition was filed April 30, 1980, six months after appellant stopped making payments.

[ 304 Pa. Super. Page 24]

With regard to the parental duties under section 311(1), the Pennsylvania Supreme Court stated in In re Adoption of Page 24} F. D. S. and G. M. S., 490 ...


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