No. 700 Pittsburgh, 1981, Appeal from the Order entered June 8, 1981, Court of Common Pleas, Orphans' Court Division, Erie County at No. 192, In Adoption 1980.
Melvin Toran, Erie, for appellant.
William Dopierala, Erie, for participating party.
Beck, Johnson and Popovich, JJ. Beck, J., concurs in the result. Popovich, J., files a dissenting opinion.
[ 307 Pa. Super. Page 39]
This is an appeal from the Order entered June 8, 1981, involuntarily terminating the parental rights of S.L.P.C. to her children, L.M.C. and M.B.C.C. For the following reasons, we reverse.
The record indicates that L.M.C., born August 9, 1974 and M.B.C.C., born September 10, 1977, were adjudicated dependent on March 20, 1979 and placed in the same foster home. A petition for termination of Appellant's parental rights to these children was filed by Children's Services of Erie County (CSEC) on October 8, 1980. The alleged basis for termination was 1 P.S. § 311(1), (2) and (3) which state:
(1) 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; or
(2) The repeated and continued incapacity, abuse, neglect, or refusal of the parent has caused the child to be without essential parental care, control, or subsistence necessary for his physical or mental well-being and the conditions and cause of the incapacity, abuse, neglect, or refusal cannot or will not be remedied by the parent; or
(3) The parent is the presumptive but not the natural father of the child. Act of July 24, 1970, P.L. 620, No. 208, Art. III, § 311, 1 P.S. § 311.
The lower court, by Order dated April 2, 1981, terminated Appellant's parental rights relying on subsection (1), stating that Appellant, "by conduct which continued for a period in excess of six (6) months has evidenced a settled purpose of relinquishing parental claim to the children or has refused and failed to perform parental duties[.]"*fn1
[ 307 Pa. Super. Page 40]
After denial of exceptions, the lower court entered a final order terminating Appellant's rights on June 8, 1981, along with a three page opinion.
Appellant alleges that neither of the provisions found in § 311(1) were supported by substantial evidence and that, in any event, no continuous six-month period is evident from the facts.
We are mindful of the recent U.S. Supreme Court opinion in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) holding that termination of parental rights requires, at a minimum, clear and convincing evidence. However, because of our determination in the instant case, we need not discuss the applicability of the holding in Santosky at this time.
The record indicates that no six-month period exists in this case.*fn2 Apparently, the six-month period used as the grounds for termination commenced after Appellant's visit with the children on January 15, 1980. CSEC was on strike in January and February, although supervisory personnel were receiving telephone calls. Appellant next contacted CSEC on March 17, giving the Agency her new address. On March 18, Appellant cancelled an appointment with her caseworker and on April 21, she again called CSEC to inform them of yet another new address. Appellant cancelled an appointment set for May 6, stating that she was ill.
[ 307 Pa. Super. Page 41]
On May 9, 1980, Appellant's caseworker transferred the case to a second caseworker, who did not receive Appellant's case until June 9, 1980. In the meantime, a court order was entered on June 2, 1980, ordering Appellant to cooperate with the treatment plan outlined by the court by the orders of April 4, 1979, which required Appellant to obtain adequate housing, cooperate with the BVR and WIN*fn3 programs, cooperate with a psychological evaluation, and cooperate with caseworker counseling.*fn4 The June 2, 1980 order further ordered that if within sixty days Appellant had not shown an effort to stabilize her life and work toward the return of her children, the agency was to file a termination petition.
After the scheduling and cancellation of visits, Appellant visited with L.M.C.*fn5 on July 7, 1980. Appellant visited with both children on August 7, 1980.*fn6
It is clear from these facts that as to L.M.C., no six-month period elapsed, as visits took place on January 15 and July 7, 1980. Although six months did elapse in regard to M.B.C.C., during three of the six months, CSEC was either on strike or did not have a caseworker assigned to Appellant. Also, absent any evidence as to why M.B.C.C. was not taken to the agency for the July 7, 1980 visit, we are unprepared to conclude that Appellant did not, in fact, desire or request visitation with M.B.C.C. at that time. We therefore find that, under these specific circumstances, no continuous six-month period elapsed as required by § 311(1), in regard to M.B.C.C.
[ 307 Pa. Super. Page 42]
The lower court found that Appellant had evidenced a settled purpose of relinquishing parental claim to the children or refused and failed to perform parental duties.*fn7 ...