No. 1071 Pittsburgh, 1981, Appeal from the Order dated September 18, 1981, Court of Common Pleas, Orphans' Court Division, Greene County, at No. 19, Orphans' Court, 1980.
J. William Hook, Waynesburg, for appellant.
R. Wallace Maxwell, Waynesburg, submitted a brief on behalf of Child. Youth Services, participating party.
John W. Hardisty, Washington, for Lavigne, participating party.
Robert D. Berryman, Harrisburg, for Zimmerman, participating party.
Hester, McEwen and Johnson, JJ. Hester, J., files a dissenting statement.
[ 307 Pa. Super. Page 442]
Appellant, J.Z., the natural father of D.M.L. and F.W.Z., appeals from the Order of the trial court terminating his parental rights to these children.
D.M.L. was born on February 5, 1975 to Appellant and I.L., who was married to her previous husband at that time. D.M.L. was adjudicated as deprived after a hearing on September 3, 1976 and placed in the custody of Children and Youth Services of Greene County (CYS). On February 24, 1978, F.W.Z. was born to I.L. and Appellant. F.W.Z. was adjudicated dependent after a hearing on September 28, 1979 and also placed in the custody of CYS.
On July 30, 1980 petitions for involuntary termination of Appellant's parental rights were filed by CYS. At this time, I.L., the natural mother, also signed a petition to voluntarily terminate her rights to the children. Following hearings on September 2 and 29, 1980, the trial court issued an opinion and order on January 23, 1981, terminating Appellant's rights to both children. After the filing and denial of exceptions, the trial court filed an opinion and issued a final order on September 18, 1981. This appeal followed.
Three issues were raised by Appellant, namely: (1) whether CYS has sustained its burden of proof to justify termination; (2) whether it was proper for the trial court to make reference in its opinion, and consider as evidence, Appellant's failure to comply with a goal plan, which is not a fact of record, and (3) whether CYS' conduct thwarted Appellant's attempt to perform his parental duties and caused Appellant's children to be without essential parental care, control or subsistence.
After the filing of the instant appeal, but prior to argument, the U.S. Supreme Court determined, in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), that the due process clause of the Fourteenth Amendment to the U.S. Constitution requires that the standard of proof in involuntary ...