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filed: January 21, 1983.


No. 336 Pittsburgh, 1982, Appeal from the Order of the Court of Common Pleas, Orphans Court Division, of Erie County, No. 133 In Adoption 1981.


Terrence P. Cavanaugh, Erie, for appellant.

Jeffrey A. Connelly, Erie, for appellees.

William A. Dopierala, Erie, for Childrens, participating party.

Cavanaugh, Brosky and Montgomery, JJ.

Author: Montgomery

[ 309 Pa. Super. Page 552]

This is an appeal from a final order dated March 1, 1982, involuntarily terminating the parental rights of J.C. to her children K.S.C., age 15, and D.J.C., age 12.*fn1 For the reasons stated below, we vacate the order and remand the case to the lower court.

In December of 1977, J.C., who resided in Corry, Pennsylvania, voluntarily entrusted K.S.C. and D.J.C. to Children's Services for temporary placement in a foster home. At that time, J.C. was seriously handicapped from an automobile accident the previous year. On July 17, 1978, the children were adjudicated dependent and, at the same time, J.C. was ordered to cooperate with the services offered by the Bureau of Vocational Rehabilitation. J.C. did, in fact, obtain employment, through B.V.R., at the Gertrude Barber Center in Corry, where she remained until July of 1979. K.S.C. and D.J.C. were placed in their present foster home in Erie (30 miles away from their mother) in February of 1979.*fn2 Short visits took place at J.C.'s residences. In April 1980,

[ 309 Pa. Super. Page 553]

    three weekend visits were arranged at an apartment J.C. shared in Erie. The children were unruly after these visits and the visits were stopped.*fn3 On May 15, 1980, after a review hearing, it was ordered that visits take place only at J.C.'s or the children's request and J.C. was further ordered to provide her own transportation. In November 1980, two visits took place at the agency. Because of a variety of logistical problems,*fn4 there were no further visits until July 7, 1981, when J.C. went to the foster home. In April 1981, a further treatment plan had been proposed to J.C. which included: (1) setting up a stable household in one place;*fn5 (2) obtaining nutritional counseling;*fn6 (3) obtaining proper medical care for herself and the children; (4) obtaining mental health counseling; (5) improving her money management skills; (6) continuing her employment with Gertrude

[ 309 Pa. Super. Page 554]

Barber Center;*fn7 and (7) improving her parenting skills.*fn8 Sometime in June 1981, J.C. moved to a farm in the Corry area and the caseworker was unable to locate the farm. She did finally meet with J.C. in August 1981. After that meeting, the caseworker testified, the children said they did not want to visit J.C.*fn9 and the involuntary termination petition was filed. It is undisputed that J.C. did keep in touch with her children through letters and phone calls. The lower court terminated J.C.'s parental rights on several grounds, each of which we will address separately.

The first ground relied on by the lower court is that contained in 23 Pa.C.S.A. § 2511(a)(5), which provides:

"The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

We believe there is insufficient evidence to support termination on this basis.*fn10 In the first place, the evidence regarding

[ 309 Pa. Super. Page 555]

    the conditions which led to the placement of the children was both vague and meager. We are unable to tell from the record whether those conditions have changed or not since the only "condition" alleged by Children's Services is "neglect." In addition, this section of the statute requires the court to consider the services and assistance offered the parent by the agency in an effort to correct the conditions which led to placement. See, 23 Pa.C.S.A. § 2511, 1980 Source and Comment. Again, the record shows little or no assistance was provided to J.C. by Children's Services. Therefore, as to termination of J.C.'s parental rights under 23 Pa.C.S.A. § 2511(a)(5), we must reverse the order of the lower court, there being insufficient evidence to support it.

The second ground relied on by the lower court was that J.C. had, by conduct continuing for over six months, failed to perform her parental duties. 23 Pa.C.S.A. § 2511(a)(1). The mere fact that a parent does not have custody does not alone support termination of parental rights. See, e.g., In re Adoption of J.A.B., 487 Pa. 79, 408 A.2d 1363 (1979). A non-custodial parent must, however, affirmatively demonstrate her love, protection and support of her children and must make every reasonable effort to maintain communication and association with her children. In re Farabelli, 460 Pa. 423, 333 A.2d 846 (1975). In addition, the court must look at the individual circumstances of the parent to determine whether she has utilized those resources available to her to maintain a relationship with her children. In re Adoption of P., 475 Pa. 197, 380 A.2d 311 (1977). We are also mindful of the recent United States Supreme Court decision holding that parental rights may be involuntarily terminated only if the petitioner proves by clear and convincing evidence that grounds for termination

[ 309 Pa. Super. Page 556]

    exist. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).*fn11

In the instant case, it is true that more than six months elapsed between the November 1980 visits and the July 1981 visits. It is, however, undisputed that other contacts, with the Agency and the children, were maintained. J.C. frequently wrote to the children, despite the fact that she received no letters from them. She also attempted, albeit unsuccessfully, to arrange at least one other visit. On the other hand, J.C.'s attempts to comply with the conditions of the Agency and its treatment plans were, for the most part, ineffectual, although not necessarily insincere.

In reviewing previous termination cases, we see that, in those cases where termination was proper, there was far less contact between the parent and the child than is true in the instant case.*fn12 Conversely, in those cases where an order of termination was reversed (or where the lower court refused to order termination), there was greater success in meeting the goals required by the court or the agency.*fn13 These previous cases were, of course, decided under the less stringent preponderance of the evidence burden of proof,

[ 309 Pa. Super. Page 557]

    rather than the clear and convincing standard required by Santosky, supra.*fn14 Because the parties should have the benefit of this stricter standard of proof at the trial level, see Santosky, supra, 455 U.S. at 757, 102 S.Ct. at 1396, 71 L.Ed.2d at 609, and because the trial court is in a better position to assess the credibility of the witnesses, we must vacate the order of termination and remand this case to the lower court for reconsideration in light of Santosky, supra.

The final ground on which the lower court ordered termination in this case is that the repeated and continued incapacity and neglect of J.C. caused the children to be without essential parental care and the conditions and causes of this incapacity and neglect cannot be remedied. 23 Pa.C.S.A. § 2511(a)(2). We believe our previous analysis of Santosky, supra, applies as well to termination on this basis.*fn15

For these reasons, we reverse the order of termination under 23 Pa.C.S.A. § 2511(a)(5) and vacate the order of termination under 23 Pa.C.S.A. § 2511(a)(1) and (2) and remand for reconsideration in light of Santosky, supra. We relinquish jurisdiction.

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