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MATTER ADOPTION GENE TUNEY MULLEN. APPEAL MARY ANN MULLEN WARD (03/31/83)

submitted: March 31, 1983.

IN THE MATTER OF THE ADOPTION OF GENE TUNEY MULLEN. APPEAL OF MARY ANN MULLEN WARD


No. 1061 Pittsburgh, 1982, Appeal from Order of the Court of Common Pleas, Orphans's Court Division, of Erie County at No. 81 In Adoption, 1981.

COUNSEL

Gary Eiben, Erie, for appellant.

Jeffrey A. Connelly, Erie, for appellee.

William A. Dopierala, Erie, for participating party.

Cavanaugh, Brosky and Montgomery, JJ.

Author: Cavanaugh

[ 321 Pa. Super. Page 498]

This is an appeal from the final decree of the Orphans' Court Division of the Court of Common Pleas of Erie County terminating the parental rights of appellant Mary Ann Mullen Ward to her natural son Gene Tuney Mullen.*fn1

[ 321 Pa. Super. Page 499]

Appellee is Children's Services of Erie County (hereinafter "Children's Services").

The lower court found that grounds for termination existed under three alternate provisions of the Adoption Act, specifically 23 Pa.C.S. ยง 2511(a)(1), (2) and (5). Appellant contends that the evidence is insufficient to establish grounds for involuntary termination under any one of these three statutory provisions.*fn2 We agree with appellant and reverse.

For the purpose of this appeal,*fn3 we may assume that the proper scope of review in cases of involuntary termination of parental rights is limited to determining whether the decree of the Orphans' Court is supported by competent evidence. In re L.A.G., 490 Pa. 85, 415 A.2d 44 (1980). "The adjudication of the Orphans' Court will not be disturbed if 'the record is free from legal error and . . . if the chancellor's findings are supported by competent and adequate evidence, and are not predicated upon capricious disbelief of competent and credible evidence.'" In re Burns, 474 Pa. 615, 624, 379 A.2d 535, 540 (1977) (citations omitted) (quoting Cohen Will, 445 Pa. 549, 550, 284 A.2d 754, 755 (1971)). In applying this standard to the instant case, the record discloses the following facts.

Gene was born to appellant on October 28, 1976. Problems first appeared in August of 1978 when, in connection with a special pre-school program, a routine physical examination of the child showed that he had "failed ...


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