No. 415 Pittsburgh, 1981, Appeal from Order of the Court of Common Pleas, Orphans Division, of Fayette County at No. 86 of 1980 G.D.
Donald Gary Keyser, Uniontown, for appellant.
Lawrence D. McDaniel, Uniontown, for appellee.
Cercone, P.j., and Spaeth, Cavanaugh, Wickersham, Brosky, Beck and Johnson, JJ.
[ 313 Pa. Super. Page 317]
The issues raised in this appeal relate to the application of the United States Supreme Court's recent holding in Santosky v. Kramer, Commissioner, Ulster County Dept. of Social Services, et al., 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), to Pennsylvania cases. The effect of the Santosky decision was to raise the burden of proof
[ 313 Pa. Super. Page 318]
required in involuntary termination of parental rights cases from a "preponderance of the evidence" to "clear and convincing evidence." We now hold that the higher burden of proof required by Santosky must be applied to all cases which had not been finally decided on appeal at the time the Santosky opinion was filed, and that cases pending on appeal at the time Santosky was filed must be remanded to the trial court for further proceedings.
[ 313 Pa. Super. Page 319]
This appeal was taken from an order involuntarily terminating the parental rights of M.E.T.G. with regard to her daughter M.E.T. under section 311(1) of the Adoption Act of 1970. 1 P.S. § 311(1).*fn1 The case arose pursuant to a petition for adoption of M.E.T. filed by her foster parents, G.M. and P.M., appellees herein. The child's natural father consented to the adoption and he is not a party to this appeal. Appellant mother, however, opposed the termination of her parental rights. We need not discuss in detail the factual background of the case. Suffice it to state that the lower court found that the appellees had established, by a preponderance of the evidence, that the requirements of section 311(1) had been met in that appellant "by conduct continuing for a period of at least six months . . . [had] refused or failed to perform parental duties."*fn2 The court therefore entered an order on March 6, 1981, involuntarily terminating appellant's parental rights and granting the appellees' adoption petition. Appellant filed an appeal to this court. We filed an order and opinion on June 25, 1982, affirming the termination order of the lower court. In re: Page 319} Adoption of M.E.T., (slip opinion, Pa. Super.Ct., filed June 25, 1982).
Subsequent to the entry of the lower court's order but prior to the disposition of the appeal by this court, the United States Supreme Court struck down a New York law permitting the state to terminate the rights of parents in their natural child upon showing by a "fair preponderance of the evidence" that the child was "permanently neglected." Santosky v. Kramer, supra. The Supreme Court held that "the Due Process Clause of the Fourteenth Amendment requires that the State support its allegations by at least clear and convincing evidence." 455 U.S. at 747-48, 102 S.Ct. at 1391, 71 L.Ed.2d at 603 (emphasis added). In our prior opinion affirming the termination order in the instant case, we "assumed without deciding" that Santosky applied where the matter was tried before the Santosky opinion was filed, but where appellate review was not completed until after the Supreme Court had rendered the decision. We concluded, however, that even under the new stringent federal constitutional standard, appellees had met their burden of proof and that the termination order was therefore proper. Appellant subsequently filed an application for reargument. We granted the application and directed that the case be reargued before this court sitting en banc.
The first issue which must be addressed is whether the clear and convincing evidence standard need be applied to cases in which an order of termination had been entered by a lower court prior to the issuance of the Supreme Court's decision in Santosky but which had not yet been finally decided on appeal, or whether the new standard need only be applied to cases begun subsequent to the March 24, 1982 Santosky decision. We have little difficulty concluding that the clear and convincing ...