No. 1771 Philadelphia, 1982, Appeal from the Order of the Court of Common Pleas of Cumberland County, Orphans Division, at Nos. 85 and 86, Adoption 1981.
Wayne Fulton Shade, Carlisle, for appellant.
Ruth Duncan O'Brien, Carlisle, for appellees.
Ruby D. Weeks, Carlisle, for participating party.
Rowley, Wieand and Popovich, JJ.
[ 315 Pa. Super. Page 145]
Appellant is the natural mother of nine-year-old Scott and eight-year-old Tommy. This appeal is from an order terminating her parental rights to her sons.
The termination order was entered on May 7, 1982, almost two months after the United States Supreme Court decided Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388,
[ 315 Pa. Super. Page 14671]
L.Ed.2d 599 (1982). The evidentiary hearings, however, were held prior to that decision.
In Santosky, the Court held that the burden of proof required in involuntary termination of parental rights cases is "clear and convincing evidence". The trial court's opinion sets out in detail the extensive evidence which was presented at the hearings. However, no mention is made of the standard of proof which was used in evaluating that evidence. Therefore, it is impossible for us to determine if the correct standard, clear and convincing evidence, was applied in this case.
As an appellate court, we may not make our own initial determination of whether the evidence meets the clear and convincing standard. Such an evaluation is for the factfinder. In re: Adoption of M.E.T., 313 Pa. Super. 316, 459 A.2d 1247 (1983). As the Supreme Court stated in Santosky:
"Since the litigants and the factfinder must know at the outset of a given proceeding how the risk of error will be allocated, the standard of proof necessarily must be calibrated in advance. Retrospective case-by-case review cannot preserve fundamental fairness when a class of ...