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ADOPTION K.A.B. APPEAL MARION BUTCHER (04/27/83)

SUPERIOR COURT OF PENNSYLVANIA


submitted: April 27, 1983.

IN RE ADOPTION OF K.A.B. APPEAL OF MARION BUTCHER, NATURAL MOTHER OF K.A.B.

No. 920 Pittsburgh 1982, Appeal from the Order of the Court of Common Pleas of Beaver County, Orphans' Court Division, at No. 3054 of 1981.

COUNSEL

James P. O'Connell, Aliquippa, for appellant.

Steven Kocherzat, Ambridge, for appellee.

Robert J. Masters, Beaver Falls, for Children & Youth, participating party.

Robert A. Banks, Ambridge, for father, participating party.

Rowley, Popovich and Hoffman, JJ. Rowley, J. did not participate in the consideration of or decision in this case.

Author: Hoffman

[ 317 Pa. Super. Page 224]

Appellant challenges the burden of proof employed by the lower court in involuntarily terminating her parental rights. Because an improper burden of proof was used, we reverse and remand.

On October 16, 1981, two and one-half years after appellant's child was voluntarily placed in foster care, the Beaver County Child and Youth Services (CYS) petitioned for involuntary termination of appellant's parental rights. After a hearing on December 11 and 14, 1981, the Hon. James E. Rowley entered a decree Nisi in favor of CYS.*fn1 On July 14, 1982, the Hon. John N. Sawyer dismissed appellant's exceptions and finalized the termination decree. This appeal followed. Appellant alleges that the burden of proof employed at trial was unconstitutional. Santosky v. Kramer,

[ 317 Pa. Super. Page 225455]

U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), determined that the burden of proof necessary to satisfy due process concerns in involuntary termination of parental rights cases could be no less than "clear and convincing evidence." Id. at 769, 102 S.Ct. at 1402. Because Santosky was decided in March, 1982, Judge Rowley did not enjoy the benefit of that decision.*fn2 Therefore, in order to assure appellant of a factfinding procedure employing the constitutionally mandated burden of proof, her challenge to the involuntary termination of her parental rights must be heard.*fn3 See In re; Adoption of M.E.T., 313 Pa. Superior Ct. 316, 459 A.2d 1247 (1983).

Accordingly, we reverse and remand for proceedings consistent with this opinion.

Reversed and remanded.


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