No. 1213 Philadelphia 1982, No. 1212 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas, Civil Division of Northampton County, at Nos. 1980-C-8470 and 1980 - 864.
Frank S. Poswistilo, Easton, for appellant.
Thomas L. Walters, Easton, for appellee.
Spaeth, Wickersham and Lipez, JJ.
[ 315 Pa. Super. Page 226]
These consolidated appeals*fn1 arise out of a dispute between Yolanda Braun and Robert Wilson concerning Mr. Wilson's parental rights in Ryan Wilson, a child born to the couple when they were married. First, Robert Wilson brought a habeas corpus action against Yolanda Braun seeking visitation and partial custody of the child. Shortly after Mr. Wilson brought the habeas corpus action, Ms. Braun filed a petition under the Adoption Act*fn2 seeking an involuntary termination of Mr. Wilson's parental rights in the child. During termination proceedings Robert Wilson was allowed supervised visitation with the child.
Testimony was taken and on July 17, 1981, the hearing court issued an opinion and decree nisi terminating Robert Wilson's parental rights in his son. Mr. Wilson filed exceptions to the decree and asked for a rehearing. After another hearing the hearing court filed a second opinion and decree nisi; the second opinion modified a finding of fact but confirmed the termination of parental rights. Exceptions were taken again; the exceptions were denied by the court en banc and this appeal timely followed.
Robert Wilson and Yolanda Braun were married in 1965. Two children were born to the couple; Robert Wilson,*fn3 and Ryan Wilson, who was born on October 31, 1974. Husband
[ 315 Pa. Super. Page 227]
and wife separated on December 13, 1975, a little over a year after Ryan's birth. Robert Wilson and Yolanda Braun were divorced in June 1976 and both parties have since remarried.
Because the allegation that Robert Wilson neglected or refused to perform parental duties concerns events which took place after the couple's separation, the history of the family after 1975 will be recounted in some detail. As the lower court found, in 1975 Mr. Wilson left Christmas presents for both children on the porch of the home where the children lived. The father's lawyer advised him to stay out of the home to avoid antagonizing his wife.
Robert Wilson next saw Ryan at Easter 1976, while the boy was visiting with his paternal grandparents. The hearing judge describes the visit: "Inevitably, an argument between the parties developed in which the mother allegedly threatened that she would not permit visitation with the grandparents if the father was around." Slip op. at 3. The hearing judge also noted: "In June of 1976, the mother relinquished custody of the older child, Robby, to the father because of the child's expressed desire to reside with the father. It was out of fear of losing custody of young Ryan that the mother restricted visitation with the father." Slip op. at 3. When the father next visited Ryan, in October 1976, the mother agreed to allow visitation, but only in her presence. During this time Ryan was supported by his father.
In June of 1977 Robert Wilson consulted a lawyer to secure more regular visitation with Ryan and reported that the mother threatened to obtain custody of Robby, the older child, if Robert Wilson sought visitation with Ryan. The father decided not to litigate custody of the older child at that time, reasoning that Robby would soon be old enough to have a say in a custody dispute. ...