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ADOPTION C.J.L. (06/24/83)

SUPERIOR COURT OF PENNSYLVANIA


filed: June 24, 1983.

IN RE ADOPTION OF C.J.L., III. APPEAL OF C.J.L., JR.

NO. 797 Philadelphia, 1982, Appeal from the Order of the Court of Common Pleas of Luzerne County, Orphans, No. A-3551.

COUNSEL

C.J.L., Jr., Pittsburgh, in propria persona.

Linden George Appel, Wilkes-Barre, for appellee.

Richard J. Marusak, Hazelton, for participating party.

Wieand, McEwen and Montgomery, JJ.

Author: Per Curiam

[ 316 Pa. Super. Page 563]

This is an appeal from an order which involuntarily terminated the parental rights of C.J.L., Jr. with regard to his son, C.J.L., III under 23 Pa.C.S.A. ยง 2511(a)(1). We remand to the Common Pleas Court.

An en banc panel of this court decided in In re: Adoption of M.E.T., 313 Pa. Super. 316, 459 A.2d 1247 (1983), that the higher burden of proof of clear and convincing evidence required in involuntary termination of parental rights cases by the United States Supreme Court in Santosky v. Kramer, Commissioner, Ulster County Department of Social Services, et al, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), is to be applied in all cases which had not been finally decided on appeal at the time the Santosky opinion was filed. In re: Adoption of M.E.T., supra, also held that

[ 316 Pa. Super. Page 564]

    when a trial court had terminated the rights of a parent based on a preponderance of the evidence, and an appeal therefrom was pending at the time Santosky was filed, the case must be remanded to the trial court for further proceedings so that the trial court may determine whether the evidence presented meets the clear and convincing standard.*fn1

In the instant case, the Common Pleas Court Judge did not have the benefit of the decision of the Santosky decision at the time that the decree of termination was entered,*fn2 and it is not clear from the record whether the Common Pleas Court Judge applied the "clear and convincing standard". Thus, we remand this case to the trial court so as to enable compliance with the directives of In re: Adoption of M.E.T., that the trial court should determine,

     after hearing arguments of counsel, whether new evidentiary hearings are required. If the court is convinced that counsel would have tried the case differently had it known that a clear and convincing evidence standard would be applied, or if the court concludes that the evidence should be expanded and/or brought up to date, then it should schedule new evidentiary hearings. If, on the other hand, the court is convinced that new evidentiary hearings are not required, the court need only reconsider its prior findings in light of the clear and convincing standard and modify those findings as necessary.

Id., 313 Pa. Superior at 323, 459 A.2d at 1251.

So ordered. Jurisdiction is relinquished.


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