NO. 461 PITTSBURGH, 1981, Appeal from the Order of the Court of Common Pleas of Lawrence County, Orphans' Court Division, at No. 14 of 1979, O.C.
Joseph J. Kearney, New Castle, submitted a brief on behalf of appellant.
Gabriel P. Cilli, New Castle, for Catholic Social, participating party.
Dominick Motto, New Castle, for Infant Male, participating party.
Hester, Beck and Van der Voort, JJ.
[ 316 Pa. Super. Page 517]
Appellant, the natural mother of a child born July 11, 1978 appeals from an order terminating her parental rights upon a finding that she failed or refused to perform parental duties for a continuing period of at least six months, pursuant to section 311(1) of the Adoption Act of 1970. 1 P.S. § 311(1).*fn1
This appeal was pending before us when the United States Supreme Court announced its decision 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), holding that the due process clause of the Fourteenth Amendment to the United States Constitution mandates that the standard of proof in cases of termination of parental rights be clear and convincing evidence. Recently an en banc panel of this Court carefully considered the application of Santosky to Pennsylvania law. We held that
[ 316 Pa. Super. Page 518]
Santosky must be applied to every case pending on appeal in which parental rights were terminated. Cases in which a party's parental rights were terminated based on the preponderance of the evidence standard, formerly sufficient under Pennsylvania law, and which would be upheld under that standard, now require remand to the lower court for application of the clear and convincing standard. In re: Adoption of M.E.T., 313 Pa. Super. 316, 459 A.2d 1247 (1983).
The procedure to be followed by the lower court upon remand is clear:
We do not, however, feel that the lower court must, in all cases, hold new evidentiary hearings. Rather, we adopt the procedure advocated by The Appeals Court of Massachusetts in Custody of A Minor (No. 1), 13 Mass.App. 1088, 436 N.E.2d 172, app. den., [ ] Mass. [ ], 438 N.E.2d 75 (1982) and Custody of A Minor (No. 3), 14 Mass.App. 1013, 441 N.E.2d 768 (1982). Thus, we hold that cases shall be remanded with a direction to the trial court that it 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 ...