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ADOPTION M.T.M. AND K.J.M. APPEAL M.M. (08/12/83)

SUPERIOR COURT OF PENNSYLVANIA


filed: August 12, 1983.

IN RE ADOPTION OF M.T.M. AND K.J.M. APPEAL OF M.M.

No. 2913 Philadelphia 1981, Appeal from the Order of the Court of Common Pleas of Delaware County, Civil Division, at No. 136 of 1981.

COUNSEL

Edgar R. Einhorn, Philadelphia, for appellant.

Donald E. Wydrzynski, Media, for appellees.

Cercone, President Judge, and McEwen and Hoffman, JJ.

Author: Hoffman

[ 318 Pa. Super. Page 13]

Appellant contends that the lower court erred in involuntarily terminating his parental rights. Because the lower court applied a preponderance of the evidence standard of proof, we reverse and remand for reconsideration under the higher burden of proof required by Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

Appellant and appellee, E.S., the parents of two children, separated in 1978, at which time appellee B.S. moved in with E.S. and her two children. During the next 8-9 months appellant visited the children at least once per month and voluntarily provided child support. In April, 1979, E.S. informed appellant that she did not want him to visit the children or provide for their support. She allegedly told appellant that if he visited, she would phone the police. For the next two years, during which the divorce was finalized and appellees married, appellant had no contact with his children. Appellees filed their petition to terminate appellant's parental rights in September, 1981. The lower court granted their petition on November 2, 1981, prompting this appeal.

When a party has petitioned for the termination of another's parental rights, the burden of proof must be no less than clear and convincing evidence.*fn1 Santosky v. Kramer, supra. Our court recently held that cases not

[ 318 Pa. Super. Page 14]

    finalized on appeal when Santosky was decided must be remanded for reconsideration*fn2 under the more exacting burden of proof. In re: Adoption of M.E.T., 313 Pa. Superior Ct. 316, 459 A.2d 1247 (1983).

Accordingly, because an erroneous standard was employed, we reverse and remand for an evaluation of the evidence under a clear and convincing standard.

Reversed and remanded. Jurisdiction not retained.


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