No. 602 Philadelphia, 1982, Appeal from Order of the Court of Common Please, Orphans Division, of Northampton County at No. 1981-416.
Justin K. McCarthy, Bethlehem, for appellant.
William W. Matz, Jr., Bethlehem, for participating party.
Cercone, President Judge, and Cavanaugh and Wieand, JJ.
[ 318 Pa. Super. Page 414]
This appeal was taken from an order involuntarily terminating the parental rights of appellant Geraldine Mae Santelia to her son. Our scope of review in such cases is limited, In re Adoption of J.S.M., Jr., 492 Pa. 313, 424 A.2d 878 (1981), but our examination of the record in the instant case convinces us that the petitioners failed to establish the existence of grounds for terminating appellant's parental rights and that the lower court abused its discretion in holding to the contrary.*fn1 The order of the lower court is, therefore, reversed.
The subject of the instant proceedings, Anthony Dino Pellegrino (Dino), was born June 22, 1967. The proceedings
[ 318 Pa. Super. Page 415]
were initiated by Dino's paternal grandparents, appellees herein, who wish to adopt Dino. Dino's mother, appellant herein, was divorced from Dino's father when Dino was a small child. Appellant initially had custody of Dino following the separation but at some point Dino's father regained custody and retained it until his death in June, 1975.*fn2
Appellant attempted to regain custody of Dino at the time of his father's death but Dino expressed a desire to live instead with appellees, with whom he had spent much time while in his father's custody. Appellant acquiesced in this arrangement because she felt that it was in the child's best interests not to fight over custody until the trauma of his father's death subsided. Dino has remained with appellees ever since.
Appellees live in Northampton County, about a two hour drive from appellant's home in Philadelphia. Appellant admitted that she did not visit Dino at all during the first year or two after his father's death, although she did apparently maintain contact through phone calls and sent cards and gifts at various times. She did begin to visit Dino at some point between 1976 and 1978. There is absolutely no support in the record for the court's finding of fact that over the entire period of approximately six years from Dino's father's death in 1975 until the hearing on the instant petition in 1981, appellant visited Dino a total of four times; three of those visits occurring in 1978 and one in 1979. (Finding of fact # 9, lower court opinion at 3). On the contrary, even the petitioners-appellees testified that appellant had visited seven or eight times since they had obtained custody of Dino and that three or four of the visits had occurred in 1980 or 1981. It was clearly established that appellant was present at Dino's birthday party in June, 1980 and that she stayed at appellee's home for a weekend in September, 1980. Dino testified that appellant had visited three times in 1980 and two or three times in 1981.
[ 318 Pa. Super. Page 416]
Appellant testified that she had visited Dino eight times in 1980 alone. This testimony was corroborated by another witness. Appellee Viola Pellegrino (Dino's grandmother) admitted that appellant had been calling Dino several times a month for several years and that ...