No. 1056 Philadelphia, 1982, Appeal from the Order of the Court of Common Pleas, Orphans' Court Division, Luzerne County, Nos. A-3448, A-3449 and A-3450 of 1981.
Joseph A. Lakowski, Pittston, for appellant.
Richard Balnave, Wilkes-Barre, for participating party.
Cercone, President Judge, and McEwen and Montemuro, JJ.
[ 318 Pa. Super. Page 457]
On December 23, 1981, the Court of Common Pleas of Luzerne County, per the Honorable Charles D. Lemmond, Jr., issued a decree terminating the parental rights of M.W. and B.S.B. as to their children A.M.B., D.A.B. and B.S.B., Jr.*fn1 Exceptions to the decree were filed by the mother, M.W. On March 17, 1982, after consideration of the briefs
[ 318 Pa. Super. Page 458]
of the parties, and oral argument, the court, per the Honorable Chester Muroski, dismissed the exceptions. Judge Muroski "specifically agree[d] with the Findings of Fact and Conclusions of Law" as set forth in the opinion of Judge Lemmond. M.W. Appeals from the order dismissing her exceptions.
The opinion by Judge Lemmond states that ". . . it is clear that the mother and father have failed to perform parental duties owed to their children for a period in excess of six months." (Lower Court Op. at p. 8). Thus he found involuntary termination proper based upon 1 P.S. § 311(1).
At the time of the adjudication it was necessary only to prove "by a preponderance of the evidence" that the parents refused or failed to perform his or her parental duties. IN RE Adoption of P., 475 Pa. 197, 380 A.2d 311 (1977); In re Adoption of McAhren, 460 Pa. 63, 331 A.2d 419 (1975).
One week after the trial court's order dismissing the exceptions, the United States Supreme Court announced its decision in Santosky, et al v. Kramer, Commissioner, Ulster County Department of Social Services, 455 U.S. 745, 102 S.Ct., 1388, 71 L.Ed.2d 599 (1982), in which the Court held that the burden of proof required in involuntary termination of parental rights cases was "clear and convincing evidence." Id. at 768, 102 S.Ct. at 1402, 71 L.Ed.2d at 616.
Recently, an en banc panel of this court in In re Adoption of M.E.T., 313 Pa. Super. 316, 318, 459 A.2d 1247, 1248 (1983) held:
[T]he higher burden of proof required by Santosky must be applied to all cases which had not been finally decided on appeal at the time the Santosky opinion was filed, and that cases pending on appeal at the time Santosky was filed ...