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T.R. (09/28/83)

decided: September 28, 1983.

IN RE T.R., A MINOR. APPEAL OF P.A.R.


NO. 27 WESTERN DISTRICT APPEAL DOCKET, 1983, APPEAL FROM THE DECREE OF JANUARY 29, 1980 OF THE ORPHANS' COURT DIVISION IN THE COURT OF COMMON PLEAS OF BLAIR COUNTY, PENNSYLVANIA, AT NO. 571 O.C. 1978.

COUNSEL

Kenneth A. Magar, Altoona, for appellant.

Jolene Grubb-Kopriua, Hollidaysburg, for appellee.

Roberts, C.j., and Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Nix, J., did not participate in the consideration or decision of this case.

Author: Hutchinson

[ 502 Pa. Page 166]

OPINION OF THE COURT

Appellant, P.R., appeals from the January 29, 1980 decree of the Court of Blair County, Orphan's Court Division, which granted her former husband's petition to terminate appellant's parental rights in their natural child, T.R.*fn1 Common Pleas determined appellee had established, but only by a preponderance of the evidence, that appellant had failed to perform her parental duties, a statutory ground for involuntary termination. Act of July 24, 1970, P.L. 620, No. 208, Art. 3, Sec. 311, 1 P.S. ยง 311 (Supp.1977).*fn2 The decision of the Supreme Court of the United States in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), which held that a state must prove its case by clear and convincing evidence when it seeks to terminate parental rights, is binding on us as an authoritative statement of federal law and we are without authority to apply a lesser standard of proof. However, we are also persuaded by the reasoning of Santosky, and thus adopt it as a matter of state law applicable to all termination proceedings. See, e.g., Commonwealth v. Platou, 455 Pa. 258, 312 A.2d 29 (1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974); Commonwealth v. Ware, 446 Pa. 52, 284 A.2d 700

[ 502 Pa. Page 167]

(1971), cert. granted, 405 U.S. 987, 92 S.Ct. 1254, 31 L.Ed.2d 453 (1972), cert. vacated and denied, 406 U.S. 910, 92 S.Ct. 1606, 31 L.Ed.2d 821.*fn3 Because Common Pleas based its decision here upon a lesser standard of proof,*fn4 we vacate its order and direct it to hold a rehearing and thereafter decide the case under the proper standard.*fn5

As stated, appellee filed a petition to involuntarily terminate appellant's parental rights in her child, T. Common Pleas granted termination after determining appellee had established the statutory criterion for termination by a preponderance of evidence. After appellant filed this appeal, but before argument on it, the United States Supreme Court determined due process requires that the minimum standard of proof in involuntary termination proceedings be clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745,

[ 502 Pa. Page 168102]

S.Ct. 1388, 71 L.Ed.2d 599 (1982). That Court mandated the use of an "intermediate standard of proof" because the individual interests at stake were both "particularly important" and "more substantial than mere loss of money."*fn6 Id. at 756, 102 S.Ct. at 1396 (quoting Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 [1979]).

Santosky involved an action by the state to sever parental rights. While proceedings undertaken by an individual may not involve as great a disparity in litigating resources as in Santosky, the same "particularly important" parental interests ...


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