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.
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.
[ 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. § 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,
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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 ).
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 are at stake. In both instances, we are guided by the rule that:
the minimum standard of proof tolerated by . . . due process . . . reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants.
455 U.S. at 755, 102 S.Ct. at 1395. Furthermore, in both proceedings
the private interest affected is commanding;*fn7 the risk of error from using a preponderance standard is substantial; and the countervailing governmental interest favoring that standard is comparatively slight.*fn8
455 U.S. at 758, 102 S.Ct. at 1396.
Consequently, there is no reason to believe due process does not require the same standard of proof in all proceedings to involuntarily dissolve this "fundamental liberty interest"
[ 502 Pa. Page 169]
whether those proceedings are initiated by a private party or the state.*fn9 Moreover, it would be inappropriate to apply different standards of proof to these proceedings depending on the accident of who brings them.
We hold that in all proceedings to involuntarily terminate parental rights, which are not yet final, the petitioner must prove the statutory criteria for that termination by at least clear and convincing evidence. We therefore vacate the decree of Common Pleas and remand with directions that it hold a rehearing and thereafter determine the matter in accordance with this standard of proof. To the extent that the holding of the Superior Court in In Re Adoption of M.E.T., Pa. Superior Ct. , 459 A.2d 1247 (1983) limits the parties' right to rehearing it is disapproved.*fn10
Decree vacated. Case remanded for proceedings consistent with this opinion.