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filed: October 28, 1983.


NO. 192 PITTSBURGH 1982, Appeal from the Order in the Court of Common Pleas of Mercer County, Orphans No. Register No. 38448 Relinquishment No. 481


Mary Ann McConnell, Mercer, for appellant.

Brenda Katherine McBride, Grove City, for appellees.

Cercone, President Judge, and Spaeth and Hester, JJ.

Author: Spaeth

[ 320 Pa. Super. Page 510]

This appeal is from an order involuntarily terminating appellant's parental rights to her three children. We have concluded that the trial court applied an incorrect standard of proof, and unduly restricted the evidence. We therefore reverse and remand for a new hearing.

In Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), the Court held that parental rights may not be involuntarily terminated except upon at least clear and convincing evidence. In In Re Adoption of M.E.T., 313 Pa. Super. 316, 459 A.2d 1247 (1983), we held

     that any case in which a party's parental rights were terminated based on a preponderance of the evidence standard should be remanded to the trial court for further proceedings at which the constitutionally mandated clear and convincing evidence standard shall be applied. [ ] We do not, however, feel that the lower court must, in all cases, hold new evidentiary hearings.

Id., 313 Pa. Superior Ct. at 323, 459 A.2d at 1251 (footnote omitted).

Here the trial court applied the preponderance of the evidence standard. Slip op. filed Feb. 10, 1982, at 2. Accordingly, the case must be remanded so that the court may apply the clear and convincing evidence standard. (It is only fair to note that when the trial court reached its decision, the applicable standard was the preponderance of evidence standard.) The only issue requiring extended discussion is whether the court unduly restricted the testimony and on remand, must therefore hold a new hearing.

On April 28, 1978, appellant's three children, Raymond, Henry, and Michael, then 9, 8, and 7 years old, were adjudicated dependent. They were placed in the custody of Mercer County Children and Youth Services, which placed them in a foster home. In August 1979 the agency wrote to appellant, who was then living in New York, informing her that the agency "intend[ed] to work towards" the adoption of her children by their foster parents, and advising her to

[ 320 Pa. Super. Page 511]

    consult an attorney, since Pennsylvania law would permit an adoption if appellant had no contact with her children for six months. A New York attorney representing appellant replied to the agency's letter, stating that appellant was opposed to her children being adopted, and protesting that a letter appellant had written the agency in December 1978, requesting the address of the children and that she be permitted to visit them, had not been answered. On September 21 the agency replied to appellant's attorney. The agency did not give an address for appellant's children, but said that appellant had shown no interest in her children's progress, and had "only to request a visit" with her children in Mercer County. On October 17 the agency again wrote to appellant. The letter asked that appellant "consider giving consent to [her children's] adoption," going on to say that if she intended to seek custody of the children, "the first [agency's emphasis] thing you must do is contact this agency. Never have we denied you visits. You simply need to call to schedule an appointment to make arrangements to travel to Mercer County." Appellant then telephoned the agency to explain that she was unable to make a trip to Mercer County to visit her children. The agency responded with a letter of November 16, telling appellant that as evidence of her interest in the children she might write them at least once a month and perhaps send them each a Christmas gift. The agency further advised appellant that the foster parents were "very much interested in adopting the children" and that should she continue to have no regular contact with her children and the agency, the agency would file a petition for the involuntary termination of her parental rights so that the foster parents could adopt the children without her consent. The letter urged appellant to consult an attorney. On December 17 appellant wrote to her children, stating that she loved them and missed them. She also sent them Christmas gifts. From then until July 1980 appellant had no contact with her children or the agency.

[ 320 Pa. Super. Page 512]

On July 3, 1980, the agency filed a petition asking that appellant's parental rights be involuntarily terminated. The petition alleged that for the six-month period from December 18, 1979, to July 1, 1980, appellant had "evidenced a settled purpose of relinquishing her parental rights," and had "refused or failed to perform [her] parental duties." A hearing was held on August 25, but appellant did not appear nor was she represented by counsel. On August 27 the trial court filed an opinion making findings of fact and conclusions of law, and entered a decree nisi terminating appellant's parental rights and giving her 20 days in which to file exceptions. On September 30 the court granted appellant 20 days from that date to file exceptions; the court stated that it had been informed that appellant had moved, and expressed its concern that she might not have received the previous opinion and decree nisi. On October 15 the court appointed counsel for appellant, and on October 21 appellant was given an additional 20 days in which to file exceptions. On November 10 appellant's attorney filed exceptions, claiming that the court had erred in entering its decree nisi in appellant's absence, and in failing to inform appellant that if she could not afford an attorney, one would be appointed to represent her. On January 22, 1981, the court vacated its decree nisi, and ordered that "a hearing de novo shall be held."

The new hearing was held on March 25, 1981. Appellant appeared, with her court-appointed attorney. Also present were an attorney representing the children and an attorney representing the agency. A clinical psychologist, two supervisors from the agency, the foster mother, and appellant testified. On July 29 the trial court filed an opinion, which included findings of fact, discussion, and conclusions of law, and a decree nisi terminating appellant's parental rights on the grounds that for a period of at least six months she "ha[d] evidenced a settled purpose of relinquishment of her parental claim and ha[d] refused or failed to perform parental duties as to her three children." Appellant filed exceptions, and on February 8, 1982, the trial court filed an

[ 320 Pa. Super. Page 513]

    opinion and final decree dismissing the exceptions and terminating appellant's ...

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