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MICHAEL BARTASAVICH v. DONALD MITCHELL (01/13/84)

filed: January 13, 1984.

MICHAEL BARTASAVICH, APPELLANT,
v.
DONALD MITCHELL, IN HIS CAPACITY AS DIRECTOR OF CLEARFIELD COUNTY CHILDREN'S SERVICES, AND CLEARFIELD COUNTY CHILDREN'S SERVICES, AND DENNIS GEPPERT, AND ADELINE GEPPERT. IN RE MICHELLE BARTASAVICH. APPEAL OF MICHAEL BARTASAVICH



Appeal from the Order of the Court of Common Pleas, Clearfield County, Civil Division, at No. Juvenile Dkt 8, P. 221. Appeal from the Order of the Court of Common Pleas, Clearfield County, Civil Division, at No. Juvenile Dkt 8, P. 221. Appeal from the Order of the Court of Common Pleas, Clearfield County, Orphans Division, at No. 78-1510.

COUNSEL

Michael J. Bresnahan, State College, for appellant.

Kim C. Kesner, Clarion, for appellees.

Brosky, McEwen and Beck, JJ. McEwen, J., files a concurring and dissenting opinion.

Author: Brosky

[ 324 Pa. Super. Page 272]

These consolidated appeals are from three orders of the same date which: (1) terminated appellant Michael Bartasavich's parental rights; (2) denied Mr. Bartasavich's petition for visitation; and (3) granted custody of Michelle Bartasavich to Clearfield County Children's Services for purposes of placing her for adoption. For the reasons that follow we reverse and remand for further proceedings.

Appellant is the father of Michelle who was born on December 22, 1971 to Mr. Bartasavich and his wife, Mary. On October 14, 1974, during a domestic dispute, appellant stabbed and killed his wife. He immediately took his then two year old daughter to the home of a neighbor, returned home and stabbed himself with a fork. Mr. Bartasavich was arrested and charged with his wife's homicide while in the hospital recuperating from his self-inflicted wounds.

On October, 1974 while an inmate at the Clearfield County Jail, appellant signed a petition which led to the placement of Michelle in the custody of Clearfield County Child Welfare Services.

The Child Welfare service permitted Michelle's maternal grandparents, with whom she had been staying since her mother's tragic death, to retain custody of her. Michael Bartasavich entered a guilty plea to a charge of voluntary

[ 324 Pa. Super. Page 273]

    manslaughter, and in February 1975, was sentenced to a term of imprisonment of 5 to 10 years.

From October, 1974 to June, 1976 Michelle was taken by her grandparents*fn1 to visit with her father who was incarcerated from October, 1974 to October, 1979.

In June, 1976, Clearfield County Child Welfare Services permitted the Gepperts to stop taking Michelle to visit her father, because she had apparently displayed a negative reaction to the visits. The Gepperts reported that Michelle suffered stomach ailments and other manifestations of anxiety during the periods surrounding the visits.

The Gepperts claim that Michelle feared her father. A psychologist retained by appellant when the visits ceased concluded that Michelle had "ambivalent" feelings about her father, and did seem to fear him. Prior to the cessation of the visits, Michelle began to refer to her father as "Mike" although she had formerly called him "Dad."

In May, 1978, while still incarcerated, appellant filed a Petition for Writ of Habeas Corpus, seeking a resumption of visitation.

On June 15, 1978, Clearfield County Children's Services filed a petition seeking the termination of appellant's parental rights.

On January 4, 1979 a hearing was held on the parental termination and visitation petitions before the Honorable John K. Reilly, Jr., in the Court of Common Pleas of Clearfield County. Judge Reilly recused himself because he had sentenced appellant on the voluntary manslaughter conviction.

On May 16, 1979 another hearing on the petitions was held in the Clearfield County Court. The hearing was conducted ...


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