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ADOPTION N.A.G. AND A.B.G. APPEAL B.G. (02/10/84)

filed: February 10, 1984.

IN RE ADOPTION OF N.A.G. AND A.B.G. APPEAL OF B.G.


No. 1349 Philadelphia, 1983, Appeal from Decree of the Court of Common Pleas, Orphans' Court Division, of Montgomery County, Nos. 149 and 150 of 1982.

COUNSEL

Francis X. Clark, Norristown, for appellant.

Lindley M. Cowperthwait, Jr., Norristown, for participating party.

Wickersham, Wieand and Lipez, JJ.

Author: Wieand

[ 324 Pa. Super. Page 347]

In this appeal from a final decree terminating the parental rights of a natural father to his two children, we review the proceedings to determine whether the decree was supported by evidence that was clear and convincing. We must also determine whether the proceedings and the decree based thereon are to be invalidated because the hearing court erroneously denied a request to appoint counsel to represent the children during the evidentiary hearings.

The rights of a parent to a child may be terminated if a "parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties." 23 Pa.C.S. § 2511(a)(1). In terminating

[ 324 Pa. Super. Page 348]

    the rights of a parent, a court is required to "give primary consideration to the needs and welfare of the child." 23 Pa.C.S. § 2511(b). Parental rights may not be terminated in the absence of evidence that is clear and convincing. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re T.R., 502 Pa. 165, 465 A.2d 642 (1983); In re Adoption of Durham, 320 Pa. Super. 508, 467 A.2d 828 (1983). On appeal, the standard of review is limited to a determination of whether the decree was supported by competent evidence. In re Adoption of B.D.S., 494 Pa. 171, 176-177, 431 A.2d 203, 206 (1981); In re Adoption of J.S.M., Jr., 492 Pa. 313, 316, 424 A.2d 878, 879 (1981); In re J.L.Z., 492 Pa. 7, 8-9, 421 A.2d 1064, 1064 (1980); Matter of M.L.W., 307 Pa. Super. 29, 31, 452 A.2d 1021, 1023 (1982).*fn1

B.G. and M.C. were married in 1967, separated in 1972 and divorced in 1977. Two children were born of their marriage. At all times since the separation of their parents, the children have resided with M.C., their mother. She has remarried and lives with her husband and children in Montgomery County. B.G. also remarried. He lived with his wife in Florida, but was divorced in 1979. Prior to the hearings in this matter, the only occasion on which the children had seen their father after 1972 was at a nonsupport proceeding in 1974. Otherwise, appellant had neither written to nor telephoned his children. He displayed no interest in their welfare. His only contact with the children consisted of one gift and a chance conversation with his son when, in 1978, the son happened to answer the phone when appellant called his former wife to speak with her regarding a support settlement. Prior to 1978 appellant had refused to pay a support order requiring him to contribute to the support of his children. By agreement, his duty of support was terminated in 1978. Thereafter, he attempted to send

[ 324 Pa. Super. Page 349]

    one of the children a balloon birthday greeting, but the child was away at camp when it arrived and M.C. refused to accept it. There was no other communication and no parental relationship. Appellant's second wife confirmed his lack of interest in and concern for his children. She testified that B.G. had told her on various occasions that he had never wanted to have children with M.C., had no intention of supporting them, and did not care if he never saw them again.

"Our cases are clear that '[a] child needs love, protection, guidance, and support. These needs, physical and emotional, cannot be met by a merely passive interest in the development of the child. Thus, this Court has held that the parental obligation is a positive duty which requires affirmative performance . . . . The affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child . . . . Because a child needs more ...


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