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filed: March 2, 1984.


No. 1501 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of Delaware County, No. 62 of 1981.


Suzanne Noble, Chester, for appellant.

Joseph E. Lastowka, Jr., Media, for appellee.

Howard Richard, Media, for participating party.

Spaeth, President Judge, and Cavanaugh, McEwen, Beck, Montemuro, Montgomery and Cercone, JJ. McEwen, J., files a dissenting opinion.

Author: Montgomery

[ 326 Pa. Super. Page 149]

This is an appeal by the natural mother from an order terminating her parental rights.*fn1

Barbara C. was 17 years old at the time of Michael's birth on April 24, 1981. Approximately one month before his birth, she decided to place her child for adoption and made arrangements with an attorney who was to act as the intermediary. While she was still in the hospital recuperating from the baby's birth, Barbara executed an Affidavit of Consent and surrendered the child to the intermediary who then turned the child over to George and Barbara A., the preadoptive parents. On June 8, 1981, a Report of Intent to Adopt was filed. Some time during the summer, Barbara contacted the intermediary and requested visitation with Michael and his ultimate return to her. When these requests

[ 326 Pa. Super. Page 150]

    were denied, Barbara filed a habeas corpus petition, on August 12, 1981. This petition was transferred to the Orphans' Court Division on September 14, 1981, and a hearing was scheduled for October 20, 1981. On September 16, 1981, Barbara's request for visitation was denied without a hearing. The petition to involuntarily terminate Barbara's parental rights was not filed until October 27, 1981. Further delays ensued and hearings were finally held on January 5, 6 and 7, 1982. Ultimately, the Honorable Francis Catania entered an order terminating Barbara's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(2). Barbara appealed and a panel of this court affirmed with Judge Lipez dissenting. Barbara's petition for reargument before the court en banc was granted.

Barbara first argues that the trial court erred in failing to recognize that she had timely revoked her consent to the adoption and in failing to order Michael's return to her immediately upon such revocation. The natural parent's "right" to revoke a consent to adoption is derived from the Adoption Act, 23 Pa.C.S.A. § 2101 et seq. The general rule is that the natural parent's consent to an adoption is required. 23 Pa.C.S.A. § 2711(a)(3).*fn2 Regardless of § 2711, however, consent is not required if the parent's rights have already been terminated or if, after notice and hearing, the court finds that grounds for involuntary termination exist under § 2511 of the Act. 23 Pa.C.S.A. § 2714. Thus, the revocation of consent by a natural parent does not automatically halt the adoption proceeding. Rather, it triggers an inquiry into the statutory grounds for involuntary termination set forth in § 2511(a). Commonwealth ex rel. Grimes v. Yack, 289 Pa. Super. 495, 433 A.2d 1363 (1981). These are:

[ 326 Pa. Super. Page 151]

(1) The 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.

(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.

(3) The parent is the presumptive but not the natural father of the child.

(4) The child is in the custody of an agency, having been found under such circumstances that the identity or whereabouts of the parent is unknown and cannot be ascertained by diligent search and the parent does not claim the child within three months after the child is found.

(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the condition which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

23 Pa.C.S.A. § 2511(a).

In terminating Barbara's rights, Judge Catania specifically relied on § 2511(a)(2). We are not, therefore, dealing with the six-month period set forth in § 2511(a)(1). Cf., Commonwealth ex rel. Grimes v. Yack, supra; K.N. v. Cades, 288 Pa. Super. 555, 432 A.2d 1010 (1981).*fn3 For these reasons,

[ 326 Pa. Super. Page 152]

    we cannot accept appellant's argument that her revocation of consent within six months required the trial court to return Michael to her and terminate the adoption proceeding.

Appellant's main argument centers around the applicability of § 2511(a)(2) to the involuntary termination of parental rights of a natural parent within the factual context presented here; that is, where the natural parent voluntarily surrenders the child for adoption to an intermediary, who is not an agency (a "private" adoption), the surrender takes place prior to the mother's discharge from the hospital after the birth, and the mother revokes her consent to the adoption within six months (so as to make § 2511(a)(1) inapplicable).

In any context, the complete and irrevocable termination of parental rights is one of the most serious and severe steps a court can take, carrying with it great emotional impact for both the parent and the child. In re Adoption of Sarver, 444 Pa. 507, 281 A.2d 890 (1971). The right to conceive and raise one's children has long been recognized as one of our basic civil rights. Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). Freedom of personal choice in matters of family life, and the concomitant freedom from unwarranted governmental intrusion, is a fundamental liberty interest protected by the Fourteenth Amendment. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Because of the importance placed on the family unit, governmental intrusion into the family, and disruption of the parent-child relationship, is warranted only in exceptional circumstances. Even when such intrusion is warranted, it must be accompanied by every possible effort to reunite the family. Matter of M.L.W., 307 Pa. Super. 29, 452 A.2d 1021 (1982). Termination of parental rights does more than disrupt the parent-child relationship; it totally

[ 326 Pa. Super. Page 153]

    destroys it. "The termination of parental rights, however, means that the child is dead so far as that parent is concerned." In re William L., 477 Pa. 322, 383 A.2d 1228 (1978) (Manderino, J., dissenting). The standard of proof is the same whether the termination action is brought by the state or by private individuals because of the state's parens patriae interest. In re T.R., 318 Pa. 460, 465 A.2d 642 (1983).

Involuntary termination of parental rights can only be accomplished through the statutory scheme set forth in the Adoption Act and only as an aid to adoption. In re B.E., 474 Pa. 139, 377 A.2d 153 (1977). To effect an adoption, this statutory scheme must be strictly complied with. In re Adoption of E.M.A., 487 Pa. 152, 409 A.2d 10 (1979). With these principles in mind, we turn to an examination of the particular statutory provision relied upon.

Prior to the Adoption Act of 1970, the only basis for terminating parental rights was abandonment. Jones Appeal, 449 Pa. 543, 297 A.2d 117 (1972). The additional grounds of parental incapacity, abuse or neglect appeared as § 311(2) in the 1970 Act. Section 2511(a)(2) of the Adoption Act of 1980, the section relied upon here, is a verbatim reenactment of § 311(2); therefore, the substantive law developed under § 311(2) is continued under § 2511(a)(2). Christner v. Christner, 366 Pa. 41, 76 A.2d 361 (1950).

In order to terminate parental rights under this "parental incapacity" section, three things must be shown: (1) repeated and continued incapacity, abuse, neglect or refusal which (2) has caused the child to be without essential parental care, control or subsistence, and (3) the causes of this incapacity, abuse, neglect or refusal cannot or will not be remedied. In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975). If any of these elements are missing or insufficiently proven, the court cannot terminate the parent's rights. See, e.g., Jones Appeal, supra (a single act does not demonstrate continuing incapacity so as to justify termination).

[ 326 Pa. Super. Page 154]

Appellant contends that, since Michael was never in her physical custody, the requirements of the statute could not be proven because her conduct could not have caused him harm. While we agree with appellant that the "causation" element must be proved before parental rights can be terminated, and that this element was not sufficiently proved in this case, we need not go so far as to hold that the causation element can never be proved unless the ...

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