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MATTER ADOPTION HENRY AUGUSTUS HUTCHINS (03/30/84)

filed: March 30, 1984.

IN THE MATTER OF THE ADOPTION OF HENRY AUGUSTUS HUTCHINS, IV. APPEAL OF HENRY AUGUSTUS HUTCHINS, III


NO. 322 PITTSBURGH, 1983, Appeal from the Order entered February 9, 1983, in the Court of Common Pleas of Erie County, Orphans, at No. 138 In Adoption 1983.

COUNSEL

James Andrew Pitonyak, Erie, for appellant.

Stephanie Domitrovich, Erie, for appellee.

Marilyn Woolery, Erie, for participating party.

Brosky, McEwen and Beck, JJ.

Author: Beck

[ 326 Pa. Super. Page 278]

The appellant-natural father (father) appeals an order granting the petition of the appellee-natural mother (mother) for the involuntary termination of the father's parental rights to the parties' son. We affirm.

The parties' son was born on December 8, 1973. Although the parties never married, they sporadically resided together until the summer of 1977. On September 21, 1982, the mother filed a petition to terminate the father's parental rights. Pursuant to the mother's petition, a hearing was held on December 1, 1982, in the Orphans' Court of Erie County. As a result of the testimony presented at the hearing, the court issued a decree terminating the father's parental rights under Section 2511(a)(1) of the Adoption Act, 23 Pa.C.S.A. ยง 2511(a)(1). Thereafter, the father filed timely exceptions to the court's decree. After the father's exceptions were dismissed and a final decree terminating his parental rights was entered, the father duly filed a

[ 326 Pa. Super. Page 279]

    notice of appeal questioning solely whether the court's termination order was based upon clear and convincing evidence.

In accordance with the dictates of Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), "any party in Pennsylvania attempting to terminate parental rights must establish by clear and convincing evidence the existence of grounds for doing so." Appeal of G.J.A., 304 Pa. Super.Ct. 21, 25, 450 A.2d 80, 82 (1982) (footnote deleted). Moreover, a termination order must rest upon competent evidence and cannot be "'predicated upon capricious disbelief of competent and credible evidence.'"*fn1 In re Adoption of Barnett, 304 Pa. Super.Ct. 514, 521, 450 A.2d 1356, 1360 (1982) (citation omitted); In re Adoption of M.M., 492 Pa. 457, 424 A.2d 1280 (1981). Consequently, in reviewing a challenged termination order, we must ascertain whether the order is supported by clear and convincing, competent evidence.

"[P]arental obligation is a positive duty which requires affirmative performance . . . [including] a genuine effort to maintain communication and association with the child . . . . [P]arental duty requires that a parent 'exert himself to take and maintain a place of importance in the child's life.'" In re Adoption of R.W.G., 494 Pa. 311, 314-15, 431 A.2d 274, 276 (1981) (citation omitted). Where a "parent by conduct continuing for a period of at least six months . . . has . . . failed ...


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