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TAMMY LYNN MAYNARD (03/30/84)

filed: March 30, 1984.

IN RE TAMMY LYNN MAYNARD, A MINOR. APPEAL OF EUGENE FALKENBERG


No. 172 Harrisburg 1983, Appeal from the Order of the Court of Common Pleas, Orphans' Court Division, of York County at No. 4993.

COUNSEL

Victor A. Neubaum, Jr., York, for appellant.

Sharon Eileen Myers, York, for appellee.

Wickersham, Del Sole and Montemuro, JJ.

Author: Wickersham

[ 326 Pa. Super. Page 267]

On August 9, 1982, appellant Eugene Falkenberg's parental rights to his daughter, Tammy Lynn, were involuntarily terminated. Appellant filed a petition to vacate the judgment terminating his parental rights on October 7, 1982. In the petition, appellant alleged that he had never received notice of the termination hearing. An evidentiary hearing limited to the notice question was held on November 22, 1982. On February 28, 1983, the lower court dismissed appellant's petition to vacate the judgment. The appellant filed exceptions, but on April 18, 1983, the court dismissed all of the exceptions and made the order final. Appellant filed this timely appeal.

At the time of this proceeding, section 2513(b) of the Adoption Act*fn1 required that notice of a hearing on a petition to involuntarily terminate the parental rights of another must be sent by certified mail*fn2 to "the last known

[ 326 Pa. Super. Page 268]

    address" of the person whose parental rights are to be terminated. In Adoption of Walker, 468 Pa. 165, 360 A.2d 603 (1976), our supreme court held that this requirement of service by mail at the last known address implies a good faith effort to discover the parent's correct address.

Appellant alleges that appellee Terry Maynard failed to make a good faith effort to send notice of the termination proceeding to him. Appellant asks us to consider the following issue:

Whether Terry Maynard made a "good faith" effort to send notice of the termination hearing to Eugene Falkenberg at his last known address?

Brief for Appellant at 3.

The lower court found that appellee made a good faith effort to send notice to appellant at his last known address. Therefore, the lower court refused to grant appellant's petition to vacate the judgment terminating his parental rights. We recognize that a refusal to vacate a judgment is a decision within the trial court's discretion and unless the court abuses that discretion or makes an error of law, we will not disturb the trial court's ruling. Kennedy v. Black, 492 Pa. 397, 424 A.2d 1250 (1981); Ab v. Continental Imports, 220 Pa. Super. 5, 281 A.2d 646 (1971). We also note that appellant bears the burden of establishing his claim of appellee's failure to provide him with "good faith" notice in order to obtain the relief sought. See In re Adoption of R.H., 485 Pa. 157, 161, 401 A.2d 341, 343 (1979). ...


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