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filed: August 24, 1984.


No. 2776 Philadelphia, 1981, No. 2793 Philadelphia, 1981, Appeal from Orders in the Court of Common Pleas, Delaware County, Orphans' Div. No. 140 of 1980 and Civil Div. No. 81-13043


Carl Oxholm, III, Haverford, for appellant.

Alfred J. Mattei, Assistant County city solicitor, Media, for appellee (at No. 2793) and for participating party (at No. 2776).

Cercone, President Judge, and Cavanaugh, Wieand, Cirillo, Popovich, Montgomery and Hoffman, JJ. Cercone, President Judge, files concurring and dissenting opinion. Cirillo, J., filed dissenting opinion. Hoffman, J., filed concurring opinion. Popovich, J., concurs in result.

Author: Cavanaugh

[ 332 Pa. Super. Page 488]

Appellant, James P., raises four issues in his appeal, two of which will be addressed herein.*fn1 First, appellant asks us to define the scope of appellate review in termination of

[ 332 Pa. Super. Page 489]

    parental rights cases in this Commonwealth, and derivatively, to consider whether the recent U.S. Supreme Court case of Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), mandates that our scope of review be broader than an abuse of discretion. Secondly, the appellant contends that the lower court erred in finding that appellee sustained the evidentiary burden of clear and convincing in its order that appellant's parental rights be terminated.

James J. was born out of wedlock on December 19, 1979 to Marie J. and appellant, James P. Marie J. was involuntarily committed to Haverford State Hospital on December 31, 1979. Consequently, James J. was placed in the custody of Children and Youth Services of Delaware County (hereinafter CYS), appellee herein. On December 15, 1980, Marie J.'s parental rights were involuntarily terminated pursuant to § 311(2) of the Pennsylvania Adoption Act of 1970.*fn2

CYS filed a petition to terminate appellant's parental rights on January 23, 1981. The petition was grounded on §§ 2511(a)(2) and 2511(a)(5), of the Adoption Act of 1980.*fn3 A hearing was held on May 18, 1981 and on July 6, 1981, the court ordered that appellant's parental rights be terminated. Appellant's exceptions were dismissed on October 9, 1981. Appellant's petition requesting visitation pending appeal of the termination order to the Superior Court was denied on September 28, 1981 in a separate proceeding. The case was heard on appeal by a three member panel of this court and subsequently certified to the court en banc for reargument.


The first issue raised on appeal is whether the scope of review in cases involving the termination of parental rights should be broader than abuse of discretion.

[ 332 Pa. Super. Page 490]

Appellant argues that the scope of review in termination cases is unclear. We disagree. Although there has been some uncertainty in case law emanating from our courts in our discussions of what "broad scope of review," means in custody cases,*fn4 our Supreme Court has been consistent and clear in defining scope of review in termination of parental rights cases.

On appeal, an appellate court is limited to determining whether the trial court's termination of appellant's parental rights is supported by competent evidence. In re M.L.O., 490 Pa. 237, 241, 416 A.2d 88, 90 (1980); In re Adoption of Baby Boy P., 479 Pa. 138, 141, 387 A.2d 873, 874 (1978); In re William L., 477 Pa. 322, 340, 383 A.2d 1228, 1237, cert. denied, 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978); In re Adoption of M.T.T., 467 Pa. 88, 91, 354 A.2d 564, 566 (1976); In re Adoption of Farabelli, 460 Pa. 423, 427, 333 A.2d 846, 848 (1975); Sheaffer Appeal, 452 Pa. 165, 169, 305 A.2d 36, 39 (1973). Moreover, unless that court abused its discretion or committed an error of law, such findings are entitled to the same weight given a jury verdict. Matter of Adoption of Gene Tuney Mullen, 321 Pa. Super. 496, 468 A.2d 1098 (1983). Matter of Adoption of J.S.H., 299 Pa. Super. 90, 92-93, 445 A.2d 162, 163 (1982); In re Adoption of J.S.M., Jr., 492 Pa. 313, 316, 424 A.2d 878, 879 (1981); In re M.L.H., 490 Pa. 54, 57, 415 A.2d 29, 30 (1980); In re D.K.W., 490 Pa. 134, 138, 415 A.2d 69, 71 (1980); In re D.J.Y., 487 Pa. 125, 130, 408 A.2d 1387, 1389 (1979); Adoption of R.H., 485 Pa. 157, 162, 401 A.2d 341, 344 (1979); In re William L., supra.

Of course, since the Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), decision, the "competent evidence" standard has been replaced with a clear and

[ 332 Pa. Super. Page 491]

    convincing standard.*fn5 However, there is no indication from case law subsequent to the Santosky v. Kramer decision or in Santosky itself, that the abuse of discretion or error of law standard is in any way affected thereby.

Insofar as termination cases are concerned, intimations of broad appellate review or broad scope of review should properly relate to the appellate court's duty to ensure that the trial court has satisfactorily fulfilled the requirements of examining all evidentiary resources, conducting a full hearing and setting forth its decision in a full discursive opinion. While, unlike custody cases, the termination cases have not repeatedly verbalized the requirement of comprehensiveness, it is clear from a reading of the cases that the requirement is engrafted on the law. Accord, In re Adoption of J.S.M., Jr., 492 Pa. 313, 424 A.2d 878; In re D.J.Y., 487 Pa. 125, 408 A.2d 1387 (1979); In Interest of C.M.E., 301 Pa. Super. 579, 448 A.2d 59 (1982).

Nevertheless, a broad or searching review does not vest in the reviewing court either the duty or the privilege of making its own independent determination of fact, nor does it preclude an appellate court from using abuse of discretion as the appropriate standard of review. The purpose of employing broad and searching review is for the protection of the parties in ensuring that the inquiry of the lower court is complete and that its decision was made in accordance with the due process clause of the Fourteenth Amendment in protecting the fundamental liberty interest of natural parents in their child. The purpose of employing the abuse of discretion standard of review, on the other hand, is to accord the trier of fact the appropriate deference as he has had the opportunity to observe the witnesses and

[ 332 Pa. Super. Page 492]

    evaluate their testimony, and by reason of his position is presumed to be practised and skilled in this responsibility.

The reason for insistence on a full hearing, a developed record, and an adjudication which demonstrates that appropriate consideration was given to the relevant factors is clear. Termination cases represent a delicate tension between two of our society's most fundamental precepts: the right of a parent to exercise the rights and obligations of a parent toward his child, free from governmental intrusion, and society's interest in the nuturing, care, safety and training of children. Therefore, it is necessary that the lower court be of an inquiring mind and insist that the full story be told, and that its opinion demonstrate that the evidence has been weighed in consideration of the statutory requirements and the applicable standard of proof.

Appellant argues that after Santosky v. Kramer, supra, due process mandates a searching appellate review in cases involving the termination of parental rights. As previously discussed, we do not believe that a searching review precludes application of abuse of discretion as the appropriate appellate standard.

The Santosky decision does not discuss the appropriate scope or standard of appellate review in a termination case; it discusses the burden of proof which must be borne by the party wishing to terminate parental rights. In Santosky, the U.S. Supreme Court made clear that the standard of proof which must be applied in a termination proceeding is either clear and convincing or beyond a reasonable doubt. That is, the Santosky decision disapproved of the use of preponderance of the evidence as the burden of proof in a termination proceeding. In order to ensure a party that his due process rights will be protected, appellant urges this court to adopt a broader standard of review than abuse of discretion to guarantee that the trial court in fact complied with the requirement in law of clear and convincing evidence. However, Santosky does not ask or answer the question of whether the abuse of discretion standard now used by this court fairly allocates the risk of affirming an

[ 332 Pa. Super. Page 493]

    erroneous decision between the Commonwealth and the natural parent; it does ask "whether a preponderance standard fairly allocates the risk of an erroneous factfinding between these two parties." 455 U.S. at 761, 102 S.Ct. at 1398 (emphasis added).

Santosky mandates an upgrading of the burden of proof necessary for a party to succeed in a termination proceeding from preponderance to clear and convincing. By so doing, the due process rights of appellant are adequately protected. The heightened burden of proof encumbers the fact finding process with a protective standard designed to preserve basic parental rights. It is enough that appellate review is co-ordinately broadened, i.e., the appellate court must conclude that the trial court's discretion was exercised on clear and convincing evidence. There is nothing in Santosky or in the development of Pennsylvania law which should cause us to adopt a new scope of review.

The clear and convincing standard imposes a heavy burden of proof upon the proponent of termination. It requires that the existence of disputed facts be "highly probable, that is, much more probable than [their] non-existence." Sanders, Anatomy of Proof in Civil Actions, 28 Pa.L.Rev. 297, 304 (1968); see also McBaine, Burden of Proof: Degrees of Belief, 32 Calif.L.Rev. 242, 253-254 (1944). In Pennsylvania, courts applying this standard have required that the testimony be "so clear, direct, weighty, and convincing as to enable the [factfinder] to come to a clear conviction without hesitancy, of the truth of the precise facts in issue." In re Jackson, 267 Pa. Super. 428, 431, 406 A.2d 1116, 1118 (1979) (citation omitted).

The risk that the Santosky court considered most important was the risk that the factfinding function of a trial court using a preponderance of the evidence standard would deprive the parties of a fundamentally fair decision. By elevating the burden of proof from a standard of preponderance of the evidence to clear and convincing evidence, the probability that "numerous factors [that] combine to magnify the risk of erroneous factfinding" at the trial level is

[ 332 Pa. Super. Page 494]

    thereby lessened. Santosky, 455 U.S. at 762, 102 S.Ct. at 1398.

For the aforementioned reasons, and notwithstanding the Santosky opinion, we agree that abuse of discretion is the proper standard of review and most importantly that it best upholds due process concerns and serves the interests of the parties in a termination of parental rights case. We do not believe that Santosky has any effect on the existing standard of review or that by broadening the standard of review, parent's fundamental rights with respect to their children will be better protected. ...

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