No. 94 Pittsburgh, 1983, Appeal from the Order entered December 22, 1982 in the Court of Common Pleas of Erie County, Orphans' Court, No. 80 in Adoption, 1981
Anthony L. Gambatese, Erie, for appellant.
William A. Dopierala, Erie, for participating party.
Cercone, President Judge, and Spaeth and Hester, JJ. Hester, J., filed a dissenting statement.
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This is an appeal from a final decree terminating the parental rights of appellant, Jean Ferrante in her daughter April Ferrante.
April was born on September 14, 1979. On October 16, 1979 she was taken to a hospital for a routine check-up where she was found to be suffering from burns and inflammation on her buttocks, legs, and heels believed to be caused by extended contact with urine. Children's Service of Erie County (Services) was contacted. Services filed a petition to have April declared a dependent child. She was released from the hospital on October 26, 1979, and was placed in foster care. The child was adjudicated dependent on November 2, 1979. On December 10, 1979, after a dispositional hearing, the foster care was continued with visitation rights in appellant and appellant was directed to cooperate with St. Vincent's Mental Health in a treatment program to be established.
Over the next eighteen months or so, various correspondences were exchanged between the court, Services, St. Vincent and other mental health and social welfare organizations or agencies concerning appellant's participation in the treatment program and her behavior towards April. On June 17, 1981, Services filed a petition to involuntarily terminate the parental rights of appellant. Testimony was taken on such petition on October 29, 1981, and on November 24, 1981. By decree dated August 4, 1982, the court refused to terminate appellant's parental rights and directed that visitation with April be resumed. The court ordered appellant to continue treatments and medication as ordered by appellant's psychiatrist and to attend counseling suggested by Services. Any change was to be reported to the court.
Services filed exceptions to the decree of August 4, 1982, as well as a petition for rehearing concerning the effect of the visitations upon April. Appellant filed a petition for
[ 334 Pa. Super. Page 57]
partial custody and termination of Services' supervision. Testimony was taken on the various matters on October 20, 1982, and the Orphans' Court by decree of October 25, 1982 terminated visitation until further testimony could be taken. Further testimony was heard on November 22, 1982, and by decree dated December 22, 1982, the court terminated appellant's parental rights to April, finding that April had been removed from appellant for more than six months. The conditions which led to the removal continued to exist, since appellant could not or would not remedy the conditions within a reasonable period, despite services or assistance available to her. Thus, the court found termination to be in April's best interest. Exceptions were filed and denied, and a final decree was entered. Appellant perfected this appeal.
Appellant's brief raises two questions. First, she contends that Services failed to meet its burden of proof by clear and convincing evidence. Her other contention is that the court erred in terminating her rights, when her mother and sister were willing to care for the child. This second argument will be addressed within our resolution of the first issue.
The standard of review in involuntary termination cases has recently been addressed by this court sitting en banc in In Re Adoption of James J., 332 Pa. Superior Ct. 486, 481 A.2d 892 (1984).*fn1 There Judge Cavanaugh's lead opinion*fn2 held:
[N]otwithstanding the Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) opinion, we agree that abuse of discretion is the proper standard of review and most importantly that it best upholds due
[ 334 Pa. Super. Page 58]
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. Therefore, we reject appellant's contention that the holding in Santosky mandates a broader scope of review than abuse of discretion.
In reaching the holding in James J., Judge Cavanaugh was careful to distinguish between this court's duty to ensure that the record was thorough and complete and our responsibility of reviewing the lower court's ruling.*fn3 As he stated:
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
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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 evaluate their testimony, and by reason of his position is presumed to be practised and skilled in this responsibility.
(Cavanaugh, J. at 332 Pa. Superior Ct. , 481 A.2d at 894).
Returning our attention to the case at hand, we find that the Orphans' Court terminated appellant's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(5), which reads:
(a) General rule. -- The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(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 conditions which led to the removal or placement of the child ...