No. 44 W.D. Appeal Docket, 1984, Appeal from the Order of the Superior Court of Pennsylvania of October 28, 1983, at No. 1061 Pittsburgh, 1982, reversing the Order of the Court of Common Pleas of Erie County, Orphans' Court Division, of June 23, 1982 at No. 81 in Adoption 1981, Pa. Super. ;
Nix, C.j., and Larsen, Flaherty, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., concurs in the result. McDermott, J., did not participate in the consideration or decision of this case.
This is an appeal from an order of the Superior Court
which reversed*fn1 a decree of the Court of Common Pleas of Erie County terminating parental rights of the appellee-mother, M.A.M.W., with respect to her seven-year-old son, G.T.M. A petition to terminate parental rights had been filed by the appellant Children's Services of Erie County, and, after hearings were conducted, the Court of Common Pleas, Orphans' Court division, issued a decree terminating appellee's parental rights pursuant to the Adoption Act of 1980, 23 Pa.C.S.A. § 2511(a)(1), (2), (5) (1984 Supp.). The issue on appeal is whether the Orphans' Court erred in determining that statutory grounds for termination were established by the evidence.
In cases where there has been an involuntary termination of parental rights by the Orphans' Court, the scope of appellate review is limited to the determination of whether the decree of termination is supported by competent evidence. In re Adoption of B.D.S., 494 Pa. 171, 177, 431 A.2d 203, 206 (1981). If the decree is adequately supported by competent evidence, and the chancellor's findings are not predicated upon capricious disbelief of competent and credible evidence, the adjudication of the Orphans' Court terminating parental rights will not be disturbed on appeal. See In re Adoption of M.M., 492 Pa. 457, 460, 424 A.2d 1280, 1282 (1981). It is established that, in a proceeding to involuntarily terminate parental rights, the burden of proof is upon the party seeking termination to establish by "clear and convincing" evidence the existence of grounds for doing so. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re T.R., 502 Pa. 165, 166, 465 A.2d 642, 642-643 (1983).
A review of the evidence presented in the instant proceeding reveals that the decree of termination was supported by clear and convincing evidence. It is undisputed that, at the time when a petition for termination of parental rights was filed, the subject child had been under foster care, arranged through the Children's Services agency, for a period much in excess of six months. The Adoption Act provides that,
when a child has been placed under the care of a Children's Services agency for a term in excess of six months, parental rights may be terminated if the conditions which led to the removal of the child from the care of the parent are not likely to be remedied within a reasonable amount of time. 23 Pa.C.S.A. § 2511(a)(5).*fn2 This provision was added to the Adoption Act, effective January 1, 1981, as an expansion of the grounds for involuntary termination which previously existed. Although there is great reluctance to sever the parent/child relationship, due to the finality of such an adjudication, and because of the risks inherent in investing the "social superstructure" with such a power, the legislature has provided grounds to facilitate termination in foster care situations where resumption of proper care by the parent will not occur within a reasonable period of time. On the basis that the requirements of this statutory provision were satisfied by the evidence, the Orphans' Court decreed that appellee's parental rights were terminated.*fn3
Testimony presented at the hearings in this matter showed that, in connection with the G.T.M. case, Children's Services worked with appellee from August of 1979 until the petition to terminate parental rights was filed in June of 1981. Children's Services had been involved with appellee since a time prior to G.T.M.'s birth, in connection with another of appellee's children, but in August of 1979 the agency became involved with G.T.M.'s case as a result of appellee's emotional instability, and a lack of adequate care for G.T.M. The latter problem included inadequate nutrition and clothing, unsanitary roach-infested living conditions, a lack of immunizations, and a serious lack of proper supervision and discipline for the child. There ensued two occasions on which the staff of the Gertrude Barber Center in Erie for special needs children noticed that G.T.M., who was a student there, had received burns upon his body. An investigation revealed that the burns had been incurred at the child's home, one burn having been inflicted by a cigarette, and the other the result of contact with a stove. Although the burns may have been accidentally caused, this never being clearly determined, the burns had not been treated by appellee in a sanitary fashion. After investigations of these burn incidents had been concluded, in September of 1979, appellee voluntarily placed G.T.M. into the custody of Children's Services for placement into a foster home.
At the time of this voluntary placement into foster care, appellee admitted to the caseworker that she had an easily upset temper and that she had hit the child with a leather belt on occasions when she had lost her temper. Appellee stated that she could not control her temper, or her child, and that she did not want to do more harm to the child. Appellee admitted that she was suffering from nervous instability and expressed an inability to further cope with the child. Subsequent to the voluntary ...