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ADOPTION M.J.H. (11/29/85)

filed: November 29, 1985.

IN RE ADOPTION OF M.J.H., A MINOR. APPEAL OF K.B.M. AND G.M.


Appeal from the Order in the Court of Common Pleas of Allegheny County, Orphans No. 184 of 1983.

COUNSEL

John A. Knorr, Pittsburgh, for appellant.

Dennis D. Workman, Patrick T. Narcisi, Pittsburgh, for minor child.

Spaeth, President Judge, and Rowley and Wieand, JJ.

Author: Spaeth

[ 348 Pa. Super. Page 67]

This appeal is from an order sustaining exceptions to and vacating an order terminating appellee's parental rights. Appellee is the father of M.J.H., a girl born March 3, 1979. On October 6, 1979, while M.J.H. lay in the arms of her mother, S.H., appellee shot and killed S.H. On March 22, 1980, appellee was convicted of the first degree murder of S.H., and of recklessly endangering the life of M.J.H., and on May 27, 1981, he was sentenced to a life term in prison.*fn1 Appellants are M.J.H.'s maternal grandparents. On June 3, 1983, they petitioned to adopt M.J.H., and in connection with that petition sought to terminate appellee's parental rights on the grounds set forth in 23 Pa.C.S. § 2511(a)(1), (2) and (5). After hearing, the trial court entered an order terminating appellee's parental rights. On appellee's exceptions,

[ 348 Pa. Super. Page 68]

    the court en banc, one judge concurring in the result and the third judge, who had been the hearing judge, dissenting, concluded that grounds for termination had not been established. We reverse the order of the court en banc and reinstate the order terminating appellee's parental rights. While we agree with the court en banc that grounds for termination have not been established under 23 Pa.C.S. § 2511(a)(1) or (2),*fn2 we hold that by virtue of appellee's willful killing of S.H., and his consequent life imprisonment, grounds have been established under 23 Pa.C.S. § 2511(a)(2), which provide that parental rights may be terminated where the parent's "repeated and continual incapacity . . . has caused the child to be without essential parental care, control or subsistence, necessary for his physical or mental well-being and the conditions and causes of the incapacity, . . . cannot or will not be remedied by the parent."

Section 2511 of the Adoption Act, Act of October 15, 1980, P.L. 934, No. 163, 23 Pa.C.S. § 2511, provides in pertinent part:

(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:

(1) The parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.

(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.

(5) The child has been removed from the care of the parent by the court or under a voluntary agreement

[ 348 Pa. Super. Page 69]

    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 within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

23 Pa.C.S. § 2511(a).

As the hearing judge and the court en banc recognized, parental rights may not be terminated under these provisions unless the evidence in support of termination is clear and convincing. See Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re T.R., 502 Pa. 165, 465 A.2d 642 (1983). As an appellate court we are bound by the hearing judge's findings of fact when they have been approved by a court en banc to the same extent that we are bound by a jury's verdict. Curtis v. Redevelopment Authority of City of Philadelphia, 482 Pa. 58, 393 A.2d 377 (1978); August Petroleum Co. 77B v. Casciola, 303 Pa. Super. 374, 449 A.2d 735 (1982). Here, the court en banc did not disturb the facts as found by the hearing judge. Instead, taking the facts as found, the court reversed the judge's conclusions of law. Our task, therefore, is to examine the court en banc's application of law to the facts. If we conclude that the court's order is predicated upon an error of law, we may reverse. Winpenny v. Winpenny, 296 Pa. Super. 299, 442 A.2d 778 (1982).

The trial court held hearings on September 14 and October 12, 1983. The facts as developed at those hearings may be summarized as follows.

At the time of S.H.'s death M.J.H. was seven months old. Appellee and S.H. had been married for four years. Testimony of appellant G.M., the maternal grandmother, suggests that the marriage was a troubled one. About two months before M.J.H.'s birth, S.H. left the home she shared

[ 348 Pa. Super. Page 70]

    with appellee to live with her parents because appellee had beaten her. N.T. 86-87, 155. Two weeks after M.J.H.'s birth, she returned home. N.T. 15. G.M. testified that appellee did not want M.J.H. N.T. 87.

Appellee was arrested and placed in the county jail the day after he killed S.H. N.T. 154. M.J.H. stayed with appellee's parents until December 1979, when appellee was released on bail. N.T. 174. Appellee then moved in with his parents, and until trial in March 1980 he cared for M.J.H. with the help of his mother. N.T. 155. He "changed her ...


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