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ADOPTION FAITH M. AND VICTORIA M. APPEAL PAULA D. COSNEK (12/06/85)

decided: December 6, 1985.

IN RE ADOPTION OF FAITH M. AND VICTORIA M. APPEAL OF PAULA D. COSNEK


Appeal from the Order of the Superior Court of Pennsylvania, Pittsburgh District, entered June 29, 1984, at No. 900 Pittsburgh 1982 which reversed the Order of the Court of Common Pleas of Beaver County, Orphans' Court Division, entered July 1, 1982, at No. 3030 of 1982. 329 Pa. Superior Ct. 304, Nix, C.j., and Larsen, McDermott, Hutchinson, Zappala and Papadakos, JJ. Mr. Justice Flaherty did not participate in the consideration or decision of this case.

Author: Zappala

[ 509 Pa. Page 239]

Opinion

This is an appeal from an order of the Superior Court, 329 Pa. Super. 304, 478 A.2d 480, which reversed a decree of the Orphans' Court Division of the Court of Common Pleas of Beaver County terminating the parental rights of the Appellee-father, Theodore R.M., with respect to his ten year old daughter Faith M. and his nine year old daughter Victoria M. The basis for the lower court's termination of Appellee's parental rights was a finding that the behavior of the Appellee satisfied the statutory grounds as set forth in the Pennsylvania Adoption Act, Act of October 15, 1980, P.L. 934 No. 163 § 1 et seq., 23 Pa. C.S. § 2511(a)(1) which allows parental rights to be terminated on the ground that "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." The sole question before us is

[ 509 Pa. Page 240]

    whether the Orphans' Court abused its discretion in determining that the statutory grounds for termination of Appellee's rights were established by clear and convincing evidence.

We have recently held that the scope of appellate review where the Orphans' Court has involuntarily terminated a natural parent's right to a child is limited to the determination of whether the decree of termination is supported by competent evidence. In the Matter of the Adoption of G.T.M., 506 Pa. 44, 483 A.2d 1355 (1984).

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 that 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).

Id., 506 Pa. at 46, 483 A.2d at 1356.

Applying this standard to the record before us, we conclude that the decree terminating Appellee's parental rights was proper. The Superior Court correctly set forth the proper standard of review in reversing the Orphans' Court; however, the court failed to properly apply the standard. Instead, the Superior Court made an independent determination of the facts as it perceived them from the record. This was error.

In determining that the statutory grounds for termination had been met, the Orphans' Court made the following findings of fact which we find are competently supported by a fair reading of the record:

The natural mother (Appellant) and father (Appellee) were married in Aliquippa, Pennsylvania, on July 6, 1974.

[ 509 Pa. Page 241]

They then took up residence on a dairy farm at Balsam Lake, Wisconsin. A child, Faith, was born on January 18, 1975. Following marital difficulties, the couple separated on December 12, 1975. Appellant took Faith with her to Aliquippa to live. At the time of the separation, Appellant was three months pregnant with the second child, Victoria, who was born on June 19, 1976. Appellant and the two children resided at the home of her parents in Aliquippa until January, 1981, at which time Appellant remarried. She, her present husband, and the two children now reside next door to her parents. The Appellant's present husband, John R. C., intends to adopt the two children.

The Appellant was employed first as a school teacher and is now a supervisor in a steel mill. Her present earnings are approximately $25,000 per year. She has been the sole support of the children, the natural father having provided no support or maintenance for the children since December, 1975. The Appellee and the Appellant were divorced by a decree of the Court of Polk County, Wisconsin, dated November 4, 1976, effective October 26, 1976. The Appellee remarried on April 30, 1977, and he and his present wife have continued to reside on the Wisconsin dairy farm. The Appellee's second wife was previously married and had a child by that marriage. That child has now been adopted by the Appellee following involuntary termination proceedings in Wisconsin against that child's natural father. Appellee and his present wife also have two children of their present marriage. Unlike the Appellee's first two ...


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