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T.L.G. AND D.A.G. APPEAL M.D.G. (02/27/86)

filed: February 27, 1986.

IN RE T.L.G. AND D.A.G. APPEAL OF M.D.G.


Appeal from the Order of the Court of Common Pleas of Northampton County, Civil Division, No. 1984-214

COUNSEL

Jeffrey B. Matzkin, Allentown, for appellant.

George K. Keenan, Bethlehem, for appellee.

Brosky, Popovich and Roberts, JJ. Popovich, J., concurs in the result.

Author: Brosky

[ 351 Pa. Super. Page 257]

This case is before us on appeal from the trial court's order of June 17, 1985, finding that appellant "refused and failed to perform his parental duties in regard to T.L.G. and D.A.G. for a period of at least six (6) months," and terminating appellant's parental rights to his two minor children. Appellant argues that it has not been shown by clear and convincing evidence that he failed or refused to perform his parental duties for a period in excess of six months. We agree, and, accordingly, we reverse.

Appellant and appellee, the natural parents of the children in question, were living together, unmarried, in Texas on July 7, 1978, when the two children were born. In August of 1979, appellee moved to Pennsylvania, taking the children with her. Appellant visited with the children in Pennsylvania during Christmas of 1979, but the police were called because of an argument between appellant and appellee, and the visit terminated unpleasantly. In the summer of 1980, the children visited appellant in Texas, and again a squabble arose, concerning when the children would be returned to appellee in Pennsylvania. In 1981, the parties

[ 351 Pa. Super. Page 258]

    met in Pennsylvania with their attorneys to attempt to reach an agreement on support and visitation, but no agreement could be reached. Appellant's last visit with the children occurred in Texas during the summer of 1982.

Appellant was able to speak with the children by telephone for a period of time, but after mid-1982 appellee refused to permit the children to talk with him even by phone from her aunt's house. She also maintained an unlisted phone number. Appellant stayed informed about the children by contacting various relatives of appellee. Through the years, appellant sent gifts to the children on holidays and birthdays.

On February 22, 1984, appellee filed a petition for the involuntary termination of appellant's parental rights. A hearing was held on April 27, 1984. The trial judge listened to the testimony and concluded that appellant did not attempt to visit with the children since the summer of 1982, and had no contact whatsoever with them for a period of eight months (from July 7, 1983 until March of 1984); that he purposefully declined to comply with the mother's (unilaterally-imposed) conditions which would have enabled him to visit with the children; that he failed to support the children throughout the years; that besides the gifts which appellant sent to the children two or three times a year, and regular phone calls to appellee's aunt, the record was devoid of any evidence that appellant used any other means to maintain a place of importance in the lives of the children; and that appellant refused and failed to perform his parental duties for a period of at least six months. The trial court therefore terminated appellant's parental rights on the basis of 23 Pa.C.S. ยง 2511.*fn1

Even where it is established that a parent has failed to perform parental duties for a period in excess of six months, such a finding ...


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