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ADOPTION BABY BOY J. A/K/A ANDREY (04/16/86)

submitted: April 16, 1986.

IN RE ADOPTION OF BABY BOY J. A/K/A ANDREY, BORN: 4/31/80. APPEAL OF WILLIAM J., FATHER


Appeal from the Order in the Court of Common Pleas of Westmoreland County, Orphans Court, No. 51 of 1982.

COUNSEL

John A. Roth, Latrobe, for appellant.

Tamilia, Kelly and Montgomery, JJ.

Author: Tamilia

[ 354 Pa. Super. Page 578]

This is an appeal from a final decree terminating the parental rights of appellant, William J., to Andrey J.

On April 24, 1980, Andrey J. was born out of wedlock to Martha Ann M. and appellant. On July 3, 1980, while in the custody of both parents, Andrey J. was admitted to Children's Hospital of Pittsburgh with fractures of the left femur and both tibias, a broken right clavicle, radius, and ulna, and a displaced right femur (Petitioner's Exhibit 1 p. 1 and Exhibit 2 pp. 1-2). After a dispositional hearing, Judge Marker found that Andrey J. was an abused and dependent child and by Order dated August 7, 1980,*fn1 placed him in the protective custody of the Westmoreland County Children's Bureau (Petitioner's Exhibit 2 p. 3). After further investigation of the causes of the minor child's injuries, Martha was charged with aggravated assault and endangering the welfare of children. After pleading guilty to the charges, she was sentenced to five years probation on the charge of aggravated assault and to two years probation to run concurrently on the charge of endangering the welfare of children (Petitioner's Exhibit 15 p. 1).

On February 4, 1982, appellant pled guilty to charges of theft and receiving stolen property and was sentenced to eight to twenty-three months incarceration (N.T. 5/10/82 p. 43). The Westmoreland County Children's Bureau filed a petition on March 26, 1982 to terminate the parental rights of Martha and appellant, William J., under 23 Pa.C.S.A. § 2511(a)(1), (2) and (5). After a hearing on May 10, 1982, the lower court entered an Order on October 7, 1983 terminating the parental rights of Martha and appellant. Appellant appealed to this Court. On February 14, 1984, our Court granted appellant's Petition for Remand as exceptions had not been filed and no Decree Nisi was entered by the lower court. The lower court denied appellant's post-trial motions on October 12, 1984, whereupon appellant perfected the present appeal to this Court.

[ 354 Pa. Super. Page 579]

The sole question proposed by the appellant is whether his parental rights should be terminated when his failure to contact his child for a period in excess of six months was the result of the request of a public defender defending the mother in a criminal proceeding involving charges of assault against Andrey J.

The appropriate standard of review in cases involving the termination of parental rights is limited to a determination of whether the decision to terminate parental rights is supported by competent evidence. If review of the record does not reveal an abuse of discretion, an error of law or insufficient evidentiary support for the lower court's findings, the Order must stand. Lookabill v. Moreland, 336 Pa. Super. 520, 485 A.2d 1204 (1984), Matter of Adoption of Baby Boy Allen, 337 Pa. Super. 133, 486 A.2d 517 (1984); see also In re Adoption of B.K.W., 348 Pa. Super. 333, 502 A.2d 235 (1985).

Parental rights may be terminated if a parent, by conduct continuing for a period of at least six months, either has evidenced a settled purpose of relinquishing his parental claim to his child or has refused or failed to perform parental duties (23 Pa.C.S.A. § 2511(a)). The performance of parental duties is an affirmative obligation to love, protect, support and maintain communication and association with the child. Consequently, being a parent is more than a passive state of mind, it is an active occupation, calling for a constant affirmative demonstration of parental love, protection and concern. A parent must exert himself to take and maintain a place of importance in the child's life. In re Adoption of M.J.H., 348 Pa. Super. 65, 501 A.2d 648 (1985). The proof required in terminating parental rights is by evidence that is clear and convincing. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

There is sufficient evidence in the record to establish that, by his conduct continuing for a period in excess of six months, appellant has either evidenced a settled purpose of ...


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