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decided: September 26, 1986.


Appeal From the Order of the Superior Court, Nos. 2776, 1981 and 2793, 1981 Dated August 24, 1984, Reversing the Order of the Court of Common Pleas of Delaware County, Orphans' Court Division, No. 140 of 1980 Dated July 6, 1981. 332 Pa. Superior Ct. 486, Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.

Author: Papadakos

[ 511 Pa. Page 592]


This is an appeal from an Order of the Superior Court*fn1 which reversed an Order of the Court of Common Pleas of Delaware County, Orphans' Court Division, terminating parental

[ 511 Pa. Page 593]

    rights of the Appellee-Father, James P., with respect to his son, James J. A Petition for the Involuntary Termination of Parental Rights was filed by the Appellant herein, Children and Youth Services of Delaware County (C.Y.S.) and, following a hearing before the Honorable Francis J. Catania, President Judge, on May 18, 1981, Appellee's parental rights were terminated pursuant to Sections 2511(a)(2) and 2511(a)(5) of the Adoption Act of 1980.*fn2

In a separate proceeding in the Trial Division, Appellee filed a petition requesting visitation with James pending appeal of the termination case. This petition was denied on September 28, 1981. Appellee subsequently appealed both orders and a Superior Court panel affirmed (Cavanaugh, J. dissenting). Appellee's Petition for Reargument was granted. The Superior Court en banc reversed (Cirillo, J. dissenting) the order of the Orphans' Court. C.Y.S. petitioned this Court for appeal and we granted allocatur. For the reasons set forth herein, we reverse.

The issues in this appeal are (1) whether the order and judgment of the Orphans' Court of Delaware County terminating the parental rights of Appellee under Sections 2511(a)(2) and 2511(a)(5) of the Adoption Act of 1980 were supported by clear and convincing evidence; and (2) whether a parent suffering from a mental or physical impairment should be held to the same standard of proof in involuntary termination cases as a parent who is not so impaired.*fn3

Our scope of review, as well as the burden of proof in involuntary termination cases, has been clearly defined and reiterated in several recent decisions by this Court. In Matter of Adoption of G.T.M., 506 Pa. 44, 483 A.2d 1355 (1984), we stated:

In cases where there has been an involuntary termination of parental rights by the Orphans' Court, the scope of

[ 511 Pa. Page 594]

    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).

Id., 506 Pa. at 46, 483 A.2d at 1356. Further, unless the Orphans' Court abused its discretion or committed an error of law, its findings are entitled to the same weight given a jury verdict. In re: Adoption of J.S.M., Jr., 492 Pa. 313, 316, 424 A.2d 878, 879 (1981). The trial court, as trier of fact, is the sole judge of credibility of witnesses. In re Green, 486 Pa. 613, 619, 406 A.2d 1370, 1373 (1979); Adoption of S.H., 476 Pa. 608, 611, 383 A.2d 529, 530 (1978). Conflicts in testimony are to be resolved by the trier of fact and we may not disturb a decree of Orphans' Court based upon findings supported by the record unless Orphans' Court applies an incorrect legal standard. Id., 476 Pa. at 611, 383 A.2d at 530.

The circumstances surrounding this case are set forth as follows. On December 19, 1979, James J. was born out of wedlock to Marie J. and allegedly fathered by Appellee. On December 31, 1979, protective custody was awarded to Appellant when Marie was involuntarily committed to Haverford State Hospital. Marie's parental rights were terminated on December 15, 1980, on grounds of incapacity to perform parental duties pursuant to 23 Pa.C.S. ยง 2511(a)(2).

[ 511 Pa. Page 595]

The child is still within Appellant's protective custody and it is their desire to place James, now six years old, for adoption if, and when, Appellee's parental rights are terminated. To that end, Appellant filed a Petition to Terminate the Parental Rights of Appellee on January 23, 1981, pursuant to Sections 2511(a)(2)*fn4 and 2511(a)(5)*fn5 of the Adoption Act of 1980. Appellee's parental rights were terminated following the determination by Judge Catania that Appellee had demonstrated repeatedly an incapacity to perform parental duties for his child, that the child had been removed from the care of the parent for a period in excess of six (6) months, and that the conditions leading to the removal continue to exist and cannot be remedied. Thus, the statutory criteria of Section 2511(a), which would result in termination, had been met.

In La Rocca Trust, 411 Pa. 633, 192 A.2d 409 (1963), we articulated what is required in order to meet the clear and convincing burden of proof:

The witnesses must be found to be credible, that the facts to which they testify are distinctly remembered and the details thereof narrated exactly and in due order, and that their testimony is so clear, direct, weighty, and convincing as to enable the [trier of fact] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue . . . . It is not necessary that the evidence be uncontradicted

[ 511 Pa. Page 596]

. . . provided it "carries conviction to the mind" or carries "a clear conviction of its truth" . . . (Citations omitted.)

Id., 411 Pa. at 640, 192 A.2d at 413.

Our review of the evidence presented in the Orphans' Court reveals that the Decree of Termination was supported by clear and convincing evidence. It is undisputed that when the petition for termination of parental rights was filed, James J. was in the custody of C.Y.S. and had been in such custody since birth. During that period, Appellee never assumed any parental responsibility nor has he, at any time, offered or given support for the child. In April of 1980, he questioned his paternity, wondering whether the mother's statements, that she had been artificially inseminated by the Duponts or Jimmy Carter, were true, and said he wanted to take a fertility test to determine if he was the father. Appellee said, on cross-examination, that he did not remember saying this; however, he did admit that he had a blood test taken to determine if he was the father of James J.

Mr. Peter Spengeman, the social worker assigned to this case, testified that during the first year of James J.'s life, Appellee did have several visits with the child, but would do so only in the company of, and at the insistance of, Marie J., the natural mother. During these visits, Appellee would hold James briefly on his knee, at the urging of Mr. Spengeman, and would never embrace the child or call him by name. Appellee would tease the child and make no effort to comfort him despite the child's crying. Appellee, himself, never requested a visit with James until after he received notice of these termination proceedings and, although the frequency of Appellee's visits has increased since then, they remain devoid of any appropriate interaction between him and the child.

Mr. Spengeman also testified that throughout 1980, he attempted to provide planning meetings and to counsel Appellee; however, Appellee failed to attend meetings, was uncooperative and hostile, and denied Mr. Spengeman

[ 511 Pa. Page 597]

    admittance to his home on three occasions. During this time, when Mr. Spengeman did communicate with Appellee, he consistently indicated that he had no plans for taking care of James, that he knew nothing about caring for a child, and that he would not want to burden his mother with that responsibility. Appellee stated that he thought about getting married to a girlfriend, but did not want to burden her either. Appellee repeatedly stated that he could not care for the child and showed no motivation to accept any services from Appellant to remedy the situation.

The record also reveals that Appellee has been admitted to Haverford State Hospital three times since 1979, the diagnosis being chronic schizophrenia with mood disturbance. Dr. Herman Boerner testified that, at the time of the hearing, Appellee had been under his care for approximately two years, that he had prescribed medication which was necessary to keep his condition under control, and that Appellee's disorder was of moderate to mild severity. Dr. Boerner further stated that the medication was administered in conjunction with very superficial supportive psychotherapy at six-week intervals, and that Appellee had, since the previous fall (1980), maintained himself on the medication, and kept his appointments for the most part, missing only a few times.

However, on cross-examination of Dr. Boerner, the following exchange took place with regard to the progress of Appellee:


Q. You say he has been, I will use the term good, since the fall of 1980. Hasn't it been more like maybe the winter of 1981 (sic) that he has been on this medicine and been doing good?

A. I don't remember, but he has been out of the hospital, which is good.

Q. Didn't you have a conversation, and tell me if I am wrong, with Peter Spengeman in the fall of 1980, at which time you told Mr. Spengeman that he never takes his medicine, he doesn't want to meet with me, meaning

[ 511 Pa. Page 598]

    yourself, what can you do with people like that, he doesn't want to cooperate, he doesn't feel he needs his medicine. Did that conversation take place in the fall of 1980?

A. It may have.

Q. And another conversation in January of 1981 when you told Mr. Spengeman that he was taking his medicine, he was meeting with you?

A. Yes.

Q. Doesn't this gentleman have a history of not taking his medicine and not cooperating?

A. That is true.

Q. So right now he is having a good period, is ...

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