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C.W. A/K/A W.C.W. (01/07/87)

filed: January 7, 1987.

IN THE INTEREST OF C.W. A/K/A W.C.W., A MINOR. APPEAL OF B.L.W.


Appeal from the Decree of the Court of Common Pleas, Lawrence County, Orphans Division, at No. 37 of 1984, O.C.

COUNSEL

Donald E. Williams, New Castle, for appellant.

Sydney W. Paul, New Castle, for appellee.

Brosky, Rowley and Popovich, JJ. Rowley, J., files a dissenting statement.

Author: Brosky

[ 360 Pa. Super. Page 138]

This is an appeal from the Decree entered by the trial court which terminated the natural mother's (hereinafter appellant's) parental rights with regard to her eight year old daughter.

Appellant presents the following issues for our consideration: (1) whether the natural mother, by conduct continuing for at least six months, evidence a settled purpose of relinquishing parental claim to her minor daughter; (2) whether the natural mother, for a period of at least six months, refused or failed to perform parental duties; (3) whether the conditions which led to the removal of the child from the custody of the natural mother continued to exist; (4) whether any basis for the termination of the natural mother's parental rights was established by clear and convincing evidence; and (5) whether the procedures followed by appellee and the trial court substantially violated any equitable principles which would deny justice to appellant. Because we find appellant's contentions to have merit we reverse the decision of the trial court.

The facts of this case have led the parties down a long and tortured path before coming to rest before this Court. The minor child was born on March 14, 1978 at the U.S. Naval Center, Portsmouth, Virginia, to appellant and Albert Leslie White, her father, then on active duty in the U.S. Navy at Portsmouth. At the time of her marriage to Albert Leslie White, appellant had another daughter, born June 15, 1975 who made up their marital home in Norfolk, Virginia. Appellant left there with her two daughters when the child in question was one month old. Appellant returned to Pennsylvania and secured her own apartment. Appellant also secured a job and hired Marie Saul as a babysitter for which she was paid. Although this caretaker arrangement was entered into agreeably it apparently soured, prompting appellant to file a petition for Writ of Habeas Corpus against Marie Saul. The issue was amicably resolved and an Order was entered on November 7, 1979 granting custody of the child to appellant.

[ 360 Pa. Super. Page 139]

Just before the child's second birthday she was taken from appellant by Marie Saul and Jean Silvis. Appellant took her back into her possession for eight days when a representative of Lawrence County Children's Services came to appellant's house, took the child to Marie Saul's and left her there. From that time on appellant never had possession of her child except for visitations.

In the meantime appellant's mother, Jean Silvis, filed a petition requesting custody of the minor. Her petition alleged that the child resided with Marie Saul from January 25, 1980 until July 5, 1980, and that she resided with Jean Silvis from July 5, 1980 until the filing of the custody petition. Jean Silvis subsequently filed a second petition, this one for temporary custody, in which she alleged that appellant forcibly removed the child from her home on July 23, 1980. By Order dated October, 1980, the court granted custody of the child to the Lawrence County Children's Services (hereinafter, appellee), with visitations between appellant and her daughter, frequently at times and sporadic at times, as circumstances called for. Visits were scheduled at first twice a week. They began in appellee's office and progressed to overnight visits which went fairly well. In early 1982 visits become less frequent and on May 19, 1982 appellant met with appellee and agreed to a plan of reconstituting the parental relationship. Visitations continued with a pattern of renewed interest through August, 1982. At that time appellant's fiancee (present husband) was severely injured and hospitalized. That Fall appellant and her fiancee were married and moved to North Carolina to live. Appellant has continued to reside there until the present time. She has had contacts with the social service agency in North Carolina and that agency found the influence of appellant's new husband over appellant to be positive and found the home upon inspection satisfactory.

By reason of newly adopted Pennsylvania Department of Public Welfare regulations requiring a six month placement and disposition review hearing, Lawrence County Children's ...


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