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ADOPTION KRISTY D. HAMILTON (04/06/87)

filed: April 6, 1987.

IN RE ADOPTION OF KRISTY D. HAMILTON, TERMINATION OF PARENTAL RIGHTS. APPEAL OF ERNEST A. HAMILTON


APPEAL FROM THE ORDER ENTERED MAY 16, 1986 IN THE COURT OF COMMON PLEAS OF CLEARFIELD COUNTY, ORPHANS NO. 2035.

COUNSEL

F. Cortez Bell, III, Clearfield, for appellant.

Cirillo, President Judge, and Rowley and Popovich, JJ.

Author: Cirillo

[ 362 Pa. Super. Page 250]

This is an appeal from an order of the Clearfield County Orphans' Court involuntarily terminating the parental rights of appellant, Ernest Hamilton, to his daughter Kristy. Appellee, Brenda Wilt, the natural mother, and her new husband have custody of the child, and the new husband will seek adoption. Ernest now retains visitation rights through a supersedeas on the termination order.

In June of 1985, Brenda Wilt, Kristy's mother, filed a petition under 23 Pa.C.S. § 2512(a)(1) to terminate the natural father Ernest's parental rights to Kristy. The petition recited that Ernest had "shown by conduct continuing over a period of at least six (6) months a settled purpose of relinquishing parental claim to the child."

After hearing testimony from the parties and their witnesses, the Clearfield County Orphans' Court entered a "Memorandum and Order" dated May 16, 1986, terminating Ernest's parental rights. The court relied on both of the dual grounds for termination provided by 23 Pa.C.S. § 2511(a)(1) ("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").

Ernest appealed the termination order directly, without filing exceptions or motions for post-trial relief, and now challenges the order terminating his parental rights on three grounds:

1) the court erred in finding that Ernest had exhibited conduct evidencing a "settled purpose" of relinquishing parental claim to Kristy;

2) the orphans' court's findings of fact, particularly regarding nonpayment of support, conflict with the evidence;

[ 362 Pa. Super. Page 2513]

) the court erred by applying the six-month criterion of the statute presumptively.

Rather than reach the merits of this appeal, we vacate the "Memorandum and Order" because of the orphans' court's failure to comply with the Rules of Civil Procedure. Under the rules of equity procedure governing orphans' court matters, Ernest must have the opportunity to raise his issues before the court in motions for post-trial relief. Pennsylvania Orphans' Court Rule 3.1 provides that pleading and practice in orphans' court shall conform to pleading and practice in equity, unless otherwise prescribed by statute, supreme court rule, or local orphans' court special order or rule. Since there are no local orphans' ...


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