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MATTER ADOPTION S.B.B. AND E.P.R. APPEAL E.O.B. AND S.L.R. APPEAL YORK COUNTY CHILDREN AND YOUTH SERVICES (03/29/88)

filed: March 29, 1988.

IN THE MATTER OF THE ADOPTION OF S.B.B. AND E.P.R. APPEAL OF E.O.B. AND S.L.R. APPEAL OF YORK COUNTY CHILDREN AND YOUTH SERVICES


Appeal from Order entered July 22, 1987, in the Court of Common Pleas of York County, Orphans, No. 5422 and 5423.

COUNSEL

John J. Moran, II, York, for appellants.

Carolyn S. Lasky, York, for appellees.

Cavanaugh, Olszewski and Popovich, JJ. Cavanaugh, J., dissents.

Author: Olszewski

[ 372 Pa. Super. Page 457]

This is an appeal from an order of the trial court terminating the parental rights of appellants. Appellants claim that the trial court erred in (1) refusing to grant appellants' motions for a continuance and (2) finding sufficient grounds to terminate appellants' parental rights. For reasons discussed below, we affirm the determination of the trial court.

[ 372 Pa. Super. Page 458]

On December 11, 1981, following the death of the six-week-old son of E.O.B. and S.L.R., appellants, the York County Children and Youth Services (YCC & YS) filed a dependency petition with the York County Court of Common Pleas, Juvenile Division, regarding the couple's daughter, E.P.R. The trial court adjudicated E.P.R. dependent on December 14, 1981, and placed legal and physical custody with YCC & YS. Soon after another child, S.B.B., was born in 1983, the court adjudicated her dependent and also placed legal and physical custody with YCC & YS.

On December 28, 1983, YCC & YS filed separate petitions to terminate the parental rights of appellants as to E.P.R. and S.B.B. The trial court entered a decree nisi, denying the petitions. On August 16, 1985, this Court remanded the case for a rehearing. Appellants were not present at the rehearing, which convened on February 27, 1986. E.O.B., who had been convicted of third-degree murder for the death of his son, had fled to Virginia Beach, Virginia. In December 1985, authorities in Virginia Beach had taken E.O.B. into custody on a fugitive warrant. S.L.R. had gone to Virginia Beach to be with E.O.B. The trial court denied appellants' request for a continuance. On December 19, 1986, the trial court entered an adjudication and a decree nisi terminating the parental rights of appellants.

Appellants claim that the trial court should have granted a continuance because E.O.B. was incarcerated in a state correctional institution and S.L.R. was unable to arrange transportation to the hearing. Appellant, however, cites nothing in the Adoption Act or in case law which mandates the presence of the parent whose rights are the subject of the termination petition. See In Re: B.M.D. and R.L.D., 492 Pa. 454, 424 A.2d 1278 (1981). Therefore, the grant or denial of a continuance is within the discretion of the trial court and will not be disturbed absent an abuse of discretion. Id.; see also Princess Hotels Internat'l v. Hamilton, 326 Pa. Super. 226, 473 A.2d 1064 (1984).

Pa.R.C.P. 216 provides the following grounds for continuance:

[ 372 Pa. Super. Page 459]

(1) Agreement of all parties or their attorneys, if ...


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