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submitted: June 27, 1988.


Appeal from the Order entered February 5, 1988 in the Court of Common Pleas of Clearfield County, Orphans, No. 2035.


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

Rowley, Del Sole and Beck, JJ. Del Sole, J., files a concurring statement.

Author: Beck

[ 379 Pa. Super. Page 277]

Ernest Hamilton appeals from an order of the Clearfield County Orphans' Court, involuntarily terminating his parental rights to his daughter Kristy. In this appeal we especially consider the effect of a parent's subsequent remedial behavior, after abandoning a child, in light of the child's needs and welfare.

Appellee Brenda Wilt, Kristy's natural mother, has custody of the child. Wilt and her new husband, who wishes to adopt Kristy, petitioned to terminate Hamilton's parental rights under 23 Pa.Cons.Stat.Ann. ยง 2511(a)(1) (Purdon Supp.1988). After a hearing, the orphans' court entered a memorandum and order, dated May 16, 1986, terminating Hamilton's parental rights.

Hamilton appealed, and the Superior Court vacated the order and remanded for proceedings in accordance with the Rules of Civil Procedure including the requirement that the orphans' court enter an adjudication and decree nisi under Rule 1517 and afford the parties an opportunity to file post-trial motions under Rule 227.1. In re Adoption of Hamilton, 362 Pa. Super. 249, 523 A.2d 1176 (1987).

Despite our explicit instructions, rather than enter an adjudication and decree nisi, the orphans' court stated that it treated the order of May 1986, which the Superior Court vacated, as a decree nisi. It permitted Hamilton to file proposed findings of fact and conclusions of law in lieu of exceptions. After a hearing, the court then entered a final order on February 5, 1988, in which it implicitly denied Hamilton's challenges to the May 16, 1986 order (decree nisi) and affirmed its order of May 16, 1986. Hamilton filed a timely appeal to the final February 5, 1988 order.

Although ordinarily we might remand for the trial court to follow the proper procedure as formulated in the Rules of Civil Procedure, we will not do so in this case. The trial court explained satisfactorily its deviations from accepted procedure, the parties were not prejudiced by the procedure,

[ 379 Pa. Super. Page 278]

    meaningful appellate review can be made on the basis of the record, and most importantly, the case involves the relationship of a child to her parents. Given the two-year delay in this case because of the original procedural misstep and the remand, we recognize an urgency in finally resolving this matter.

The evidentiary standard for terminating parental rights was formulated by the United States Supreme Court which established that parental rights may not be terminated in the absence of clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). In In re: T.R., 502 Pa. 165, 465 A.2d 642 (1983) our state supreme court adopted the reasoning of Santosky as a matter of state law applicable to all termination proceedings. This principle requires evidence which is "so clear, direct, weighty, and convincing as to enable the [factfinder] to come to a clear conviction without hesitancy of the truth of the precise facts in issue." In re Shives, 363 Pa. Super. 225, 227-28, 525 A.2d 801, 802 (1987) (citation omitted). In assessing whether the trial court's determination is based on clear and convincing evidence, we review the chancellor's findings. In the Matter of Adoption of G.T.M., 506 Pa. 44, 46, 483 A.2d 1355, 1356 (1984), quoted in In re Adoption of Faith M., 509 Pa. 238, 240, 501 A.2d 1105, 1106 (1985); In re J.G.J., Jr., 367 Pa. Super. 425, 532 A.2d 1218 (1987). "Absent an abuse of discretion, an error of law or insufficient evidentiary support for the findings of the Orphans' Court, an appellate court will not reverse a hearing court's order to terminate." Shives, supra, 363 Pa. Super. at 227-28, 525 A.2d at 802.

We review the facts, with all conflicts resolved in favor of the orphans' court as trier of fact and sole judge of credibility. In re Adoption of J.J., 511 Pa. 590, 515 A.2d 883 (1986). The parties were married in 1977. Kristy was born on July 4, 1977. The parties separated in 1978 and were divorced in 1979. They agreed informally to Wilt's custody of Kristy and Hamilton's right to visitation. Because she received public assistance, Wilt brought a support action

[ 379 Pa. Super. Page 279]

    against Hamilton. Hamilton was ordered to pay $52 per month.

Since the separation in 1978, through Christmas 1982, Hamilton had contact with Kristy approximately twice a year, around Christmas and her July birthday. These contacts included visits when Wilt would bring Kristy unannounced to Hamilton's family, and once, Hamilton visited at Wilt's residence. However, the court found that the pattern of contact ceased and in 1983 and 1984 Hamilton had no contact with Kristy. The court made this finding of fact based on Wilt's testimony. It appears that the court did not credit the testimony of two of Hamilton's and one of Wilt's witnesses, who testified to the ...

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