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filed: May 11, 1989.


Appeal from the Order in the Court of Common Pleas of Allegheny County, Orphans, Division, No. 61 of 1987.


Edward A. Olds, Pittsburgh, for appellant.

James A. Hickey, Pittsburgh, for appellees.

Timothy W. Pawol, Pittsburgh, for Children and Youth Services of Allegheny County, participating party.

Cirillo, Presiding Judge, and Brosky and Tamilia, JJ.

Author: Tamilia

[ 384 Pa. Super. Page 414]

Appellant appeals an Order entered on August 2, 1988 which made final a decree nisi terminating her parental rights. Appellant is the natural mother of Heather, age 13, Shawn, age 11, and Stacey, age 10, who were first removed from the home in 1979, and were later returned, only to again be removed in 1985 when husband and another man were arrested for sexually abusing them. On February 27, 1985, the children were adjudicated dependent because of physical and sexual abuse by husband and other adults while in the care of mother and husband, resulting in their placement in foster or institutional care. Both appellant and her husband were convicted of three counts of endangering the welfare of children. Appellant was sentenced to serve one to two years imprisonment and she was released from jail on July 8, 1987. On March 17, 1987, a petition for involuntary termination of parental rights was filed by appellee Allegheny County Children and Youth Services, (CYS), seeking termination of the rights of appellant, her husband Kenneth Quick, and an alleged unknown natural father. The rights of the father were terminated by a June 3, 1987 Order by Judge Nathan Schwartz. (Memorandum and Decree, 2/16/88, p. 1.) By an August 11, 1987 Order, Judge R. Stanton Wettick, who had presided over the dependency proceedings, was assigned to Orphan's Court Division at the request of the Administrative Judge of the Orphan's court, for the purpose of hearing the contested termination of mother's rights.*fn1 On January 4, 1988, mother

[ 384 Pa. Super. Page 415]

    presented a motion seeking recusal of Judge Wettick, urging that having previously presided as juvenile court judge, he would have formed opinions based on the evidence, thus depriving her of a fair and impartial termination hearing; this motion was denied the next day. After a hearing, Judge Wettick entered a decree nisi on February 16, 1988 terminating mother's rights pursuant to 23 Pa.C.S. § 2511(a)(5), to which mother filed exceptions. Following argument before the court en banc, the Order in question was issued, and mother timely filed an appeal with this Court.

Appellant first contends the court erred in finding clear and convincing evidence supporting termination was established by CYS. Section 2511(a)(5) provides as follows:

§ 2511. Grounds for involuntary termination

(a) General rule. -- The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:

(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

23 Pa.C.S. § 2511(a)(5).

We recently discussed our standard of review of parental termination in In re Adoption of Hamilton, 379 Pa. Super. 274, 549 A.2d 1291 (1988), stating:

The evidentiary standard for terminating parental rights was formulated by the United States Supreme Court which established that parental rights may not be

[ 384 Pa. Super. Page 416]

    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).

Hamilton, supra, 379 Pa. Superior Ct. at 278, 549 A.2d at 1293.

A review of the evidence in this matter supports the factual findings of the orphan's court regarding the family:

Shawn is seriously retarded. He will always require a living situation that includes adult supervision. Following his removal from his parents' home, he was returned to the foster home where he had lived from 1979 to 1982. He has resided in this home since April 1985. The foster parents have made a long-term commitment to Shawn.

Stacy is a mildly retarded and hyperactive child. She has resided in her current ...

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