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filed: June 27, 1989.


Appeal from the Judgment entered June 28, 1988, Court of Common Pleas, Lawrence County, Orphans' Court at No. 8 of 1986, Adoption. Appeal from the Judgment entered June 28, 1988, Court of Common Pleas, Lawrence County, Juvenile Division at No. 47 of 1984.


Anthony Piatek, New Castle, for appellants.

David Henderson, New Castle, for appellees.

Sydney W. Paul, New Castle, for Children Services, participating party.

Cirillo, President Judge, and Cavanaugh, Brosky, McEwen, Olszewski, Beck, Tamilia, Popovich and Johnson, JJ. Beck, J., files a concurring opinion. Tamilia, J., files a concurring and dissenting opinion in which Olszewski, J., joins. Brosky, J., files a dissenting opinion, in which Cirillo, P.j., joins.

Author: Johnson

[ 385 Pa. Super. Page 453]

This is an appeal from the final decree terminating the parental rights of appellants James R. Coast and Sara Jane Coast and the final decree denying the Coasts visitation with their two children, Ronald James Coast, born February 23, 1973, and Melissa Jane Coast, born November 21, 1974. We are asked to decide whether a "best interests of the child" balancing test is appropriate in a termination proceeding, and, if it is not, whether the trial court erroneously applied such a test. In addition, the Coasts challenge whether the record supports the trial court's conclusion on both the termination and the visitation issues. Finding that

[ 385 Pa. Super. Page 454]

    the trial court did not apply a "best interests" standard, which would have been inappropriate for this determination of whether the parents were unable or unwilling to provide for the children's needs and welfare, and finding that the record supports the trial court's decision to terminate parental rights and the trial court's previous decision to deny visitation, we affirm.


The root of the disruption of the Coast family home is the alcohol problem of both parents. This has led to the Coasts' abdication of their parental roles; they have ceased to provide for their children both physically and emotionally. Ronnie is retarded and requires special care. Melissa has had pervasive emotional problems because her parents have neglected her. Originally the Coasts lived in Butler County, where, as early as 1979, Children and Youth Services (CYS) had received reports from the police regarding the couple's marital disputes. Butler County CYS removed the children for a 16 month period, until the spring of 1981, due to unsatisfactory home conditions. The children were again removed for a four-month period in 1981-82 upon a finding that the condition of the home was unsanitary, and that the parents were walking out on each other and leaving the children unsupervised.

The family then relocated to Lawrence County, where in April of 1984 CYS was notified by the school district in which the children were enrolled that their attendance was extremely poor. Upon investigation, the children were found at home unsupervised. CYS again determined that the home was unsuitable, and the children were removed, placed into foster homes and were adjudicated dependent pursuant to the Juvenile Act, 42 Pa.C.S. §§ 6302*fn1 and 6341(c) on April 23, 1984. The children had structured

[ 385 Pa. Super. Page 455]

    visits with their parents until March 13, 1986, when it was determined that the visits upset the children to the extent that their behavior regressed for weeks afterward. On this date CYS filed a petition to terminate the Coasts' parental rights, and all visitation was halted. Hearings on the petition were held on July 16 and December 23, 1986. The children were represented throughout the proceedings by their own counsel.

The Coasts began treatment for their alcoholism at the Irene Stacy Health Center in Butler in 1985; they had been in treatment for eighteen months at the time of the termination hearing. At the termination hearing the court heard conflicting testimony; the Coasts' therapist testified that the couple told him that they had not been drinking, and yet Melissa testified that she smelled alcohol on her mother's breath during a visit within this period. Following Melissa's testimony, the court conducted an in camera examination of Melissa, with all counsel present. Melissa testified that she was afraid to return to her parents because she feared that they would resume their former drinking habits and would again neglect her. The psychologist for the Human Services Center, who had conducted a parenting evaluation of the Coasts, testified that the Coasts had made little progress since 1979 when the children were first taken from them and that therefore his prognosis was guarded concerning whether the Coasts could care for the children in the future.

Also testifying was Christine Kidd, the 19-year-old daughter of Mrs. Coast. Christine testified at the first hearing that her parents had made considerable progress and had stopped drinking. However, after that hearing but before the trial court reached a decision, Christine repudiated her testimony. Therefore, upon petition by CYS, the court ordered another hearing, which was held on December 23, 1986. At this second hearing Christine testified that her parents were having considerable trouble managing their household, which now included Mrs. Coast's 17-year-old daughter Cindy, who had also been in foster care but

[ 385 Pa. Super. Page 456]

    had been returned to the Coast's home, and two infant children of Sarah Coast's oldest daughter, Mary Ann. Christine testified that, because of her mother's neglect of Cindy, she now felt the need to take responsibility for her sister, to transport her to school and to buy her clothes and personal items. She also expressed doubts about whether her parents had, in fact, stopped drinking, because she had often seen them walking home late at night from the area of a bar and had noticed visitors bringing alcohol into their home. The court also heard extensive testimony from several social workers and counselors who had been involved with the Coast family case over long periods of time. The court found that the implication of this testimony was that conditions in the Coast home were unlikely to change. On that same day, December 23, 1986, the court denied the Coasts visitation.

On July 31, 1987 the Honorable Glenn McCracken, Jr. filed the Adjudication and Decree Nisi terminating the Coasts' parental rights. The decree incorporated the prior denial of visitation on the grounds that visitation presented a clear and present danger to the welfare of the children. The decree also provided for custody to remain with CYS, which had placed the children with the foster families that now seek to adopt the children. On August 10, 1987, the Coasts filed separate petitions asking the court to reverse its decision on visitation and on termination. In his opinion accompanying the denial of the petition to reverse the denial of visitation, Judge McCracken outlined the facts that led him to conclude that both children were terrified of their parents and that they both visibly regressed for a time after the visits. Melissa had, in fact, told the social worker, at the time of the visitation hearing when she was 13 years of age, that she did not want to return to her parents. The court also noted that, although both parents and their counsel were present at the hearing, no evidence was offered in their favor.

Again on November 12, 1987 the Coasts filed a motion to modify and reverse the visitation decision, which was denied.

[ 385 Pa. Super. Page 457]

Following this, the Coasts filed Exceptions to the court order denying visitation. The exceptions were dismissed by the trial court on April 6, 1988. Notice of appeal to this court was filed on May 5, 1988 from the termination of parental rights and on May 16, 1988 from the denial of visitation. On June 10th, 1988 this Court ordered the entering of a final decree in both actions, which were entered on June 28, 1988. A panel of this court decided the case in an Opinion filed on December 15, 1988 that was subsequently withdrawn. Because other cases from this Court refer to "the child's best interests" when reviewing an order terminating parental rights, the panel certified these appeals to the Court en banc to allow us to determine the role, if any, of the "best interests" balancing analysis in a termination of parental rights proceeding.


On appeal the Coasts argue that the trial court, in deciding whether the statutory requirements for termination were present, improperly weighed the environment that they themselves could provide to their children against the environment of the potential adoptive homes. The Coasts are joined by counsel for the children in this argument. As we determine, such a "best interests" balancing analysis is improper, and the trial court in fact took great care not to engage in such an analysis. While it is true that the court considered a wide range of testimony, a thorough review of the record, the Adjudication and the well-reasoned opinion of the Honorable Glenn McCracken, Jr. refutes the Coasts' contention that the court employed a best interests standard in deciding to terminate their parental rights.

The court never discussed the foster homes. Rather, the trial court based its decision to terminate the Coasts' parental rights upon the correct legal standard as set forth in 23 Pa.C.S. § 2511. This determination was reached only after the trial court conducted a commendably exhaustive and exemplary inquiry into all the ramifications of this sensitive case. Once the trial court found that the requisites of

[ 385 Pa. Super. Page 458]

    termination were met, it then decided to terminate parental rights. No issue was raised that additional factors existed that would render termination adverse to the children's interests, nor did the trial court address any.

Judge Tamilia, in his scholarly Concurring and Dissenting Opinion, explains in great detail that, should the court find that the statutory requirements of termination -- that the parents cannot or will not provide for the child's needs and welfare -- are met, the court, in light of additional factors, still has the power not to terminate parental rights. It is this consideration of additional factors that Judge Tamilia defines as consideration of the child's best interests. We do not quarrel with this proposition, nor do we now conclude that consideration of the child's best interests, thus defined, is forever foreclosed, or that termination must be decreed once findings are legally conclusive. Rather, we focus our discussion on the issue raised by the Coasts, whether the trial court improperly balanced the virtues of two homes in deciding that the statutory requisites of termination were met. Thus, our respective positions each actually speak to different issues in termination proceedings. Given the facts of this case and the scope of the issue before us on appeal arising out of these facts, we found it neither necessary nor expedient to reach the issue that Judge Tamilia so ably examines.

First, the Coasts are correct in asserting that a best interests balancing analysis has no place in a determination of whether the statutory requisites of termination of parental rights have been met. Both the statute and case law confirm the validity of this proposition. Because this question has been an understandable source of confusion, we will set forth how the "best interest" test conflicts with the purpose of a termination action. Initially we will characterize the parent's right with regard to children.

The United States Supreme Court explains that a parent's interest in children is a:

     fundamental liberty interest of natural parents in the care, custody, and management of their child [which] does

[ 385 Pa. Super. Page 459]

    not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life.

Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-1395, 71 L.Ed.2d 599, 606 (1982). The state, too, has an interest in promoting the welfare of the child. However, it should be remembered that this interest favors preservation, not severance, of family bonds; the state's interest in finding the child another home therefore arises only when it is clear that the natural parent cannot or will not provide sufficient care for the child. Santosky, 455 U.S. at 766-767, 102 S.Ct at 1401-1402, 71 L.Ed.2d at 615.

A termination court's inquiry, then, focuses on whether the parents are capable of performing the parental duties required of them by society. If the parents cannot fulfill these duties, only then must they relinquish the rights of a parent. The Santosky court held that, because the parental interest is so fundamental, due process requires the party seeking termination to demonstrate by the standard of clear and convincing evidence that the parent can no longer perform parental duties and is thus not entitled to parental rights. In its discussion of the factfinding process in a termination action, the Santosky court explained that:

[t]he factfinding does not purport -- and is not intended -- to balance the child's interest in a normal family home against the parents' interest in raising the child. Nor does it purport to determine whether the natural parents or the foster parents would provide the better home. Rather, the factfinding hearing pits the State directly against the parents.

Santosky, 455 U.S. at 759, 102 S.Ct. at 1398, 71 L.Ed.2d at 610 (emphasis added).

This Commonwealth has, by statute and by caselaw, consistently adhered to these principles. Historically, a determination of relinquishment of parental rights without

[ 385 Pa. Super. Page 460]

    consent could be made only by establishing abandonment. Abandonment as defined in the 1925 Adoption Act*fn2 consisted of "conduct on the part of a parent which evidences a settled purpose of relinquishing parental claim to the child and of refusing or failing to perform parental duties." This was a matter largely of the parents' intention, to be determined from the evidence. In re Gunther's Adoption, 416 Pa. 237, 206 A.2d 61 (1965).

In 1970 the legislature passed a new adoption act which in effect bifurcated adoption proceedings. Act of July 24, 1970. An initial proceeding determined whether parental rights should be extinguished. The act titled this portion of the procedure a "Proceeding Prior to Petition to Adopt." This portion of the Act contained the requirements for voluntary relinquishment of parental rights and involuntary termination of parental rights. If the requirements of one of these sections is met, then the adoption proceeding may take place. Most significant is that the 1970 act introduced new grounds for termination of parental rights. Parental rights could be involuntarily terminated if:

     the repeated and continued incapacity, abuse, neglect, or refusal of the parent has caused the child to be without essential parental care, control, or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect, or refusal cannot or will not be remedied by the parent;

1 Pa.S. § 311(2) (repealed). The Official Comment distinguished this concept from abandonment by explaining that it centered judicial inquiry on the welfare of the child rather than on the fault of the parent. See 23 Pa.C.S. § 2511, Comment -- 1970; In re Adoption of Michael J.C., 506 Pa. 517, 486 A.2d 371 (1984). In other words, the focus shifted from the parents' behavior to the effect of parents' actions or omissions upon the child. The parents' behavior still constitutes the operational fact, but in a broader sense. This effect upon the child has subsequently been expressed as the "needs and welfare" of the child. It follows, then,

[ 385 Pa. Super. Page 461]

    that judicial inquiry necessarily looks at whether the needs of the child, both physical and emotional, are being served, for the purpose of determining whether or not the parent is performing his function. See Adoption of R.I., 468 Pa. 287, 361 A.2d 294 (1976); cert. denied, 429 U.S. 1032, 97 S.Ct. 722, 50 L.Ed.2d 743 (1977).

In this sense, the child's welfare is and always has been considered in Pennsylvania, and "the welfare of the child is of paramount importance in adoption matters." In re Adoption of List, 418 Pa. 503, 515, 211 A.2d 870, 877 (1965) (decided under the 1925 Act). Our courts never meant by this kind of language that a "best interests of the child" balancing test was to be employed; the analysis has, rather, always been an intensive factfinding inquiry into whether the statutory provisions for termination had been met. A best interest of the child analysis, employed traditionally in custody proceedings between two parents, is a balancing of the relative virtues of the two homes in question. It is a presumption in a best interests analysis that the parents, as adverse parties in a custody action, have equal rights regarding the subject child, the question for the court being to determine which home is better for the child. The focus and purpose of a termination hearing, in contrast, is whether parents have so failed in their duty that the State, because of its interest in the child's well-being, must strip the parents of their fundamental right.

A consistent line of cases has elaborated upon this point, beginning with In Re Schwab's Adoption, 355 Pa. 534, 50 A.2d 504 (1947). The court wrote:

Consideration of what is beneficial for the child is vital in custody cases, but cannot be regarded as evidence of abandonment. The child's happiness and well being is the paramount consideration in custody cases. Under the Adoption Act the welfare of the child is weighed only after the necessary consents have already been given or forfeited.

[ 385 Pa. Super. Page 462]

"The fact that the adoption asked for may be advantageous to the children and for their material welfare is not to be considered by the court until the necessary prerequisites for such action exist."

In Re Schwab's Adoption, 355 Pa. at 540-541, 50 A.2d at 508 (citations omitted; emphasis in original). Citing Schwab's Adoption and subsequent cases, the supreme court wrote in 1975 that ". . . in the absence of sufficient evidence to satisfy the statutory requirements for involuntary termination, the question of the best interest of the child never arises." In re Adoption of McAhren, 460 Pa. 63, 70, 331 A.2d 419, 422 (1975).

In 1980 the legislature amended the Involuntary Termination provision of the Adoption Act of 1970 by adding the underscored sections below. The legislature made no substantive changes in the text of the original language of 1 Pa.S. § 311(1)-(3), now § 2511(a)(1), (2) and (3):

§ 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:

(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.

(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.

(3) The parent is the presumptive but not the natural father of the child.

[ 385 Pa. Super. Page 463]

(4) The child is in the custody of an agency, having been found under such circumstances that the identity or whereabouts of the parent is unknown and cannot be ascertained by diligent search and the parent does Page 463} not claim the child within three months after the child is found.

(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 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.

(b) Other considerations. -- The court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent.

23 Pa.C.S. § 2511.

The amendments broadened grounds for termination by requiring that the social agencies take an affirmative role in keeping the family together.*fn3 The statute does not introduce a new test for termination of parental rights merely by use of the phrase "needs and welfare of the child." In fact, this language conforms to the older cases cited above. The comment to the new section (b) states that:

"Subsection (b) directs the court to give primary consideration to the child's needs and welfare. See Adoption of R.I., 468 Pa. 287, 361 A.2d 294 (1976). Furthermore, the court is directed not to terminate parental rights solely on the basis of environmental factors."

[ 385 Pa. Super. Page 464]

Source and Official Comment -- 1980. Justice Roberts, writing for the Adoption of R.I. court, explicitly rejected a balancing approach:

A child cannot be declared 'neglected' merely because his condition might be improved by changing his parents.

Adoption of R.I., 468 Pa. 287, 295, 361 A.2d 294, 298 (1976). This language was excerpted from an opinion of this Court written by Judge Woodside, In re Rinker, 180 Pa. Super. 143, 117 A.2d 780 (1955). The complete Rinker passage so cogently summarizes the principles under discussion here that it is worth reproducing in its entirety:

The family is an institution which preceded governments. Its sanctity was universally recognized before judges or statutes or constitutions or welfare organizations were known to man. The right of a child to a mother and a mother to a child are rights created by natural law. They are rights attributable to the nature of mankind rather than to the enactments of law.

It is a serious matter for the long arm of the state to reach into a home and snatch a child from its mother. It is a power which a government dedicated to freedom for the individual should exercise with extreme care, and only where the evidence clearly establishes its necessity. Yet, of course, there are cases where such authority must be exercised for the protection and welfare of children.

Under our system of government children are not the property of the state to be reared only where and under such conditions as officials deem best. On the other hand the state is interested in establishing a minimum standard of care for a child's physical, intellectual and moral well being. But this minimum standard must be viewed in the light of experience. Although there are many very good homes, there is no such thing as a "perfect home."

A child cannot be declared "neglected" merely because his condition might be improved by changing his parents. The welfare of many children might be served by taking them from their homes and placing them in what the

[ 385 Pa. Super. Page 465]

    officials may consider a better home. But the Juvenile Court Law was not intended to provide a procedure to take the children of the poor and give them to the rich, nor to take the children of the illiterate and give them to the educated, nor to take the children of the crude and give them to the cultured, nor to take the children of the weak and sickly and give them to the strong and healthy.

The power of the juvenile court is not to adjudicate what is for the best interests of a child, but to adjudicate whether or not the child is neglected.

In re Rinker, 180 Pa. Super. at 147-148, 117 A.2d at 783-784 (emphasis added). The "minimum standard of care for the child's physical intellectual and moral well-being" amounts to what Judge Woodside termed the "protection and welfare of children" and what the statute terms "the child's needs and welfare." The term "child's needs and welfare" denotes neither a discrete factor which a court must consider, nor a discrete step in a termination adjudication. Rather, it denotes the minimum standard of ...

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