In Re Adoption of Orwick

347 A.2d 677, 464 Pa. 549, 1975 Pa. LEXIS 1097
CourtSupreme Court of Pennsylvania
DecidedNovember 26, 1975
Docket165
StatusPublished
Cited by61 cases

This text of 347 A.2d 677 (In Re Adoption of Orwick) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Adoption of Orwick, 347 A.2d 677, 464 Pa. 549, 1975 Pa. LEXIS 1097 (Pa. 1975).

Opinion

OPINION OF THE COURT

JONES, Chief Justice.

Appellees, Louis and Leann Shank, husband and wife, petitioned the Court of Common Pleas, Orphans’ Court Division, of Blair County to adopt as their heir-at-law Edward McClellan Orwick, Jr., a child born to Leann Shank, formerly Leann Orwick, when she was married to appellant, Edward McClellan Orwick, Sr. The petition filed February 21, 1974, alleged that appellant had abandoned his son within the meaning of Section 311(1) of the 1970 Adoption Act 1 and that, therefore, an involuntary termination of appellant’s parental rights was in order. After a hearing on March 25, 1974, at which the three interested parties testified and were cross-examined, the lower court entered a decree terminating the natural father’s parental rights and granting the appellees’ petition for adoption. Exceptions were taken to the decree and briefs were submitted on September 26, 1974. *552 The court in an opinion overruled the exceptions and reaffirmed the decree permitting the adoption. This direct appeal followed. 2

Appellant contends .that the evidence is insufficient to clearly establish by a preponderance that he “has refused or failed to perform parental duties” for a period of six months and that, therefore, the granting of the petition below was erroneous. 3 Since we find the evidence was sufficient to establish that appellant did fail to perform his parental duties for a period in excess of six months and that the involuntary termination and adoption were warranted by a preponderance of said evidence, we must affirm. 4

The facts of the case follow. Appellant, Edward McClellan Orwick, Sr., and Leann Shank were married in June 1968. A son, Edward, Jr., was born of this marriage on October 17, 1968. During the latter part of 1969 the couple experienced marital difficulties and fi *553 nally separated in November 1969. At the time of separation a voluntary support agreement was entered into with the approval of the court, setting payment at $50.00 per month and granting visitation rights. The couple was divorced on July 7, 1971. Appellant’s last payment under the 1969 support order was made on September 6, 1972, at which time he was $940.00 in arrears. 5 On December 9, 1971, Leann Shank remarried. Prior to this second marriage appellant made regular visits to his son. During that time, for the most part, appellant lived only a short walk from his son. After Leann Shank’s second marriage at the end of 1971 appellant’s visits with his son became less regular. The Shanks moved from the immediate area two months after their marriage to the town of Bellwood, Pennsylvania.

From February 1972 until March 25, 1974, appellant was not in his child’s company. Appellant testified that after the Shanks had moved he called a “a half-dozen” times between February and May of 1972 in an attempt to take his son for the weekend. 6 7 Leann Shank refused to permit appellant to take the child from her new home although she did tell appellant that he was welcome to visit his son at her home. Leann Shank’s reluctance to let appellant take Edward, Jr., away from his home seemed to have a reasonable basis in fact. 1 Appellant *554 did send a Christmas present with a relative in December, 1972, which Leann Shank returned with the message that appellant should deliver the gift in person, The gift was never redelivered. In addition, on the child’s fifth birthday in October 1978, a card was sent and for Christmas 1973 a card and a United States Savings Bond were sent. These sporadic remembrances constitute the sum total of appellant’s efforts to maintain a parental relationship with his child over the twenty-six months prior to the hearing in this case.

Our case law dealing with involuntary termination of parental rights has long recognized that:

“Parental rights may not be preserved by complete indifference to the daily needs of a child or by merely waiting for some more suitable financial circumstance or convenient time for the performance of parental duties and responsibilities (while others adequately provide the child with her immediate and continuing physical and emotional needs). The parental obligation is a positive duty and requires affirmative performance which may not be delayed beyond the statutory period by the parent if the parental right is not to be forfeited.”

In Re Smith’s Adoption, 412 Pa. 501, 505, 194 A.2d 919, 922 (1963). The Smith case, although decided prior to the enactment of the present Adoption Act, remains valid law with regard to what is recognized as performance of the parental duty. See In Re Adoption of Mahlon Nichelle McCray, 460 Pa. 210, 331 A.2d 652 (1975); Appeal of Diane B., 456 Pa. 429, 321 A.2d 618 (1974); In Re Adoption of Jagodzinski, 444 Pa. 511, 281 A.2d 868 (1971).

*555 Where, as in the instant case, the evidence clearly establishes that the parent has failed to perform his affirmative parental duties for a period in excess of six months, this Court then must examine the individual circumstances and any explanation offered by the parent to determine if that evidence, in light of the totality of circumstances, clearly warrants permitting the involuntary termination of said parent’s parental rights and the adoption. In Re Adoption of McAhren, 460 Pa. 63, 331 A.2d 419 (1975); Sarver Adoption Case, 444 Pa. 507, 281 A.2d 890 (1971); Jacono Adoption Case, 426 Pa. 98, 231 A.2d 295 (1967). In deciding this sensitive question, this Court is mindful of the irreversible nature and serious emotional impact which necessarily follow an involuntary termination of parental rights.

Here, appellant throughout the period under consideration was employed as a truck driver. 8 Despite his fairly .regular income he failed to make his monthly payments of support almost from the inception of the order entered in 1969. His wife and child, as a result of his neglect, were compelled to seek public assistance during 1971.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re: Adopt. of: A.G.R., a Minor
Superior Court of Pennsylvania, 2025
In the Int. of: P.S.-Q.S.-L., Appeal of: D.L.
Superior Court of Pennsylvania, 2022
In Re: Adoption of: L.A.K. Apl of: C.K.
Supreme Court of Pennsylvania, 2021
In Re: Adoption of: A.L.K. Apl of: C.K.
Supreme Court of Pennsylvania, 2021
Adoption of: C.M.; Apl of: B.M.
Supreme Court of Pennsylvania, 2021
In re Adoption of S.L.T.
41 Pa. D. & C.5th 14 (Chester County Court of Common Pleas, 2014)
In Re Adoption of L.J.B.
18 A.3d 1098 (Supreme Court of Pennsylvania, 2011)
In Re Bowman
666 A.2d 274 (Supreme Court of Pennsylvania, 1995)
In Re Adoption of Atencio
650 A.2d 1064 (Supreme Court of Pennsylvania, 1994)
In re E.S.M.
622 A.2d 388 (Superior Court of Pennsylvania, 1993)
In Re Baby Boy H.
585 A.2d 1054 (Superior Court of Pennsylvania, 1991)
In Re Adoption of Hamilton
549 A.2d 1291 (Supreme Court of Pennsylvania, 1988)
In re the Adoption of S.B.B. & E.P.R.
539 A.2d 883 (Superior Court of Pennsylvania, 1988)
In re J.G.J.
532 A.2d 1218 (Superior Court of Pennsylvania, 1987)
In Re JGJ, Jr.
532 A.2d 1218 (Supreme Court of Pennsylvania, 1987)
Matter of KLP
511 A.2d 852 (Supreme Court of Pennsylvania, 1986)
In re K.L.P.
511 A.2d 852 (Superior Court of Pennsylvania, 1986)
In re T.L.G.
505 A.2d 628 (Superior Court of Pennsylvania, 1986)
In Re TLG
505 A.2d 628 (Supreme Court of Pennsylvania, 1986)
In Re Adoption of Ostrowski
471 A.2d 541 (Supreme Court of Pennsylvania, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
347 A.2d 677, 464 Pa. 549, 1975 Pa. LEXIS 1097, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-adoption-of-orwick-pa-1975.