In re M.L.W.

452 A.2d 1021, 307 Pa. Super. 29, 1982 Pa. Super. LEXIS 5398
CourtSuperior Court of Pennsylvania
DecidedOctober 8, 1982
DocketNo. 129
StatusPublished
Cited by20 cases

This text of 452 A.2d 1021 (In re M.L.W.) is published on Counsel Stack Legal Research, covering Superior 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 M.L.W., 452 A.2d 1021, 307 Pa. Super. 29, 1982 Pa. Super. LEXIS 5398 (Pa. Ct. App. 1982).

Opinions

JOHNSON, Judge:

This is an appeal from the final Order dated December 24, 1980, terminating Appellant’s parental rights to her child M.L.W. We reverse.

[31]*31The record indicates that the child was born on April 9, 1974 to Appellant, age twenty, who was then residing with foster parents. The child’s father is the son of Appellant’s foster parents. Appellant and the child’s father never married. Sometime prior to November of 1978, Appellant and the child moved out of the foster home and into the home of Appellant’s father in Crawford County.

In November of 1978, Appellant and her father sought out the assistance of the Meadville Mental Health Center concerning their inability to control the child. The staff psychologist testified that, after observing the child, he found him to be manipulative. The child was observed as having a speech impediment and his appearance was “. . . a little dirty, clothing wasn’t the best.” Four sessions of parental counseling and play therapy were scheduled from November of 1978 through January of 1979, after the initial visit.

On January 25, 1979 Appellant and her father contacted Child Welfare Services of Crawford County (CWS) concerning their continued problems with the child, i.e., temper tantrums, running away, refusal to follow routines, and threatening Appellant and her father with knives. The testimony is disputed as to whether Appellant inquired into the possibility of the child’s placement in foster care at this meeting. Thereafter, on February 6, 1979, CWS took temporary emergency custody of the child following allegations that the child, at age four, had been abused and sexually molested. The child was found to have pinworms, pneumonia and a speech impediment. Prior to a dependency hearing, Appellant appeared before the court with counsel and consented to the temporary voluntary placement of the child in a foster home. Subsequently, the allegations of abuse were determined to be unfounded by CWS. Appellant then voluntarily admitted herself to the Mental Health Center in Meadville for one week, after becoming hysterical upon turning the child over to CWS. Between February and May of 1979, Appellant visited her son approximately once a week.

[32]*32Appellant was administered I.Q. and psychological tests in May of 1979. She was determined to have an I.Q. of 65, which is in the range of mental retardation, and achievement at the third grade level. Appellant testified that prior to the administration of the tests, she discovered that her sister had taken an overdose of drugs, that she was distracted and she informed the psychologist administering the tests of this. The psychologist testified that he did recall Appellant informing him of her sister and she did not appear upset, in any event.

The child was psychologically tested in January and May of 1979 and found to have an I.Q. of 70 and 79, respectively. The child’s speech problem was improved in February, as noted by the psychologist, as was his general physical appearance.

A petition for involuntary termination of parental rights of both parents was filed by CWS on August 8, 1979. The grounds for Appellant’s termination were based on 1 P.S. § 311(2) which states: ü

(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.

At the hearing on September 7, 1979, both the caseworker for CWS and the psychologist testified that it was their opinion that Appellant’s rights should be terminated on the basis that she was unable to care for the child and will not be able to do so in the future.

The lower court terminated Appellant’s parental rights and the rights of the natural father, and after the dismissal of exceptions filed by Appellant, entered a final order terminating Appellant’s parental rights. The lower court based its decision on the fact that Appellant was retarded and, according to the psychologist, improved her parenting skills only marginally during the counseling sessions. His opinion, as well as that of the CWS caseworker, was to terminate [33]*33Appellant’s rights, as she was incapable of providing essential parental care for the child at that time or at any time in the future.

Appellant alleges that the lower court did not have sufficient compelling evidence to support its conclusion that she lacks the capacity to provide essential care and subsistence to the child and that such incapacity is irremediable. We agree.

Our scope of review is limited to a determination of whether the court’s decree terminating parental rights is supported by competent evidence. In re Adoption of B.D.S., 494 Pa. 171, 431 A.2d 203 (1981); In Re D.K.W., 490 Pa. 134, 415 A.2d 69 (1980). However, the lower court’s inferences, deductions and conclusions are subject to review. In re Adoption of J.A.B., 487 Pa. 79, 408 A.2d 1363 (1979). Concerning the standard of proof, we are mindful of the recent U.S. Supreme Court opinion in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) holding that termination of parental rights requires, at a minimum, clear and convincing evidence. However, because of our determination in the instant case, we need not discuss the applicability of the holding in Santosky at this time.1

Because of the importance placed on the family, the Commonwealth may disrupt the parent-child relationship only upon a clear showing of necessity; moreover, even if removal is necessary to protect the child, every effort should be made to reunite the family. In re Adoption of R.I., 468 Pa. 287, 361 A.2d 294 (1976), appeal dismissed, U.S. cert. denied, 429 U.S. 1032, 97 S.Ct. 722, 50 L.Ed.2d 743 (1977). All circumstances must be considered when analyzing a parent’s performance of parental obligations in a proceeding for termination of parental rights; the parent’s performance must be measured in light of what would be expected of an [34]*34individual in circumstances which the parent under examination finds herself. In re Adoption of B.D.S., supra.

It is clear that termination of parental rights cannot be justified merely by demonstrating that the home is “submarginal” and likely to result in “cultural deprivation”. In re William L., 477 Pa. 322, 383 A.2d 1228 (1978), U.S. cert. denied, sub nom. Lehman v. Lycoming County Children’s Services, et al., 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978).

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Bluebook (online)
452 A.2d 1021, 307 Pa. Super. 29, 1982 Pa. Super. LEXIS 5398, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mlw-pasuperct-1982.