In re P.A.B.

570 A.2d 522, 391 Pa. Super. 79, 1990 Pa. Super. LEXIS 85
CourtSuperior Court of Pennsylvania
DecidedJanuary 24, 1990
DocketNo. 249
StatusPublished
Cited by64 cases

This text of 570 A.2d 522 (In re P.A.B.) 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 P.A.B., 570 A.2d 522, 391 Pa. Super. 79, 1990 Pa. Super. LEXIS 85 (Pa. Ct. App. 1990).

Opinion

JOHNSON, Judge:

This is an appeal from an order terminating the parental rights of appellants father G.B. and mother P.B. (Parents). We are asked to apply the Grounds for Involuntary Termination provision of the Adoption Act — specifically, 23 Pa. C.S. § 2511(a)(5) — to loving parents who have an irremediable incapacity. In doing so we must examine how the parental incapacity impacts upon both the physical and emotional dimensions to the children’s needs and welfare. In this case we must take into account the existing parent-child bond, an undisputed fact of record. We conclude that a proper application of the statute mandates against termination; maintaining the natural parent-child relationship best serves the children’s needs and welfare. Therefore we reverse the order terminating the Parents’ rights.

The Parents are married and have three children. P.A.B. (Patrick), born September 22, 1977 is diagnosed as moderately mentally retarded; M.E.B. (Mark), bom April 18, 1980 suffers from developmental disabilities; and M.A.B. (Melissa), born May 1, 1982 has heart disease that requires medication. Although no evidence was presented at the hearing on the subject, counsel for the Parents as well as [81]*81for Children and Youth Services (CYS) aver that the Parents are mentally incapacitated. The trial court incorporated this averment into its findings: “The parents are of limited intelligence, limited parenting skills and limited ability to understand the obligations and duties of parenthood.” Finding of Fact Number 4.

The Parents needed assistance in caring for their children, which was provided by various social service agencies. However, in March of 1984, CYS decided that these efforts were insufficient, and Patrick and Melissa were removed from the Parents’ custody, were adjudicated dependent and were placed in foster homes. In July of 1983 Mark was removed and was adjudicated dependent, at which time he was placed in foster care. He was returned to the custody of his parents in October of 1983, but CYS resumed custody in March of 1984. Mark is now in a specialized group home.

Since the childrens’ removal, the Parents have put forth considerable effort to maintain association with the children, including meeting a bi-monthly visitation schedule despite the hardships attendant to living in a rural area without private transportation. According to CYS, these visits are conducted outside the Parents’ home due to the need to supervise the visits; CYS claims that the Parents cannot control the children without assistance. In addition, both parents have been attending parenting classes and have been striving to do their best to understand parental duties and how to perform them.

On February 17, 1988 CYS filed separate petitions to terminate the Parents’ parental rights in each child. The petitions did not designate a particular section or sections of the Adoption Act under which termination would be appropriate. However, the petitions included language from 23 Pa.C.S. §§ 2511(a)(2) and (a)(5). These sections provide:

(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:
[82]*82(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.
(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 (emphasis added).

Counsel were appointed to represent the children as well as to represent the Parents in the termination proceedings. Following hearings, which took place on April 19, 21 and 22, 1988, the court entered Findings of Fact. Along with these findings of fact the court raised sua sponte whether the statutory language of section 2511 may be applied to the Parents, who have no control over their deficiencies, or whether policy considerations and/or constitutional considerations require a different result. The court asked counsel to brief and argue this constitutional question, which they did. Subsequently, the court entered Conclusions of Law and a Decree Nisi on July 25, 1988 finding that the requisites of Pa.C.S. § 2511(a)(5) had been met. The court also concluded, based upon the supreme court’s decision in In re William L., 477 Pa. 322, 383 A.2d 1228 (1978), cert. denied [83]*83sub nom Beatty v. Lycoming County Children’s Services, 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978), that the statutory language on its face does not trigger an unconstitutional termination of rights.

The Parents filed exceptions in which they challenged the trial court’s factual findings as well as whether CYS demonstrated by clear and convincing evidence that the elements necessary to terminate parental rights were present. On October 28, 1988 the Parents filed supplemental exceptions, in which they disputed specific findings of fact. On April 10, 1989, the court dismissed the exceptions and rendered absolute the decree terminating the Parents’ parental rights.

The Parents now appeal, raising the following issues:

1. Does 23 Pa.C.S. § 2511(a)(5) violate the equal protection clause of the 14th Amendment to the United States Constitution?
2. Has Pennsylvania chosen the least restrictive means of promoting its interest in protecting minor children?
3. Does 23 Pa.C.S. § 2511(a)(5) violate the due process clause of the 14th Amendment to the United States Constitution?
4. Does public policy mediate against the termination of parental rights in the absence of a finding of fault?
5. Was the evidence adduced at the hearing in the case sub judice sufficient to support the termination of the Parents’ parental rights?

In reviewing an order involuntarily terminating parental rights:

[T]he scope of appellate review is limited to the determination of whether the decree of termination is supported by competent evidence, (citation omitted). If the decree is adequately supported by competent evidence, and the chancellor’s findings are not predicated upon capricious disbelief of competent and credible evidence, the adjudication of the Orphan’s Court terminating parental rights will not be disturbed on appeal, (citation omitted). It is [84]

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Bluebook (online)
570 A.2d 522, 391 Pa. Super. 79, 1990 Pa. Super. LEXIS 85, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-pab-pasuperct-1990.