In re Termination of Parental Rights of F.L.D.

464 A.2d 419, 317 Pa. Super. 473, 1983 Pa. Super. LEXIS 3591
Superior Court of Pennsylvania·Decided July 29, 1983·No. No. 680·Published·Cited by 5 cases

Opinion

PER CURIAM:

This is an appeal by F.L.D., natural father of M.A.D.,' from an order terminating his parental rights under 23 Pa.C.S.A. § 2511(a)(1).1 Appellant raises the following issues in this appeal: (1) the trial court’s decision is not based on clear and convincing evidence; (2) § 2511(a)(1) is unconstitutionally vague; and (3) § 2511(a)(1) permits an unconstitutional state intrusion into the parent-child relationship. We disagree and affirm.

[476] M.A.D., born May 21, 1972, is the only child of the marriage between appellant and K.D.G., the petitioner herein. Appellant and K.D.G. separated approximately a year after M.A.D.’s birth and were divorced on October 7, 1975. K.D.G. has had continuous custody of M.A.D. since his birth. In 1978, K.D.G. married C.G., who desires to adopt the child.

From the time of separation until February 1976, appellant visited his son frequently and made support payments of $15.00 per week. Since K.D.G. was receiving public assistance, these support payments were turned over to the welfare agency. In February 1976, the support payments stopped. When K.D.G. questioned appellant about support, he told her he had quit his job and had no money. Appellant testified to telephone conversations with K.D.G. in February and June of 1976, although K.D.G. recalled only the conversation in June. She did, however, admit that she refused appellant’s oral request for visitation. Among the reasons K.D.G. felt justified her refusing visitation were that appellant told her he had quit his job and was living in a “store-front” church in a rather undesirable neighborhood and that since appellant was taking the child from New Jersey (where K.D.G. lived) to Pennsylvania (where appellant lived), she was afraid she might have trouble getting the child back. From June 1976 until the initiation of the present proceedings in August 1980, neither K.D.G. nor M.A.D. had any direct contact with appellant. Appellant did, apparently, attempt to enforce visitation through the courts because K.D.G. received notice of a hearing in December 1977 and an informal conference in July 1978.2 She did not attend either and nothing further was forthcoming from the court. After F.L.D. received notice of the instant proceeding, he deposited $3,885.00 with his attorney, claiming that he had paid $15.00 per week support into an [477] “escrow” fund kept at his residence because he could not locate K.D.G.3

Appellant testified that he had no intention of abandoning his parental rights and that K.D.G. had told him several times that she would find a new father for M.A.D. Appellant also presented the testimony of a clinical psychologist who concluded that F.L.D.’s personality traits were such that when he was rebuffed in his requests for visitation, he ceased making attempts to see his son. He further testified that appellant had not, psychologically, abandoned M.A.D.

Because of the recent decisions in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) and In re: Adoption of M.E.T, 313 Pa.Super. 316, 459 A.2d 1247 (1983), we find it necessary to address the issue of the proper standard of proof even though neither party contends that the trial judge used an incorrect standard. In Santosky, the United States Supreme Court held that the grounds for terminating parental rights had to.be proven by clear and convincing evidence rather than by a preponderance of the evidence. In M.E.T., our court en banc stated that the “effect of the Santosky decision was to raise the burden of proof required in involuntary termination of parental rights cases from a ‘preponderance of the evidence’ to ‘clear and convincing evidence.’” M.E.T. held, therefore, that any case where parental rights were terminated using the preponderance of the evidence standard which was pending on appeal at the time Santosky was filed would be remanded for further proceedings in light of Santosky. The reason for remanding, rather than having the appellate court review the record in light of the new standard, is because the standard affects the way the [478] evidence is weighed by the factfinder, that is, the trial court. In the instant case, the trial court made clear that it weighed the evidence under the clear and convincing standard. Indeed, the trial court specifically considered Santosky and determined that it “approves the Pennsylvania standards of clear and convincing evidence, In re William L., supra, and has no impact on our disposition ...” (OP. p. 30) We note, as well, that the Santosky opinion also cites In re William L., 477 Pa. 322, 383 A.2d 1228 (1978) to support its conclusion that Pennsylvania requires clear and convincing evidence to support a decree terminating parental rights. It is clear, therefore, that the standards of Santosky have already been met in this case and that remand would serve no purpose.4

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In re Termination of Parental Rights of F.L.D., 464 A.2d 419, 317 Pa. Super. 473, 1983 Pa. Super. LEXIS 3591 (Pa. Ct. App. 1983).

464 A.2d 419 (In re Termination of Parental Rights of F.L.D.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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