In Re the Adoption of L.M.C.

452 A.2d 1025, 307 Pa. Super. 37

• Court: Superior Court of Pennsylvania
• Decided: March 25, 1983
• Docket: 700
• Status: Published

Opinions

JOHNSON, Judge:

This is an appeal from the Order entered June 8, 1981, involuntarily terminating the parental rights of S.L.P.C. to her children, L.M.C. and M.B.C.C. For the following reasons, we reverse.

The record indicates that L.M.C., born August 9, 1974 and M.B.C.C., born September 10, 1977, were adjudicated dependent on March 20, 1979 and placed in the same foster home. A petition for termination of Appellant’s parental rights to these children was filed by Children’s Services of Erie County (CSEC) on October 8, 1980. The alleged basis for termination was 1 P.S. § 311(1), (2) and (3) which state:

(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; or

(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 cause of the incapacity, abuse, neglect, or refusal cannot or will not be remedied by the parent; or

(3) The parent is the presumptive but not the natural father of the child. Act of July 24,1970, P.L. 620, No. 208, Art. Ill, § 311, 1 P.S. § 311.

The lower court, by Order dated April 2, 1981, terminated Appellant’s parental rights relying on subsection (1), stating that Appellant, “by conduct which continued for a period in excess of six (6) months has evidenced a settled purpose of relinquishing parental claim to the children or has refused and failed to perform parental dutiesf.]”¹

After denial of exceptions, the lower court entered a final order terminating Appellant’s rights on June 8, 1981, along with a three page opinion.

Appellant alleges that neither of the provisions found in § 311(1) were supported by substantial evidence and that, in any event, no continuous six-month period is evident from the facts.

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.

The record indicates that no six-month period exists in this case.² Apparently, the six-month period used as the grounds for termination commenced after Appellant’s visit with the children on January 15, 1980. CSEC was on strike in January and February, although supervisory personnel were receiving telephone calls. Appellant next contacted CSEC on March 17, giving the Agency her new address. On March 18, Appellant cancelled an appointment with her caseworker and on April 21, she again called CSEC to inform them of yet another new address. Appellant cancelled an appointment set for May 6, stating that she was ill.

On May 9, 1980, Appellant’s caseworker transferred the case to a second caseworker, who did not receive Appellant’s case until June 9, 1980. In the meantime, a court order was entered on June 2, 1980, ordering Appellant to cooperate with the treatment plan outlined by the court by the orders of April 4, 1979, which required Appellant to obtain adequate housing, cooperate with the BVR and WIN³ programs, cooperate with a psychological evaluation, and cooperate with caseworker counseling.⁴ The June 2, 1980 order further ordered that if within sixty days Appellant had not shown an effort to stabilize her life and work toward the return of her children, the agency was to file a termination petition.

After the scheduling and cancellation of visits, Appellant visited with L.M.C.⁵ on July 7, 1980. Appellant visited with both children on August 7, 1980.⁶

It is clear from these facts that as to L.M.C., no six-month period elapsed, as visits took place on January 15 and July 7, 1980. Although six months did elapse in regard to M.B.C.C., during three of the six months, CSEC was either on strike or did not have a caseworker assigned to Appellant. Also, absent any evidence as to why M.B.C.C. was not taken to the agency for the July 7, 1980 visit, we are unprepared to conclude that Appellant did not, in fact, desire or request visitation with M.B.C.C. at that time. We therefore find that, under these specific circumstances, no continuous six-month period elapsed as required by § 311(1), in regard to M.B.C.C.

The lower court found that Appellant had evidenced a settled purpose of relinquishing parental claim to the children or refused and failed to perform parental duties.⁷ Concerning relinquishment of a parental claim:

A “settled purpose” to relinquish parental claims requires a deliberate decision by the parent to terminate the parental relationship, and the parent must persist in that determination throughout the six-month period. [In re Adoption of Baby Girl] Fleming [471 Pa. 73, 369 A.2d 1200] supra; [In re Adoption of] Farabelli, supra. Thus, this Court has required an “ ‘affirmative indication of a positive intent,’ ” see [In re Adoption of] McAhren, supra, 460 Pa. [63] at 70, 331 A.2d [419] at 423, as well as a “finality of purpose,” see Wolfe Adoption Case, 454 Pa. 550, 554, 312 A.2d 793 (1973), before sustaining a conclusion of a “settled purpose.” Moreover, any action by the parent within the six-month period inconsistent with such “settled purpose” will preclude an involuntary termination of that parent’s rights.

In re Adoption of R.W.B., 485 Pa. 168, 174, 401 A.2d 347, 350 (1979). Also, the question of whether a parent has evidenced a settled purpose of relinquishing parental claim must be analyzed in relation to the particular circumstances of the case. In re Adoption of M.M., 492 Pa. 457, 424 A.2d 1280 (1981).

Appellant persisted, during the period from January to August, 1980, in her requests for the return of the children, as well as her calls to CSEC to inform them of her new addresses. Also, a request for a visit was made on June 25, 1980, albeit cancelled by Appellant on June 27. Upon a review of the record, we discern no affirmative indication of a positive intent of a “settled purpose”, as the record indicates numerous other visits between August 1979 and October of 1980.

The lower court also raised the alternative of Appellant’s refusal and failure to perform her parental duties as an alternate ground for termination. The basis for termination on this ground is the alleged failure of Appellant to follow through with the court ordered treatment plan, as discussed in the orders of April 4, 1979 and June 2, 1980, supra.

Appellant did comply with the psychological evaluation and moved numerous times in an attempt to secure adequate housing. Appellant’s second caseworker made visits in July and August of 1980 to Appellant’s residence and found it to be in compliance with the court order.

Concerning Appellant’s failure to involve herself in the BVR and WIN programs until after the filing of the termination petition, Appellant claimed that she had severe problems with her teeth which were not remedied until sometime after July of 1980. The second caseworker also testified to Appellant’s failure to follow through with the mental health counseling program. This program was never made a part of either court order involving treatment plans. Also, the mental health counseling, as recommended to Appellant on August 13, 1980, was deemed unnecessary by Appellant on August 15, as she was no longer severely depressed.

Appellant had previously admitted, to her caseworker, problems with alcohol and drug abuse, as well as problems in dealing with her children. Appellant was also unemployed and receiving public assistance prior to the filing of the termination petition.

In the instant case, we have determined that no six month period existed in relation to Appellant’s failure and refusal to perform parental duties. However, even if a six month period had been proven, that fact alone will not support a determination of failure to perform parental duties where the totality of the circumstances, including evidence of the parent’s individual circumstances and any explanation offered by her, does not warrant termination of her rights. In re Adoption of J.A.B., 487 Pa. 79, 408 A.2d 1363 (1979). A finding of abandonment will not be predicated on parental conduct which is reasonably explained or which resulted from circumstances beyond the parent’s control; it may result only when a parent has failed to utilize all available resources to preserve the parental relationship. In re Burns, 474 Pa. 615, 379 A.2d 535 (1977). Performance of parental obligations must be measured in light of what would be expected of an individual in circumstances in which the parent under examination finds herself. In re Adoption of B.D.S., 494 Pa. 171, 431 A.2d 203 (1981).

Despite the burden of problems Appellant has faced she, at the time of the hearing on the petition, was currently attending mental health counseling, had signed up for .the WIN program and was working in a cafe. We cannot say that, under these facts, Appellant has either evidenced a settled purpose of relinquishing parental rights or has refused and failed to perform her parental duties.

The Order entered June 8, 1981 is reversed.

BECK, J., concurs in the result. POPOVICH, J., files a dissenting opinion.

1 . We note, with disapproval, that the Petition for Involuntary Termination of Parental Rights filed with the orphans’ court on October 8, 1980 is a “form petition” (Form A-4) containing a large number of words and phrases which have been struck through with typewriting. The decree attached to the Petition also contains whole sections which have been crossed out, both with blue and black ink. An examination does not permit any conclusion as to whether any, some or all of these deletions and amendment(s) were made by counsel for CSEC, the lower court, or some other party. The Petition does not contain all of the allegations required by Supreme Court Orphans’ Court Rule 15.4(a). We would submit that the demanding standards of the Adoption Act, the strong policy of restraining from interfering with the family enunciated both by our Legislature and our courts, and the need for adequate review both by the orphans’ and appellate courts require a higher standard of work product than presented here. Cf. In Re William L., 477 Pa. 322, 328-35, 383 A.2d 1228, 1231-34 (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).

2 . We note that the lower court failed to specify what six-month period it based its decision on.

3 . BVR refers to the Bureau of Vocational Rehabilitation; WIN refers to a work incentive program for the unemployed.

4 . None of these orders have been made part of the record in the instant case. The orders of April 4 appear as an Appendix to Appellant’s brief and the order of June 2 was read into the record at the hearing on April 2, 1981 at page 21.

5 . No reason is forwarded as to why only one child was brought to the agency for Appellant’s visit.

6 . Appellant requested visitation on July 22, 1980, but the visit was scheduled for August 7 due to the caseworker’s vacation.

7 . We note, with disapproval, the lower court’s non-specificity in using the conjunctive “or” in relation to the separate grounds for termination found in section 311(1).