*2 BECK, POPOVICH, JJ. Before JOHNSON
POPOVICH, Judge: of of the final decree the Court This is from appeal Division, Court County, Orphans’ Common Pleas of Erie of T. rights terminating appellant, involuntarily son, V. H., in her natural J. S. H. 26, 1980, a was filed the Court
On June Division, by Common Pleas of Erie Court County, Orphans’ Services), (Children’s of Erie County Children’s Services herein, termination of appellee seeking involuntary son, H. J. respect S. parental rights Orphans’ was held hearing On October involuntarily terminating appellant’s Court entered decree 311(1) 311(2) under rights § (current version at 23 Pa.C. Act. 1 311 (Supp.1976) P.S. § 1981-82)). excep- Part After 2511(a)(l)-(2) (Pocket S.A. § *3 Orphans’ tions the Court orally argued, were filed and given opportunity by ordered that be another with her son to determine wheth- Children’s to visit Services 1981, 18, for child. On May er she could care the properly A a motion to terminate visitation. Children’s Services filed and, 10, 1981, held, Orphans’ was June hearing second dismissing appellant’s excep- Court a final decree entered 6, 1980, thereby tions the decree of and October reinstating This direct rights. appeal terminating appellant’s parental followed. was first contends that evidence
On appeal, appellant either failed or refused to insufficient to establish that she of six duties for a at least perform her parental of her incapacity, months or that conditions causes Second, will be refusal cannot or remedied. neglect or the actions of Children’s that Services appellant argues her efforts to duties. perform parental thwarted reasons, we the lower court’s For the affirm following decree. review in cases of with, our standard of begin
To is limited rights termination of parental involuntary sup- are findings the lower court’s whether determining 93 85, 415 L.A.G., 490 Pa. In re evidence. competent ported by determination, we are this making In A.2d 44 supporting the evidence true all as “[accept] obliged In re therefrom.” inferences reasonable and all findings In (1980) (quoting 71 138, 415 A.2d D.K.W., Pa. 490 1237, cert. 340, 383 A.2d L., 477 Pa. re William (1978)). L.Ed.2d 880, 99 S.Ct. denied, 439 U.S. discretion, Orphans’ findings Absent an abuse could record though even be sustained Court must D.K.W., supra; re In result. an support opposite to the instant this standard L., applying supra. William facts: following case, the record discloses six When he was 19, 1978. on August was born J. S. H. child under a dependent old, adjudicated J. H. was weeks S. appel to thrive and his failure Act because of the Juvenile care.1 Pa.C. medical adequate provide failure to lant’s in the placed The child was (1981 Pamphlet). S.A. § and, age at Services of Children’s custody care and a foster mother in the home of weeks, placed seven resides. currently whom he dis- having neurological as diagnosed been
The child has It also problems. delays, physical developmental ability, normal not within the child is has been established range a limited intellectual limits and has intelligence capacity. on November hearing
Following dispositional under the the child remain ordered that Court Orphans’ for an indefinite Services of Children’s care and supervision *4 with mental cooperate ordered to Appellant period. in a child care program participate and to counseling health their par- children and handicapped mentally for designed dependent child as one who: a The Juvenile Act defines 1. subsistence, control, parental educa- (1) proper care or is without necessary law, his by for required other care or control or tion as health, morals; mental, physical, or or emotional law; adoption in of (2) placed or violation for care has been guardian, by parents, other custo- (3) his or abandoned has been dian; legal parent, guardian, Pa.C. (4) or custodian[.] a is without Pamphlet) (1981 S.A. a mental health for counseling ents. attended Appellant time, recognize any problems short of failed did not attending. Appellant partici- ceased subsequently care program. Although in the court-ordered child pate reason she did not primary maintained that appellant was because she did not drive and attend child care classes time, that at that she ride, she also stated could not obtain training. (N.T. that she needed parental did not feel 10/6/80, 38, 43). pp. condi- 1979, the court established
In March and October Both of son. appellant tions for the reunification to attend various types court orders required appellant visitation. never Appellant and also for counseling provided More- training program. attended the required was afforded liberal over, visiting privi- although appellant During take full of them. advantage she declined to leges, home, appellant the visits that took place appellant’s Overall, appel- attention to the child. often would pay son was limited because “[appellant] lant’s contact with her or things, getting papers together would be off other doing with attention to her paying boyfriend or playing dogs 10/6/80, 11). . (N.T. p. 7, 1980, 18,. through April appellant
From January or visit with her son. failed to contact Children’s Services for visitation was 7, 1980, April appellant’s request On because of her failure to follow denied Children’s Services contact the agency.2 with or Children’s through counseling rights, then to terminate filed Services a. on October and, hearing Orphans’ following After were exceptions relief. granted requested Court ordered that be given filed and the court argued, or Appellant her failure to contact Children’s Services attributes during Services was on strike see her son to the fact that Children’s reveals, February January part 1980. The record and the first however, during early part appellant’s last visit occurred agency appellant knew that she could contact the strike and Therefore, the strike was not an we note that schedule visitation. visiting contacting agency appellant’s obstacle to either her son. *5 deter- visit with her son in order to another to opportunity care for the child. mine whether she could properly in the to this order took place Visitations held pursuant visits, first three During child’s foster home. her son and spent majority
had no interaction with with one of the other foster children. allotted time playing to interact with her son attempts Appellant’s infrequent unsuccessful. The child re- visits were during subsequent and to his mother with of erratic displays physical sponded hide from emotional behavior. child would Specifically, scream, kick, out his and and cry pull and avoid appellant, interaction. attempted Appellant hair when his mother often failed to react to her son’s outbursts and consistently children. Despite with one of the other foster began play visits, nature of the unsettling appel- the unsuccessful and all the were going caseworker that visits lant informed the and that well, good rapport, she and her son had a very there were no problems. refused to allow appel- Children’s Services May, son and filed a to terminate
lant to visit with her complaints was prompted by visitation. This action visits caused the child severe emo- foster mother that distress, and withdraw- including voiding tional and physical sleeping bed-wetting, al symptoms, hyperventilating, motion to Following hearing appellee’s difficulties. visitation, Court dismissed Orphans’ appel- terminate entered a final decree its reinstating lant’s exceptions terminating appellant’s parental 1980 order October rights. oper- is does own or unemployed,
Currently, appellant automobile, lives with her at Canadohta parents ate an she testified that Lake, presently City. Appellant Union does not know how are they classes but attending more of that the classes her other than helping “[teach her] 6/3/81, (N.T. p. reason with child.” how to . . . try [a] 72). evidence was insufficient now contends that the
Appellant that she failed or finding Court Orphans’ support *6 of at for a period her duties parental refused to perform disagree. least six months. We that parental Act 311(1) Adoption provides Section when terminated, a following hearing, be rights may “[t]he at least six for a of continuing period conduct parent by parental failed to perform refused or months . . . has at 23 version 311(1) (current 1 (Supp.1976) duties.” P.S. § 1981-82)). Part (Pocket 2511(a)(1) Pa.C.S.A. § or failed to has refused parent In whether determining remember that: duties we must discharge parental indif- complete not be preserved by “Parental rights may merely waiting of a child or by ference to the needs daily conve- financial circumstance or for some more suitable duties and of parental nient time for the performance child provide others (while adequately responsibilities and emotional continuing physical with her immediate and and duty is a obligation positive The needs). parental not be de- may which performance affirmative requires if the period by beyond statutory layed is not to be forfeited.” parental right 677, 549, 554, 347 A.2d Orwick, 464 Pa. In re of 501, Pa. 412 Adoption, re Smith’s (1975) (quoting 680 919, (1963)). 922 505, 194 A.2d Moreover, status, or passive ... a mere biological
“Parenthood is not relinquish claims and declines to state of mind which calling It an active occupation, of the child. ownership love, of parental for constant affirmative demonstration him- must exert parent] concern ... and protection [A in the importance maintain a of place self to take and ” 429, 433, B., 456 Pa. of Diane child’s life . . . . Appeal 321 A.2d (1980) Pa. 415 A.2d L.A.G., added).
(emphasis reveals sufficient review of the record our Instantly, that conclusion Court’s Orphans’ evidence to support for a well period duties failed to perform minimum. Appellant’s six statutory of the month in excess son, filing petition to the prior last visit January rights, was terminate her involuntarily June filed on 1980. Children’s Services’ appel- after eighteen six days of months period conduct no doubt appellant’s visit. We have lant’s last throughout six month statutory during care, foster son has been in half that her years two and one within duties perform parental a failure to demonstrates 311(1). terms son was weeks, adjudicated of six appellant’s
At the age
Services.
custody
in the
Children’s
placed
dependent
disability,
diagnosed
having neurological
child was
as
The
*7
Despite
physical problems.
and some
delays,
developmental
for stimu
her
need
developmental lag,
an awareness of
son’s
problems, appellant,
learning,
physical
to promote
lation
to terminate
filing
to the
of the
prior
ordered
undergo
counseling
no
to
made
rights,
attempt
1978,
complied
has
appellant
Court. Since
by
Orphans’
Services’ guidelines
with Children’s
only superficially
Moreover,
not
has
for reunification.
appellant
conditions
with the
necessary
to familiarize herself
attempted
therapy
progress, thereby leaving
for the child’s developmental
J.
mother.
to S. H.’s foster
entirely
onus of this responsibility
her
adjudicated dependent, appel
From the time
son was
or
lant,
effect,
has
a failure
repeatedly
demonstrated
to
to
son’s
and an
recognize
problems
inability
refusal
her
time,
Throughout
appel
attend to his
needs.
this
special
her
has been
lant’s
effort
duties
only
discharge
L.,
477
visit with her son
re William
See
periodically.
333,
1228, 1233,
denied,
880,
322,
Pa.
383 A.2d
cert.
439 U.S.
(1978) (parent
99
Here, her failure to appellant assigns undergo counseling to her to obtain rides to and from the inability counseling from her The record center located miles home. thirty indicates, however, that did not drive or although appellant car, own a did not that parental counseling believe stated that she attended individu- necessary. Appellant al because it was and that she counseling only mandatory had no that she felt problems required counseling. we now cannot that the
Accordingly, say Orphans’ Court or inadequately weighed improperly passed upon totality Burns, circumstances. appellant’s See Pa. (1977) (“A 379 A.2d parent may yield must act every problem, affirmatively, but faith good effort, interest and to maintain the parent-child relationship to the best of his or her even in difficult circum- ability, stances.”). next maintains that the evidence failed to
Appellant establish that the conditions and causes of her incapacity, neglect refusal to care for the child cannot or will not be remedied. we Again, disagree. 311(2) Act,
Under section of the Adoption involuntary *8 termination of parental rights occur a com- may only upon pelling of three factors: showing abuse,
“(1) and continued repeated incapacity, neglect shown; or refusal must be abuse, (2) such or refusal must be incapacity, neglect shown to have caused the to child be without essential subsistence; parental care, control or and (3) it must be shown that the causes of the incapacity, abuse, or refusal cannot or will not be remedied.” neglect R.I., 287, 293, Pa. 361 A.2d Adoption In (1976) re Pa. 331 A.2d (quoting Geiger, 172, 174 (1975)). for sufficient support of this case offer
The facts have does not “[appellant] conclusion that Court’s Orphans’ with cope to capability and acquire cannot capability ” Court child . . . . (Orphans’ this particular and handle 8). No. 4, 6/10/81, at Record Opinion adjudi- he was at the time The child’s condition physical a compels from appellant and removed cated dependent continued” to and “repeated that he was exposed conclusion and care provide to essential parental neglect incapacity that even finding supports subsistence. The record also attention, appel- care and requires special this child though needs. attend his special refused to learn how to to lant has her ina- counseling, to attend refusal appellant’s Instantly, visita- during surfaced recognize problems to bility with Services’ tion, and her failure to Children’s comply lack of reunification her guidelines and conditions for reveal son paren- to with essential maturity and ability provide Moreover, to provide tal because has failed appellant care. essentia] years, for a excess of three parental pare appellant Court could infer that Orphans’ permissibly her incapaci- to the conditions and causes of remedy not able ty- acted contends that Children’s appellant Services
Finally,
to
in her son’s
positive
thwart her efforts to remain
factor
cannot
with this contention.
agree
life. We
has
For the
Children’s
past
three years,
Services
and condi
guidelines
set forth
developed
extensively
Following
tions for
reunification
her son.
appellant’s
visitation,
caseworker talked to
appellant’s
appellant
each
her visits.
and advised her how to
improve
quality
with the
opportu
Children’s Services also provided
both herself
her son. See
to obtain
for
nity
counseling
G,
(1981)
of I.
Accordingly, BECK, J., files concurring opinion.
JOHNSON, J., files dissenting opinion.
BECK, concurring: Judge, appel-
I but feel constrained to address myself concur thwarted her effort lant’s that Children’s Services argument six month during requisite duties perform parental version at 23 311(1) (current Pa.C.S.A. period. See P.S. § notes that did seek 2511(a)(1)). The lead opinion time but that she during period, visit her son one of her failure to follow through refused visitation because with counselling.
The
Court has found that
Supreme
Pennsylvania
even where there was
are not
terminated
rights
necessarily
the statutory
no direct contact between
and child for
parent
six
failure was excused where
month
Such
period.
in the face of
to that
exhibited
obstacles
persistence
contact.
B.,
J. A.
(1979), sought times, thwarted her but the social services many agency that their failure to perform overtures. The parents argued resulted from the directly intransigience duties of no The Court excused agency. Supreme contact:
The evidence in this case establishes that the agency J. from contact with discouraged parents maintaining them to wait until inquiries advising their by averting their other were under control before problems attempt- their with him. It ing relationship to re-establish from the record that the viewed J. as the apparent agency and had determined scapegoat troublemaker family’s
101 and child that family of it the best interests both was in he returned. not be at 1368.
Id., 487 at 408 A.2d Pa. J.A.B. “total- applied in of Adoption The Court Supreme reversing a lower court test in of the circumstances” ity rights: decree terminating parental contact be- of direct The of an absence finding court’s of in excess six his for a period tween J. and parents will However, this fact alone not disputed. months is perform parental of to determination failure support a circumstances, of including duties the totality where circumstances and any individual parents’ evidence of them, does not warrant termina- offered explanation by rights. tion of their at
Id., 487 at 408 A.2d Pa. Y., A.2d In 487 Pa. 408 1387 in re D. J. Similarly, of D. Y. to contact (1979), attempted the natural mother J. in the natural attempt her son was thwarted by but although father Again, and paternal grandparents. six it requisite period, court found the month orphans’ contact, of declined to terminate excused the mother’s lack parental rights, grandparents’ and dismissed cited In re to their The Court adopt grandson. Supreme Burns, (1977), excusing 474 Pa. 379 A.2d 540 the mother’s failure contact D. J. Y.: or refused to
“the whether a has failed question must in relation to analyzed duties be perform parental case. A finding particular circumstances abandonment, upon parental . . will not be predicated . or which conduct which is resulted reasonably explained It control. may from circumstances beyond parent’s to utilize all result when has failed available only a parent (cita- relationship.” resources to preserve tions omitted)
Id., 130-131, at 408 at 1390. Pa. A.2d A.2d S.H., (1978), 476 Pa. Adoption of the circum- orphans’ “totality court found that under a stances” contact his child was test the father’s failure to he his had been thwart- despite persistence
excused because wife, ed her new husband and her mother: his former The father’s extended to locate his son after his attempts him, visitation, the mother to permit wife left to persuade son, arrange to send letters and from to his gifts prison for visitation his new fiancee . . . demonstrate through ‘in to obstacles declining yield the “reasonable firmness rights. . . .’” which will preserve parental McCray, [210] at 216, 331 A.2d [652] at 655. Id., 615, 383 at 533. 476 Pa. at A.2d
It is clear from the
that
to
preceding authority
safeguard
her
a
not
in
rights,
parent may
acquiesce
his or
parental
service
agency
obstructive behavior
either
the social
by
the custodial
He or she must exhibit “reasonable
parent.
to such obstacles. Accord In
to
refusing
firmness” in
yield
M.A.K.,
re
597,
As the lead opinion month to visit her son. That during period request the six she had failed to with the comply denied because for the social service agen- established her requirements by in her effort to see her child and cy. persist She did thus her behavior from the above cases distinguishable for a of six months period where failure to contact the child was excused. case,
In the instant the fulfilled its agency responsibility son; reunite mother and appellant decidedly to seeking that the order of the lower court agree did not. I therefore should be affirmed.
JOHNSON, Judge, dissenting: the mother from a Final This is an natural appeal by in her parental rights Decree involuntarily terminating had been issued on old son. A bench decree1 three-year hearing on the chancellor 1. At the conclusion of the October following entered the decree on the record: Well, rights moth- BY THE the natural [the COURT: hereby parent by to are terminated since the conduct er] son] [her for a of at least six months has failed which has continued hearing petition2 a following October to terminate her (CSEC) of Erie County Children’s Services argument were filed and to the decree rights. Exceptions that 1981.3 At February held on or about thereon was mother give time, the chancellor directed CSEC final visit her son and deferred reasonable opportunity 18, 1981, the chancellor action on the On petition. May a further visitation pending terminated the reinstituted Terminate an unverified Motion to hearing, acting upon duties; repeated perform parental and contin- and refused incapacity, neglect has the child or refusal of the caused ued care, neces- be control or subsistence to without essential well-being, sary physical and the conditions for his or mental by parent. neglect cannot or will not be remedied The Court will recess. believe, incorporated Appellant Appendix improperly, decree as I this has Brief, original record contains A to her inasmuch as containing signed by two-page lower court but form decree noting although the Octo- It is worth that numerous interlineations. finds that “the conditions and ber in the bound record decree incapacity, neglect will not be or refusal cannot or causes of the added], speaks parent” [emphasis the bench decree remedied neglect” [emphasis foot- only See to the “conditions of the added]. note infra. note, Involuntary Termina disapproval, the Petition I for Rights orphans’ on June filed with court tion of Parental is A-4) containing large petition” (Form number of words a “form *12 through typewriting phrases with and whch have been either struck by pen to the Petition or crossed and ink. The decree attached out out, both with contains sections which have been crossed also blue and with black conclusion as to whether amendment(s) whole permit any ink. An does not examination any, all of these deletions and some or CSEC, court, by for the lower or were made counsel allegations party. all of the some other The Petition does not contain 15.4(a). Orphans’ I required by Supreme Rule would Court Court Act, demanding Adoption strong the of the submit that the standards interfering family policy by restraining the enunciated both of from courts, adequate Legislature our and the need for review our and require higher by orphans’ appellate courts standard both the and L., product presented here. Cf. Re William work than denied, 1228, Beatty 322, 328-35, (1978), 1231-34 U.S. cert. 383 A.2d Services, al; Lycoming County Lycoming v. et Lehman v. Children’s 880, al., 216, Services, County 58 et 439 U.S. 99 S.Ct. Children's L.Ed.2d 192 attention, brought proceeding transcript has been to our 3. No of this testimony transcript of the second was discussed in but 6/3/81, pp. hearing. 46-7. N.T. termination 104 3, 1981, a On June presented hearing
Visitation4 CSEC. by and, 10, 1981, the chancellor entered his was held on June Decree from which this appeal brought. Final finding based his initial decree5 on his The chancellor mother: that, as to the of at she, conduct which continued for
a) by months has refused and failed to (6) perform least six duties; and continued
b) incapacity, neglect repeated has caused such child to be without refusal of care, necessary essential control or subsistence for the or mental of said child and the well-being physical or refusal conditions and causes of the incapacity, neglect cannot or will not be remedied parent; of the Act of 311(1) 311(2) as in grounded § 1970.6 on this is whether appeal orphans’
To be determined
those sections of the Act to the facts
applied
court properly
in the instant case. While our
of review is limited to a
scope
decree termi-
determination of whether
court’s
orphans’
Visitation, filed
4. The Motion to Terminate
with the Clerk Or-
18,1981,
May
phan’s
contains numerous averments of facts
Court
verification,
action,
appearing
no
not
appears
of record
contains
1024(a)
Pennsylvania
be in clear
of Rule
violation
3.1,
Orphans’
Procedure. See
Rule
Pa.RCiv.P.
Rules of Civil
Rule 1501.
Court
Although
Opinion
the lower court’s
of June
1981
hearing
“concerning
refers to a
the activities
is attached to the Motion and filed
reinstituted visitation.
held on that Motion on June
Motion”,
leading up
only
to the
I note the
order entered
May
terminating
»
Although
characterized his Decree of June
the chancellor
Decree”,
nothing
a “Final
there is
about either the form or
as
contents of the earlier decree entered October
anything
suggest
1980 to
exceptions
However,
were
other than a final decree.
since
argued,
appears
filed and
and since the chancellor
to have reinstitut-
text,
3,
6,
February
(see
ed visitation on or about
at footnote
thereon,
filing any
supra), without
order
the decree of October
may properly
be considered a decree nisi.
*13
620,
208,
Ill,
July
311(1), 311(2), 1
6. Act of
P.L.
No.
art.
§§
311(1), 311(2)
1980-81).
(Supp.
P.S. §§
evidence,
competent
by
nating
rights
supported
parental
the court’s
(1980),
Between time visits oc- 1980, regular, frequent early mother’s home and During early curred mother and the child. between the caseworker—who was only service protective on strike hearing—was the first petitioner witness for at visits subsequent be- along colleagues. Normally, at the conclusion tween the mother and child were arranged 1980visit January of each visit the foster home. The no future had a case aid from CSEC and by been attended visit was The caseworker conceded arranged. 7, 1980. This on April
mother had visitation requested caseworker, in court spite was refused request *14 visitation, on the February ordering order dated contact from that the caseworker had not had any grounds caseworker’s the before the strike and the mother since not be in the best that a visit at that time “would belief interest of the child.” all 11, 1980,an of court was issued placing
On order April future visitation “at the discretion of the agency.”7 her child
All of the visitations between the mother and duration, were between fifteen and lasting ninety of short the multi- minutes. In a member of physician October recommended that the mother be team had disciplinary a one-week afforded the her son for opportunity regain trial with the caseworker. period, daily supervision by had not been When asked at trial this recommendation why the caseworker testified: implemented, all, did not with that. We did agency agree First child, in the best interest of the not feel that it was with living based on the fact that the child had been been with him only visiting his mother and that she had week, for an hour a we felt it would be detrimental maybe to the child’s health. on, had been of the home in an evaluation made
Early
which the mother was
The caseworker found
residing.
favorable,
situation
but felt that the adults with
home
whom
been
with the
residing
“uncooperative”
mother was
had
hearing
the witness for the
7. At the termination
held October
CSEC,
petitioner,
bearing
the record
of court
dates
read into
orders
10/19/79,
10/4/78,
11/22/78,
3/23/78,
and 4/11/80.
Of
2/1/80
proceedings
as to the
in which
None of these orders were identified
entered,
they
copies
part
made a
of the
were
nor were
of them
Ill,
original
Adoption
from whence this
record at No.
appeal
Though
directs CSEC to
is taken.
the order
4/11/80
rights”
“proceed
filing
petition
for termination of
with
a
[as
nothing
appeal] there is
before this Court
read into the record on this
may
given
why
explain why
a directive
have been
nor
CSEC
such
proceed
filing
It does
did not
until June
following
grant
appear
visitation
that
the refusal of CSEC to
was,
least,
request
April
temporarily
at
mother’s
on or about
providing
then-outstanding
in
order of 2/1/80
that
violation of the
place
and her son take
under the
“visitation between
mother]
[the
supervision
agency
of the
for the foster mother.”
date, was abused At a
mother
later
agency.
out.
forced to move
home and was
adult male
that
a conclusion
is
in the record to support
There
nothing
duties as contem-
to perform parental
the mother refused
Act. Nor does
plated
311(1)
by §
which,
facts
in the
any
address itself to
opinion
chancellor’s
A
court,
this result.
support
would
lower
opinion
take and maintain
to exert herself to
required
*15
of
In re Adoption
in the child’s life.
of
place
importance
even where
457,
(1981).
Pa.
CSEC, occasions, the directions of the frequent ignored on implement visitation and did not recom- promote court team with which the mendations the multidisciplinary and secured an order terminat- disagreed. sought It agency concluded, visitation after the chancellor had ing shortly decree, exceptions his following argument mother had not received a reasonable to visit opportunity her son. It withheld information the infant’s regarding health from the mother’s counsel on therapy program that this was confidential information. It limit- pretext ed contacts between the mother and her child to periods and, less than two hours with rare these contacts exceptions, occurred in the of an or the foster presence agency employee mother.
On the of whether the record warrants a question clearly of the Act finding 311(1) under that appellant § has refused and failed to duties in perform months, excess of six I would hold that the evidence does not the termination of the mother’s justify rights hence the lower would vacate court decree. 311(2)
Since the filed this case on the proceeded separate 311(1) grounds 311(2), petitioner’s §§ burden can met in showing be preponderance *16 evidence that either of the disjunctively listed elements of 311 In Interest of T.S.L., 245, 248, was satisfied. 487 Pa. § 332, (1979); 409 A.2d see Matter of of David C., 387 A.2d review of the My it record leads me to conclude that is equally inadequate termination under support 311(2). § The form filed by avers, CSEC in a merely statute, fashion the that: conclusionary by tracking and continued repeated or refus- incapacity, neglect [T]he al of the has caused the child be parent subject to without care, essential control or subsistence necessary for his/her or mental and the physical well-being [sic] conditions and causes of the or refusal incapacity, neglect cannot or will not be remedied the by parent.
This form in the decree language repeated printed signed the lower court in its order of October 1980 and by again However, in its filed June it is evident opinion from of the lower court that reviewing opinion of the mother rights the parental to terminate decision “the that conclusion the lower court’s based upon solely acquire cannot and have the capability does not respondent child this particular and handle cope the capability its De- must reinstate lower and, consequently, court] [the lower of both the A fair reading 1980.” cree of October neither that record demonstrates and the court’s opinion court, and issue before the was an nor “refusal” “neglect” the chancellor’s depends upon decree termination moth- concerning conclusions inferences, deductions er’s incapacity. must be things three 311(2), under
When proceeding child will be in a rights parent’s shown before a natural (1) repeated incapacity: grounds terminated shown; (2) incapacity such must be and continued incapacity be without the child to to have caused must be shown subsistence; it (3) care, control or essential parental cannot incapacity the causes of must be shown that Pa. 331 A.2d Geiger, will not be remedied. 172 (1975). competent uncovered record has not
My reading which the three elements establish any evidence to clearly court, opinion, lower in its exist. The must be shown to the qualities necessary “does not have finds that the mother 1978 to had time since ample child. has this She to han- sufficiently she could improve show whether herself child.” dle this particular consisted pri- CSEC
However, presented by the evidence and the foster caseworkers) by of accounts marily the natural moth- the interaction between mother regarding reflects that much of the evidence er and her son. While withdrawal included anxiety visitations often brief would tie no evidence which son, absolutely there is *17 from his flowing of the son as directly the behavior together contrary, only On the incapacities. mother’s alleged a presented by evidence on this point possible competent with the child’s medical histo- who was familiar pediatrician six weeks of She testified age. the child was about since ry disability, developmental neurological the child had that that indicated She physical problems. and some delays reaction and had system an unstable autonomic child had point- The changes. pediatrician behavioral some undergone that problem with the type that “certain children ed out in the changes to adaptable are not easily has child] [this further noted environment, handling.” to She changes but with the mother visits that, previous in terms only “sepa- the child hospitalizations, also in terms of previous undergoes mother and from his foster rates very poorly of problems.” deal great court decree, its the lower justifying
In its short opinion that the child opinion referred to the pediatrician’s only home, home, a foster moved from his present should not be of the in June 1981 because of the hearing at the time the need to main- Surely, which the child suffers. problems arising foster home environment stable tain temporary, child, neurological problems from the medical and evidence relevant, demanding the kind of even if is not Jones Ap- decree. See a termination support necessary 543, 547, 297 A.2d peal, on the failure of weight to place great seems CSEC recom- counseling procedures with the mother to comply team. The mother resides multi-disciplinary mended Counseling miles from the some twenty in a rural area miles from thirty and some to which she was directed Center attend classes. parenting expected Erie where she was to a car. have access regular drive and did not does not She available. conced- CSEC transportation There was no public available and instruction there was no homebound ed that in cases such as transportation no provided that the agency mother testified hearing, the time of the final this. At which had classes parenting enrolled in that she was then matters and taught outlook on her a different given counsel was The mother’s former herself. about something record, in the contradiction without testify, permitted classes at Family attending parenting the mother was that coun- Counseling the Family in Union Counseling City, *18 Ill the made, that being was that progress selor had reported Family that the material was grasping mother sincerely was both the mother felt that counselor Counseling moti- strongly for her children caring interested in court’s the lower inconsistent vated. This is totally capability acquire could not the mother conclusion that child. relate to this with and cope relationship regarding be made Brief mention should involved. here family and the mother between the foster that, on February counsel testified The mother’s former caseworker service met with the protective she had mother, who foster that the informed and had been CSEC case involved in this child of the custody had had actual four from his mother at removed he had been since the time This of this child. for adoption was in line weeks of age, at the June When asked the caseworker. by was not denied child, the adopt wanted whether she 3, 1981 hearing occurred, she opportunity that if the mother testified foster also testi- former counsel The mother’s consider it. would petitioner either the fied, by without contradiction at the opinion, its expressed had that the lower court court, mother was if the foster hearing February be moved child should child, in line for adoption foster home closer home, to a preferably out of that foster This was not done. residence. the mother’s of the natural is the capacity on this appeal the issue Since substan- child, and since a to her relate effectively mother to involves lower court before the of the testimony tial part the circum- mother and the foster both the testimony foster within the occurring stances visitations surrounding troubling question home, it is difficult to avoid mother’s mother’s capacity the natural fair test of of whether any where the setting could take in an environment place an a party possessing by controlled potentially prepared refused to Where, here, the agency as self-interest. abiding own on its professional from a a recommendation implement trial period minimal one-week team for a multi-disciplinary a genuine to re-establish attempt could so that the mother has, son, with her and where child involved relationship in the home without been foster interruption, living intense, who well have an albeit well-mean- very may relationship desire to and continue that ing, protect her status from foster mother to converting adoptive parent, *19 to conclude that petitioner this court should be prepared has satisfied its burden to secure termination of those sacred of the natural mother. parental rights
Conclusion
parental rights
Cases
termination of
involving involuntary
because,
can often be most difficult
to decide. This is
in the
is
desire to insure the best
lurking
background,
interests of the
or children involved. But that question
child
until,
unless,
cannot be reached
a determination is
in
made that
the elements found
311 of
properly-
Adoption
through
Act have been satisfied
preponderance
forth
brought
evidence
on the fitness of
competent
L,
under attack.
In re
of R.
468
parent
See
n.12,
(1976),
dismissed,
Pa. 287
utterly satisfy parental obligations. was taken from her one month after birth for failure to thrive and has been withheld from care yet appellant’s the child’s throughout proceedings despite improvement. The mother has taken of those advantage court-ordered point extended. At no which have been privileges visitation visit her child for extended any has she failed to times when visitation time, of those exception refused. mother separation which led to the between
The cause when to thrive was the child’s failure child in this case record clear from the While it appears an infant. barely or neurological problems, child multiple physical that the has any evidence any competent devoid of record these prob- to review petitioner on the part attempt which fashion a plan by the mother and seek to lems with of her aspects with these begin cope unique she might of involun- the irreversible nature son’s Given development. to conclude that termination, I am not prepared tary which this child’s birth at the time of existing conditions his cannot be from mother led to his may separation have remedied. termina- involuntary conclusion that the
The trial court’s
*20
under
justified
rights
tion of this mother’s parental
cannot
Act
311(2)
either
311(1)
§
standard
evidence
demanding
I do not feel the
stand.
met.
termination has been
required to support
decree and remand this
I therefore would vacate the
opinion.
consistent with this
proceedings
matter for further
Robert Pennsylvania. Superior Court Argued April 1981. April
Filed