Sanders Appeal
Supreme Court of Pennsylvania
November 26, 1973
350 Pa. 350
Ewing B. Pollock, with him James B. F. Rinehart, and Pollock, Pollock & Thomas, for appellants.
R. Wallace Maxwell, with him Maxwell & Davis, for appellee.
OPINION BY MR. CHIEF JUSTICE JONES, November 26, 1973:
This is an appeal from a decree of the Court of Common Pleas, Orphans’ Court Division, of Greene County,
On May 20, 1971, appellee commenced the present proceeding by petitioning the Orphans’ Court Division for involuntary termination of parental rights as to the six youngest children then living. On August 23, 1971, following hearings on June 21 and June 25, 1971, the petition was granted, subject to the filing of exceptions, which appellants duly filed. On September 25, 1971, the court received additional testimony at appellants’ request.2 On July 11, 1972, the decree of August 23, 1971, was made final. This appeal followed.3
The lower court‘s determination was based on Section 311(2) of the
“The rights of a parent in regard to a child may be terminated after a petition filed pursuant to Section 312, and a hearing held pursuant to section 313, on the ground that:
“....
“(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....”
In the court below, appellee sought to prove that appellants had drinking problems, that they failed to maintain a clean home and furnish adequate food and clothing for their children, and that they were generally neglectful in their parental care. In their case, appellants attempted to discredit appellee‘s evidence as well as demonstrate their own recent efforts at self-improvement.5 Obviously, the lower court was unimpressed with these recent developments as it concluded that appellants lacked the capacity to consistently provide “essential parental care.”
Appellants contest the admissibility of some of the evidence on which the court relied in making this determination. They argue that the lower court erred in admitting into evidence the contents of a summary report of one of appellee‘s caseworkers.6 While testify-
While the contested evidence discussed above constituted only a minor part of appellee‘s case, we cannot say that without this evidence the lower court would have reached the same result. Because of the serious impact attending the termination of parental rights, it is important that a judicial decree extinguishing such rights be based solely on competent evidence. In light of appellant‘s significant evidence of self-improvement, it is quite possible that the incompetent evidence accepted below provided the “swing factor” in that court‘s determination. Appellants are entitled to a hearing and decision free from such taint. Hence, we will remand this matter to the court below for the purpose of conducting a proceeding consistent with this opinion.9
Decree vacated and matter remanded. Costs on appellee.
CONCURRING AND DISSENTING OPINION BY MR. JUSTICE POMEROY:
My reading of the record satisfies me that in this case, unlike Jones Appeal, 449 Pa. 543, 549, 297 A. 2d 117 (1972), the trial court had before it adequate, competent and reliable evidence upon which to base its de-
In Jones, supra, we concluded that the summary there introduced by the Greene County Child Welfare Service was “so permeated with hearsay that it could not justify the findings of the court below.” The summary there—“a recounting of ‘facts’ accumulated by the service“—was prepared by two persons other than those who had knowledge of the accumulated facts. Thus “[t]he report escaped the test of cross-examination with respect to the ‘facts’ which underpin its conclusions...” (449 Pa. at 549). In the case at bar, on the other hand, the witness who prepared and testified from the summary report had had direct, first-hand knowledge of the Sanders family and conditions in their home going back six years before the hearing. As she testified, the report was made up “mainly from what I myself observed“. While admittedly other caseworkers had also had contact with the family, and these are referred to in the summary, such references comprised only a small portion of the total report.* As our Jones opinion recog-
* While the report was not actually introduced into evidence, nor marked for identification, it is physically a part of the court record in this case, and there is no doubt that it is the document to which objection was made. It is entitled “Summary from Child Welfare Service of Greene County to The Honorable Judge Glenn R. Toothman“, and signed by Wilma R. Johnson, Child Welfare Aide, and Rupert Eder, Executive Director of the Agency. The report consists of five pages, and concludes with a recommendation to the court that the best interests and welfare of the six named Sanders children require “that all parental rights be terminated in order that these children can be legally adopted into families where their needs may be met.” This communication to the court was evidently either the basis for the petition for involuntary termination of parental rights, which was also signed by the same two officials of the agency, or prepared for use at the hearing in support of said petition. In either case, it is reasonable to suppose that it was read and considered by Judge TOOTHMAN. Whether or not the docu-
While I thus conclude that the decree of involuntary termination was justifiably entered on the evidence before the court, I recognize the possibility that during the more than two years which have elapsed since the last hearings in this case, new factors bearing on the present advisability of such a course of action may have arisen. Accordingly, I concur in the order of remand, but would limit further proceedings to a determination by the trial court as to whether the conduct of the appellants and the conditions in their home have shown substantial improvement since September 25, 1971, the date of the last hearing herein. Should the court find that the situation has changed substantially for the better, so that the test of
Mr. Justice EAGEN joins in this concurring and dissenting opinion.
ment qualified under the Uniform Business Records as Evidence Act,
Notes
The names and birthdays of appellants’ thirteen children are as follows:
| Gladys | August 24, 1951 |
| Roland, Jr. | October 19, 1952 |
| Catherine | October 11, 1953 |
| Deborah | December 22, 1954 |
| Lois | March 25, 1956 |
| Ethel | December 15, 1958 |
| Michael | May 15, 1961 |
| Jacqueline | April 5, 1963 |
| Mary Jane | December 28, 1965 |
| Valorie | November 1, 1967 |
| Jaspar | March 4, 1969 |
| Glenn | March 22, 1970 |
| Lisa | November 9, 1971 |
The order below terminated parental rights as to Michael, Jacqueline, Mary Jane, Valorie, Jaspar, and Glenn. It also removed Deborah, Lois, and Ethel from foster homes and returned them to their parents. This latter part of the order is not now in issue. The two oldest girls are married and Roland, Jr., is employed and occasionally lives at home. As the youngest child, Lisa, was born after the hearings were held, she was not covered by the order.
Appellants raise two other questions in their brief, namely: (1) whether the lower court‘s determination of proper parental care in its order of December 23, 1969, constitutes res judicata as to events occurring prior to that date, and (2) whether the Adoption Act of 1970 applies retroactively so as to permit testimony of events occurring prior to its passage. However, since these issues were not properly raised in the court below, we will not consider them on appeal. Commonwealth v. Agie, 449 Pa. 187, 189, 296 A. 2d 741 (1972); Commonwealth v. Henderson, 441 Pa. 255, 260, 272 A. 2d 182, 185 (1971); Wenzel v. Morris Distributing Co., Inc., 439 Pa. 364, 373-74, 266 A. 2d 662, 667 (1970).