Sheaffer Appeal
- Reporters:
- , ,
- Before:
- Jones
Opinion by
Mr. Chief Justice Jones,Thе appellant gave birth to a male child on February 6, 1970. The child, Robbie, was conceived and born out of wedlock. During her pregnancy appellant wаs referred to the Butler County Bureau of Children’s Services (“Bureau”). Appellant gave custody to the Bureau and her son was placed in foster care on Fеbruary 17, 1970. Appellant signed a “Parent’s Placement Agreement” on February 20, 1970, which provided for temporary placement of the child, but permitted removal from foster care by appellant upon ten days’ prior notice to the Bureau. On the same date appellant *167 signed a “consent to adoption”. 1 On June 9, 1970, at tbe Bureau’s request, apрellant signed a “specific consent of [the] mother” to adoption by the foster parents. 2
On December 31, 1970, appellant changed her relinquishment deсision and contacted an attorney to determine whether she could recant her approval of adoption proceedings. In January of 1971 appellant manifested her change of position by informing Bureau caseworker, Diann Morse, that she intended to keep her child. By January of 1972 the apрellant had manifested a definite plan to regain custody of her child by April 1, 1972, and was told that the Bureau would “work toward that date”. 3
A petition for involuntary termination of parental rights, filed by the Bureau on March 23, 1972, charged the following:
*168 “A. That the said [appellant] has, by conduct continuing for two years, evidenced a settled purpose of relinquishing parental claim to the child and has refused or failed to adequately fulfill the role of parent.
“B. That the repeated and continued incapacity, abuse, neglect or refusal of [appellant] which cannot or will not be remedied, has caused said Child [sic] to be without essential parental care. . . .” The court below determined that appellant
abandoned
her child within the meaning of the Adoption Act of 1970,
4
and its precursor,
5
and terminated her parental rights. Though raised by the appellee in its petition for involuntary terminatiоn, the court below did not pass upon the question of whether appellant has exhibited such a continued and irremedial parental incapacity аs to justify the termination of parental rights. Act of July
21,
1970, P. L. 620, §311,
Whilе there was considerable evidence in the court below respecting the appellant’s emotional instability and physical handicap, 7 the welfаre of the child and the appellant’s fitness as a parent have no relationship to the issue of abandonment in adoption proceedings. *169 Sarver Adoption Case, 444 Pa. 507, 281 A. 2d 890 (1971); Schwab Adoption Case, 355 Pa. 534, 50 A. 2d 504 (1947). The scope of our review is limited to a consideration of the testimony on the issue of whether the court’s finding of abandonment is supported by competent evidence. Vaders Adoption Case, 444 Pa. 428, 282 A. 2d 359 (1971); Hookey Adoption Case, 419 Pa. 583, 215 A. 2d 860 (1966) ; Harvey Adoption Case, 375 Pa. 1, 99 A. 2d 276 (1953).
The appellee’s abandonment averments may be summаrized as follows: (1) appellant has failed to provide a suitable home for her child since his birth, a period in excess of the six-month statutory period; (2) since placing the child in foster care the appellant has vacillated on the decision of whether to keep her child; and (3) appellant’s emоtional instability and physical impediment render her incapable of maintaining a suitable environment for this child. We have already noted that the child’s welfarе is irrelevant to the issue of abandonment. Thus, we may not consider the allegation that appellant would not be a suitable parent. The remaining specific allegations of abandonment necessitate a resolution of the question of whether appellant’s recanted voluntary termination can support a decree of involuntary termination on grounds of abandonment where appellant relinquished custody of her child to the Bureau for a period in excess of six months. We hold *170 that there is no abandonment under these circumstances.
In addition to
involuntary
termination for parental incapacity or abandonment, the legislature promulgated a procedure for
voluntary
relinquishment by the written consent of the natural parent. Act of July 24, 1970, P. L. 620, §301,
An adjudication of abandonment necessitates a finding of neglect coupled with an affirmative indication of a positive intent to abandon the child.
Voders Adoption Case,
supra;
Hangartner Adoption Case,
407 Pa. 601, 181 A. 2d 280 (1962);
Harvey Adoption Case,
supra. We find neither neglect nor the intent to abandon in this situation. Appellant placed her child with the Bureau pending a final decree in her petition for
voluntary
relinquishment. She properly withdrew her petition before a final decree was entered. That the рeriod of time between the child’s placement in foster care and the withdrawal of appellant’s consent exceeded six months cannot, in itself, support a decree of
involuntary
termination. Accordingly, we vacate the decree of
*171
iwoolnntmry
termination of parental rights
by abandonment.
However, the appellee, petitioner in the court below, properly raised the issue of
parental incapacity
as an alternative basis for a decree of involuntary termination. The court, by its decree and opinion, did not speak to the issue. We believe the court below should permit the appellee to have the opportunity to pursue the issue of whether the appellant has evidenced a
continued and vrremedial parental incapacity
as would justify a decree of involuntary termination under
Decree vacated аnd case remanded for action consistent with this opinion. Each party to pay own costs.
Notes
The consent form purported to give appellant’s approval to tbe adoption of Robbie by unspecified persons.
“3. That I am informed that ................ have proposed to adopt the said Baby Boy . . . , a minor.
“4. That I do hereby irrеvocably consent to the proposed adoption so the said Baby Boy. . . . , a minor, shall enjoy all the rights and privileges of a child and heirs-at-law of the said ...... .........., and be thereafter known as and subject to the duties of a child of the said ...................
(s) [appellant]”
This document provided in pertinent part as follows: “[T]hat [appellant] hereby consеnts to the adoption of [her] minor child by the family in whose home the child was placed by the Butler County Child Welfare Agency on .................., and in whose home the child is on this date. . . .”
Appellant was also instructed by the Bureau to institute fornication and bastardy proceedings against the child’s father. She testified that the bringing of charges was a necessary prerequisite to the Bureau’s permitting her to keep the child: “In order to keep the baby, I had to go ahead and file the charge against his fаther. . . .”
Act of July 21, 1970, P. L. 620,
Act of April 4, 1925, P. L. 127, §2,
as amended,
The court below made a factual determination of abandonment under the Adoption Act of 1970, effective January 1, 1971
(
Appellant is afflicted with congenital cataracts which have left her almost blind without corrective lenses.