In Re Involuntary Termination of Stickler , 356 Pa. Super. 56 ( 1986 )

TAMILIA, Judge:

This case is before us on appeal from the trial court’s Decree of May 29, 1985, terminating the parental rights of appellant, Kenneth Lee Stickler, Sr., to his three minor children.

As stated by the trial court, the sole issue before us is whether the respondent, by his conduct for a period of at least six months, has either evidenced a settled purpose of relinquishing parental claim to these children or has refused to perform parental duties.

The appropriate standard of review in cases involving the termination of parental rights is limited to a determination of whether the decision to terminate parental rights is supported by competent evidence. If review of the record does not reveal an abuse of discretion, an error of law or insufficient evidentiary support for the lower court’s findings, the Order must stand. Lookabill v. Moreland, 336 Pa.Super. 520, 485 A.2d 1204 (1984), Matter of Adoption of Baby Boy Allen, 337 Pa.Super. 133, 486 A.2d 517 (1984); see also In re Adoption of B.K.W., 348 Pa.Super. 333, 502 A.2d 235 (1985).

In this case, the facts found by the court and supported by the record are as follows.

The natural parents of these children were married in 1975 and divorced in October of 1982. The three children subject of the termination proceedings are Kenneth, born September 19, 1976, Bradley, born February 15, 1979 and Kim, bom August 23, 1980. The children have been with the appellee/mother since birth and she has been the primary custodian since the date of separation in July 1982 and following the divorce of the parents in October 1982. Prior to the divorce, the father failed to support his children for a period of at least nine months by gambling his weekly paycheck on horse races at the Penn National Race Track. The sole exception to that pattern of non-support, to the date of divorce was a single months contribution resulting from court attachment of appellant’s wages. In addition to his failure to pay support, appellant failed to regularly exercise his visitation rights with the minor children. Appellee, Brenda, married Dennis Echternach in May 1984, and she and her husband planned for him to adopt the children. In February of 1983, appellant, after a plea of guilty, was sentenced to serve a term of imprisonment of not less than five nor more than, ten years for arson and related offenses. While in prison, appellant receives $25 per month and money from his family but has failed to write or send cards or presents to his children. During the marriage he was an inveterate and compulsive gambler and failed to provide the basic care required for his family, borrowing money and selling items of his personal property to support the gambling habit.

The lower court concluded from this evidence that the appellant has failed to perform parental duties as required by law for a period in excess of six months.

As we said in In re Adoption of Baby Boy J., 512 A.2d 689, (Opinion by Tamilia, J., 1986):

Parental rights may be terminated if a parent, by conduct continuing for a period of at least six months, either has evidenced a settled purpose of relinquishing his parental claim to his child or has refused or failed to perform parental duties (23 Pa.C.S.A. § 2511(a)). The performance of parental duties is an affirmative obligation to love, protect, support and maintain communication and association with the child. Consequently, being a parent is more than a passive state of mind, it is an active occupation, calling for a constant affirmative demonstration of parental love, protection and concern. A parent must exert himself to take and maintain a place of importance in the child’s life. In re Adoption of 348 Pa.Super. 65, 501 A.2d 648 (1985). The proof required in terminating parental rights is by evidence that is clear and convincing. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)

Id. at 691.

Whether a parent has evidenced a settled purpose of relinquishing his parental claim to a child, or has refused or failed to perform parental duties for a period of at least six months, must be analyzed in light of any explanation offered by the parent. Lookabill v. Moreland, 336 Pa.Super. 520, 485 A.2d 1204 (1984); In re Adoption of Ostrowski, 324 Pa.Super. 216, 471 A.2d 541 (1984); see also In Re T.L.G., 351 Pa.Super. 256, 505 A.2d 628 (1986).

Id. at 692.

In this case, the only explanation given by the appellant is that he has the “disease” of gambling. Nowhere is it indicated that he sought rehabilitation or placed his income beyond the reach of his affliction by way of wage assignments or attachments, or despite the compulsion attempted to maintain a parental relationship with the children so they would receive emotional and physical support from him. Even from prison, some relationship could have been maintained in preparation for release, but it appears any plans are on hold until, at the earliest, 1988 (barring credit for time already served) when the oldest child will be twelve years of age.

With a prison sentence of five to ten years, appellant will be without any meaningful and significant contact with the children, and as Judge Gates aptly pointed out, the prior lapse, which in itself was legally sufficient to warrant termination, should not be tolled by the appellant’s incarceration. We may not reverse the lower court, absent an abuse of discretion, which is not present here. These children will not be left in limbo by termination, as the mother and her new husband plan to have them adopted by him, thus giving the children an intact and secure foundation for their proper development.

The legislature has, in recent years, severely restricted the ability of parents to rely on their natural ties to the children to defeat any attempt to bring order, stability, affection and care due them when the parents are guilty of gross neglect or de facto abandonment. The life of a child is unique and priceless and its best interest must supersede that of parental whim to retain a possessory interest based on the act of procreation, when parenting has failed, producing a vacuum where love and care are vital.

Decree terminating parental rights is affirmed.

CERCONE, J., dissents with opinion.