In Re Adoption of Melissa P. , 475 Pa. 197 ( 1977 )

OPINION

NIX, Justice.

This is an appeal from a decree of the Court of Common Pleas of Chester County, Orphans’ Court Division, which involuntarily terminated the parental rights of Mrs. Patricia D. to her daughter, Melissa P.¹ The case arose as a result of a petition filed in November, 1975, by the Chester County Children’s Services requesting the termination of parental rights pursuant to the Adoption Act of 1970, July 24, P.L. 620, No. 208, art. III, § 311, 1 P.S. § 311 (Supp. 1977-78) (hereinafter referred to as “Section 311”). The lower court took its action based on the authority of Section 311(1) of the Adoption Act which permits the rights of a parent to be terminated on the ground that:

“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 . . . ”²

This Court has often held that Section 311(1) must be read in the disjunctive and that" termination may be ordered either if the parent has evidenced for a period of six months a “settled purpose” of relinquishing parental claims or has, for the same length of time, “refused or failed to perform parental duties.” In re Howard, 468 Pa. 71, 360 A.2d 184 (1976); In re Adoption of M.T.T., 467 Pa. 88, 93, 354 A.2d 564, 567 (1976); In re Lumiere Castel Cassen, 457 Pa. 525, 527, 326 A.2d 377, 379 (1974); Wolfe Adoption Case, 454 Pa. 550, 554, 312 A.2d 793, 795 (1973). Although the hearing court failed to specify the precise portion of the subsection upon which it relied in terminating appellant’s rights, a close reading of the opinion convinces us that he ordered the action because he felt that the “refusal or failure to perform” test had been complied with.³

The facts surrounding this appeal, as found by the hearing judge, are that in August, 1974, Melissa P., then approximately ten months of age, and her mother, the instant appellant, were living with Roland D., husband of the appellant and stepfather of Melissa, at the home of a family friend in Downingtown. On August 13th of the same year, following at least three apparently unrelated instances of physical abuse of Melissa by Roland D., the child was admitted to the Coatesville Hospital with severe bruises and discolorations on her body. Chester County Children’s Services, the instant appellee, was contacted and thereafter filed a petition in the Court of Common Pleas requesting temporary custody of the child. An order was entered on September 20, 1974, fixing temporary custody of the child in the appellee agency. Later, on October 1, 1974, a hearing was held and the court found that the child was “deprived” within the meaning of the Juvenile Court Act of December 6, 1972, P.L. 1464, No. 333, 11 P.S. § 50-101 (Supp. 1977-78) and temporary custody was again awarded to Children’s Services. A third such order was entered on January 30, 1975, which additionally directed a review of the child’s progress within six months upon the petition of any party.

In September, 1974, about the time of the first custody hearing in this matter, appellant Patricia D. moved with her husband to Ohio where the latter had an opportunity for employment. She resided there with her husband until January, 1976, when she returned to Pennsylvania for the involuntary termination proceeding which is the basis of this appeal. During the sixteen-month period between the time the child was taken from her custody and the date the involuntary termination proceeding commenced, appellant saw her child only once — in January, 1975, at the offices of the appellee agency. During the same interval the appellant corresponded by mail with the agency twice, once in November, 1974, and once in March, 1975. In both letters she expressed love and concern for her daughter and in the latter said she hoped to regain custody of Melissa. In the November letter she invited the agency to investigate her Ohio home to ascertain “what kind of parents we are.” As a result of this communication, Children’s Services of Chester County contacted an Ohio children’s agency and from January, 1975 to August, 1975, (approximately three months prior to the filing of the involuntary termination petition) this Ohio agency made numerous unannounced visits to appellant’s home. Additionally, during this time appellant and her husband participated in several prearranged counseling sessions with the Ohio agency. The court found that at no time during the sixteen-month period had appellant actually sent any “money, gift or other remembrance” to the child through the Chester County agency, noting, however, that for most of that time appellant and her husband were living on a $170.00 per month public assistance grant.⁴ Once a month Melissa’s maternal grandmother and aunt (appellant’s sister) visited the child at the agency bringing presents, such as clothing, toys and food. Christmas and birthday parties were also given for the child on these visits. Barbara P., appellant’s sister, requested more frequent visiting privileges but this proposal was denied due to the difficulties in arranging additional visits with the foster family with whom Melissa was living. Since January, 1976, until at least the date of the hearing, Mrs. D. has been living with her sister, Barbara, in a two-bedroom apartment in Downingtown with the intention of remaining apart from her husband.

Appellant raises a two-part argument in this appeal to support her contention that the trial court committed error in concluding that the “demanding standard” necessary to support involuntary termination was met. First of all, appellant argues that the court failed to properly consider the “particular circumstances” of appellant’s situation and to recognize that appellant had utilized the resources at her command in declining to yield to obstacles preventing her from performing her affirmative parental duties. Secondly, Mrs. D. maintains that the court incorrectly ascertained that appellant’s mother and sister were not acting as her “proxy” in appellant’s absence and in concluding that even if they were, appellant did not act reasonably under the circumstances.⁵ We believe that the lower court failed to properly apply the facts of the case to the law and that, as a result, we agree with the appellant that the agency fell short of proving by a clear preponderance of the evidence that the parental rights of Patricia D. to her daughter Melissa should be terminated.⁶

This Court, in an assessment of whether a natural parent’s rights to his/her child should be involuntarily terminated, has given careful and concerned thought to the role of a parent in a child’s life.

“Parenthood is not ... a mere biological status, or passive state of mind which claims and declines to relinquish ownership of the child. It is an active occupation, calling for 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 . . . .” Appeal of Diane B., 456 Pa. 429, 433, 321 A.2d 618, 620 (1974), quoting from In re: Adoption of JRF, 27 Somerset L.J. 298, 304-05 (Pa.C.P. 1972).

See also Matter of Kapcsos, 468 Pa. 50, 360 A.2d 174 (1976).

On the other hand we have constantly been sensitive to the fact that the finality of termination of a natural parent’s rights to his child and the harsh connotations thereof carry great emotional impact on both child and parent and for that reason the law has been unwilling to terminate a natural parent’s rights unless the record clearly warrants such a finding. In re Adoption of Sarver, 444 Pa. 507, 509, 281 A.2d 890, 891 (1971). Because of the gravity and irreversible nature of involuntary termination this Court has required the party petitioning for involuntary termination to prove by a preponderance of clear and competent evidence that the statutory requirements have been fulfilled. Adoption of Baby Girl Fleming, 471 Pa. 73, 369 A.2d 1200 (1977); In re Adoption of McAhren, 460 Pa. 63, 331 A.2d 419 (1975); In re Adoption of McCray, 460 Pa. 210, 331 A.2d 652 (1975); In re Adoption of RI, 455 Pa. 29, 312 A.2d 601 (1973).

In discussing how best a parent can maintain a place of importance in a child’s life, we have held that a parent has an affirmative duty to “love, protect, and support his child and to make an effort to maintain communication and association with that child.” In re Adoption of McCray, supra, 460 Pa. at 216, 331 A.2d at 655; see also, Appeal of Diane B., 456 Pa. 429, 321 A.2d 618 (1974).

Even if we were to concede, which we expressly do not, that the agency proved that for the requisite statutory period of six months, appellant, by her failure to contact her child directly or to send a gift or remembrance to her through the Chester County Children’s Services⁷ or to contact that agency,⁸ thereby failed to perform these affirmative parental duties, we agree with appellant that the lower court did not accord proper weight to the individual circumstances of the mother and the explanations offered by her as to why her claim to her child should be honored.

“Where . . . the evidence clearly establishes that the parent has failed to perform his affirmative parental duties for a period in excess of six months, this Court then must examine the individual circumstances and any explanation offered by the parent to determine if that evidence, in light of the totality of the circumstances, clearly warrants permitting the involuntary termination of said parent’s parental rights and the adoption.” In re Adoption of Orwick, 464 Pa. 549, 555, 347 A.2d 677, 680 (1975).

See also, Jacono Adoption Case, 426 Pa. 98, 231 A.2d 295 (1967). In analyzing the explanations offered by a parent this Court has looked to whether a parent has “utilized those resources at his or her command ... in continuing a close relationship with the child” and whether he or she has exercised “reasonable firmness” in declining to yield to obstacles. Adoption of McCray, supra, 460 Pa. at 217, 331 A.2d at 655. See also, In re Adoption of Croissette, 468 Pa. 417, 364 A.2d 263 (1976). We believe that, in light of the totality of circumstances, appellant did exercise reasonable firmness in declining to yield to obstacles which prevented her from protecting, supporting and maintaining communication and association with Melissa. In this regard it is critical to remember that Melissa had been taken by court order from the custody and care of her mother and there is no evidence on the record that this action was taken as a result of any fault or misconduct on the part of appellant. To the contrary, it is uncontested that the child was separated from her mother due to the cruelty of her stepfather. This is, therefore, unlike the situations in which a parent has voluntarily surrendered his or her child to the care of another, thereby electing to forego the exercise of important affirmative parental duties. Adoption of Baby Girl Fleming, supra; In re Lumiere Castel Cassen, supra; Wolfe Adoption Case, supra; Matter of Kapcsos, supra. At approximately the same time her daughter was taken from her, appellant moved with her husband to Ohio where he was promised a job. Despite the physical distance between her new home and Chester County and the fact that during most of the sixteen-month period in question, appellant and her husband and their infant son were living on $170 per month public assistance, appellant did make one trip to Pennsylvania during which she visited with Melissa. Prior to that visit the record indicates that in September, 1974, within the period of one week, appellant made three trips from her new home in Ohio to Pennsylvania for the scheduled hearing regarding the custody of Melissa. Twice the hearing was postponed and rescheduled and appellant, despite her other family responsibilities and the financial strain, returned to Pennsylvania for each hearing. Although she did not actually see Melissa on these dates these efforts on her part must be viewed as an attempt to prevent the forfeiture of her rights to Melissa and as an expression of her love, concern and interest for the child’s well-being. Compare, In re Adoption of McCray, supra. In addition to these trips, Mrs. D. also communicated at least twice with Chester County Children’s Services advising them of her affection for Melissa and her desire to have her daughter returned.

Most importantly, she was in constant contact through visits and counseling with the Ohio children’s service agency from January, 1975, until August, 1975. Although appellant did not communicate with the Chester County agency for over six months, she was, during most of this time, working with the Ohio agency. In fact the record shows that appellant was relying on the instructions of the Chester County agency to cooperate with the Ohio agency and was reasonably led to believe that such action would preserve her rights to her child. These efforts on the part of appellant were clearly made in order that she could establish an environment suitable for the return of Melissa.

The court below and the appellee have placed great emphasis on appellant’s alleged failure to maintain communication with her child. To support this assertion, they cite the fact that she failed to send cards, gifts or other remembrances. To the contrary, appellant did maintain communication with her child through her mother, the child’s maternal grandmother, and her sister, the child’s maternal aunt.⁹ It is unquestioned on this record that the grandmother and the aunt visited with Melissa at every available opportunity. They established a pattern of providing the child with gifts and remembrances. The record also indicates that appellant was in communication with her mother and sister with reference to her child’s situation. In view of the child’s age it would appear that the means employed by appellant to keep advised as to the well-being of her child were at least as effective and probably more effective than the means of communication suggested by appellee and the court below. Additionally, at great personal, financial strain, appellant did make one visit during the period in question to see Melissa.

With regard to the role of Mrs. P. and Barbara P., we believe the lower court erred in finding that they were not acting on behalf of Patricia D. in loving and supporting Melissa in the latter’s absence. Pennsylvania caselaw clearly provides that Section 311(1) does not require that a parent personally take care of a child.

“The responsibility of performing parental duties may be met if the parent has made reasonable arrangements for the temporary care of the child.” Wolfe Adoption Case, supra 454 Pa. at 557, 312 A.2d at 797.

See also, Appeal of Diane B., supra, 456 Pa. at 434, 321 A.2d at 620. This language has been used in a context where the parent has voluntarily sought the services of an agency to provide custody during a period where the parent is, for some reason, unable to do so. We can conceive of no reason why the surrogate concept should not be equally applicable to the discharge of parental responsibilities of a parent who has lost custody of the child involuntarily. Although a parent who does not have custody must express in a positive manner, her affection for the offspring and her interest in maintaining the parental relationship, it might well be under the circumstances of a given case that the use of a surrogate would be in the most feasible and effective means to accomplish that end. In our view, such is the case here.

The lower court expressed its belief that both the grandmother and aunt enjoyed their own familial attachments to the child and that it was “likely”, at least in the case of Barbara P., that she was satisfying some emotional need of her own. It does not follow that the grandmother’s and aunt’s affection for Melissa excludes the possibility that they were also acting on appellant’s behalf. It was erroneous to accept their personal attachment for Melissa as determinative of the question. It would be only normal for a natural grandmother and a natural aunt to possess their own reasons, in addition to the desire to fulfill appellant’s expectations, for loving and caring for this child. These independent inducements may not be used to nullify the mother’s own care and concern. The important inquiry is whether Mrs. D. reasonably relied on her family, and whether they were in fact aware of this reliance, to discharge some of the responsibilities that comprise the composite of parental tasks.

It is abundantly clear from appellant’s testimony that she did rely on her mother and sister to love, support and communicate with Melissa in her absence. It is also clear that she intended that the arrangement was to be temporary. See In re Adoption of Farabelli, 460 Pa. 423, 333 A.2d 846 (1975). Despite her limited income, she spoke with her mother and sister once a month concerning Melissa’s progress and welfare. In addition, letters were exchanged bi-weekly and Barbara P. testified the only purpose was the transmittal of requested information about and pictures of the child. This reliance on the part of appellant was eminently reasonable in view of her circumstances and the regularity with which the mother and sister visited Melissa and the obvious interest in her welfare which they shared. More importantly, it is apparent from Barbara P.’s testimony that she considered herself functioning, at least partially, on her sister’s behalf.¹⁰ She testified that when she took gifts to Melissa she often said they were from her “mommy.” She also communicated to Melissa the fact that her mommy missed her and loved her.¹¹

In summary, as we viewed the record it depicts a mother whose child was taken from her custody involuntarily because of the environment in which the family was living at the time. Throughout the entire time the child was separated from the mother, the mother continued unceasingly to change that environment and to make it adaptable to the raising of her offspring including making arrangements to live separate and apart from her husband who was the primary cause for the original removal of the child from the household. Furthermore, even though she was living separately and apart from the child she continued to maintain communication with that child albeit through the use of surrogates. Under these circumstances we believe that the lower court erred in finding that the appellant had refused or failed to perform her parental duties during the designated six-month period.

Decree of the court below is reversed and the petition for involuntary termination is dismissed.

JONES, Former C. J., and POMEROY, J., did not participate in the decision of this case. ROBERTS, J., filed a dissenting opinion in which EAGEN, C. J., joins.

Each party to bear own costs.

1 . Jurisdiction of the instant appeal is vested in this Court under the Appellate Court Jurisdiction Act of 1970, July 31, P.L. 673, art. II, § 202(3), 17 P.S. § 211.202(3) (Supp. 1977-78).

2 . The petition filed by Chester County Children’s Services also alleged that involuntary termination was justified on the basis of Section 311(2) of the Adoption Act which provides that such action may be taken if “the repeated and continued incapacity, abuse, neglect, or refusal of the parent has caused the child to be without esséntial 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 . . ” Act of 1970, July 24, P.L. 620, No. 208, art. III, § 311(2), 1 P.S. § 311(2) (Supp. 1977-78). The lower court, however, found that the requirements of this subsection had not been shown to exist. After a review of the record, we agree that the court was correct in its decision and that the “demanding” standard of “compelling” evidence for termination under 311(2) had not been met. In re Geiger, 459 Pa. 636, 639, 331 A.2d 172, 173 (1975); Adoption of R.I., 468 Pa. 287, 294, 361 A.2d 294, 298 (1976). The appellee agency has failed to present any evidence of “repeated and continued incapacity, abuse and neglect” on the part of appellant which “caused the child to be without essential parental care, control or subsistence” during the time she was in the custody of appellant. In re Howard, 468 Pa. 71, 360 A.2d 184 (1976). Even if it is argued that appellant failed to take the necessary steps to protect the child from the abuse of the stepfather, during the time the child was living with the couple, the requirements of the subsection would still not have been met. In order to terminate under Section 311(2) it is “necessary to show that the causes of the . . . abuse . . . cannot or will not be remedied by the parent.” In re Geiger, supra. We have held that “regardless of a parent’s past transgressions, a court should not terminate parental rights if the parent stands ready and able to assume the responsibility of rearing his or her child.” In re Howard, supra 468 Pa. at 77, 360 A.2d at 187. Not only did appellant attempt to remedy the source of the abuse by encouraging her husband to enter into counseling sessions with the Ohio children’s agency, but subsequently saw fit to remove the source of the abuse by living apart from her husband. The record is barren of evidence to contradict her assertions that she now stands ready and able to assume the responsibility of raising Melissa.

3 . Although the lower court did not discuss whether the appellant had “evidenced a settled purpose of relinquishing parental claim” for a period of six months, we do not believe we can affirm the lower court order on the basis of that test having been met. No evidence whatsoever has been introduced that at any time appellant harbored a settled purpose to relinquish her claims to Melissa. Not only did she never express such an intention, but no such inference can be drawn from her conduct. In re Adoption of Baby Boy (Robbie), 452 Pa. 165, 305 A.2d 36 (1973); Harvey Adoption Case, 375 Pa. 1, 99 A.2d 276 (1953). In fact, Mrs. D. not only “proposed a plan for her personal care of . . [Melissa] . .” but during most of the relevant six-month period was attempting to make a satisfactory home for the child. Compare Appeal of Diane B., 456 Pa. 429, 321 A.2d 618 (1974).

4 . The record indicates that appellant’s husband worked at the new Ohio job for, at the most, one month before being laid off. The Davis family, at the same time, increased by one with the addition of a son.

5 . Appellant also argues that the Best Interest of the Child doctrine was a strong motivation behind the lower court’s holding and that this is an improper consideration in proceedings for involuntary termination. We believe that since the statutory requirements for termination have not been met, there is no need to decide the parameters of the Best Interest of the Child doctrine in this context or whether, in fact, the trial court utilized the principle in the decision of the case. In re Adoption of R.I., supra, 468 Pa. at 299, n.12, 361 A.2d at 300, n.12; In re Adoption of McAhren, 460 Pa. 63, 68, 331 A.2d 419, 422 (1975).

6 . We recognize the fact-finding function of the hearing judge and his unique opportunity to observe the witnesses and to apprise their credibility. See Adoption of Baby Girl Fleming, 471 Pa. 73, 76, 369 A.2d 1200, 1203 (1977), citing Adoption of Farabelli, 460 Pa. 423, 433, 333 A.2d 846, 851 (1976). However, we may not abdicate our responsibility to consider all the testimony and determine whether the Court’s findings are supported by competent evidence. Adoption of Farabelli, supra, 460 Pa. at 427, 333 A.2d at 848; Sheaffer Appeal, 452 Pa. 165, 305 A.2d 36 (1973). After a review of the record, we believe that the trial court’s express findings of fact are supported by competent evidence. Nonetheless, we also have a responsibility to make certain that the trial court has properly interpreted the law in relationship to the express findings of facts and other uncontradicted testimony which was not expressly rejected by the trial court. While we will not usurp the trial court’s right to assess the credibility of the witnesses appearing before him, we will not condone his ignoring facts which are of record and the credibility of which is not challenged.

7 . Appellant did testify that she occasionally, when she could afford it, sent money to her mother or sister for them to buy things for Melissa. The court below did not indicate whether he believed this testimony or whether there was any reason to reject it.

8 . A period of six months and thirteen days elapsed between the last written communication between the parties (May 5, 1975) and the date the involuntary petition was filed (November 18, 1975). During three months of this six-month period, however, appellant was regularly communicating with the Ohio agency (from January 1975 to August 1975).

9 . As noted supra, these visits were held at the agency.

10 . Mrs. P., appellant’s mother, did not testify at the involuntary termination hearing due to illness.

11 . The court did not discuss Barbara P.’s testimony regarding what she said to Melissa but found that the mother’s interest in the grandmother’s and aunt’s visits was never communicated to the agency. We do not believe that this fact, if true, is determinative of whether Mrs. P. and Barbara P. were acting on appellant’s behalf. It is of primary importance that appellant’s interest in Melissa was transmitted to the child herself and there is no requirement in our caselaw or in the applicable statute that communications with a child be made exclusively through the agency.