In Re Baby Boy Robinson

OPINION

LARSEN, Justice.

On June 22, 1977, appellee, the Child Welfare Services of Allegheny County, filed a petition in orphans’ court seeking an involuntary termination of appellant Pinky Mae Wooten’s parental rights in her son, Lanny Jose Robinson. Hearings were held and, by a decree entered on January 17, 1978, appellant’s parental rights in the child were terminated. Exceptions were dismissed and this appeal followed.

Appellant’s first contention is that there was insufficient evidence to support an involuntary termination of appellant’s parental rights. This Court has held that

[t]he findings of the orphans’ court, supportéd by competent evidence, “must be sustained unless the court abused its discretion or committed an error of law”. . We must accept as true all evidence in the record supporting the findings of the court and reasonable inferences therefrom. . . . Conflicts in the testimony are to be resolved by the trier of fact, who is the sole judge of credibility. . . . This Court may not disturb a decree of the orphans’ court based upon findings supported by the record unless the orphans’ court applied an incorrect legal standard. Adoption of S.H., 476 Pa. 608, 611, 383 A.2d 529, 530 (1978) (citations omitted).

Viewed under this standard, the record established that on January 5, 1969, appellant gave birth to Lanny Jose. On June 2, 1969, when the child was almost 6 months old, the child came under the care of the Child Welfare Services (CWS); the child has remained in a foster home since his first year.

Since the child’s placement in a foster home, appellant has allowed a number of substantial periods to pass without visiting her child. Between July, 1974 and October 4, 1977 (a 39-month period), appellant visited the child on only 5 occasions (October 17, 1974, December 18, 1975, August 27, 1976, January 25, 1977, and June 9, 1977). During this 39-month period, appellant allowed periods of 14 months (October 17, 1974 to December 18, 1975) and 8 months (December 18, 1975 to August 27, 1976) to elapse without visitation.

Appellant’s 5 meetings with hér child were scheduled by Kathryn Salvucci, appellant’s caseworker during this period, who testified that whenever appellant requested a visit with her child, she (Salvucci) never failed to schedule such a meeting. In addition to scheduling the aforementioned 5 meetings, Salvucci, at the request of appellant, scheduled 2 meetings (in August, 1975 and July, 1977) which appellant failed to attend. Prior to each of these 2 meetings, appellant never informed Salvucci that she (appellant) would not attend said meetings.

Salvucci also testified that during the period that she was appellant’s caseworker, appellant did not send cards, letters, or gifts to her child nor did she provide any financial support for her child.

Section 311(1) of the “Adoption Act” provides:

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:

(1) The parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claims to a child, or has refused or failed to perform parental duties. Act of July 24, 1970, P.L. 620, No. 208, art. Ill, § 311, 1 P.S. § 311 (Supp.1964-78) (Emphasis provided).

This Court held in In re Adoption of David C., 479 Pa. 1, 8, 387 A.2d 804, 807 (1978):

“Parental duty is best understood in relation to the needs of a child. A child needs love, protection, guidance, and support. These needs, physical and emotional, cannot be met by a merely passive and uninvolved interest in the development of the child. Thus, this Court has held that the parental obligation is a positive duty which requires affirmative performance. . . . This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child. . Because a child needs more than a benefactor, parental duty requires that a parent ‘exert himself to take and maintain a place of importance in the child’s life.’ ” (citations omitted).

Given the fact that during a 39-month period, appellant visited her child on only 5 occasions, did not attend 2 other scheduled meetings with her child, did not send any cards, letters, or gifts to her child, and did not provide her child with any financial support, it is clear that the record supports the lower court’s termination of appellant’s parental rights.

Appellant further asserts that even though her child was in a foster home, “it is unrefuted” that she “express[ed] concern for her . . . [child] and remained in constant oral communication with both her . . . [child] and his guardians”, citing an August 2, 1974 memorandum written by caseworker Salvucci. This memorandum stated that “[i]t should be noted that . . . [the child’s] mother [appellant] is in constant touch with this agency and visists [sic] her son on a regular basis. There has been no laspe [sic] in her concern for . . . [the child] while he has resided in the . . . [foster] home.” This memorandum has little (if any) relevance to the issue of whether appellant performed her parental duties; the memorandum was dated August 2, 1974, which was at the very beginning of the 39-month period (July, 1974 to October 4, 1977) that appellant did not perform her parental duties.

Assuming appellant’s argument that her failure to provide financial support to her child was justified on the grounds that she was “disabled” and had “a home full of children”, it is nevertheless clear that she could have taken “affirmative” steps to maintain the “parent-child” relationship in spite of her financial difficulties. In In re Burns, 474 Pa. 615, 626, 379 A.2d 535, 541 (1977), we stated:

We do not believe, however, that ... [a mother’s] health, financial and emotional problems justified her failure to make any effort to perform her parental duties. ... . Parental duty does not require the impossible, but may encompass that which is difficult and demanding. A parent may not yield to every problem, but must act affirmatively, with good faith interest and effort, to maintain the parent-child relationship to the best of his or her ability, even in difficult times. (Emphasis provided).¹

Appellant’s second contention is that the lower court erred “in refusing to permit . . . [her] to introduce evidence favorable to her position”. During appellant’s cross-examination of caseworker Salvucci, appellant’s counsel asked Salvucci whether she “had an opportunity to read” CWS caseworker Mary O’Hare’s “dictation” regarding the child. Salvucci responded: “No, I have not read the record.” Appellant’s counsel then stated that he was going to read “notes” which he took from Mary O’Hare’s “dictation” to ascertain whether Salvucci was “familiar” with same. Appellee made an objection which the lower court sustained. At the hearings and in this appeal, appellant argued that the “proffered statement was made by an employee of . [CWS] and thus would have met the reliability requirement of the [“Uniform Business Records As Evidence] Act”.² This argument is spurious; appellant’s counsel was not attempting to introduce CWS records but rather his own “notes ” which he (appellant’s counsel) allegedly took from CWS records.

Appellant’s third and final contention is that the lower court erred in permitting appellee to “introduce evidence which was properly excludable”. Specifically, appellant objects to the testimony of CWS caseworker Elizabeth McComas Pugh and West Penn Hospital caseworker Joan Zekas on the grounds that at the hearings, they were permitted to read from “notes [which were] prepared from . unauthenticated records for use at” the hearings. Pugh’s notes were taken from CWS records which she dictated when she handled appellant’s case between 1970 and 1972 while Zekas’ notes were taken from records which were compiled on appellant and two of her daughters when they used West Penn Hospital's facilities between 1969 and 1971. Assuming that the lower court should not have permitted this testimony, this error was harmless since the testimony concerned a period of time prior to the 39-month period (July, 1974 to October 4, 1977) that appellant did not perform her parental duties³; if this testimony was eliminated from the record, the evidence would still support the lower court’s termination of appellant’s parental rights.⁴

Decree affirmed. Each party to pay own costs.

MANDERINO, J., filed a dissenting opinion in which NIX, J., joined.

1 . Appellant contends there was insufficient evidence to establish that she “evidenced a settled purpose to relinquish her parental rights”. We need not discuss this claim since “parental rights may be forfeited for failure to perform parental duties for a six month period, despite the absence of a settled purpose to relinquish parental claims.’’ In re Burns, 474 Pa. 615, 624, 379 A.2d 535, 539 (1977) (Emphasis provided).

Further, since there was sufficient evidence to terminate parental rights under Section 311(1) of the Adoption Act, it is unnecessary to discuss appellant’s argument that there was insufficient evidence to establish the termination of parental rights under Section 311(2) of the Act.

Finally, appellant’s allegation that the CWS “deliberately sought to mislead . . . [her] concerning its intention to terminate her parental rights and sought to preclude visitation and contact” between appellant and her child is unsupported by any evidence.

2 . “A record of an act, condition or event shall, in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.” Act of May 4, 1939, P.L. 42, No. 35, § 2, 28 P.S. § 91b. See, 42 Pa.C.S. § 6108 (1979 Pamphlet).

3 . Appellant also objects to CWS caseworker Renette Oklejewicz’s testimony on the grounds that she read from the child’s discharge summary from Children’s Hospital (where the child was a patient for a portion of his first year) and from CWS records. This testimony provided no evidence as to whether appellant performed her parental duties during the aforementioned 39-month period (July, 1974 to October 4, 1977) and therefore, its elimination from the record would not effect the lower court’s termination of appellant’s parental rights.

4 . In its opinion, the lower court held that “[t]he mother’s counsel has presented a learned brief wherein he has called the court’s attention to certain inadmissible testimony. . . . The inadmissible testimony can have little or no effect in this decision.” (Emphasis provided).