DocketNumber: No. 01806
Citation Numbers: 351 Pa. Super. 256, 505 A.2d 628
Judges: Brosky, Popovich, Roberts
Filed Date: 2/27/1986
Status: Precedential
Modified Date: 2/18/2022
This case is before us on appeal from the trial court’s order of June 17, 1985, finding that appellant “refused and failed to perform his parental duties in regard to T.L.G. and D.A.G. for a period of at least six (6) months,” and terminating appellant’s parental rights to his two minor children. Appellant argues that it has not been shown by clear and convincing evidence that he failed or refused to perform his parental duties for a period in excess of six months. We agree, and, accordingly, we reverse.
Appellant and appellee, the natural parents of the children in question, were living together, unmarried, in Texas on July 7, 1978, when the two children were born. In August of 1979, appellee moved to Pennsylvania, taking the children with her. Appellant visited with the children in Pennsylvania during Christmas of 1979, but the police were called because of an argument between appellant and appellee, and the visit terminated unpleasantly. In the summer of 1980, the children visited appellant in Texas, and again a squabble arose, concerning when the children would be returned to appellee in Pennsylvania. In 1981, the parties
Appellant was able to speak with the children by telephone for a period of time, but after mid-1982 appellee refused to permit the children to talk with him even by phone from her aunt’s house. She also maintained an unlisted phone number. Appellant stayed informed about the children by contacting various relatives of appellee. Through the years, appellant sent gifts to the children on holidays and birthdays.
On February 22, 1984, appellee filed a petition for the involuntary termination of appellant’s parental rights. A hearing was held on April 27, 1984. The trial judge listened to the testimony and concluded that appellant did not attempt to visit with the children since the summer of 1982, and had no contact whatsoever with them for a period of eight months (from July 7, 1983 until March of 1984); that he purposefully declined to comply with the mother’s (unilaterally-imposed) conditions which would have enabled him to visit with the children; that he failed to support the children throughout the years; that besides the gifts which appellant sent to the children two or three times a year, and regular phone calls to appellee’s aunt, the record was devoid of any evidence that appellant used any other means to maintain a place of importance in the lives of the children; and that appellant refused and failed to perform his parental duties for a period of at least six months. The trial court therefore terminated appellant’s parental rights on the basis of 23 Pa.C.S. § 2511.
Even where it is established that a parent has failed to perform parental duties for a period in excess of six months, such a finding does not, in and of itself, support an
Appellee conceded at the hearing that appellant continued making payments on appellee’s automobile after appellee moved to Pennsylvania, and that appellant paid $400.00 in 1981-82 and $140.00 since 1982 on the childrens’ behalf. Appellant testified that he had placed $3,500.00 for the children in a bank account in Texas (although he did not produce any records to substantiate his testimony). Appellee’s aunt and godmother, Marian Balleck, testified that, with the exception of a ten-month period when appellee first moved to Pennsylvania, she was on “very good and very friendly” terms with appellee
From the testimony of appellant, appellee, and appellee’s aunt, it is clear that appellant attempted to maintain contact with his children, and that various conditions, including the inability of appellant and appellee to get along together and the distance (2,000 miles) separating them, prevented appellant from maintaining the amount and quality of contact that appellant sought. Not having appellee’s most recent address or her unlisted telephone number, he was unable to communicate directly with the children without appellee’s consent. He did send gifts, and make regular telephone inquiries of the aunt concerning the needs of the children. He also sent money to the aunt to be used for the children without appellee being aware of its source.
In In Re Adoption of Ostrowski, 324 Pa.Super. 216, 471 A.2d 541 (1984), a panel of our court reversed the trial court in a case factually similar to the case before us,
The burden of proof is upon the party seeking termination to establish by “clear and convincing” evidence the existence of the grounds for termination. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In Re: T.R., 502 Pa. 165, 465 A.2d 642 (1983). We have very carefully examined the record in the case before us, and we find, as did our court in Ostrowski, considering the totality of the circumstances, that the record does not support a determination that appellee has proven by clear and convincing evidence that appellant has exhibited such failure to perform parental duties as would justify the involuntary termination of his parental rights.
We therefore reverse the trial court’s order and remand this case for entry of an order in accordance with this Opinion. Jurisdiction is relinquished.
. The statute provides, in pertinent part: "The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds: (1) The parent by conduct continuing for a period of at least six months ... has refused or failed to perform parental duties.”
. This is contrary to the trial court’s unsupported finding of fact that the aunt and appellee were not on speaking terms with one another.
. The recent decision of our Supreme Court in In Re: Adoption of Faith M. and Victoria M., 509 Pa. 238, 501 A.2d 1105 (1985) is distinguishable from the case before us. In that case, in addition to failing to comply with a support order which had been voluntarily entered into (in the amount of f130.00 per month), the parent whose rights were terminated by the trial court made no effort to visit his children during a five year period, wrote no letters to them, and made only one phone call to one of his children during that period. In addition, the parent had hired legal counsel to terminate the parental relationship of his second wife’s former husband, and was well aware of the consequences of failing to perform parental duties. The Supreme Court therefore concluded that the trial court had not abused its discretion in terminating the father’s parental rights.