Burns, In re

• Decision Date: 28 October 1977
• Citation: Burns, In re, 379 A.2d 535, 474 Pa. 615 (Pa. 1977)
• Court: Pennsylvania Supreme Court
• Parties: In re Involuntary Termination of Parental Rights of Shannon Coleen BURNS and Kelly Taylor. Appeal of Sandra BURNS, mother of said infant children.

Page 535

379 A.2d 535

474 Pa. 615

In re Involuntary Termination of Parental Rights of Shannon Coleen BURNS and Kelly Taylor Appeal of Sandra BURNS, mother of said infant children.

Supreme Court of Pennsylvania.

Argued March 8, 1977.

Decided Oct. 28, 1977.

Thomas H. Newbraugh, Southwestern Pa. Legal Aid Society, Waynesburg, T. P. Hennessy, Uniontown, for appellant.

R. Wallace Maxwell, Waynesburg, for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

Sandra Burns appeals from the January 30, 1976 decree of the Orphans' Court Division of the Court of Common Pleas of Greene County terminating her parental rights with regard to her minor children Shannon Coleen Burns and Kelly Taylor. ¹ Acting upon a petition filed by Child Welfare Services of Greene County, the orphans' court found that appellant had abandoned the two children and had failed to perform parental duties for a sufficient period to justify involuntary termination of her parental rights. ²

Appellant raises two issues. First, she contends that the evidence is insufficient to support a finding of abandonment. Second, she challenges the termination of her parental rights to Kelly Taylor as improper in light of the orphans' court's determination that the natural father preserved his parental rights. We find appellant's claims without merit, and affirm.

I

The record establishes that the home situation of appellant and her family seriously deteriorated in late 1973. Appellant and her husband, Gary Burns, were living in a trailer with their child, Shannon Coleen Burns, then one and one half years old, and appellant's two older children by previous marriages, Kelly Taylor, then seven, and John McDowell, then fourteen. ³ Neighbors from the trailer court, including the owner of appellant's trailer and his wife, testified that appellant and her husband were both out of work, drank heavily, and regularly left the children unattended for hours at a time.

Child Welfare Services became involved after receiving a report in December, 1973, from a resident of the trailer park who was concerned about the lack of care being received by appellant's children. ⁴ An agency worker visited the trailer twice on January 7, 1974. Neither appellant nor her husband were present at either time. The three children were left alone without an adult in charge. The worker observed that clothes were strewn throughout the living room, that Kelly's eye was pink, and that the baby, Shannon Coleen, was dirty and improperly clothed. John said that his mother and stepfather were out trying to find a doctor, but that he did not know who the doctor was. When asked if he and the other children had anything to eat, John replied that appellant and her husband would bring groceries back when they returned. The worker made a third visit to the trailer later in January and again found the children unattended.

Shortly thereafter, appellant and her husband were given notice to vacate the trailer because its condition was rapidly deteriorating from their lack of care. When the Burnses showed no intention of leaving, their landlord, upon his attorney's advice, locked them out. Appellant, her husband, and the two older children moved to an apartment in Waynesburg. Appellant asked a friend, Mrs. William Corwin, to take care of Shannon. ⁵

After the eviction, Mr. Burns contacted the Child Welfare Services worker, who had written to the Burnses after her unsuccessful efforts to visit them at the trailer. The worker contacted the trailer owner on behalf of the Burnses, and obtained their clothing from the trailer. On January 23, she met with appellant at the apartment to discuss the family's situation. Appellant was in considerable discomfort, however, and the meeting was short. The same day, appellant entered the hospital and subsequently suffered a miscarriage.

After entering the hospital appellant asked a nurse's aide, Mrs. Flora Davis, if she would take care of Kelly while appellant was in the hospital. Mrs. Davis agreed to do so. Mr. Burns was to bring Kelly to an agreed upon location in town where Mrs. Davis was to receive the child. He did not appear, however, and the following day both Kelly and John arrived at Mrs. Davis' house in a taxi. Although appellant had never asked her to take care of John, Mrs. Davis took both children and kept them for at least four days. Appellant did not notify Mrs. Davis when she was discharged from the hospital. When Mrs. Davis learned from the hospital that appellant had been discharged, she took the children and began looking for appellant. Mrs. Davis located the mother at a bar or restaurant and returned Kelly and John. Appellant appeared to have been drinking and gave an incoherent explanation for not contacting Mrs. Davis after her discharge from the hospital.

Shortly after appellant left the hospital, she and her husband went to Uniontown, Pennsylvania, to look for a new place to live. John was left with a relative. Kelly was left with Mrs. Corwin, who had been taking care of Shannon since appellant entered the hospital. In late January, however, Mrs. Corwin suffered a broken leg and her neighbor, Mrs. Kress, took over the care of the two children.

On February 7, 1974, John went to the Child Welfare Services office with his aunt and told the worker he wanted to be "truthful" about the family situation. Based on the agency's prior knowledge of the family, and the information provided by John, Child Welfare Services immediately obtained a court order authorizing the placement of Kelly and Shannon in foster care. The two children were taken from the Kress home and placed in foster care the same day.

A hearing on foster care placement was scheduled for February 14, and notice was sent to appellant and her husband by registered mail to their last known address. Appellant and her husband did not receive this notice until after the hearing. However, appellant learned of the hearing through her mother-in-law a day or two before it was held. Appellant testified that she was unable to attend the hearing because she had no transportation from Uniontown. On the day of the hearing appellant reached the Child Welfare Services worker in the judge's chambers by telephone. She was extremely angered by the agency's placement of the children in foster care and told the worker, "There's going to be somebody dead over this." The worker made an appointment for appellant and Mr. Burns to visit with her the following day. The appointment was not kept.

Thereafter, neither appellant nor her husband contacted Child Welfare Services again. Neither parent communicated with Kelly or Shannon or the foster parents. When the children had been in foster care for more than ten months, with no parental contact, Child Welfare Services petitioned to terminate the parental rights of appellant, her husband, and Paul Taylor, Kelly's father. Appellant learned of the petition from her mother-in-law ⁶ and, for the first time, sought legal advice.

Appellant acknowledged at the termination hearing that she never contacted Child Welfare Services, or her children, after they were placed in foster care. She testified that she did not contact the agency because she lost all respect for it when the agency placed the children in foster care without her consent. She explained that she did not communicate with the children because she desired to spare them the anguish of seeing her while in the custody of others.

During the ten month period before the termination hearing, appellant remained in touch with Mrs. Corwin, who visited the children several times in their foster homes and advised appellant that Kelly and Shannon were receiving adequate care. At appellant's request, Mrs. Corwin purchased presents for the children on holidays and their birthdays. Appellant's mother called Child Welfare Services on occasion to inquire about the children, and would convey information regarding them to appellant.

In July, 1974, appellant, who had again moved, this time to Ohio, stopped drinking and began attending Alcoholics Anonymous (AA) meetings, a practice she has continued. Fellow members of AA testified to her apparent rehabilitation and stated that she often mentioned her desire to regain custody of her children.

II

Appellant argues that these facts are insufficient to establish grounds for the involuntary termination of her parental rights. We do not agree.

Section 311(1) of the Adoption Act provides that parental rights may be terminated, after hearing, when:

"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."

1 P.S. § 311(1) (Supp.1976). Unlike its predecessor, ⁷ section 311(1) establishes alternative grounds for proving abandonment. Under present law, 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. Adoption of Croissette, 468 Pa. 417, 364 A.2d 263 (1976); In re Adoption of M.T.T., 467 Pa. 88, 354 A.2d 564 (1976); In re Adoption of Mahlon Nichelle McCray, 460 Pa. 210, 331 A.2d 652 (1975). Thus, we need not decide whether appellant's efforts to remain informed as to the condition of her children negates a finding of a "settled purpose" to relinquish her parental claim.

Our inquiry is whether the orphans' court's determination that appellant refused or failed to perform parental duties for at least six months is supported by competent evidence. Adoption of M.T.T., supra; Adoption of Farabelli, 460 Pa. 423, 333 A.2d 846 (1975); Sheaffer Appeal, 452 Pa. 165, 305 A.2d 36 (1973). The adjudication of the orphans' court will not be disturbed if "the record is free from legal error and . . . if the chancellor's findings are supported by competent...