Sanders Appeal
Sanders Appeal
Concurring in Part
Concurring and Dissenting Opinion by
My readiug of the record satisfies me that in this case, unlike Jones Appeal, 449 Pa. 543, 549, 297 A. 2d 117 (1972), the trial court had before it adequate, competent and reliable evidence upon which to base its de
In Jones, supra, we concluded that the summary there introduced by the Greene County Child Welfare Service was “so permeated with hearsay that it could not justify the findings of the court below.” The summary there—“a recounting of Tacts’ accumulated by the service”—was prepared by two persons other than those who had knowledge of the accumulated facts. Thus “[t]he report escaped the test of cross-examination with respect to the Tacts’ which underpin its conclusions .. (449 Pa. at 549). In the case at bar, on the other hand, the witness who prepared and testified from the summary report had had direct, first-hand knowledge of the Sanders family and conditions in their home going back six years before the hearing. As she testified, the report was made up “mainly from what I myself observed”. While admittedly other caseworkers had also had contact with the family, and these are referred to in the summary, such references comprised only a small portion of the total report.
While I thus conclude that the decree of involuntary termination was justifiably entered on the evidence before the court, I recognize the possibility that during the more than two years which have elapsed since the last hearings in this case, new factors bearing on the present advisability of such a course of action may have arisen. Accordingly, I concur in the order of remand, but would limit further proceedings to a determination by the trial court as to whether the conduct of the appellants and the conditions in their home have shown substantial improvement since September 25, 1971, the date of the last hearing herein. Should the court find that the situation has changed substantially for the better, so that the test of §311(2) of the Adoption Act, 1 P.S. §311(2), is no longer met, then the petition for involuntary termination should be dismissed, notwithstanding the decree appealed from. If such improvement is not found to have occurred, then a new final decree of termination should be entered.
While the report was not actually introduced into evidence, nor marked for identification, it is physically a part of the court record in this case, and there is no doubt that it is the document to which objection was made. It is entitled “Summary from Child Welfare Service of Greene County to The Honorable Judge Glenn R. Toothman”, and signed by Wilma R. Johnson, Child Welfare Aide, and Rupert Eder, Executive Director of the Agency. The report consists of five pages, and concludes with a recommendation to the court that the best interests and welfare of the six named Sanders children require “that all parental rights be terminated in order that these children can be legally adopted into families where their needs may be met.” This communication to the court was evidently either the basis for the petition for involuntary termination of parental rights, which was also signed by the same two officials of the agency, or prepared for use at the hearing in support of said petition. In either case, it is reasonable to suppose that it was read and considered by Judge Toothman. Whether or not the docu
Opinion of the Court
Opinion by
This is an appeal from a decree of the Court of Common Pleas, Orphans’ Court Division, of Greene County,
On May 20, 1971, appellee commenced the present proceeding by petitioning the Orphans’ Court Division for involuntary termination of parental rights as to the six youngest children then living. On August 23, 1971, following hearings on June 21 and June 25, 1971, the petition was granted, subject to the filing of exceptions, which appellants duly filed. On September 25, 1971, the court received additional testimony at appellants’ request.
The lower court’s determination was based on Section 311(2) of the Adoption Act,
“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: Cl
Appellants contest the admissibility of some of the evidence on which the court relied in making this determination. They argue that the lower court erred in admitting into evidence the contents of a summary report of one of appellee’s caseworkers.
While the contested evidence discussed above constituted only a minor part of appellee’s case, we cannot say that without this evidence the lower court would have reached the same result. Because of the serious impact attending the termination of parental rights, it is important that a judicial decree extinguishing such rights be based solely on competent evidence. In light of appellant’s significant evidence of self-improvement, it is quite possible that the incompetent evidence accepted below provided the “swing factor” in that court’s determination. Appellants are entitled to a hearing and decision free from such taint. Hence, we will remand this matter to the court below for the purpose of conducting a proceeding consistent with this opinion.
Decree vacated and matter remanded. Costs on appellee.
The names and birthdays of appellants’ thirteen children are as follows:
Gladys August 24, 1951
Boland, Jr. October 19, 1952
Catherine October 11, 1953
Deborah December 22, 1954
Lois March 25, 1956
Ethel December 15, 1958
Michael May 15, 1961
Jacqueline April 5, 1963
Mary Jane December 28, 1965
Valorie November 1, 1967
Jaspar March 4, 1969
Glenn March 22, 1970
Lisa November 9, 1971
The order below terminated parental rights as to Michael, Jacqueline, Mary Jane, Valorie, Jaspar, and Glenn. It also removed Deborah, Lois, and Ethel from foster homes and returned them to their parents. This latter part of the order is not now in issue. The two oldest girls are married and Boland, Jr., is employed and occasionally lives at home. As the youngest child, Lisa, was born after the hearings were held, she was not covered by the order.
Appellants had filed a petition for a hearing to take additional testimony, alleging failure of the appellee to serve them with a copy of the petition for involuntary termination of parental rights and late service of notice of the prior hearing.
Appellee has moved to quash this appeal as untimely. An appeal from mi order must he taken within thirty days of entry of the order (Section 502(a) of the Appellate Court Jurisdiction Act, Act of July 31, 1970, P. L. 673, art. V, 17 P.S. §211.502(a)). However, such appeal may not be taken until the order has been entered on the appropriate docket in the lower court (Rule 19A of the Buies of the Supreme Court). Although the appeal in the instant ease was taken more than thirty days after the decree was announced, it was taken within thirty days of its entry on the docket. Therefore, the appeal was timely and the motion to quash will be dismissed.
Act of July 24, 1970, P. L. 620, art. III, §311, 1 P.S. §311(2).
These efforts included: (1) the father’s obtaining full-time employment as a coal miner with family medical and hospital insurance; (2) the paying off of most of their debts; (3) the renovation of their home and the purchase of furniture and other household items; and (4) the cessation of heavy drinking habits by both liaren ts.
Appellants raise two other questions in their brief, namely: (1) whether the lower court’s determination of proper parental care in its order of December 23, 1969, constitutes res judicata as to events occurring prior to that date, and (2) whether the Adoption Act of 1970 applies retroactively so as to permit testimony of events occurring prior to its passage. However, since these issues were not properly raised in the court below, we will not consider them on appeal. Commonwealth v. Agie, 449 Pa. 187, 189, 296 A. 2d 741 (1972); Commonwealth v. Henderson, 441 Pa. 255, 260, 272 A. 2d 182, 185 (1971); Wenzel v. Morris Distributing Co., Inc., 439 Pa. 364, 373-74, 266 A. 2d 662, 667 (1970).
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Appellee failed to comply in two respects: (1) no foundation was laid as to the mode of preparation of the report, etc.; and (2) the witness attempted to testify as to what the report said rather than let the report speak for iself by offering it into evidence. See note 7, supra.
Due to the lapse of time between the last hearing held in this matter (September 25, 1971) and the date of this opinion, events in the interim period relating to appellants’ present ability to provide adequate parental care should also be considered when the new proceeding in this matter is held.
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