dissent">MANDERINO, Justice,

dissenting.

I must dissent. The majority’s reading of the 1970 Adoption Act whittles away the constitutional rights of a natural parent who is involved in an involuntary termination proceeding. The majority concludes that the involuntary termination of a natural parent’s rights is “permissible” under the Act because appellant, a natural parent, failed to perform her parental duties during a period of more than six months. Contrary to the majority’s notions about involuntary terminations, the question is not whether such a termination of an important right is merely permissible. Rather, the question is whether this important right should be terminated. See In re William L., 477 Pa. 322, 383 A.2d 1228, cert. denied, 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978).

A review of the facts presented in this appeal also reveal that the Child Welfare Services (CWS) was less than cooperative when appellant did attempt to perform her parental responsibilities.

Upon appellant’s release from a psychiatric hospital, appellant began visiting her daughter, who was under the supervision of CWS. These visits occurred continuously until March 1975. The visits, however, appeared to fluctuate with the changes in the caseworker. At trial appellant testified that she made persistent efforts to arrange visits *621from March, 1975, through January, 1976, but because of the frequent turnover in CWS caseworkers, appellant’s efforts were frustrated. Appellant’s testimony was corroborated by a witness who listened by extension to a conversation between appellant and an employee of CWS. During the alleged time during which appellant failed to perform her parental duties, appellant had ten different caseworkers. It was acknowledged that when caseworkers are transferred, there was a lapse of time when nobody was in touch with appellant. The trial court dismissed the testimony on this matter and concluded that the location of the agency was well established. The trial court also concluded that it did not believe her testimony “in refuting the contention of the agency that she did not discharge her parental duties.” The trial court also said that even if it believed appellant’s testimony, her actions were not sufficient to show the “care” that the law requires for a child.

In this case, the agency’s “breakdown” frustrated appellant’s attempt to perform her parental duties, and the burden of proof was not on appellant to disprove a failure to perform parental rights. The burden of proof was on the Child Welfare Services to prove that appellant either failed to perform parental duties or has evidenced a settled purpose of relinquishing her parental claim.

Because CWS did not meet its burden of proof, appellant’s rights should not be terminated.

NIX, J., joins in this dissenting opinion.

Citation profile

Relationships

How this case has been treated — in progress