In re Adoption of D.M.L.

JOHNSON, Judge: Appellant, J.Z., the natural father of D.M.L. and F.W.Z., appeals from the Order of the trial court terminating his parental rights to these children. D.M.L. was born on February 5, 1975 to Appellant and I.L., who was married to her previous husband at that time. D.M.L. was adjudicated as deprived after a hearing on September 3,1976 and placed in the custody of Children and Youth Services of Greene County (CYS). On February 24, 1978, F.W.Z. was born to I.L. and Appellant. F.W.Z. was adjudicated dependent after a hearing on September 28, 1979 and also placed in the custody of CYS. On July 30, 1980 petitions for involuntary termination of Appellant’s parental rights were filed by CYS. At this time, I.L., the natural mother, also signed a petition to voluntarily terminate her rights to the children. Following hearings on September 2 and 29, 1980, the trial court issued an opinion and order on January 23, 1981, terminating Appellant’s rights to both children. After the filing and denial of exceptions, the trial court filed an opinion and issued a final order on September 18, 1981. This appeal followed. Three issues were raised by Appellant, namely: (1) whether CYS has sustained its burden of proof to justify termination; (2) whether it was proper for the trial court to make reference in its opinion, and consider as evidence, Appellant’s failure to comply with a goal plan, which is not a fact of record, and (3) whether CYS’ conduct thwarted Appellant’s attempt to perform his parental duties and caused Appellant’s children to be without essential parental care, control or subsistence. After the filing of the instant appeal, but prior to argument, the U.S. Supreme Court determined, in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), that the due process clause of the Fourteenth Amendment to the U.S. Constitution requires that the standard of proof in involuntary termination proceedings must be at least clear and convincing evidence. The standard in [443] Pennsylvania at the time of these proceedings in the trial court was preponderance of the evidence. See, e.g., In re Adoption of M.M., 492 Pa. 457, 460-61, 424 A.2d 1280, 1282 (1981); In the Interest of T.S.L., 487 Pa. 245, 248, 409 A.2d 332, 334 (1979); cf. Appeal of G.J.A., 304 Pa.Super. 21, 26 n. 4, 450 A.2d 80, 83 n. 4 (1982). We note that, although neither of the opinions filed by the trial court refer to the standard of proof applied by it in these proceedings, the Appellant, citing In re D.J.Y., 487 Pa. 125, 130, 408 A.2d 1387, 1389 (1979), proceeded in the belief that “[a] party must establish the statutory requirement for involuntary termination by a preponderance of the evidence.” (Appellant’s Brief, p. 11, emphasis added). Where, as here, the law concerning the standard of proof in involuntary termination proceedings changes, a party whose case is pending on direct appeal is entitled to the benefit of changes in law which occur before the judgment becomes final. August v. Stasak, 492 Pa. 550, 554-55, 424 A.2d 1328, 1330-31 (1981); accord, Commonwealth v. Brown, 494 Pa. 380, 383, 431 A.2d 905, 906-07 (1981). Although we intend no criticism of President Judge TOOTHMAN’s well-reasoned opinion in support of his determination to terminate Appellant’s parental rights, and while our review of the record might cause us to agree with the distinguished trial judge, we are mindful that our review is limited to ascertaining whether the evidence relied upon by the trier of fact was of sufficient quality and substantiality to support the rationality of the judgment. Woodby v. Immigration Service, 385 U.S. 276, 282, 87 S.Ct. 483, 486, 17 L.Ed.2d 362, 367 (1966). As the Santosky court has observed, we are not free to treat appellate review as a curative for an inadequate burden of proof. Santosky v. Kramer, 455 U.S. at 757 n. 9, 102 S.Ct. at 1396 n. 9, 71 L.Ed.2d at 609 n. 9. Finally, we are guided by the words of Justice BLACK-MUN, speaking for the majority in Santosky, wherein he stated: [444] Since the litigants and the factfinder must know at the outset of a given proceeding how the risk of error will be allocated, the standard of proof necessarily must be calibrated in advance. Retrospective case-by-case review cannot preserve fundamental fairness when a class of proceedings is governed by a constitutionally defective evidentiary standard. Id. at 757, 102 S.Ct. at 1396, 71 L.Ed.2d at 609. Given the fundamental liberty interest of a natural parent in the care, custody and management of his, or her, child, and in light of the increased risk of error which may have existed in this case under a standard of proof lower than mandated by Santosky, see Lassiter v. Department of Social Services, 452 U.S. 18, 27-31, 101 S.Ct. 2153, 2167-2170, 68 L.Ed.2d 640, 649-652 (1981), we must conclude that this case must be remanded to the trial court with instructions to reconsider the case in the light of Santosky. Upon rehearing, the court shall be guided by a requirement that clear and convincing evidence that grounds for termination exist. Appeal of G.J.A., 304 Pa.Super. 21, 27, 450 A.2d 80, 83 (1982). Order vacated. Case remanded for reconsideration in accordance with this opinion. Jurisdiction is not retained. HESTER, J., files a dissenting statement.