author: MONTEMURO, Judge. HESTER, Judge,

text:
    615 A.2d 1355
    In re BABY BOY S. Appeal of DIANE S.
    Superior Court of Pennsylvania.
    Argued May 21, 1992.
    Filed Nov. 9, 1992.

      John F. Hooper, III, Pittsburgh, for appellant.

      John Kardos, Pittsburgh, for appellee.
    Mark J. Goldberg, Pittsburgh, for participating party.
    Before ROWLEY, President Judge, and MONTEMURO and HESTER, JJ.
   MONTEMURO, Judge.

This is an appeal from an order terminating appellant’s parental rights to her now three year old son.

The background of this case is of a not unfamiliar type. In May of 1989, appellant, then eighteen years old, gave birth to a male child out of wedlock. The relationship which produced the child had been superficial and of short duration, and appellant’s family, which is dysfunctional at best, could offer her no assistance. Therefore, after leaving the hospital, appellant, at the urging of a social worker, took up residence with Mrs. Ann Labish, who had opened her home as a shelter for abused and neglected children, and teenage unwed mothers. Appellant was aware of the Labish’s facility, named New Arbor, through her sister’s previous residence there.

Shortly after arriving at the home, appellant approached Mrs. Labish concerning the possible adoption of her child. After several conversations with the Labishes concerning her decision to relinquish the child for adoption, Pamela and Eugene Klein, who had earlier inquired about adoption through New Arbor, were selected to receive the baby. At appellant’s request a meeting with the Kleins was arranged at their house. The meeting, which took place on May 18, 1989, lasted about an hour, during which time appellant was shown the house, and became acquainted with the Kleins. The next day, after having signed an entrustment agreement prepared by the Kleins’ attorney, appellant left New Arbor.

On June 6,1989, the Kleins filed, inter alia, a report of their intention to adopt appellant’s child. In early July, appellant revoked the entrustment agreement, and filed a petition to show cause why the child should not be returned. Hearings were held, and the court ordered psychological evaluations of appellant and her fiancee, and a home study. At the same time appellant’s request that Children and Youth Services be involved, or that the child be returned to her were denied.

On March 15, 1990, appellant left the jurisdiction for Raleigh, North Carolina, without informing her family, the court, or counsel, who located her in late June. The Kleins meanwhile filed a Complaint for Custody, and petitioned for termination of appellant’s parental rights. Hearings were held on these requests in August of 1990. In October of 1991, the trial court entered its decree terminating appellant’s parental rights. This appeal followed.

Appellant has presented us with five issues, which we will address seriatim.

First, it is claimed that the Kleins lacked standing to proceed with a termination action. Appellant argues that because no blood relationship exists between the Kleins and the child, because they were never granted custody by the court, and because appellant revoked the entrustment agreement, the Kleins lacked the legal capacity to seek termination of her parental rights.

Section 2512(a)(3) of the 1980 Adoption Act, 23 Pa.C.S.A. § 2101 et seq., governs the matter of who is entitled to pursue the involuntary termination of another’s parental rights.

(a) Who may file. — a petition to terminate parental rights with respect to a child under the age of 18 years may be filed by any of the following:
(3) The individual having custody or standing in loco parentis to the child and who has filed a report of intention to adopt required by section 2531 (relating to report of intention to adopt).

Despite appellant’s insistence to the contrary, the Kleins stood in loco parentis to the child, having had that status conferred upon them by virtue of the entrustment agreement signed by appellant, and they had filed a report of their intention to adopt. Appellant’s revocation of the entrustment agreement, despite the fact that it could by statute occur at any time prior to entry of a final decree of adoption, Commonwealth ex rel. Grimes v. Yack, 289 Pa.Super. 495, 433 A.2d 1363 (1981), nevertheless operated as an automatic eraser of standing no more than does any other revocation of consent to placement of the child out of the natural parent’s control. For example, a temporary placement of a child in foster care is not automatically ended by the natural parent’s attempt to retrieve the child, nor does the attempt deprive the agency to which the child was surrendered of the standing to contest the retrieval.

Appellant would have us believe that upon revocation of consent by the natural mother, the adoptive parents are faced with no option other than returning the child, and that with loss of physical custody standing is also compromised. However, this court has concluded, albeit in a different context, that even removal of a child from the home of prospective adoptive parents does not preclude their protesting such removal, or from prosecuting a previously filed petition to adopt. Adoption of Baby Boy McKnight, 338 Pa.Super. 603, 607 n. 1, 488 A.2d 56, 58 n. 1 (1985). Standing to seek termination of parental rights has also been found in prospective adoptive parents who received custody from an agency, Mitch v. Children and Youth Social Service Agency, 383 Pa.Super. 42, 556 A.2d 419 (1989) alloc, dn., 524 Pa. 620, 571 A.2d 383, and where the custodians of the child received him from relatives of the mother, with no agency acting as intermediary. See, In re Adoption of J.M.E., 416 Pa.Super. 110, 610 A.2d 995 (1992). We have also ruled, in a case having certain features in common with this one, that where the natural mother has revoked her relinquishment of parental rights shortly after the child has been received by the adoptive parents, they can return the child, or, “if they ha[ve] any basis for doing so, [can] file[ ] a petition under the Adoption Act asking the court to terminate [the mother’s] parental rights involuntarily.” Commonwealth ex rel Grimes v. Yack, supra. The latter procedure was followed by appellants. See also, In re Adoption of Michael J.C., 506 Pa. 517, 486 A.2d 371 (1984) (following a petition of habeas corpus filed by the natural mother for return of the child, the adoptive parents instituted a petition for involuntary termination of mother’s parental rights). Appellees are, therefore, properly situated to bring the instant action, and the merits may accordingly be addressed.

Appellant’s next claim is that the trial court erred in permitting the Kleins to retain the child, and in denying her request that during the proceedings the child be returned to her. The argument, that appellant was entitled to return of the child, is grounded in the assumption already disposed of, that the Kleins lacked standing to seek termination of appellant’s parental rights. As we have already noted, the premise is invalid. So too is its corollary. Appellant provides us with no authority for the proposition that the trial court, when faced with a decision such as this case presented, is limited to those responses championed by one of the parties.

It is next argued that the court’s decision to terminate appellant’s parental rights under 23 Pa.C.S.A. § 2511(a)(2) lacked sufficient evidentiary support. Where a petition for termination of parental rights has been lodged, the proponent must produce clear and convincing evidence to support it. Id. Our scope of review is then limited to determining whether the ensuing decree is reinforced by competent proof. Id. Therefore, the trial judge’s actions in deciding a case, its findings of fact, its resolution of evidentiary conflicts, are to be accepted unless they are unsupported by the record, or reveal an abuse of discretion or an error of law. Lookabill v. Moreland, 336 Pa.Super. 520, 485 A.2d 1204 (1984).

In assessing the propriety of the result here, we find that our supreme court’s decision in the case of In re Michael J.C., supra provides an instructive analog. There, the 17 year old natural mother executed a Consent to Adopt, and after a private adoption was arranged, revoked her consent, filing a petition for habeas corpus seeking return of the child, and triggering an inquiry into the statutory grounds for involuntary termination. The trial court found, despite appellant’s limited contact with the child, and based on a psychological assessment of appellant, that termination was statutorily warranted. This court reversed, but our supreme court affirmed the decision of the trial judge, holding that the expert testimony concerning appellant’s parenting ability was not merely speculative. It also found that the statute does not require a showing that “a putative parent have an opportunity to inflict substantial physical or mental harm upon a child before the state can intervene.” Id. 506 Pa. at 525, 486 A.2d at 375; see also, In re William L., 477 Pa. 322, 383 A.2d 1228 (1978). While it is true that the appellant in Michael J.C. demonstrated some undesirable personality traits which appellant herein does not, the case analysis applied to both must be the same.

Specifically, the trial court found that the grounds for the involuntary termination of appellant’s parental rights are set forth in 23 Pa.C.S.A. § 2511(a)(2) and (b):

(a) (2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
(b) Other considerations. — The Court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent.

In applying the provisions of (a)(2) to the case before it, the trial court properly noted that only after sufficient evidence is produced to fulfill the statutory requirements for termination is the best interests of the child issue explored. In re Adoption of J.J., 511 Pa. 590, 515 A.2d 883 (1986).

The trial court found, based on the psychological evaluations performed at the court’s request by Dr. Donna Zaffey, that appellant’s borderline intellectual function, her emotional immaturity and instability, leading to suicide threats in the presence of her sister and Mrs. Labish, plus her dependency and limited conceptual abilities were irremediable. Dr. Zaffey stated that appellant’s deficiencies would prevent her from “maintaining stable employment, stable education functioning, or establishing realistic goals for herself,” (N.T. 8.9.90 at 18) and that she was incapable of calculating the consequences of her own actions. (Id. at 134). Appellant offered nothing but her own self appraisal in rebuttal. Compare, In re Adoption of B.J.R., 397 Pa.Super. 11, 579 A.2d 906 (1990). She also testified to her intention to seek employment in order to contribute to the child’s support. As potential caretaker for the child, appellant testified about people whom she knew only on a first name basis, and would trust with the care of her child because, as the trial court noted, they “seemed nice.” (T.C.O. at 7).

The psychologist noted her opinion that appellant did not possess:

the intellectual, emotional, social maturity for the effective parenting skills necessary to adequately care for the child and provide the child with a stable home environment.”

(N.T. 8.9.90 at 31).

Moreover, the expert felt that appellant would be unable to acquire the necessary skills in the foreseeable future. (Id. at 33, 121), and noted that any child subject to appellant’s care could be expected to demonstrate the same limitations as appellant. (N.T. at 104) Dr. Zaffey explained that although appellant could benefit from training, she would never function at a higher cognitive level, and that even with training she would require constant supervision due to her inability to generalize or transfer skills from one situation to another. (Id. 94). These deficits and the low potential for improvement were attributed to a paucity of resources stemming from arrested development. (Id. at 107). Further, according to the expert, appellant was not prepared to seek such training as might prove beneficial. When questioned as to where she would acquire information on raising her child, appellant stated that she would read books. Testing had revealed appellant’s reading level at fourth grade. (Id. at 102) (Id. at 98-99) There was also testimony to the effect that nothing could compensate for appellant’s intellectual deficit. (Id. at 95)

The trial court also noted that appellant’s husband, Bryan Lashley, appeared little better equipped to deal with the child than appellant. Although not the father of this child, Mr. Lashley declared himself prepared to regard it as his own. He had, in fact, fathered a child some months older than appellant’s, and at the time of hearing had had little contact with it, providing no financial support. Mr. Lashley, too, is of limited intellectual ability, and his employment history is uncertain at best. The psychological evaluation of Mr. Lashley, although hampered by his failure to appear for two out of three scheduled sessions, did demonstrate emotional insecurity, immaturity and dependency much like appellant’s, and he himself admitted prior problems with drugs and alcohol.

All of this information led the trial court to conclude that the statutory requirements for termination of parental rights had been met. Here, the trial court’s conclusions comport with the holding in Michael J.C., supra, compare, In re Adoption of B.J.R., supra (parental rights of mother of special needs child terminated on the basis of mother’s inability to remediate circumstances leading to child’s removal).

Finally, there is the matter of appellant’s departure from Pennsylvania. Appellant left Pittsburgh for Raleigh, North Carolina on March 15, 1990, without informing her family, or counsel, who was unable to locate her until June 20, 1990. She also notified no one else involved with her child of her change in residence, although she knew that there would be further court proceedings in the case. Moreover, since the child’s birth, appellant has made one attempt to see him. On this occasion, she called the Kleins and asked for access to the baby. She was not denied access, but was told by Mrs. Klein that she wished to discuss the matter with her husband, and would telephone appellant the next day. The number given by appellant to Mrs. Klein had been disconnected, a fact corroborated by Mr. Berman, the probation officer conducting the court ordered home study, who met with the same lack of success in attempting to reach her by telephone. Appellant made no other attempt to see the child, sent him no gifts or cards, and when he was past infancy, made no attempt to telephone him. She failed to petition the court for the entry of any schedule on which an acquaintance with her son could be established, despite the fact that no barrier erected by the court forbade her attempting such visits, and she made no effort to resist the trial court’s dilatory handling of this case. While the trial court is much to blame for the timing of its actions here, the fact that psychological evaluations and home studies were ordered argues there that there was, at least initially, some hope of appellant’s obtaining custody of the child. Appellant’s own lack of interest in the actuality, as opposed to the idea of the baby, prevented her taking action. Normally, such a lack of involvement for only six months would be sufficient to justify termination. Here the period was over three years.

The cases involving termination of parental rights have always emphasized the responsibility of the parent to exhibit reasonable firmness in attempting to overcome such obstacles as may be encountered in maintaining the status of parent in order to be excused from performing parental duties. See In re Baby Boy H., 401 Pa.Super. 580, 585 A.2d 1054 (1991). Here some of the obstacles were erected, albeit partially, by the court system itself. Appellant made no effort to combat these. She did, instead, leave the jurisdiction, without word to counsel, whose job was to protect the parental rights she was ostensibly so determined to preserve. This departure, in conjunction with her inert reaction to the trial court’s delay, bespeak not a parent interested in her child’s future, but a child interested in her own immediate gratification.

The trial court in this case determined that the statutory criteria for termination of parental rights were met, and thereafter that the best interests of the child lay with the adoptive parents. Any other result would have placed in real jeopardy the life of Baby Boy S.. Even assuming that the transfer of a child, now almost three and one half years old, to a home with people he has never met, to a state far removed from this one, and into an environment where the dubious attentions of two parents with mental ages of twelve and eleven respectively must be shared with another child is not a priori immediately harmful to the child’s well being, we need not, according to the Supreme Court in Michael J.C. permit appellant the opportunity to cause harm thereafter. We find no error of law or abuse of discretion in the trial court’s ruling.

Appellant next argues that the trial court committed reversible error in several of its evidentiary rulings. As grounds for these assertions, appellant posits the need for “two discrete stages” in the resolution of the case (Appellant’s Brief at 42), implying the necessity for two separate hearings: one to determine whether statutory grounds for termination exist, and a second to examine the best interests of the child. Consistent with this schema, she advances certain evidentiary rulings as errors in some measure because they were introduced at the wrong stage of proceedings.

We know of no rule in this Commonwealth requiring the bifurcation of termination hearings, or the separation of evidence into the equivalent of liability and damages assessments. While appellant is correct in stating that grounds for termination and best interests of the child are separate considerations, there is no authority for evidentiary or other division of relevant information. The necessary distinctions are drawn by the trial court after hearing all the relevant evidence— there is no hiatus between two segments of the proceedings, an arrangement which would only further delay cases in need of the most expeditious handling.

Specifically, she assigns error to the court’s having permitted testimony concerning appellant’s family background, by having allowed Ann Labish to opine on appellant’s ability as a parent, and by having excluded evidence concerning appellant’s care of her child by Mr. Lashley, and concerning the home study done in Pittsburgh prior to appellant’s departure. Appellant also complains that the trial court erroneously permitted evidence from non-experts on behalf of the Kleins, and as well, allowed Dr. Zaffey to testify by means of hearsay.

We must analyze appellant’s claims on the basis of the proposition that the admission or exclusion of evidence is a matter for the trial court to determine, whose decisions in these matters will not be reversed absent an abuse of discretion, and actual prejudice. Cohen v. Albert Einstein Medical Center, Northern Division, 405 Pa.Super. 392, 592 A.2d 720 (1991). As to appellant’s first contention, that the family background information educed during cross examination of appellant herself, and from Mrs. Labish was irrelevant, we disagree.

We will address each of appellant’s claims briefly. The first evidence objected to was that concerning the mental illness of appellant’s mother, the history of appellant’s sister’s pregnancies, and Mrs. Labish’s testimony concerning the family’s involvement with Children and Youth Services. All of this information was germane to the stability of appellant’s family, and her lack of a social support system to assist her with the baby. Ultimately, this evidence demonstrated why appellant chose to take her child to residence at New Arbor rather than returning to her parents’ home. Her sister’s previous stay at New Arbor, and appellant’s visits there, explain appellant’s initial familiarity with the shelter. It was this sister whom appellant described as a source of advice, and whose residence in Raleigh, North Carolina prompted appellant’s removal there. Sometime after appellant’s arrival, however, she and the sister became estranged. Thus, with the exception of Mr. Lashley’s presence, appellant recreated in North Carolina the same paucity of social support which led her to New Arbor.

Appellant next claims that Mrs. Labish was allowed to testify as an expert on appellant’s capability as a parent, although the witness lacked credentials which would allow her to so testify. The testimony given was based on personal observation of appellant’s ability to handle her child. Despite appellant’s claim that Mrs. Labish speculated on appellant’s future ability to care for the needs of her child, the trial court sustained appellant’s objection to that portion of her testimony. Appellant’s further statement that the trial court found Mrs. Labish’s assessment significant is not mirrored by the record.

Appellant next argues that witnesses produced on behalf of the Kleins were permitted to render opinion evidence as to the prospective adoptive parents’ background, capabilities, and effectiveness as parents. The main objection is not so much to their lack of expertise, but to their appearance at the “wrong” stage of the proceedings. For reasons already stated, we find no error in the witnesses’ order of appearance. Further, the evidence proffered through these witnesses were also matters of empirical experience, not the subject of expert knowledge.

Next appellant argues that her examination of witnesses was improperly limited on certain subjects. Specifically, she claims the trial court committed error in refusing to allow her to cross examine Dr. Zaffey concerning appellant’s ability to care for the child born of appellant’s marriage to Mr. Lashley. Our supreme court has found that evidence of a mother’s ability to care for a second child is irrelevant where her capability with regard to the first baby is in question. See, Matter of Adoption of G.T.M., 506 Pa. 44, 483 A.2d 1355 (1984).

Appellant next complains that the trial court erroneously restricted her cross examination of Dr. Zaffey as to the home study conducted by Probation Officer Berman, and, in addition, refused to allow certain questions to be put to Mr. Berman himself. As appellant no longer resides in the home scrutinized by Mr. Berman, the results of that home study were, as the trial court found, not germane to her current situation. The trial court therefore properly limited questions concerning a document made irrelevant by appellant’s relocation.

Finally, appellant argues that the procedures governing private adoption cases are unconstitutionally violative of the equal protection and due process clauses of both the Pennsylvania and United States Constitutions. The trial court noted that this issue was not properly pleaded, and timely notice not given the Attorney General as is required by Pa.R.C.P. 235(a). We see no reason to disagree.

Order affirmed.

ROWLEY, P.J., joins in this decision.

HESTER, J., files a dissenting opinion.

HESTER, Judge,

dissenting.

I respectfully dissent from the majority’s decision in this case for two reasons. First, I believe Mr. and Mrs. K. lacked standing to proceed on their petition to terminate the parental rights of Diane S. Second, assuming arguendo, they did have standing, I believe the trial court erred in concluding that Mr. and Mrs. K. established by clear and convincing evidence that grounds to terminate did exist.

The tragedy of this case arises from the despair of an infertile couple and the subtle coercion of a young, poor, uneducated unwed mother and was fueled both by unwise legal maneuverings by counsel and a trial court which clearly failed to consider the effect of its rulings in this protracted battle for young Baby Boy S. For the reasons which follow, I would reverse the order terminating the parental rights of Diane S.

On May 8,1989, Diane S., age eighteen and unmarried, gave birth to Baby Boy S. at West Penn Hospital in Pittsburgh. Three months earlier, Diane had withdrawn from high school as a result of embarrassment due to her pregnancy. When Diane was discharged from the hospital following the baby’s birth, she and the baby went to New Arbor, a home for unwed mothers and their babies which is run by Ann Labish. Notes of Testimony (“N.T.”), 7/20/89, at 114-15. Mrs. Labish had known Diane for approximately five years through Diane’s sister, Christina, who previously stayed at New Arbor. While at New Arbor, Diane was not permitted to consult with family or friends and was not permitted to make telephone calls. While she was permitted to receive telephone calls, this privilege also was limited. Id. at 11, 40, 56, 130-31.

Diane testified that she felt very frightened about the prospect of caring for her child without money and the support of her family. She testified that even if her family were able to support her, she desired a more positive environment for her child. Her father was uncommunicative and worked two jobs, and her mother was confined to Woodville. Moreover, her parents were not married to each other; the record was unclear whether they ever had been married. Id. at 26. Diane was aware that the social worker at West Penn Hospital had recommended that Diane locate some type of community or social support, and it appears that Diane went to New Arbor to obtain that support. Joanne Moerschbache, the social worker from West Penn, testified unequivocally that she did not have concerns about Diane’s ability to parent her child. Id. at 70. She stated that Diane displayed the skills necessary to meet the child’s needs. Id. at 79. Ms. Moerschbache further testified that her concern centered on Diane’s lack of community support. “It was identified that Diane’s family support system was not strong and that additional community supports could supplement the support system of her family that was lacking.” Id. at 71.

As noted previously, Diane’s stay at New Arbor could hardly be described as supportive. A reading of the testimony from the July 20, 1989 hearing reveals that subtle coercion was applied by Ann Labish to encourage Diane to consent to the adoption of her child. As previously noted, Diane testified to the severe limits placed on her communication with family and friends. The following testimony is most revealing concerning the coercion applied by Labish. “They started pressuring me saying you should do this, this is the right thing to do. They asked me if I was sure about it. I said, no; and I said I wanted to talk to my family, and I wasn’t allowed.” N.T., 7/20/89, at 40. Moreover, Ann Labish admitted that she threatened to call Children and Youth Services if Diane attempted to leave New Arbor with her baby. Id. at 154-58. When Diane displayed fear and uncertainty in caring for her infant, Ann Labish produced the perfect family to raise the child. In fact, the minute Diane told Ann Labish “she was thinking about placing the baby for adoption,” Labish indicated she had a family ready to adopt the child. Id. at 127-28. At 5:00 p.m. the next day, Labish read from the file she had concerning Mr. and Mrs. K. Diane indicated a desire to meet them, and Labish arranged a meeting at their home that evening. While at the home of Mr. and Mrs. K., Diane executed an eritrustment agreement prepared by counsel for Mr. and Mrs. K, by which she transferred custody of Baby Boy S. to Eugene and Pamela K. Diane was unrepresented by counsel at that time. Id. at 16. Diane left New Arbor the following day, May 19,1989, and Mr. and Mrs. K. took custody of eleven-day-old Baby Boy S.

Diane testified that she wavered in her decision to give her child up for adoption the very next day. She contacted a lawyer and made every attempt within her limited means to prepare for her son’s return. Diane was unable to live with her parents and wanted a better environment for her child. Therefore, she rented an apartment and enrolled in a six-month program at Cleveland Institute of Technology to obtain her G.E.D. and a diploma for learning word processing. Id. at 17-19.

On June 6, 1989, Mr. and Mrs. K. filed a report of intention to adopt Baby Boy S. Immediately above their signatures on that document appears the following statement:

We acknowledge that we have been advised or know and understand that the natural parent may revoke the consent to the adoption of this child until a court has entered a decree terminating the parental rights and, unless a decree terminating parental rights has been entered, the natural parent may revoke the consent until a court enters the final adoption decree.

Later that month, counsel informed Mr. and Mrs. K. that Diane was seeking the return of her son. On July 7, 1989, counsel for Diane presented a revocation of the entrustment agreement and consent to the adoption, followed by a petition for a citation to show cause why Baby Boy S. should not be returned to her, filed on July 11, 1989. This was but forty-seven days from the date of the entrustment agreement and well within the six-month statutory period. The orphan’s court scheduled a hearing for July 20, 1989. Mr. and Mrs. K. refused to return Baby Boy S. to Diane, and instead, their counsel filed a motion for a psychiatric evaluation of Diane, a petition to appoint a guardian ad litem for the child, a motion for a home evaluation of Diane S., a petition for the involuntary termination of the parental rights of Diane S., and an answer to Diane’s request for return of Baby Boy S. It appears that the orphan’s court granted the motions for psychiatric evaluation and home evaluation of Diane in an off-the-record discussion in chambers after the hearing; however, the record reflects the filing of these orders on September 7, 1989.

Mr. and Mrs. K. also filed a complaint for custody of Baby Boy S., which was stayed pending the outcome of the proceedings in orphan’s court. Since the orphan’s court refused to rule upon Diane’s petition for a citation to show cause why Baby Boy S. should not be returned to his natural mother, Baby Boy S. has remained in the care and custody of Mr. and Mrs. K. Following the completion of the psychiatric and home evaluations of Diane, a conciliation was held on November 16, 1989. Thereafter, on December 5, 1989, the orphan’s court ordered the psychiatric evaluation of Bryan Lashley, Diane’s fiance, whom she subsequently married on February 14, 1990. N.T., 8/1/90, at 211. A second conciliation was held on March 7,1990. The petition to appoint a guardian ad litem for Baby Boy S. finally was granted by the orphan’s court on April 3, 1990. The child, however, remained in the home of Mr. and Mrs. K.

A hearing on the petition to terminate Diane’s parental rights was scheduled for June 12, 1990. Counsel for Mr. and Mrs. K. was unable to locate Diane for the purpose of personally serving notice of the June 12 hearing. Proof of service by publication was filed on June 1, 1990. Counsel for Diane requested a continuance which the court granted. Counsel located Diane in Raleigh, North Carolina, in July. On August 1, 9, and 10, 1990, a hearing was held on the petition to terminate Diane’s parental rights in Baby Boy S. The orphan’s court thereafter ordered counsel for the parties to file briefs. Finally, on August 8,1991, one year after the hearings held on the matter, the orphan’s court filed a decree nisi terminating Diane’s parental rights. Exceptions were filed and denied, and the court filed a final decree on October 4, 1991. This appeal followed.

Appellant raises the following issues for our review:

[Mr. and Mrs. K.] lacked standing to seek involuntarily judicial termination of respondent’s rights in Baby Boy [SJ. The court erred in permitting [Mr. and Mrs. K.] to retain the child, and in denying [Diane’s] request that the child be returned to her during the proceedings, following her revocation of the entrustment agreement.
The court lacked sufficient, competent evidence in the record to involuntarily terminate the parental rights of [Diane S.] under 23 Pa.C.S. section 2511(a)(2).
The court erred in admitting evidence and testimony on behalf of [Mr. and Mrs. K.] and in rejecting evidence and testimony favorable to [Diane S.].
The procedures adopted in Pennsylvania for the involuntary termination of parental rights in “private adoption” cases do not provide birth parents with sufficient protection of their natural rights in their children, in violation of the Constitutions of the United States and the Commonwealth of Pennsylvania.

As noted previously, I believe the issue of whether Mr. and Mrs. K. had standing to proceed on their petition to terminate the parental rights of Diane S. has merit. The orphan’s court’s sole reference to this issue is the following statement: “Throughout the entire period of the litigation, Baby Boy [S.] has remained in the care and custody of [Mr. and Mrs. K.], who have stood in loco parentis to him. By the terms of 23 Pa.C.S. 2512(a)(3), [Mr. and Mrs. K.] clearly satisfy the requirements necessary to vest this Court with jurisdiction.” Trial court opinion, 8/8/91, at 1. To address this issue, it is necessary to focus on the language of section 2512(a) of the Adoption Act, 23 Pa.C.S.A. §§ 2101 et seq. That section sets forth who may file a petition for involuntary termination of parental rights.

§ 2512. Petition for involuntary termination
(a) Who may file. — A petition to terminate parental rights with respect to a child under the age of 18 years may be filed by any of the following:
(1) Either parent when termination is sought with respect to the other parent.
(2) An agency.
(3) The individual having custody or standing in loco parentis to the child and who has filed a report required by section 2531 (relating to report of intention to adopt).

23 Pa.C.S.A. § 2512(a). It is clear that neither subsection (1) or (2) apply instantly. As to subsection (3), we previously have held that custody, as that term is used in § 2512(a), refers to legal custody, not physical custody. In re Crystal D.R., 331 Pa.Super. 501, 480 A.2d 1146 (1984); In re Adoption of J.F., 392 Pa.Super. 39, 572 A.2d 223 (1990). Since Mr. and Mrs. K. did not have legal custody of Baby Boy S., it must be determined whether Mr. and Mrs. K. stood in loco parentis to Baby Boy S., within the meaning of the statute.

In In re Adoption of Crystal D.R., supra, we held that foster parents, who have been awarded custody of a child by an agency which has obtained legal custody of the child, do not have standing to petition to terminate the rights of the natural parents of the child. Recently, in In re Adoption of J.M.E., 416 Pa.Super. 110, 610 A.2d 995 (1992), we distinguished Crystal D.R., holding that the appellants in that case truly stood in loco parentis to the child. The significant factor for this court in J.M.E. was our examination of the intent of the child’s aunt, who had legal custody of the child, when placing the boy with the appellants. A review of the record made it clear that the placement of J.M.E. with the appellants was to be permanent, and they were to raise the child “until he’s grown.”

The majority cites J.M.E. to support its position that appellees in the instant case have standing. A reading of J.M.E. makes it clear, however, that the overriding factor in that case was that “all parties intended that [the child’s] placement with appellants would be permanent; indeed, the expectation clearly is that [appellants] are to be the only ‘parents’ [the child] would ever know.” Id., 416 Pa.Super. at 117, 610 A.2d at 999. In the present case, since Diane changed her mind about placing the child for adoption the day after she left New Arbor, and then withdrew the entrustment agreement, it is clear that the placement of Baby Boy S. was not intended to be permanent. Thus, our decision in J.M.E. offers no support for the majority’s position, and is, in fact, in direct conflict with it.

Baby Boy S. was never in appellees’ care permanently. While the orphan’s court suggests that appellant displayed only “second thoughts” and “whimsical parental behavior,” trial court opinion, 10/4/91, at 4, the record reveals that Diane was confused and uncertain about her decision to place her child for adoption from the start. I previously chronicled the subtle coercion applied by Ann Labish regarding this decision. Diane’s desire to regain custody of her son is manifested clearly by her actions from the day after she left New Arbor.

I am convinced by appellant’s argument that any right Mr. and Mrs. K. had in Baby Boy S. was acquired merely by the entrustment agreement which Diane revoked within forty-seven days of its execution. It is absolutely clear that the consent to an adoption as is contemplated by 23 Pa.C.S.A. § 2711 may be revoked at any time prior to the entry of a final decree terminating parental rights or granting an adoption. Commonwealth ex rel. Grimes v. Yack, 289 Pa.Super. 495, 433 A.2d 1363 (1981). I agree with appellant that any claim or entitlement that Mr. and Mrs. K. had in Baby Boy S. by virtue of the entrustment agreement terminated upon the revocation of that agreement. I disagree with appellees that there is any significance to the fact that they filed their report of intention to adopt before appellant revoked the entrustment agreement. I also disagree with appellees’ claim that the fact that Diane could revoke her consent to the adoption at any time prior to the entry of a valid decree is immaterial to the determination whether appellees had standing to petition for the termination of Diane’s parental rights. Appellees’ argument misses the point. They assert that the fact that appellees “stand in loco parentis to the child and have filed their Report of Intention to Adopt confers upon them standing to petition for the termination of [appellant’s] rights.” Appellees’ brief at 14. The revocation of the entrustment agreement terminated the possibility that appellees stood in loco parentis to the child. From the time of the revocation, appellees have not had any recognized legal relationship to the child.

I find guidance in K.N. v. Cades, 288 Pa.Super. 555, 432 A.2d 1010 (1981). A child was born to sixteen-year-old unwed J.N. Before the child’s birth, J.N. agreed to the private adoption of the child and signed a consent three days after the baby’s birth. Two months later, J.N. and her mother informed the intermediary that J.N. wanted her baby back. A week later, J.N. revoked her consent. After an evidentiary hearing, the lower court held that J.N. had revoked her consent to the adoption and ordered that the child be returned to her. The adoptive parents appealed to this court. One of the issues in that case concerned the settled law that consent to adoption may be withdrawn at any time before the entry of the final decree of adoption. Parenthetically, I observe that the orphan’s court in the instant case never made a specific finding on the revocation but chose to ignore it and proceed on the petitions advanced by appellees. We stated in Cades,

[W]e are aware that our decision — whatever it may be — will bring grief, either to appellants or the child’s mother. Nevertheless, nothing in this case suggests to us that appellants’ solution would be better than that dictated by the settled law. The relationship between parent and child should be broken only with the greatest reluctance. Here, we think it would be most unjust to hold the mother to her promise, as appellants would have us do. She was very young. She consented to give her child for adoption only in response to her parents’ urging. She received no outside or professional counseling to guide her in making so agonizing a decision. And she only made the decision after being assured that she had six months within which to change her mind and get her child back. We do not question appellants’ love for the child. However, they took the child knowing that the mother might change her mind.

Id., 288 Pa.Super. at 566, 432 A.2d at 1016. It is clear that Cades has striking similarities to the instant case. For example, appellant herein testified that she believed that even though she signed the entrustment agreement, she retained the right to change her mind. She stated she believed “she still [has] legal rights.” N.T., 7/20/89, at 15. Unfortunately, everyone ignored her attempts to enforce them. In fact, the one factor that stands out in this case is the unfortunate inaction by the lower court. I believe the delay in this case is the overriding factor which has made it so difficult for this court to do what it legally is required to do. However, we simply cannot allow the dilatory actions of the orphan’s court to erase this young mother’s right to her son.

The majority’s reliance upon Commonwealth ex rel. Grimes v. Yack, 289 Pa.Super. 495, 433 A.2d 1363 (1981), is misplaced. Our reference therein to alternative ways the adoptive parents could proceed was dicta and provides no precedent for the issue presented in the instant case. Similarly, I believe the majority’s reliance on In re Adoption of Michael J.C., 506 Pa. 517, 486 A.2d 371 (1984), both in relation to the issue of standing and to the merits, is misguided. First and foremost, whether the adoptive parents in Michael J.C. lacked standing to proceed with their petition to terminate the natural mother’s parental rights was not an issue raised before the court of common pleas or on appeal. The fact that the case proceeded can be viewed as nothing more than an acknowledgement that the court addressed only the issues raised by the parties, as indeed it should have done.

Moreover, the majority, in relying on Michael J.C., states that the appellant therein “demonstrated some undesirable personality traits which appellant herein does not ...” and then proceeds to ignore these very significant differences. The natural mother in Michael J.C. was physically abusive not only to her own mother but to children for whom she baby-sat. There also was evidence that indicated a pattern of illegal drug and alcohol abuse by the natural mother, resulting in her hospitalization for a drug overdose after consuming alcohol and “angel dust.” The natural mother therein also was treated at a mental hospital as a result of suicide threats, and she was diagnosed as drug dependent, alcohol dependent, and a depressive neurotic. There was testimony that her apartment was uninhabitable, with dog feces on the floor and walls covered by obscene language. I cannot agree that while appellant herein does not possess these same “undesirable personality traits ... the case analysis applied to both must be the same.” Majority opinion at 1359. It was these very significant, indeed horrific, personality traits that persuaded the Pennsylvania Supreme Court that the natural mother’s parental rights should be terminated in Michael J.C. In this case, the only “pattern of conduct” that can be attributed to appellant is poverty and youth, which now has resulted in the system’s denial of her right to her child.

Donna Zaffey, the court-appointed psychologist who examined appellant and whose fees were paid by Mr. and Mrs. K., N.T., 8/1/90, at 6, clearly relied on appellant’s poverty in assessing Diane’s parenting skills. Dr. Zaffey described Diane as “a person whose development was limited, and who had come from an impoverished background with few cultural and educational experiences to stimulate growth and development.” Id. at 17. Mrs. K. on the other hand is thirty-eight years old, with a bachelor of arts degree and a master’s degree in reading, who taught school for fourteen years before leaving her job to stay home with Baby Boy S. Id. at 137-38. She and her husband, who also has a bachelor of arts degree and a master’s degree in education, live in a two-story, four bedroom house. Id. at 143.

The majority mischaracterizes Dr. Zaffey’s testimony concerning Diane’s intelligence by confusing emotional maturity and intellectual functioning. Zaffey reported that Diane had a measured IQ in the below-average range, but did not testify that Diane had the mental age of a twelve-year-old child, as the majority states. Dr. Zaffey testified, instead, that Diane’s emotional maturity corresponded to a twelve or thirteen-year-old adolescent, and this was based upon personality assessments. Id. at 64, 71-79. Such a distinction is critical, for the expert testimony was not that Diane had the intellectual capacity of a twelve-year-old, which is an objective determination based upon an IQ assessment. Rather, it was Zaffey’s subjective impression that Diane had the emotional maturity of a twelve or thirteen-year-old based upon a personality test. Id. at 72. Moreover, any potential for emotional growth required additional testing, which Dr. Zaffey did not administer. Id. at 78.

Finally, Dr. Zaffey’s assessments of Diane’s ability to parent focused not upon the minimal level of care required, but upon an optimum level of emotional and social advancement. In fact, Zaffey stated, “I feel that in looking at a child, that a child is owed the opportunity to develop maximally rather than minimally.” Id. at 106. When asked if Diane would ever have “sufficient ability to satisfy minimal physical and emotional requirements for a child if she were to raise him,” Dr. Zaffey replied, “I feel that she does not have the ability to raise the child in the best possible way.” Id. at 120 (emphasis added). I believe a fair reading of the record establishes that Dr. Zaffey weighed the advantages of age, wealth, and education against the disadvantages of youth, poverty, and lack of education, to make her recommendation that Diane could not provide for the needs of Baby Boy S. There simply is nothing in the record that establishes that Baby Boy S. would have been without essential parental care had he been returned to his natural mother when she initially sought his return. Compare In re Adoption of B.G.S., 418 Pa.Super. 588, 614 A.2d 1161 (885 and 1119 Pittsburgh, 1991) (filed August 17, 1992) (Trial court properly denied adoptive parents’ petition to terminate parental rights of nineteen-year-old unwed mother, who signed consent to adopt in hospital two days after baby’s birth, and who filed revocation of consent seven months later, because adoptive parents failed to prove that requirements of 23 Pa.C.S. § 2511(a)(2) were met).

The tragedy of this case is that the orphan’s court refused to rule upon appellant’s petition to remove her child from the home of Mr. and Mrs. K., and the boy, now three years old, remains there to this day. The orphan’s court had the opportunity as well as the obligation to remove the child from this home when the baby was only two months old. Instantly, matters were delayed at all times by the legal maneuverings of counsel for appellees, or the orphan’s court, with the exception of the two-month delay occasioned by appellant’s relocation to North Carolina and the concurrent move of her counsel’s law office. N.T., 8/1/90, at 236. Most troublesome is the lower court’s one year delay in filing its decree terminating appellant’s parental rights from which this appeal is taken.

The expressed reasoning of the orphan’s court also is disturbing. In the original opinion the court states: “It is clear from the testimony that Diane S.’s lack of involvement with the baby is consistent with her own family experience.” The record unequivocally demonstrates that Diane’s lack of involvement with her son stems solely from the court’s own failure to recognize the mother’s revocation of the entrustment agreement. The judge then proceeded to use that court-created situation as a grounds for termination. In the supplemental opinion the court states: “Accordingly, the claim that the baby should have been removed from the K.’s home and care during the pendency of this action is mindless and typical of the shallow reasoning powers of the birth mother.” The court conveniently ignored the fact that the legislature preserved Diane’s right to revoke her entrustment agreement and that that right has been recognized by the Courts of Pennsylvania in K.N. v. Cades, supra. However, the mother’s continuing unsuccessful effort to exercise that right has been described by the court as “mindless” and “shallow” and then used as additional grounds for termination of her parental rights.

This case does not present a natural mother who exhibited repeated and continued incapacity, abuse, neglect, or refusal which caused her child to be without essential parental care, as the trial court concluded pursuant to 23 Pa.C.S. § 2511(a)(2). It presents only a young, poor, unwed mother who was coerced into placing her child for adoption, and who became the victim of questionable legal maneuverings of counsel, a desperate, infertile couple, and a trial court wh: ' disregarded its duty to proceed in a timely way. Due to the trial court’s dilatory action, Baby Boy S. is now over three years old and knows no parents other than Mr. and Mrs. K. However, this court should not perpetuate the injustices already inflicted by affirming the trial court’s termination of appellant’s parental rights when there is no legal basis to do so.

Our reversal of that order would not necessarily place Baby Boy S. in appellant’s custody, as that determination is governed solely by the best interest of the child, a separate issue from whether clear and convincing evidence was presented to terminate appellant’s parental rights. There exists a wealth of services available to appellant and Baby Boy S. This court cannot turn its back on its duty to uphold the law, even when our sympathies for the parties and the child are drawn to the surface in such an agonizing way.

Thus, I would reverse and remand to the distinguished President Judge of the Court of Common Pleas of Allegheny County, Paul R. Zavarella, with the request that he refer this matter to a judge other than the one involved in the within termination litigation.

      . No argument has been made equating the Kleins with foster parents, whose lack of standing to sue has been determined in In re Crystal D.R., 331 Pa.Super 501, 480 A.2d 1146 (1984).

      . Appellant argues that because she suffers from a mental handicap, a more stringent standard of proof is required here, and urges that the evidence must support termination beyond a reasonable doubt. However, our supreme court in In re Adoption of J.J., 511 Pa. 590, 515 A.2d 883 (1986), concluded that application of the clear and convincing standard was appropriate even where mentally or physically impaired parents are involved. See also, In re Adoption of B.J.R., 397 Pa.Super. 11, 579 A.2d 906 (1990).

      . Appellant and Mr. Lashley have a child together, born May 26, 1990.

      . Appellant bases her argument on New York law, which does divide what is termed permanent neglect proceedings into fact-finding and dispositional hearings. See, Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), citing Fam.Ct.Act §§ 622, 623. However, the Pennsylvania statute contains no parallel requirements. Moreover, Adoption of R.I., 468 Pa. 287, 361 A.2d 294 (1976), on which appellant relies as authority for the bi-stage decision making process, only holds that in any given proceeding, the child's best interests cannot be considered until it is determined that the statutory requirements for termination are met. No second hearing is required.

      . It should be noted that when the social worker who interviewed appellant in the hospital, and who advised her going to New Arbor testified to essentially the same facts concerning appellant's family, appellant did not renew her objection.

      . Both parties represent that the revocation of the entrustment agreement was presented to the court on July 7, 1989, however the record reflects the filing of this document on July 25, 1989.

      . Contrary to the majority’s characterization of appellant’s move to North Carolina as being surreptitious, appellant testified that she tried to notify her attorney, and her attorney testified that he indeed did change his telephone number and move his law office to another location at that time. N.T., 8/1/90, at 236, 294-97.


source: Caselaw Access Project

author: KELLY, Judge:

license: Public Domain

text:
    615 A.2d 1369
    Richard J. SCHNEEMAN, Appellant, v. Patricia Ann SCHNEEMAN, Appellee.
    Superior Court of Pennsylvania.
    Argued Aug. 26, 1992.
    Filed Nov. 13, 1992.

      Dale Fouse, Asst. Dist. Atty., Aliquippa, for appellant.
    Robert J. Taylor, Ambridge, for appellee.
    Before MONTEMURO, KELLY and BROSKY, JJ.
   KELLY, Judge:

In this appeal, we are again called upon to determine whether part of a state employee’s pension is exempt from marital property because the employee did not contribute to the Social Security system. We conclude that the principles of Cornbleth v. Cornbleth, 397 Pa.Super. 421, 580 A.2d 369 (1990), allocatur denied, 526 Pa. 648, 585 A.2d 468 (1991), are applicable to this case and that, therefore, the portion of the state employee’s pension which is “in lieu of Social Security” is exempt from marital property. We also discuss four other equitable distribution and alimony issues raised by the parties. We affirm in part, reverse in part, and remand for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

Beginning with the trial court’s factual findings, the background of this case may be summarized as follows.

' “1. The parties were married on October 17, 1964 and separated permanently on or about June 1, 1986. Both parties are in their late 40’s and are in good health.

“2. At the time of the separation, the parties were the owners of a residence (the “Marital Residence”) located on Blackwood Road in Chippewa Township. The Marital Residence was sold on November 1, 1988, and the net proceeds were deposited into and remain in an interest-bearing escrow account. At the time of the second hearing that account had a balance of approximately $30,000. The parties have agreed on the record that that account, including accrued interest, should be divided equally between them.

“3. The Wife lived in the Marital Residence from the date of the separation, June 1, 1986, to the date of its sale, November 1, 1988.

“4. The Husband made the mortgage payments for the Marital Residence until a support order was entered in October of 1986. Although the support order appeared to contemplate the Wife’s making the mortgage payments thereafter, the payments were not made and, in December of 1986, the mortgagee threatened foreclosure.

“5. In response to the threatened foreclosure, the Husband brought the mortgage current and obtained an agreement from the mortgagee whereby the mortgagee would accept interest only on condition that the Marital Residence be listed and sold. At the same time the Husband secured an order of court which authorized him to pay the interest directly to the mortgagee, to pay the balance to Domestic Relations, and thereby to received credit for the support payment in full.

“6. On March 10, 1988, when the mortgagee would no longer accept interest payments only, the Husband procured an order of court authorizing him to pay the interest and some principal directly to the mortgagee and the balance to Domestic Relations, and thereby to receive credit for the full support payment.

“7. During the time she remained in the Marital Residence, the Wife contributed toward the payment of the mortgage under the court orders above referred to. She also did the routine maintenance and yard work and kept the Marital Residence in good and saleable condition.

“8. The Wife’s mother gave the parties $4,000 when they purchased a home in Erie early in their marriage and another $4,000 when they purchased the Marital Residence. The mother has never been repaid for those cash gifts.

“9. At the time of the separation the Husband took with him a 1985 Cutlass titled in his name and left behind a 1975 Cutlass titled in the Wife’s name. He also left behind a Honda motorcycle which was operable and which the Wife subsequently sold.

“10. When the Husband left he took with him only his automobile and a few tools. He left the house fully furnished and, except for a cedar chest which the Husband took just before the Marital Residence was sold, all of the household furniture, furnishings, and appliances have remained in the possession of the Wife.

“11. The Wife sold a dining room suit for $500, and other items of furniture, furnishings, and appliances were discarded as unusable. The items which remain in the Wife’s possession have only nominal value.

“12. At or just prior to the time of separation the parties were the owners of [a] savings account at Dollar Savings Bank having a balance of $3,000. The Husband withdrew a substantial part of that account in the days or weeks prior to the separation and the balance of it at separation. The $3,000 was marital property.

“13. The parties were the owners of a joint account with the Westinghouse Federal Credit Union having a balance of $850 at separation. This money was kept and used to pay insurance premiums and other joint expenses and need not be accounted for by either party.

“14. At the time of the separation the parties were the owners of United States savings bonds having a value of $1,700. The Husband took and cashed in those bonds. The bonds were marital property.

“15. In the latter years of the marriage the Wife was employed as a teacher’s aide with the Beaver Valley Intermediate Unit. She will receive a pension at the time of her retirement. The present value of her pension rights as of the date of separation was $2,270. It is a marital asset.

“16. At the time of the separation the Wife was in possession of $700 in cash which she kept in the home. That cash was a marital asset.

“17. The Wife’s name appears with her mother’s on a joint savings account at Equibank. All deposits into that account have been made by the mother and the mother is the owner of it. No portion of the account is marital property.

“18. The Husband is a Pennsylvania state trooper, and began his employment on July 11, 1968. He has a vested pension and is eligible (but not required) to retire on January 1, 1992.

“19. The parties have agreed on the record that the marital portion of the Husband’s pension should be divided equally between them.

“20. By stipulation of the parties, the Husband’s pension has a present value of $93,640.

“21. The parties were married and living together while the Husband was employed with the state police from July 11, 1968, his date of hire, to June 1, 1986, the separation date. Rounded off to the nearest whole month, this was a period of just one month less than 18 years, a total of 215 months.

For purposes of preparing and entering a Qualified Domestic Relations Order (“QDRO”), the numerator in the coverture fraction will be 215.

“22. The denominator in the coverture fraction to be utilized in a QDRO is the total number of months, rounded off to the nearest whole month, in which the Husband shall have been employed with the state police at the time of his retirement. The denominator is at yet unknown.

“23. Throughout the time the parties were married and lived together, the Wife was mother to the parties’ two children and a homemaker. Her performance as wife, mother, and homemaker was excellent.

“24. The Wife has worked during the marriage. She has been a full time dentist’s receptionist and an officer manager at Dahlkempers, each for a relatively short period of time. She began working as a teacher’s aide in 1984, a job requiring no specialized training, and at the time of the second hearing her net pay for each biweekly pay period was $305.

“25. While the Wife can probably remain employed in her present job until she retires, the income from it will never be substantial. Because of her lack of educational background she has no opportunity to advance from her present position.

“26. One of the principal assets of this marriage is the Husband’s “human capital,” his earning capacity as a successful career state police officer. The Husband’s earning capacity is and will remain nearly three times greater than the Wife’s.

“27. By her contributions as wife and homemaker, the Wife has contributed substantially to the Husband’s “human capital.”

“28. During the last three months of the marriage, the Husband was seeing another woman, and he candidly admitted that he moved in with her when he left the Wife on June 1, 1986. The Husband has been guilty of marital misconduct.

“29. Following the separation, and particularly in the weeks leading up to her moving into her new home, the Wife has had to borrow money from members of her family and has incurred debts totaling approximately $11,000. To pay this back will require her to use a portion of the funds to be set apart to her in equitable distribution, leaving a lesser amount to invest for income purposes.

“30. While the Wife’s needs are modest, they exceed her earnings, even when we take into account what she may earn by investing the funds received in equitable distribution.

“31. The Wife has been billed for legal services relating to the divorce and its ancillary proceedings which totaled $6,323 at the time of the second hearing. The fee is a reasonable one and the Wife has need for those services. However, because of the cash being distributed to her in equitable distribution, she is not in “actual need” of counsel fees from the Husband.” Trial Court Opinion, November 9, 1990, at 2-8.

Based upon those findings, in its decree nisi, the trial court divorced the parties and further ordered and decreed that the Wife (appellee) receive fifty percent of the marital share of the Husband’s (appellant’s) State Employees’ Retirement System Pension. The marital share was ordered to be computed by dividing 215 (the number of months which the pension was funded during the marriage) by the total number of months which the pension would be funded, including both marital and extra-marital time periods.

Moreover, appellant was ordered to designate appellee as beneficiary of one-third of the death benefits from the State Employees’ Retirement System. Thereafter, he would owe appellee no further death benefits.

Additionally, the court decreed that appellant pay appellee $1,750 in order to balance to one-half each party’s share in certain marital assets. Each spouse was awarded the tangible personal property in his or her possession, and the court dismissed all other equitable distribution claims.

Finally, the court directed appellant to pay appellee $300 per month as permanent alimony, until appellee began receiving her portion of the divided pension. The court then dismissed appellee’s motion for counsel fees. The decree nisi was to become final unless legal cause was shown why it should not be. See Pa.R.Civ.P. 1920.52(a); 227.1; 227.4.

Appellant sought post-trial relief. Moreover, on December 7, 1990, he amended his motion to include an argument that the trial court should have applied the principles announced in Cornbleth v. Cornbleth, 397 Pa.Super. 421, 580 A.2d 369 (1990), allocatur denied, 526 Pa. 648, 585 A.2d 468 (1991), which appeared in publication after the November 9, 1990 decree nisi. The court allowed such amendment, opening its decree nisi.

After a hearing on May 9, 1991, but without the benefit of appellee’s Personal Earnings and Benefit Estimate Statement, the court found that Cornbleth was inapplicable to the instant case. Accordingly, the court re-entered its decree nisi.

Appellant revised his post-trial motion, indicating that the court ruled on the application of the Combleth case without receiving appellee’s Social Security records. The court later accepted into evidence appellee’s Personal Earnings and Benefit Estimate Statement. In November, 1991, the court again ruled that Combleth was inapplicable. On the same day, the court issued its final decree which substantially reiterated the November 9, 1990 decree nisi. However, the court also ordered equal division of the proceeds of the marital home. With regard to appellant’s pension, the Court found that its present value on June 5, 1986, the date of separation, was $93,640. The court decreed that appellee’s share was “$46,-820, plus all interest and other earnings, on that fund of $46,820 which accrued between June 5, 1986 and [appellant’s] retirement date.” Trial Court Decree November 19, 1991, at 2. Appellant timely appealed from the final decree of November 19, 1991.

II. ISSUES ON APPEAL

On appeal, the parties address the following issues.

1. DID THE TRIAL COURT ERR IN FAILING TO APPLY THE PRINCIPLES SET FORTH IN CORNBLETH V. CORNBLETH TO THIS CASE BY REFUSING TO DEDUCT FROM THE MARITAL PORTION OF PLAINTIFF’S PENSION THAT PART OF IT WHICH WILL BE PAID TO HIM “IN LIEU OF” SOCIAL SECURITY?
2. DID THE TRIAL COURT ERR WHEN IT REFUSED TO GRANT THE PLAINTIFF A CREDIT FOR THE FAIR RENTAL VALUE OF THE MARITAL RESIDENCE?
3. DID THE TRIAL COURT ERR IN GRANTING THE WIFE’S CLAIM FOR PERMANENT ALIMONY IN LIGHT OF HER ADMITTED EARNING CAPACITY AS WELL AS HER OVERALL FINANCIAL CIRCUMSTANCES AFTER THE DIVORCE IS GRANTED?
4. DID THE TRIAL COURT ERR BY [DEFERRING] DISTRIBUTION OF THE APPELLANTS STATE EMPLOYEE PENSION RATHER THAN EMPLOYING THE IMMEDIATE OFFSET METHOD?
5. DID THE TRIAL COURT ERR IN THE APPLICATION OF THE BERRINGTON CASE TO THE EQUITABLE DIVISION OF THE APPELLANTS PENSION IN THIS CASE?

Appellant’s Brief at 6. We first address appellant’s contentions regarding his pension: the extent to which it is marital property; the correct valuation method; and the correct method of distribution. Then we discuss appellant’s remaining two arguments: whether appellant is entitled to a credit for the fair rental value and whether the trial court erred in granting appellee permanent alimony.

III. STANDARD OF REVIEW

With regard to all of the marital property issues on appeal, our standard of review is as follows.

In assessing the propriety of a marital property distribution scheme, our standard of review is whether the trial court, by misapplication of the law, or failure to follow proper legal procedure, abused its discretion. Johnson v. Johnson, 365 Pa.Super. 409, 529 A.2d 1123 (1987); Thomson v. Thomson, 359 Pa.Super. 540, 519 A.2d 483 (1986); Ganong v. Ganong, 355 Pa.Super. 483, 513 A.2d 1024 (1986); Sergi v. Sergi, 351 Pa.Super. 588, 506 A.2d 928 (1986); King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984). Moreover, “an abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence.” Sergi, supra, 351 Pa.Super. at 591, 506 A.2d at 930, citing Braderman v. Braderman, 339 Pa.Super. 185, 190, 488 A.2d 613, 615 (1985). Specifically, we measure the circumstances of the case, and the conclusions drawn by the trial court therefrom, against the provisions of 23 P.S. § 401(d), and the avowed objectives of the Divorce Code, that is, to “effectuate economic justice between [the] parties ... and insure a fair and just determination of their property rights.” 23 P.S. § 102(a)(6). Hutnik v. Hutnik, 369 Pa.Super. 263, 266-7, 535 A.2d 151, 152 (1987); Liciardello v. Liciardello, 391 Pa.Super. 219, 570 A.2d 1062 (1990).

Zollars v. Zollars, 397 Pa.Super. 204, 207-08, 579 A.2d 1328, 1330 (1990), allocatur denied, 527 Pa. 603, 589 A.2d 693 (1991).

IV. APPELLANT’S STATE EMPLOYEE’S RETIREMENT SYSTEM PENSION

A. PENSION AS MARITAL PROPERTY

Appellant maintains that our recent decision in Cornbleth v. Cornbleth, 397 Pa.Super. 421, 580 A.2d 369 (1990), allocatur denied, 526 Pa. 648, 585 A.2d 468 (1991), should have been applied in this case. He maintains that Combleth sought to equalize, as much as possible, divorcees who do not contribute to the Social Security system with those who do contribute. Appellant argues that, when Combleth is properly applied instantly, a lesser portion of his pension should be considered marital property. We agree.

Generally, retirement benefits constitute marital property. Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613 (1985). However, by federal law, Social Security benefits are not marital property. 5 U.S.C. § 8345(j)(1). Also exempt from marital property is the part of a pension which is in lieu of Social Security. Endy v. Endy, 412 Pa.Super. 398, 603 A.2d 641 (1992); Combleth v. Combleth, supra.

In Combleth, this Court explained the rationale for exempting the portion of pension benefits which is in lieu of Social Security as follows.

One of our goals with regard to equitable distribution must be to treat different individuals with differing circumstances in a fashion so as to equate them to one another as nearly as possible, thus, eliminating a bias in favor of, or against, a class of individuals. To the extent individuals with Social Security benefits enjoy an exemption of that “asset” from equitable distribution we believe those individuals participating in the [Civil Service Retirement System] must, likewise, be so positioned.
To facilitate a process of equating CSRS participants and Social Security participants we believe it will be necessary to compute the present value of a Social Security benefit had the CSRS participant been participating in the Social Security System. This present value should then be deducted from the present value of the CSRS pension at which time a figure for the marital portion of the pension could be derived and included in the marital estate for distribution purposes. This process should result in equating, as near. as possible, the two classes of individuals for equitable distribution purposes.

Cornbleth, supra at 425, 427, 580 A.2d at 371, 372. By providing the employee-spouse with sole ownership of that part of the pension which would have otherwise been contributed to Social Security benefits, we have equated, as nearly as possible, employee-spouses who contribute to Social Security benefits and those who contribute to only a separate pension fund which is not statutorily exempt from marital property. Id. at 425, 580 A.2d at 371; Endy, supra, 412 Pa.Super. at 402, 603 A.2d at 645 (quoting id.). Although the Combleth case involved the Civil Service Retirement System, its principles have been applied in a case involving a State Police Officer’s pension, because he was “without a Social Security benefit.” Endy, supra at 402, 603 A.2d at 645.

Applying the principles of Combleth and Endy to the instant case, we find that the trial court erred in not reducing the size of the marital portion of appellant’s pension. During the marriage, appellant was a state trooper who contributed to the State Employee Retirement System. He did not contribute to the Social Security system during his employment with the Commonwealth of Pennsylvania. Likewise, he can expect no Social Security benefits upon retirement. In order to similarly situate appellant with other employee-spouses, his pension must be offset by the amount he would have contributed to the Social Security system.

The trial court found that the present value of appellant’s pension, at the time of separation, was $93,640. Although there was testimony that from $29,228 to $50,383 represented the amount which would have been in appellant’s Social Security fund, had appellant contributed to the Social Security System, the trial court did not accept any figure. Accordingly, on remand, the trial court must determine the extent of the “Social Security portion.” Then, “that portion should be exempted from the marital estate”. Cornbleth, supra, 397 Pa.Super. at 425, 580 A.2d at 371 (footnote omitted).

We are compelled to reject the trial court’s conclusion that Cornbleth is inapplicable to this case because of the disparity of earning capacity between the spouses. Cornbleth sought to similarly situate employee-spouses whose Social Security benefits were statutorily exempt from marital property with those employee-spouses who were without the benefit of the federal, statutory exemption. Cornbleth, supra; Endy, supra. The Cornbleth decision defined marital property. We explicitly removed from “marital property” the portion of the pension which would have been accumulated in the employee’s Social Security fund, had he contributed to Social Security, instead of to a state system. To provide consistency in our laws, among employees, this determination is an algebraic one. Cornbleth, supra.

Computing marital property is the threshold step in the equitable distribution of property. The second stage is the correct valuation of the property. As we discuss below, this too is a mathematical computation. The third and last step is the equitable distribution of the properly valued, marital property. The trial court must consider equitable factors in allocating the property. See 23 Pa.C.S.A. § 3502(a). However, a trial court is not authorized to distribute an asset which is not marital property. Berrington v. Berrington, 409 Pa.Super. 355, 369, 598 A.2d 31, 38 (1991). In Berrington, we explained, “It is incorrect to apply ‘moral’ grounds in order to determine that which constitutes marital property. Marital property has been defined by statute.” Id. Case law further defines the portions of pensions which are marital property. Cornbleth, supra; Endy, supra.

Therefore, the trial court erred in weighing equitable factors in calculating the portion of appellant’s pension which was marital property. The trial court should consider equitable factors, but only after identifying, according to Combleth, what portion is marital property and valuating the marital property.

B. VALUATION OF PENSION

Appellant’s second argument with regard to his pension is that the trial court erred in calculating the value of the pension that is available for distribution. Specifically, appellant takes issue with the trial court’s statement that the present value of the pension “as it increases in value through earnings and accumulations to the date of deferred distribution, is marital property.” Trial Court Opinion, November 19, 1991, at 6. We agree that such conclusion is too broad.

Because pension benefits are deferred compensation, the portion of the retirement reserve attributable to the duration of the marriage is marital property. Braderman v. Braderman, 339 Pa.Super. 185, 195-96, 488 A.2d 613, 618 (1985). While increases due to interest or returns on investment in the value of the amount contributed during the marriage are marital property, contributions by the employee or employer after the date of separation are not marital property. See Berrington v. Berrington, 409 Pa.Super. 355, 368, 598 A.2d 31, 37 (1991).

Therefore, in this case, the trial court erred, to the extent it valued the marital property portion of the pension to include increases via contributions subsequent to the date of separation. However, an increase in value due to “earnings” upon the corpus contributed during the marriage prior to separation was rightfully included.

C. DISTRIBUTION OF MARITAL PORTION OF PENSION

Appellant’s last contention with regard to his pension is that the trial court committed an error of law by employing the deferred method of distribution instead of the immediate offset method. Appellant cites the virtues of the immediate offset method and would invoke it to avoid hostile contact between the parties. We cannot agree that the trial court erred in choosing the deferred distribution method in this case.

Both the immediate offset method and the deferred distribution method are recognized and acceptable ways for distributing the marital portion of pension benefits. Berrington, supra at 372, 598 A.2d at 40; Braderman, supra, 339 Pa.Super. at 197, 488 A.2d at 619. Both calculations must yield the same amount, but the trial court has discretion in choosing the more appropriate means. See Berrington, supra; Endy, supra, 412 Pa.Super. at 401, 603 A.2d at 644.

While the immediate offset method offers an end to the contact between the divorced parties, the deferred distribution method ensures economic justice in certain cases. This Court has explained:

Although an immediate offset is preferred, this method is impractical where the parties do not possess enough assets to offset the pension award. When the value of the employee-spouse’s pension far exceeds the value of the other marital property, the deferred distribution method must be used.

Braderman, supra, 339 Pa.Super. at 199, 488 A.2d at 620 (citations omitted).

We are not persuaded that the trial court erred in applying the deferred distribution method in this case. See Zollars v. Zollars, 397 Pa.Super. 204, 579 A.2d 1328 (1990), allocatur denied, 527 Pa. 603, 589 A.2d 693 (1991) (where record did not show that employee-spouse could buy non-employee-spouse’s share of pension, use of deferred distribution was not erroneous). We leave to the trial court, in its determination of economic justice, a redistribution based upon the diminished marital property. See section IV, subsection A, subsection B, supra.

V. CREDIT FOR RENTAL VALUE OF MARITAL HOME

Appellant’s penultimate argument is that the trial court erred in not crediting him for his mortgage payments while appellee lived in the marital home. First, appellant maintains that he deserves a credit as of right. Additionally, appellant contends that prior court orders reflected that appellee’s alimony pendente lite included a sum which should have been contributed, but was not, towards mortgage payments. We find no error with regard to this issue.

While each party is entitled to his or her equitable share of marital property, including the fair rental value of the marital residence, see e.g. Powell v. Powell, 395 Pa.Super. 345, 577 A.2d 576 (1990), the trial court need not compute that equitable share as a credit to the non-possessory spouse, as long as the total distributory scheme is equitable. Sutliff v. Sutliff, 361 Pa.Super. 504, 525, 522 A.2d 1144, 1154 (1987), rev’d on other grounds, 518 Pa. 378, 543 A.2d 534 (1988). In equitably distributing the fair rental value between the parties, the trial court must consider the efforts of each party to preserve that asset. 23 Pa.C.S.A. § 3502(a)(7).

In the instant case, the trial court considered appellant’s argument. The court concluded that the equitable distribution of assets resulted in no credit for appellant’s mortgage payments while the wife lived in the marital residence. The trial court explained:

We shall not award the Husband rental value for the Wife’s occupancy of the Marital Residence. We are aware that the Husband made the mortgage payment for the first six months after the separation, that he paid the property taxes for all of 1986, and that he paid the insurance premiums throughout. However, during those first six months the Wife was having to adjust to the shock of a shattered marriage and a seriously diminished income and standard of living. While we commend the Husband’s behavior in this regard, we do not believe that it entitles him to a credit for rental. After January of 1987, payments were being withheld from the Wife’s alimony pendente lite to pay the mortgage lender, at first for interest only, later for interest and a partial principal payment. The Wife maintained the property throughout and kept it in condition to make it saleable at a price which both parties agreed was a good one. Furthermore, the Wife’s mother contributed substantially to the initial equity in the property; if credit for that should go to anyone, it should go to the Wife. We shall dismiss the Husband’s claim for rental value as part of his equitable distribution share.

Trial Court Opinion, November 9, 1990, at 9-10. According to the trial court, appellant did not contribute more than his equitable share.

The record supports the trial court’s analysis. Although appellant paid the mortgage, insurance and taxes, appellee received a diminished amount of alimony pendente lite. The trial court’s order of January 5, 1987 merely changed the method by which the household bills were paid. Instead of appellee paying a share of mortgage, insurance and taxes directly, her alimony was reduced. Accordingly, she contributed indirectly. We find the trial court’s refusal to grant appellant a credit to be appropriate. Accordingly, we affirm this portion of the trial court’s final decree.

VI. ALIMONY

Appellant’s final contention is that the trial court abused its discretion in granting appellee permanent alimony. Appellant insists that appellee has an earning capacity higher than that which the trial court attributed to appellee. Appellant also maintains that the trial court impermissibly relied upon post-separation conduct. We do not agree that the trial court erred in awarding appellee permanent alimony.

In fashioning an alimony award, the trial court must consider the several factors enumerated in 23 Pa.C.S.A. § 3701(b).

The determination of the amount to be awarded, whether of alimony or alimony pendente lite, rests in the sound discretion of the trial court. Miller v. Miller, 352 Pa.Super. 432, 441, 508 A.2d 550, 555 (1986). Absent an abuse of that discretion, an appellate court will not disturb the trial court’s award. Id. In the context of such determinations, the proper employment of judicial discretion includes the mandate to apply the Divorce Code in a compassionate and reasonable manner to effectuate the overriding goal of achieving economic justice between the parties. See e.g. O’Callaghan v. O’Callaghan, 389 Pa.Super. 319, 567 A.2d 308 (1989), allocatur granted, 527 Pa. 602, 589 A.2d 692 (1991); Dyer v. Dyer, 370 Pa.Super. 377, 536 A.2d 453 (1988), allocatur denied, 519 Pa. 654, 546 A.2d 58 (1988).

Murphy v. Murphy, 410 Pa.Super. 146, 154-55, 599 A.2d 647, 651 (1991), allocatur denied, 530 Pa. 633, 606 A.2d 902 (1992).

Instantly, the trial court was persuaded by “the relative earning capacities of the parties, the duration of the marriage, the Wife’s contribution as homemaker, the parties’ relative needs, the Husband’s marital misconduct, and the Wife’s relative lack of sufficient property, including property distributed under equitable distribution, to provide for her reasonable needs.” Trial Court Opinion, November 9, 1990, at 12. The court also considered that appellee made significant contributions to the twenty-two year marriage as homemaker. Id. Accordingly, the court ordered appellant to pay $300 per month to help appellee with “very real financial needs — until such time as [appellant] retires and [appellee] begins to receive income from [appellant’s] pension.... ” Id.

We find that the trial court properly balanced several factors in arriving at its alimony order of $300 per month. Moreover, the court’s labelling husband’s extra-marital affair before separation as “marital misconduct” was based upon sufficient evidence. Therefore, the grant of alimony in this case was not erroneous.

VII. CONCLUSION

We have reversed the trial court’s computation of the marital portion of appellant’s pension due to his payments to that pension fund in lieu of Social Security. Because the trial court did not yet find, as a matter of fact, the amount which appellant would have accumulated through the Social Security System, we must remand for such fact finding. Of course, the trial court has discretion to rule upon the evidence in record or to allow more evidence for this initial finding. That amount must be subtracted from the stipulated present value of $93,640. The remainder is marital property to be distributed equitably. The marital property does not include post-separation contributions by the employee or employer, but it does include post-separation interest and returns on investment on the pre-separation portion of the pension. The trial court did not err in refusing to grant appellant a credit for post-separation mortgage payments which he made while appellee lived alone in the marital home.

While we found no error in the trial court’s use of the deferred method of pension distribution, the trial court has discretion, in order to achieve economic justice, to again employ that method or the immediate offset method should the trial court find that appellant is now able to afford an immediate buy out. Likewise, although we found no error in granting permanent alimony in this case, the trial court, after recalculating the distribution of the marital portion of appellant’s pension, may conclude that a modification of the previous alimony award is necessary in order to obtain economic justice between the parties. Accordingly, we reverse in part, affirm in part, and remand for further proceedings consistent with this opinion.

The final decree of November 19, 1991 is reversed in part and affirmed in part. The case is remanded for further proceedings. Jurisdiction of this Court is relinquished.

      . Although a panel of this Court stated that the rationale of Combleth was to equate the pensions of husband and wife, see Elhajj v. Elhajj, 413 Pa.Super. 578, 581, 605 A.2d 1268, 1271 (1992), that case is inapplicable instantly. In Elhajj, we distinguished Combleth because Elhajj
        involved spouses who both participated in the Civil Services Retirement System but did not participate in the Social Security System. While we were not inclined to extend the Combleth decision in Elhajj, we are bound to apply Combleth in the case sub judice. See Endy v. Endy, supra (applying Combleth in divorce action between Pennsylvania State Trooper and wife).

      . We find no error with regard to the trial court’s coverture fraction.

      . The same factors were codified at 23 P.S. § 501 when the trial court explained its reasons for granting alimony.