George A. v. Barbara C.

FLAHERTY, Justice,

dissenting.

I dissent.. The evidence adduced in the instant case was insufficient, within the factual context presented, to support termination of appellee’s parental rights under 23 Pa.C.S.A. § 2511(a)(2).

Appellee has never had an opportunity to demonstrate whether she would render proper parental care since the child in question was voluntarily surrendered to an intermediary (not an agency) for placement through a “private” adoption before appellee was even discharged from the hospital after giving birth to the child. The incidents relied upon by the Orphans’ Court in support of its termination order occurred, to a large extent, at least one year prior to the child’s birth and two years prior to the termination hearing. Much of the testimony in this case was predictive in nature, focusing upon expert opinions as to whether *526appellee would likely fulfill the duties of a parent, although, under the factual circumstances presented, appellee had no opportunity to do so. Expert opinions which purport to predict matters so complex as the future course of an individual’s behavior often do not have a high degree of reliability, and, where there is not sufficient additional evidence of parental incapacity pertaining to the relevant time period, it cannot be said that clear and convincing evidence of parental incapacity has been offered.

Such a conclusion does not, however, mean that appellee should be given custody of her child, for the determination of custody, which is governed solely by the best interests of the child, is an entirely separate issue from that of whether to terminate parental rights. A decision not to terminate parental rights in this case would not mean that the child must be allowed to suffer actual harm, in the custody of appellee, as a prerequisite to strengthening the case in favor of terminating parental rights in a future proceeding. A number of alternatives are available to safeguard the interests of the child, including foster care, supervision of appellee’s household, and assistance to appellee in learning necessary parenting skills.

NIX, C.J., and PAPADAKOS, J., join this dissenting opinion.