## Facts

- Michael Bartasavich and Mary Bartasavich were the parents of Michelle, born December 22, 1971.
- On October 14, 1974, during a domestic dispute, Michael stabbed and killed Mary, took two-year-old Michelle to a neighbor’s home, returned home, and stabbed himself with a fork.
- While in jail in October 1974, Michael signed a petition that resulted in legal custody of Michelle being placed with Clearfield County Child Welfare Services, while Michelle remained in the physical care of her maternal grandparents, Dennis and Adeline Geppert.
- Michael later pleaded guilty to voluntary manslaughter and received a five-to-ten-year prison sentence.
- From October 1974 through June 1976, the Gepperts regularly brought Michelle to visit Michael in prison.
- In June 1976, Child Welfare Services permitted the Gepperts to suspend visitation after they reported that Michelle experienced stomach aches and other signs of anxiety around the time of visits and had begun calling her father “Mike” rather than “dad.”
- After visitation stopped, Michael retained a psychologist to evaluate Michelle; the psychologist reported that Michelle’s feelings were ambivalent and that any fear was not a basis, by itself, to end the relationship rather than address it through treatment.
- In May 1978, Michael filed a petition for a writ of habeas corpus seeking reinstatement of visitation.
- On June 15, 1978, Child Welfare Services filed a petition to terminate Michael’s parental rights.
- Following a combined hearing on January 4, 1979, the trial court entered three orders of the same date: terminating Michael’s parental rights, denying his request for visitation, and granting custody to Child Welfare Services for adoptive placement purposes.
- Michael appealed.

## Issues

1. Whether Clearfield County Child Welfare Services proved by clear and convincing evidence statutory grounds to terminate Michael Bartasavich’s parental rights under 23 P.S. § 2511(a)(2), including that any incapacity was irremediable.
2. Whether the orders denying visitation and granting custody to Child Welfare Services for adoptive placement could stand where termination was not supported under the statute and the child’s needs and welfare required further consideration.

## Decision

- The Superior Court reversed the decree terminating Michael Bartasavich’s parental rights and remanded for further proceedings.
- The court held that the agency did not meet its burden of proving, by clear and convincing evidence, the elements required under § 2511(a)(2), particularly that the causes of any parental incapacity were irremediable.
- The court explained that incarceration and a single criminal episode, even one as serious as killing the child’s other parent, do not alone satisfy the statutory requirement of “repeated and continued incapacity” or prove that the parent is permanently unable to provide essential parental care.
- Because the trial court’s denial of visitation and the custody order for adoption planning were tied to the termination ruling, the Superior Court also reversed those related orders and directed reconsideration on remand with attention to Michelle’s welfare and appropriate conditions for contact.

## Legal Principles

- The party seeking involuntary termination bears the burden to prove the statutory grounds by clear and convincing evidence.
- Under 23 P.S. § 2511(a)(2), termination requires proof of: (1) repeated and continued incapacity, abuse, neglect, or refusal; (2) that such condition caused the child to be without essential parental care, control, or subsistence; and (3) that the causes of the condition cannot or will not be remedied.
- Parental rights may not be terminated solely because a parent is incarcerated; the court must evaluate whether the statutory elements are proven and whether any inability to parent is permanent.
- In addition to § 2511(a), the court must consider the child’s developmental, physical, and emotional needs and welfare under § 2511(b).
- Termination is an extreme remedy; where the record does not justify permanent severance, the court must consider whether limited, structured, or therapeutic contact can protect the child while preserving the parent-child relationship.

## Conclusion

The Superior Court of Pennsylvania reversed the termination of Michael Bartasavich’s parental rights because Child Welfare Services failed to prove by clear and convincing evidence that statutory grounds existed under § 2511(a)(2), including proof that any incapacity was irremediable, and it also reversed the related orders denying visitation and granting custody for adoptive placement, remanding for further proceedings focused on Michelle’s needs and welfare and any appropriate arrangements for contact.


Bartasavich v. Mitchell, 324 Pa. Super. 270, 471 A.2d 833 (1984)