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HomeMy WebLinkAbout2005-17 Adoption IN RE: ADOPTION OF : IN THE COURT OF COMMON PLEAS OF WILLIAM CHARLES LOPER, III : CUMBERLAND COUNTY, PENNSYLVANIA BRIANA SKYE LOPER : ORPHANS’ COURT DIVISION : NO. 17 & 17A ADOPTIONS 2005 IN RE: PETITION FOR INVOLUNTARY TERMINATION BEFORE HESS, J. OPINION AND ORDER Before the court is the petition of Eliana F. Moores, natural mother, and her husband, Robert A. Moores, for involuntary termination of parental rights. The original petition filed in this case sought the involuntary termination of the parental rights of William Charles Loper, Jr., with respect to William Charles Loper, III, (Will) born August 2, 1990, and Briana Skye Loper (Briana) born August 19, 1995. It is essentially undisputed that Mr. Loper had minimal contact with his children between the summer of 2002 and March 2005, the time of the filing of the petition for involuntary termination. He made some phone calls and attempted indirect contact through relatives. The mother changed her address multiple times and maintained unlisted phone numbers. Nonetheless, it cannot be said that Mr. Loper acted with reasonable firmness in maintaining a parent/child relationship or used all available resources in overcoming obstacles to the relationship. Ironically, however, the son, Will, now lives with him. The petitioners currently seek the termination of parental rights with respect to Briana but not with respect to her brother. The Mooreses carry the burden of proving by clear and convincing evidence that grounds exist for termination. Santosky v. Kramer, 455 U.S. 745 (1982). Clear and convincing evidence is “testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue.” Matter O. 17 & 17A ADOPTIONS 2005 of Sylvester, 555 A.2d 1202, 1203-04 (Pa. 1989). The law states that a parent’s rights may be terminated on the grounds that “[t]he parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.” 23 Pa.C.S. 2511(a)(1). Subsection (b) provides other information or circumstances the court shall consider. See id. § 2511(b). Once evidence establishes the threshold for (a)(1) has been met, the court must conduct a three-step inquiry of the: (1) non-custodial parent’s explanation or circumstances for conduct; (2) post-abandonment conduct between the non-custodial parent and child; and (3) effect of termination on the needs and welfare of the child. In the Matter of Adoption of Charles E.D.M., II, 708 A.2d 88, 92 (Pa. 1998). If the requirements under section 2511(a)(1) are met, the court may still rule against termination based upon any one of the factors in the three-step inquiry. See In re Adoption of Atencio, 650 A.2d 1064, 1067 (Pa. 1994). During the summer of 2002, Mr. Loper moved to Colorado. There is no indication that he made this move with an intention to abandon his children. His contact with Briana, however, became sparse indeed. He claimed to have talked to her on the telephone in January of 2003 but has not talked to her since. After returning to Pennsylvania, Mr. Loper has seen Briana three times. On the first occasion, he entered a parking lot and Mrs. Moores promptly left while Briana jumped to the back seat and stared at him through the rear window. N.T. 29. The second time he saw her at his son’s school but Mrs. Moores did not allow Briana to come to him. On a third occasion, during late spring of 2006, Mr. Loper and Mrs. Moores had apparently scheduled a meeting so he could see the children. N.T. 30. The parties met at a park in Lewisberry, 2 O. 17 & 17A ADOPTIONS 2005 Pennsylvania, but he was not allowed to see the children because Mr. Loper’s father was also present. Briana’s brother, Will, testified that Mrs. Moores did not allow Briana to speak to Mr. Loper and Briana knew that she was not allowed to speak to him. N.T. 57. Will recalled that Briana seemed excited by her father’s presence at the school and park in Lewisberry. N.T. 59. In chambers, eleven-year-old Briana testified that she felt “sad” that she had not seen her natural father in four years. She does not ask her brother about her father, however, and has not thought about how it would make her feel to see her father again. She was aware of her brother talking to Mr. Loper on the phone but was specifically told by Mrs. Moores that she was not allowed to talk to Mr. Loper. N.T. 68. Briana expressed a desire to be adopted by Mr. Moores and said she loved him. When asked whether she has the desire to restart a relationship with Mr. Loper, Briana gave the ambiguous response: “Kind of, not really. Kind of, a little.” N.T. 69. There are parallels between this case and that of In Re Adoption of Atencio, supra. There, as here, was an effort to terminate the parental rights of one child but not of its siblings. In that case, the hearing judge was particularly concerned with the impact of termination on the child and the question of whether termination best served the long-term interests of the child. We share those concerns in this case. Mr. Loper testified credibly that he does not want, and never intended, to abandon his children. His attempts to maintain contact were admittedly ineffectual. It is clear, however, that Briana continues to have a deep curiosity concerning her father. Interestingly, her brother Will now lives with his father. 3 O. 17 & 17A ADOPTIONS 2005 Our sense of this case is that Briana can re-establish contact with her father though the resistance of her mother must be overcome. In the meantime, our refusal to terminate Mr. Loper’s parental rights will result, at worst, in the maintenance of an uneasy status quo. The grant of the petition would, however, sever Briana’s relationship with her father for the rest of her life. We are not satisfied that this is in Briana’s best interest. ORDER th AND NOW, this 24 day of October, 2006, the petition of Robert Alexander Moores II and Eliana Francesca Moores for involuntary termination of parental rights is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, J. Jeanne Costopoulos, Esquire For the Petitioners Gary L. Leyder, Esquire For the Respondent :rlm 4 N RE: ADOPTION OF : IN THE COURT OF COMMON PLEAS OF WILLIAM CHARLES LOPER, III : CUMBERLAND COUNTY, PENNSYLVANIA BRIANA SKYE LOPER : ORPHANS’ COURT DIVISION : NO. 17 & 17A ADOPTIONS 2005 IN RE: PETITION FOR INVOLUNTARY TERMINATION BEFORE HESS, J. ORDER th AND NOW, this 24 day of October, 2006, the petition of Robert Alexander Moores II and Eliana Francesca Moores for involuntary termination of parental rights is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, J. Jeanne Costopoulos, Esquire For the Petitioners Gary L. Leyder, Esquire For the Respondent :rlm