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HomeMy WebLinkAbout2007-24 Adoption IN RE: : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA ADOPTION OF : : ORPHANS’ COURT DIVISION : ISSAC MATTHEW LOVINGS : 24 ADOPTION 2007 AND : EATHAN DANIEL LOVINGS : 24A ADOPTION 2007 ORDER OF COURT AND NOW , this 12th day of September, 2007, having considered the testimony and evidence presented by both parties, this Court holds that Petitioner Melanie A. Wilkinson’s GRANTED. petition for Involuntary Termination of Parental Rights shall be IT IS HEREBY ORDERED AND DIRECTED that full custody shall be awarded to the biological mother of the children, Petitioner Melanie A. Wilkinson, and that the parental TERMINATED rights of Ronald Oland Lynn Lovings, Jr. are hereby . By the Court, _________________________ M. L. Ebert, Jr. J. Jerry A. Weigle, Esquire Attorney for Petitioner Weigle & Associates, P.C. 126 East King Street Shippensburg, PA 17257 Cindy L. Hribal, Esquire Attorney for the Children 61 West Louther Street Carlisle, PA 17013-2936 John W. Purcell, Jr., Esquire Attorney for Respondent Purcell, Krug & Haller 1719 North Front Street Harrisburg, PA 17102-2391 IN RE: : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA ADOPTION OF : : ORPHANS’ COURT DIVISION : ISSAC MATTHEW LOVINGS : 24 ADOPTION 2007 AND : EATHAN DANIEL LOVINGS : 24A ADOPTION 2007 OPINION AND ORDER OF COURT Ebert, J., September 12, 2007 – In this adoption issue, Petitioner, Melanie A. Wilkinson, seeks to terminate the parental rights of Respondent, Ronald Oland Lynn Lovings, Jr., her former husband and the children’s natural father. Petitioner contends that Respondent has failed to perform parental duties for the statutory period of six months without good cause, therefore, under 23 Pa.C.S. §2511 (a)(1), his parental rights should be terminated. Having considered the relevant facts and testimony, Petitioner’s request for involuntary termination of parental rights is granted for the reasons set forth within. STATEMENT OF FACTS 1 Petitioner, Melanie A. Wilkinson, of 126 Milky Way, Shippensburg, Pennsylvania, and 2 Respondent, Ronald Oland Lynn Lovings, Jr., of 320 County Road 208930, Liberty, Texas, 3 were divorced on December 28, 2001, in Cheatham County, Tennessee. They had been married 4 on July 4, 1997, in Cheatham County, Tennessee, and during their marriage Wilkinson gave 5 birth to their two sons, Issac Matthew Lovings, born March 17, 1999, and Eathan Daniel 1 Notes of Transcript held Jul. 25, p. 4 (hereinafter “N.T. __”). 2 N.T. 59 3 N.T. 6 4 N.T. 6 5 Pet. Exh. 1 2 Lovings, born July 29, 2000. At the time the divorce decree was entered on December 28, 7 2001, Wilkinson and her children had moved to Wilkinson’s parents’ house in Tennessee while 8 Lovings had moved to his current residence in Texas. After the parties’ divorce, Petitioner remarried. Since her marriage to James J. 9 Wilkinson, Sr., on March 25, 2002, the children have resided with Melanie Wilkinson, her 10 husband, and his three minor children. The Wilkinson family has moved several times since their marriage due to James’ military assignments. They lived in Washington D.C. for three 111213 months, the state of Washington for three years, Maryland for one year, and they have lived 14 in Shippensburg, Pennsylvania, since June 2006. The divorce decree, which was granted to Wilkinson by the Chancery Court of Cheatham County, Tennessee, on December 28, 2001, incorporated a permanent parenting plan which dealt with the shared legal custody of the minor children. Pursuant to the plan, Wilkinson had primary 15 physical custody of the children and Lovings was entitled to visitation rights, one week every three months, two weeks every six months, two weeks for Christmas in even numbered years, for Thanksgiving week in odd numbered years before they entered school, and during spring 16 vacations once they entered school. Furthermore, Lovings was to be responsible for providing transportation for the children’s visitation and for directly paying Wilkinson $338 per month for 6 Pet. Exh. 2 7 N.T. 6, 61, 62 8 N.T. 62 9 N.T. 8 10 N.T. 8 11 N.T. 9 12 N.T. 9 13 N.T. 9 14 N.T. 10 15 N.T. 7 16 Pet. Exh. 4 3 7 child support and $317 per month toward conclusion of joint bills they had incurred. Because of the distance between Lovings’ and the Wilkinson’s residence, the parties initially agreed to 18 make arrangements for longer visits to better accommodate their finances and schedules; however, the parties have essentially followed the parenting plan as written. At all times since the parenting plan was agreed to by the parties, Wilkinson has fulfilled her duties and responsibilities pursuant to it. Lovings had fulfilled his duties of partial custody pursuant to the parenting plan during the calendar years 2002-2004. In 2002, Lovings provided for the children’s transportation when they visited him in Texas in March for Issac’s birthday, in 19 July for Eathan’s birthday, and for Christmas. In addition to physical visitation with the children, Lovings also sent cards on the appropriate birthdays and holidays, and would normally 20 communicate with them over the phone twice a week. In 2003, the children stayed with 21 Lovings for the entire summer and approximately one month around Thanksgiving. In 2004, 22 Lovings continued to make regular phone contact with and send cards to the children. The 23 children stayed with him the entire summer, and because they had started school that year, Lovings no longer had Thanksgiving visitation rights. The involved parties seemed to be satisfied with the performance of shared legal custody 24 through 2005. However, Lovings began to fail to fulfill his duties under the parenting plan in 25 2004. As 2004 was an even numbered year, Lovings was to have visitation rights at Christmas; however, Lovings informed Wilkinson that he could not afford the tickets for Christmas because 17 Pet. Exh. 4 18 N.T. 13 19 N.T. 14 20 N.T. 15 21 N.T. 64-65 22 N.T. 16 23 N.T. 65 24 N.T. 49, 101 25 Pet. Exh. 4 4 e was unemployed at the time and therefore did not comply with all terms of the parenting plan 2627 that year. Phone communication with the children began to decline that year. Wilkinson testified that instead of two calls per week, the frequency of phone calls declined to once a week, 28 once every two weeks, once a month, then no calls after March 2006. Lovings admits that he 29 “sort of gave up” on calling the children after June 2006, which was also the last time 30 Wilkinson and Lovings spoke. Furthermore, Lovings did not send e-mails and no longer sent 31 other written correspondence to the children. Lovings explains the decreasing call frequency 32 by stating that he was without a phone for three months. However, while he claimed he had no 33 access to any phone, he did admit to using his parents’ phone to call the children during this 34 period. For two months in the summer of 2005, the children visited Lovings for the last time at 35 his home in Texas. Upon the boys’ return, they expressed a lack of desire to continue their relationship with Lovings. Issac developed anger issues, which req uired him to receive 36 counseling. Despite Wilkinson’s attempts to encourage her sons to speak to Lovings over the phone, Issac and Eathan either refused to speak to him by expressing that they did not care to 3738 talk with him anymore or when they did talk to him, they sometimes appeared visibly upset. In addition to their concern with Lovings’ apparent lack of interest, as evidenced by the declining frequency of his phone calls, the children may also have been disappointed with Lovings due to 26 N.T. 68-69 27 N.T. 21 28 N.T. 21, 50 29 N.T. 122 30 N.T. 50 31 N.T. 22 32 N.T. 101 33 N.T. 103-104 34 N.T. 104-105 35 N.T. 17 36 N.T. 18 37 N.T. 24 38 N.T. 25 5 9 the discipline issues at Lovings’ apartment. The boys were disciplined by spanking or by 40 standing on their toes for a minute and staring at a dot on the window. In addition to the lack of physical visits with the children in two years and the lack of phone contact over the past year, Lovings has also fallen behind in support payments due pursuant to the divorce decree. The parties had agreed to modify the monthly payment amount 41 for child support and a joint credit card debt to $400. While Wilkinson did receive two $400 42 checks written by Lovings’ father in February and March 2006, she has not received regular 43 $400 monthly payments since July 2004. As a result, Lovings is close to $13,000 - $14,000 in 44 arrears. Other than the modification of monthly payment amounts to $400, Lovings never 45 suggested modifying their financial arrangement once he started falling behind in his support and debt payments. In the insurance agreement under the divorce decree, the parties had agreed that Wilkinson would carry the children’s insurance policy and Lovings would be responsible for 46 co-pays. He eventually stopped reimbursing her for the co-pays. Lovings testified that he sent 47 a $400 check, dated September 13, 2006, to Wilkinson; however, after the check was not 48 cashed, he placed a stop payment on it on December 6, 2006. Lovings attributes his missed payments to financial problems and because he had been 4950 laid off from his job. He currently owes debt on a repossessed truck, and his father has been 39 N.T. 109 40 N.T. 110 41 N.T. 88 42 N.T. 89, 134 43 N.T. 89 44 N.T. 88 45 N.T. 55 46 N.T. 55 47 N.T. 90 48 N.T. 91-92 49 N.T. 74 50 N.T. 75 6 152 managing his finances. While he has testified that he could not pay support for his children, for most of the time period since the divorce decree was entered, he has been gainfully employed 53 as a pipe fitter earning between $11.00 per hour and $18.00 per hour. From 2002 through 54 2006, his taxed earnings ranged from approximately $23,000 to $33,000 per year. The children have had more interaction with Lovings’ parents over the past year than with Lovings, and they have maintained a quality relationship with them since the divorce. In 55 March 2006, Lovings’ mother stayed with the Wilkinsons for four days for Issac’s birthday. 56 The children visited Lovings’ parents in Texas from June 21 through June 28, 2007. Lovings maintains that he was asked by his father to “stay away” from his parents’ home during the children’s visit at the request of the Mother. However, Lovings does admit that he did not even attempt to call the children at his parents’ home or talk to the Mother in order to attempt to set up 57 a visit or telephone call with them while they were close by his residence in Texas. Lovings has failed to perform his parental duties for beyond the statutory six month period. He has not had physical visitation with the children since 2005, and he has not contacted 58 them by telephone since 2006. He never made an attempt to visit them in Pennsylvania or 59 write the children, and he never attempted to enforce the custody portions of the divorce decree 60 in any jurisdiction. Wilkinson has created a new life for her children and the Wilkinson family since her divorce from Lovings. The family has lived together for the past five years, and for the past year 51 N.T. 134-135 52 N.T. 88 53 N.T. 116-118 54 N.T. 124 55 N.T. 23 56 N.T. 27 57 N.T. 114 58 N.T. 107 59 N.T. 108 60 N.T. 106 7 hey have lived in their Shippensburg, Pennsylvania home. Issac and Eathan both call James Wilkinson, Sr., “Dad,” and they refer to James’ children as brothers and sisters. They never use 61 the word “step” in referring to these siblings. Furthermore, the emotional stability and full- time support of the Wilkinson family unit has helped the children thrive academically. They are 62 performing well in school and are currently on honor roll. DISCUSSION Melanie Wilkinson, the children’s biological mother, has petitioned this Court for the termination of the parental rights of Ronald Lovings, Jr., her former husband and biological father of the children. In order for Wilkinson to be successful in this petition, she must establish that Lovings’ conduct falls under the categories for involuntary termination of parental rights under 23 Pa.C.S.A. §2511. 23 Pa.C.S.A. sets out eight categories justifying involuntary termination; however, each category is permissive. As in every involuntary termination of parental rights case, this Court must look at (a) the parent’s explanation of his or her conduct; (b) the post abandonment conduct of the parent; and (c) the effect on the child. Adoption of Charles E.D.M., III, 708 A.2d 88 (Pa. 1998). For the reasons set forth below, we determine that it is in the best interest of the children to terminate Lovings’ parental rights and award full custody to Wilkinson. Petitioner Wilkinson establishes by clear and convincing evidence that sufficient grounds exist for the involuntary termination of her former husband’s parental rights under abandonment, 23 Pa.C.S. §2511 (a)(1). The pertinent portions of the statute are as follows: 23 Pa.C.S. §2511. Grounds for involuntary termination (a) General rule. – The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds: 61 N.T. 31 62 N.T. 31 8 1) The parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties. Wilkinson has met her burden in establishing that Lovings has failed to perform his parental duties for the statutory period of six months without good cause. Our state Supreme Court has stated that parental duties go beyond a mere financial obligation and require one to demonstrate a continuing interest in the child and make a genuine effort to maintain communication and association with the child. In re: Burns, 379 A.2d 535 (Pa. 1977). Lovings may have been separated from his children by a long distance, but he does not escape his duty to love, protect, and support them; rather, he still has a duty to maintain communication and association with his children. See In re: V.E., 611 A.2d 1267, 1271 (Pa. Super. 1992), citing In re: Adoption of McCray, 331 A.2d 652, 654 (Pa. 1974). Not only is Lovings $14,000 in arrears on support payments since 2004, but Lovings has had no physical contact with the children since their last visit to his residence in August 2005. He has not maintained e-mail or written correspondence with the children, and he last spoke with them over the phone in March 2006. His last attempt to speak with them over the phone was June 2006, which is well beyond the six month statutory period to establish abandonment. His conduct over the past two years demonstrates that he is failing to maintain a place of importance in the children’s lives. Once it has been established that a parent has failed to affirmatively perform his parental duties for the six month statutory period, the Court must then look to the individual circumstances and the parent’s explanations to determine if the circumstances warrant an involuntary termination of parental rights. See In re: L.A.G., 415 A.2d 44 (Pa. 1980). In regards to enforcing the physical visitation portion of the shared custody agreement, Lovings has offered several explanations as to why he has not seen the children since 2005. Lovings said he had 9 poken with Wilkinson to arrange for visitation during the children’s spring break and summer vacation in 2006. He was told that the children did not want to see him. He states that he was not allowed to see them, but he did not inquire further as to if they could make alternate arrangements for future visitation. When his mother visited the children in March 2006, he did not accompany her for the trip; maintaining that his employment obligations prevented him from doing so. He had no explanation for not requesting visitation during Christmas 2006, which was supposed to be his Christmas pursuant to the parenting plan, and testified that he did not even make an attempt to see them. Furthermore, when the children visited his parents in Texas in June 2007, he did not make any attempts to visit or contact them because he was told by his father to “stay away” at the request of the Mother. Lovings lives within an hour of his parents’ house. He did not even attempt to inquire with his parents or with Wilkinson as to whether the children could be persuaded to at least speak with him over the phone, exchange written correspondence, or if they could arrange for even a brief physical visit. Lovings states that it is not in his nature to be pushy or demanding; however, his failure to further inquire or be more demanding in regards to requesting physical visitation demonstrates a lack of desire and affirmative action to perform his parental duties. His failure to maintain communication and an association with his children for more than six months justifies the termination of Lovings’ parental rights. In re: Adoption of Smith, 194 A.2d 919, 922 (Pa. 1963). In regards to his failure to provide financial support for the children, Lovings has failed to make alternate financial arrangements, and he has not discussed his inability to pay with Wilkinson. Lovings has explained to the Court that he has fallen behind on his payments because he was twice laid off, and that he ran up some debt leading to the repossession of his truck. He stated that an uncashed check he supposedly sent was tying up his bank account and 10 hat he needed the funds for truck repairs. He also maintains that he was saving money to travel 63 to Maryland to hire an attorney to enforce his parental rights. In addition to the complete indifference shown to his children over the past year, these explanations indicate that Lovings only seems to want to perform his parental duties when convenient in terms of his financial circumstances and personal schedule. Parental rights should be forfeited when a parent delays the affirmative performance of his parental duties beyond the statutory six month period. In re: Adoption of Smith, 194, A.2d 919, 922 (Pa. 1963). After more than a year without communication with the children, Lovings had waited until the end of his hearing to request phone communication with his children. Once the statutory requirement for termination by abandonment has been satisfied, the Court must also evaluate any post-abandonment conduct between the parent and child. In re: Adoption of Hamilton, 549 A.2d 1291 (Pa. Super. 1988). In Hamilton, after abandonment the parent had visited, filed a petition for visitation after being denied visitation, and stipulated to a visitation 64 schedule that later became a court order to enforce his parental rights. In contrast, nothing in this record indicates that Lovings has made any affirmative attempt to enforce his parental rights over the past two years. His request for a phone call appears to be an isolated occurrence, as he had previously given up on making attempts to make phone calls, request visitation, or enforce his parental rights under the parenting plan over the past year to two years. Allowing Lovings to maintain his parental rights would not be in the best interest of the children. While Lovings may have initially performed his parental duties pursuant to the parenting plan, he began to decrease his involvement with the children, and over the past two years he has demonstrated a lack of commitment to being involved in the children’s lives. 63 Lovings claimed that he was attempting to travel to Maryland to hire an attorney; at the time, the Wilkinsons still resided in Maryland. N.T. 107 64 In re: Adoption of Hamilton, 549 A.2d 1291, 1293 (Pa. Super. 1988). 11 everal times he broke his promises to maintain regular weekly phone communication with the children. Wilkinson made all of the major decisions in the children’s lives, and Lovings was never involved in this decision making. Oftentimes, Lovings was unaware of important decisions relating to the children’s well-being. When Issac received counseling following the children’s last visit with him, Lovings did not attempt to follow up with the counselor or with the school as to Issac’s behavior. Lovings lives in a single apartment, which he has maintained by himself or with roommates. He currently shares this apartment with a married couple and their young child. His apartment situation appears to be less stable than a regular household. Lovings testified that during the children’s last visit, at different times his apartment was shared with his sister, her children, and a girlfriend. On the other hand, the Wilkinson family has maintained their own house for the past year, and this provides a much more stable environment for the children to be raised in. Because of his living situation, his financial situation, and his absolute lack of involvement in his children’s lives over the past two years, we are concerned that Lovings has not proven himself capable or worthy of maintaining shared legal custody of the children. The Court does not come to this conclusion based solely on environmental factors such as inadequate housing or income; rather, consistent with 23 Pa.C.S. §2511(a), this Court gives primary consideration to the developmental, physical, and emotional needs and welfare of the children. This Court finds that providing a safe and stable environment is paramount to a child’s successful development, and we are convinced that the termination of Lovings’ parental rights leading to James Wilkinson, Sr.’s adoption of the children would provide the proper environment for these children to be raised in. To summarize, in light of the fact that Lovings has not had physical or verbal contact with the children in two years, has not made viable effort to physically see the children since 12 heir last visit in 2005, has arrearage of $14,000 on support payments, and that the children have found a home with the Wilkinson family since their mother and James Wilkinson, Jr. married in March 2002, we are convinced that terminating Respondent’s parental rights pursuant to 23 Pa.C.S.A. §2511 (a)(1) would be in the best interest of the children’s well-being. The children have a secure position in the family with their biological mother, her husband, and his children. Accordingly we find that it is in the children’s best interest to terminate Respondent’s parental rights in order to pave the way for Issac and Eathan’s adoption by the Petitioner’s husband, James J. Wilkinson, Sr. We therefore grant Wilkinson’s petition for termination of Respondent’s parental rights and award full custody to the biological mother, Melanie Wilkinson. CONCLUSION Because Petitioner, Melanie Wilkinson, has demonstrated by clear and convincing evidence that Respondent, Ronald Lovings, Jr., has failed to perform parental duties for the statutory period of six months without good cause, she has sufficiently proven that his parental rights should be terminated. Having considered all testimony and pertinent evidence, this Court is convinced that the termination of Respondent’s parental rights would be in the best interest of the children and, therefore, Petitioner’s request for termination of parental rights is granted. Full custody is thereby awarded to the children’s biological mother, Petitioner, Melanie A. Wilkinson. Accordingly, the following order will be entered: 13 RDER OF COURT AND NOW , this 12th day of September, 2007, having considered the testimony and evidence presented by both parties, this Court holds that Petitioner Melanie A. Wilkinson’s GRANTED. petition for Involuntary Termination of Parental Rights shall be IT IS HEREBY ORDERED AND DIRECTED that full custody shall be awarded to the biological mother of the children, Petitioner Melanie A. Wilkinson, and that the parental TERMINATED rights of Ronald Oland Lynn Lovings, Jr., are hereby . By the Court, _________________________ M. L. Ebert, Jr. J. Jerry A. Weigle, Esquire Attorney for Petitioner Weigle & Associates, P.C. 126 East King Street Shippensburg, PA 17257 Cindy L. Hribal, Esquire Attorney for the Children 61 West Louther Street Carlisle, PA 17013-2936 John W. Purcell, Jr., Esquire Attorney for Respondent Purcell, Krug & Haller 1719 North Front Street Harrisburg, PA 17102-2391 14