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HomeMy WebLinkAbout23 Adoption 2022 IN RE: ADOPTION OF: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS COURT L.A.R. NO. 23 Adopt 2022 OPINION AND ORDER OF COURT HYAMS, J., August 30, 2022 L.A.R. is the subject minor child of the pending petition for involuntary termination of the natural fathers parental rights. L.A.R. presently resides with his natural mother, M.S., and his stepfather, J.S. The involuntary termination of parental rights petition was filed on March 29, 2022. This Court held a hearing on August 12, 2022 in which the parties and their respective counsel appeared and natural mother, stepfather and natural father testified. It was discussed prior to the presentation of evidence and decided without an objection from the parties, that appointed Guardian Ad Litem was acting as legal counsel for the child. STATEMENT OF FACTS At the time of the hearing, mother was twenty-three years old and natural father was twenty- eight years old. L.A.R. having been born on October 16, 2019 is two years old, and although his natural parents were not married at the time of his birth, his natural father was present for the birth. Shortly after his birth, L.A.R. began to reside with only his natural father, N.A.R. who was living with an aunt. Mother was dealing with post-partum depression, or like conditions, and was not living with L.A.R. and unable to provide care. For a couple of months, natural father was L.A.R.caretaker until mother moved in with natural father and L.A.R. at the home of natural fatherOn or around March 3, 2020, mother filed a custody complaint in Cumberland County seeking sole legal custody and primary physical custody of L.A.R. In May of 2020, mother moved out of the home of natural father dated May 18, 2020 was issued as a result of a custody conciliation. The order provided the natural parents shared legal custody and shared physical custody on a week on week off basis. In June of 2020, mother began dating stepfather. Mother acknowledged the May 18, 2020 custody order was generally followed until about August of 2020. In August of 2020, several additional family members moved into the home where natural father was living. As a result of his aunts high-risk category and the current stage of the COVID-19 pandemic at that time, there was an agreement to suspend natural fathers visits with L.A.R. for a period of forty-five days. During the period between October 2020 through December 2020, mother reported sporadic contact with natural father and that minimal visitation between natural father a L.A.R. was taking place. The parties both presented evidence of dreadful commentary and communication (threats of bodily harm, insults and name calling) by way of written messages. Natural father contracted COVID-19 twice and was forced to isolate during the seven-month time frame from the date of the May 18, 2020 custody order until sometime in December, 2020. In December of 2020, after the natural father had recovered, there was a series of requests by natural father to mother for visitation with the child, however the mother blocked his messages he was sending via Facebook messenger. Despite testifying to having never received any financial support from the natural father for L.A.R., mother later admitted that natural father had transferred $100.00 payments into her account on more than one occasion. In March of 2021, natural father had a psychiatric hospitalization for a period of approximately six days. Upon his discharge he began receiving mental health treatment and medication management. Mother and natural father disagreed on the issue of natural fathers attempts to have contact with L.A.R. during the year 2021. Natural father claimed he reached out frequently (almost daily), to inquire about having a visit with L.A.R. and to see how he was doing with mother refusing his requests to see L.A.R. and would say he was fine. Mother claimed natural father reached out approximately three times to ask how L.A.R. was doing and did not request visitation in 2021 other than one time when a very short visit of no more than an hour took place in the parking lot of a pumpkin patch in October of 2021. This October 2021 visit was natural fL.A.R. On October 11, 2021, mother filed a petition for contempt in the custody action alleging natural father was refusing to exchange custody or perform parental duties and he had resumed drug use and had been incarcerated. Natural father was incarcerated on or around the time the custody conciliation was held and he did not appear for the conference. On February 9, 2022, following conciliation, an amended custody order was issued on mothers contempt petition and mother was awarded primary physical custody of the child unless the parties mutually agreed otherwise. The February 9, 2022 custody order further noted that mother was not to unreasonably withhold custodial time from father. Natural father remained incarcerated in early 2022 during the months of February and March for a period of thirty days. Only forty-eight days after being awarded primary physical custody, mother filed a petition to involuntarily terminate natural fathers parental rights. The pending petition alleges grounds for involuntary termination of parental rights exists under 23 Pa.C.S. §2511(a)(1) as the natural fathers conduct for a period of six months prior to the filing of the petition showed a settled purpose of relinquishing parental claim to L.A.R. or that natural father has refused or failed to perform parental duties. There is no dispute that Father had but one visit with L.A.R. during the six months prior to the filing of the involuntary termination petition. There are disputed facts regarding the frequency of natural fatherto mother concerning L.A.R. during the six months preceding the filing of the pending petition. Natural father believes that his attempts to see L.A.R. were frustrated by mother. DISCUSSION The involuntary termination of parental rights petition was on March 29, 2022. There is a two part test a court must apply when evaluating a termination of parental rights petition. A court must determine if petitioner has proven at least one of the statutory grounds of termination set forth in 23 Pa.C.S. § 2511(a) and evaluate whether termination is in the best interests of the child, as required by 23 Pa.C.S. § 2511(b). In re Adoption of C.D.R., 111 A.3d 1212, 1215 (Pa. 1 Super. 2015). The burden is on the petitioner to prove by clear and convincing evidence that the asserted grounds for seeking the termination of parental rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). us is on the conduct of the parent and whether the petitioning party establishes that conduct satisfies the statutory grounds set forth in Section 2511. If this burden is met, the court shall proceed to the second analysis of whether termination best serves the needs and general welfare of the child. In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007). M.S. and J.S. allege in their Petition the following grounds under Section 2511(a) exist so as to sufficiently to terminate the rights of natural father: (1) \[the natural father by\] conduct continuing for a period of at least six months immediately preceding the filing of the \[within\] 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) In addition to analyzing whether there is clear and convincing evidence of conduct sustained for at least six months prior to the filing of the termination petition of either a settled intent to relinquish parental claim to the child, or refusal or failure to perform parental duties, the court must further consider any explanations the non-custodial parent has for the apparent failure to assume parental duties as well as any barriers put in place by the custodial parent. Barriers include efforts by the custodial parent to prohibit contact and communication between the non-custodial parent and the minor child. In re Shives, 525 A.2d 801, 803 (Pa. Super. 1987). At the hearing, no party refuted that natural father had only one visit with the child during the 1 convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise In re Adoption of A.C., 162 A.3d 1123 , 1133 (Pa. Super. 2017) (quoting In re Adoption of Antencio, 650 A.2d 1064, 1066 (Pa. 1994)). six months preceding the filing of the involuntary termination of parental rights petition. Natural father did however, present testimony of his attempts to exercise his custodial rights in terms of visitation as well as some mental health struggles resulting in a hospitalization and a period of instability in 2021. While the court finds the mother less than credible with her summarization of natural fathers involvement with L.A.R. and more specifically his attempts to be involved, natural father did not take action to enforce his custodial rights when mother would deny him visitation. He did not seek to modify the custody order or any other redress when the mother would refuse his attempts to have contact with L.A.R. A parent must demonstrate d genuine effort to maintain a parent-child relationship; the parent must use all available resources to preserve the parental relationship aplaced in the path of maintaining the parent-child reIn re C.M.S. 832 A.2d 457, 462 (Pa. Super. 2003)(citing: In re Shives, 525 A.2d 801, 803 (Pa. Super. 1987). It is also evident that the mother utilized the legal process as a sword instead of a shield in terms of keeping natural father at bay from his child and ultimately trying to remove him from her personal dealings. Regardless of her actions, natural fder in this termination matter. As the Superior Court held in In re Adoption of Godzak, parental rights will not b with his or In re Adoption of Godzak, 719 A.2d 365, 368 (Pa. Super. 1998). Therefore, the court finds that the petitioner has established the natural father meets the statutory requirements set forth in Section 2511(a)(1) as natural father failed to perform parental duties for at least six months prior to the filing of the petition. ed inquiry into whether termination is in the best interests of the child as specified by 23 Pa.C.S. § 2511(b). A major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child, with close attention paid to the effect on the child of permanently severing any such bond. In re T.L.C., 199 A.3d 1270, 1277 (Pa. Super. 2018). Even where it is established that a parent has failed to perform parental duties for a period in excess of six months, such a finding does not, in and of itself, support an order terminating parental rights. In re Involuntary Termination of Parental Rights of Geraldine Mae Santelia to Anthony Dino Pellegrino, 465 A.2d 21 (Pa. Super. 1983). Rather, the trial court must examine the individual circumstances and any explanation offered by the parent to determine if that evidence, in light of the totality of the circumstances, clearly warrants permitting the involuntary termination of said parent's parental rights.In re T.L.G., 505 A.2d 628, 62930 (Pa. Super. 1986). In In re T.L.G., natural mother was seeking to rights. Natural father had no contact with the children for two years prior to the termination petition other than occasional gifts and attempted phone calls. Mother would not allow the phone calls. The Superior Court held that natural father was prevented from being a parent rather than choosing not to be one. While the court has found here the natural father failed to perform his parental duties for a period of six months prior to March 29, 2022, the record is insufficient to establish that it is in the best interest of L.A.R. for his natural f rights to be terminated. Pennsylvania appellate courts have stated that the emotional needs and ve, comfort, security, and stability. In re K.M., 53 A.3d 781 (Pa. Super. 2012). When making a Section 2511(b) determination, the focus should be on the child, not the parent. In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Supeher, r. 2008) (en banc). L.A.R. is merely two years old. While the testimony from mother and stepfather demonstrated a positive connection between L.A.R. and stepfather, stepfather has only been living with L.A.R. for about a year. There is no way to evaluate L.A.R.s feelings about permanently severing the legal relationship between him and his natural father. Counsel appointed to represent the child met with mother and stepfather both together and separately as well as meeting the child. She explained that given his young age there is no way to separate his legal interests from his best interests. She acknowledged that there was a bond between stepfather and child, but it was unclear whether there was a bond between natural father and child from the preexisting relationship they had when he was younger. In addition, she did not uncover any information which would indicate the child would be traumatized if natural father would be reintroduced into his life. The question she posed was whether J.A.R. grew up with two father figures who love him or only one. There was nothing in the record to show termination of parental rights would further J.A.R.s best interests, emotional, social and physical well-being. Clearly, it would uncomplicate mothers life. However, without a clear connection between termination and some type of positive effect on J.A.R., the court is unable to find that termination serves the best interest of the child. Therefore, the Petition for Involuntary Termination of Parental Rights is DENIED. CONCLUSION 2 This court finds that while petitioners have presented sufficient evidence to establish grounds for termination of parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), petitioners have not met their burden to establish the severing of natural f emotional, and physical needs. Accordingly, the court will enter the following decree. 2 This decision should serve as a wake-up call for natural father. Natural father cannot come in and out of his childs life only fulfilling parental duties some of the time and expect his parental rights will forever be preserved. Natural father should recognize termination was not granted because the court did not find termination to be in the best interest of the child. This is not a static finding and should petitioners subsequently petition the court and offer necessary best interest evidence, the outcome could result in termination of parental rights. FINAL DECREE th AND NOW, this 30day of August, 2022, upon consideration of PetitionersInvoluntary Termination of Parental Rights Petition and following a hearing, for the reasons stated above, it is hereby ORDERED that the Petition is DENIED. BY THE COURT: _______________ CarrieE. Hyams, Judge Mark F. Bayley, Esquire Austin F. Grogan, Esquire Amy Owen, Esquire