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HomeMy WebLinkAbout2007-24 Adoption (2) IN RE: : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA ADOPTION OF : : ORPHANS’ COURT DIVISION I.M.L. : 24 ADOPTION 2007 AND : E.D.L. : 24A ADOPTION 2007 IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Ebert, J., November 27, 2007 - Appellant father, Ronald Oland Lynn Lovings, Jr., has filed an appeal to the Superior Court of Pennsylvania following an order terminating his parental rights. Appellant’s bases of appeal are as follows: 1.)The trial Court abused its discretion in terminating the parental rights of the natural Father based on the evidence educed at trial. 2.)The trial Court made errors of law in failing to hold the natural Mother to her burden of proof. 3.)The Court’s findings in support of its Order terminating the parental rights of the natural Father are not supported by competent evidence. 4.)The Court erred in failing to consider the actions or omissions of the natural Mother in obstructing the natural Father’s rights of his children, in not encouraging the children to speak with or spend time with their Father, and in planning to terminate his parental rights after so obstructing his access to the children. 5.)The Court erred in finding that it was in the best interest of the children that the parental rights of the Father be terminated. This Court previously filed a 14 page opinion on September 12, 2007, which deals with the legal issues presented in this case at length. This opinion is filed pursuant to Pa.R.A.P. 1925(a) to supplement the prior opinion and more specifically address those issues raised in the Plaintiff’s Statement of Matters Complained of. STATEMENT OF FACTS A detailed explanation of the facts of this case can be found in the primary opinion filed of record on September 12, 2007. DISCUSSION I.This Court Did Not Err in Holding the Natural Mother to Her Burden of Proof As was made clear in our primary opinion of this case, under 23 Pa.C.S. §2511 (a)(1) a parent’s rights in regard to his or her children may be terminated after it is established that the parent has refused or failed to perform his or her parental duties for the statutory period of six months without good cause. Appellee mother, Melanie Wilkinson, has met her burden of proof in establishing that Lovings has failed to perform his parental duties for more than six months. Parental duties extend beyond a mere financial obligation, and require the parent to demonstrate a continuing interest in the child and a genuine effort to maintain communication and association with the child. In re: Burns, 379 A.2d 535 (Pa. 1977). Lovings has not met his financial obligations to his children; he is $14,000 in arrears on support payments with the last support payment being made in 2004. While his children have had much physical visitation with his parents over the past two years, including a June 2007 visit to his parents’ Texas home which is located one hour away from him, he has not had any physical visitation with his children since August 2005. Furthermore, his last communication with them involved a phone conversation in March 2006. He has not maintained e-mail or written correspondence with the children, and he has not attempted to make any contact with them since June 2006. This evidence supports the fact that his last contact with the children was more than six months ago. In demonstrating that Lovings has not met his financial obligations 2 or three years, had physical visitation with the children in the past two years, or maintained any form of communication with the children within the last year, Wilkinson has met her burden of proof in establishing that Lovings has failed to perform his parental duties for more than the six month statutory period. With the substantial amount of supporting evidence in favor of Wilkinson’s argument, this Court determined that she had met her burden of proof. Therefore, this Court must reject Appellant’s argument that there was error in holding the natural Mother to her burden of proof. II.This Court Did Not Abuse its Discretion in Terminating the Parental Rights of the Natural Father, as its Finding is Based on the Best Interest of the Children and its Order is Supported by Competent Evidence Once Wilkinson met her burden of establishing that Lovings had failed to perform his parental rights for the six month statutory period provided by 23 Pa.C.S. §2511(a), this Court properly considered the best interest of the children in entering an Order terminating the parental rights of the natural father. In determining whether such a decision would be in the best interest of the children, this Court carefully considered Lovings’ explanation of his conduct, any post- abandonment conduct by him, and the effect on the children of entering an Order terminating the parental rights of the natural father. Adoption of Charles E.D.M., II, 708 A.2d 88 (Pa. 1998). The facts of record demonstrate that Lovings has displayed a continuing pattern of absence from his children’s lives for over two years. His explanations for not enforcing the physical visitation requirements seem to be consistent with one who does not accept his parental duties unless it is convenient for him in terms of financial circumstances and personal schedule. For example, in terms of financial support, Lovings alleges that he sent a support payment in September 2006, but eventually stopped payment on the check because “it was messing up my balance in my account - - I needed money for a truck repair.” He also has not visited his children 3 r provided transportation costs for his children to visit him, but he maintains that when the Wilkinsons were still living in Maryland that he was saving money to travel there to hire an attorney to enforce his parental rights. Lovings last attempted to call his children in June 2006; it was not until after abandonment, at the end of the hearings that Lovings indicated any interest in calling them again. “Parental rights may not be preserved by complete indifference to the daily needs of a child or by merely waiting for some more suitable financial circumstance or convenient time for the performance of parental duties and responsibilities (while others adequately provide the child with [his] immediate and continuing physical and emotional needs).” In re: Adoption of Smith, 194 A.2d 919, 922 (Pa. 1963). Since Wilkinson remarried five years ago, the children have been living with her, her husband and his children as a stable, family unit. The Wilkinsons make the important daily decisions in the children’s lives, and all of the family members refer to each other as parents, children, and siblings, without using the word “step.” The Wilkinsons have been adequately providing for the children in Lovings’ absence. In light of the facts of record that support that the Wilkinsons provide a stable family environment for the children and that Lovings has not performed his parental duties for beyond the statutory six month period, we found that it was in the children’s best interest to terminate Lovings’ parental rights in order to pave the way for the children’s adoption by Wilkinson’s husband, James J. Wilkinson, Sr. Furthermore, because the decision to terminate was supported by substantial evidence, this Court did not abuse its discretion in terminating the parental rights of Lovings. III.This Court Did Not Err by Finding that the Natural Mother did not Obstruct the Natural Father’s Parental Rights Through any Alleged Acts or Omissions In determining whether the termination of parental rights is supported by competent evidence, the court must consider whether the circumstances support a finding that the appellant 4 as failed to perform his parental duties. When the non-custodial parent asserts that the lack of significant contacts has resulted from the custodial parent’s deliberate actions to thwart such communications, the court must determine whether the record contained clear and convincing, competent evidence of the non-custodial parent’s failure to utilize available resources to persist in attempting to overcome impediments to the development of a parent-child relationship. In re: Adoption of Hutchins, IV, 473 A.2d 1089 (Pa. Super. 1984). It follows that in order to maintain his or her parental rights, “a parent may not acquiesce in obstructive behavior by…the custodial parent. He or she must exhibit “reasonable firmness” in refusing to yield to such obstacles.” In re: Adoption of J.S.H., 445 A.2d 162, 168 (Pa. Super. 1982) (Beck, J., concurring). Although Lovings has lived in Texas since the divorce and the Wilkinsons have moved several times since 2002, he was able to comply with his duties of partial custody pursuant to the parenting plan from 2002 until Christmas 2004. In addition to physical visitation, he had kept regular contact by telephone and by sending cards on birthdays and holidays during that time period. Lovings was able to perform his parental duties during this time period with minimal effort, despite the distance between his and the Wilkinsons’ residence. For the past year, the Wilkinsons have maintained their residence in Shippensburg, Pennsylvania. Lovings’ mother visited with the children in March 2006, and the children visited his parents in Texas in June 2007. While he may have legitimately lacked the funds to visit his children in Christmas 2004, for most of the time period since the divorce decree was entered, Lovings has been gainfully employed, with his tax earnings ranging from approximately $23,000 to $33,000 per year. Lovings has had knowledge of his children’s location, he could have used his parents as a means of communicating with his children, and he had the financial means to arrange for physical visitation. However, he has made no attempt in the past two years to enforce the physical 5 isitation provisions of the parenting plan, nor has he proactively made any attempt during that time period to modify the plan through court order. Lovings maintains that he was asked to stay away from his parents’ home during the children’s recent visit; however, Lovings admits that he did not attempt to call or visit the children at his parents’ home. Furthermore, he did not talk with Wilkinson, with whom he also has not spoken since June 2006, to try to set up a visit or telephone call with the children. This recent example of his unwillingness to maintain his parental duties is consistent with the attitude that he admitted he had after his last attempt at calling the children after June 2006: when he “sort of gave up.” Lovings’ parents have maintained a healthy relationship with the children despite Lovings’ failure to perform his parental duties. The record does not support Lovings’ argument that Wilkinson’s actions obstructed his parental rights. However, even if they were to be construed as such, Lovings has not exhibited “reasonable firmness” in refusing to yield to the supposed obstacles. He has not had physical visitation or maintained written communication with his children for over two years, and he has not spoken with them on the phone for over one year. Furthermore, he has failed to utilize any available resources in attempting to overcome any impediments to the further development of a parent-child relationship over the past two years. He has not spoken with Wilkinson since June 2006, he has not attempted to modify the parenting plan, and even though his parents have maintained a healthy relationship with the children, he has not actively reached out to the children through them. If truth be told, it is Lovings’ parents who are most interested in maintaining their relationship with these children. Lovings’ father had a power of attorney to handle Lovings’ financial affairs even though he is now 30 years old. Lovings’ father came from Texas to testify at the hearing, and paid for Lovings’ attorney. 6 ONCLUSION This Court did not abuse its discretion in its consideration of the evidence presented in this case, in its deductions and inferences based upon that evidence, nor in its application of the law to the facts. In light of all the evidence, Ronald Oland Lynn Lovings, Jr. has not persuaded this Court that it is in the best interest of the children to maintain his parental rights. Accordingly, we granted Melanie Wilkinson’s petition for Involuntary Termination of Parental Rights and awarded her the full custody of her two children. 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 7