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HomeMy WebLinkAbout1995-6570 Civil W. PAUL IRVIN, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : : V. : : DAVID BRIAN POWELL, : DEFENDANT : 95-6570 CIVIL TERM IN RE: CUSTODY OPINION AND ORDER OF COURT Bayley, J., March 10, 2006:-- An order entered on May 29, 1997, supported by a written opinion, awarding physical and legal custody of Aaron B. Powell, born April 25, 1988, to his maternal grandmother, Kay F. Hoover. Aaron had lived with his mother at her Camp Hill, Cumberland County home, until the mother’s death on October 25, 1995. The grandmother stayed with them in that home from the beginning of 1995. Following the mother’s death, Aaron lived with his grandmother in her home in Mechanicsburg, Cumberland County, until she died on August 12, 2005. Since that date, he has lived in the home of W. Paul Irvin and his wife Regina Irvin, in Red Lion, York County, Pennsylvania. W. Paul Irvin, the son of Kay Hoover, is Aaron’s uncle. An order was entered on August 22, 2005, on a petition for special relief by W. Paul Irvin, granting him temporary physical and legal custody of Aaron. Irvin filed a complaint seeking custody of Aaron. The father, David Powell, who lives in Philipsburg, Centre County, filed an answer with new matter, claiming that he is able to provide for Aaron’s care. He sought full legal and physical custody, maintaining that he has an immediate right to such custody without further proceedings. A hearing on the 95-6570 CIVIL TERM March 2, 2006 merits was conducted on . The father, who had notice of the hearing, did not appear. The history of Aaron’s custody was set forth in the opinion filed in support of the custody order of May 29, 1997: A hearing on the merits of this custody case involving Aaron B. Powell, age 9, born April 25, 1988, was conducted on May 8 and 9, 1997. Evidence was also taken on the standing of plaintiff to seek physical and legal custody of Aaron, which defendant challenges. Plaintiff Kay F. Hoover, age 54, is the maternal grandmother of Aaron. Defendant David Powell, age 35, is Aaron's father. He and Aaron's mother, Elizabeth Powell, were married on August 13, 1987. They were divorced on July 28, 1994. The mother was diagnosed with diabetes at age six, and she died of long-term complications from that disease on October 25, 1995. The maternal grandmother filed this complaint for custody on November 17, 1995. . . . August 13, 1987, When they married on the father and mother lived with Kay Hoover in Camp Hill, Cumberland County. During that April 25, 1988June, 1988, period Aaron was born on . In the mother, father and Aaron moved into the home of the paternal grandfather, Ronald Powell, in West Decatur, Clearfield County, Pennsylvania. In July, 1988, the mother, father and Aaron moved to a suburb of Los December, 1989, Angeles, California. In when Aaron was a little over nineteen months old, the father was arrested in California and extradited to Pennsylvania on a warrant charging him with violation of his parole in Pennsylvania. The father had been sentenced to a state correctional institution in Pennsylvania for not less than two years six months to five years as a result of being convicted of eight burglaries and two thefts in January, 1990, 1981. In the mother and Aaron returned to Pennsylvania and lived with her brother in Lebanon County. June, 1990, In the mother and Aaron moved from her brother's home in Lebanon to an apartment in Mt. Holly Springs, Cumberland June, 1991, County. In after the father had been released from the State Correctional Institution at Rockview, the mother and Aaron moved into his 5 home in West Decatur, Pennsylvania. While there, Aaron was examined by a psychologist at a pre-school who referred him to The Meadows in 5 This was not the home in which the paternal grandfather lives in -2- 95-6570 CIVIL TERM West Decatur where Aaron had lived for one month in 1988. -3- 95-6570 CIVIL TERM State College. At The Meadows Aaron was diagnosed with Attention Deficit Disorder (ADD). September, 1991, In the father accused the mother of abusing Aaron. He took Aaron away from her for a short time. Aaron was then placed in protective foster care for a few weeks. He was released to his September 19, 1991, mother on with his care to be monitored by the Clearfield County Youth Service Agency. The Agency then determined that the father's allegations were unfounded. October, 1991, In the father was arrested in Clearfield County on a charge of solicitation to commit homicide of the mother, Elizabeth Powell. early 1992 He was convicted of that offense and related offenses. In , the mother moved to Philipsburg, Centre County. The father again accused the mother of abusing Aaron and the matter was referred to the Centre March 20, 1992, County Child Protective Service Agency. On the President Judge of Centre County entered an order determining that the accusations were without foundation. September 22, 1992, On in a custody proceeding in Clearfield County, the mother was awarded legal and physical custody of Aaron pursuant to the following order: [t]he Court having heard evidence on the merits of the matter of custody of Aaron Powell, born April 25, 1988, concludes that the best interest of Aaron Powell lie with his care and custody being in the hands of his mother, his father is unable to exercise any rights which might be afforded to him of the child in view of the fact that he has been incarcerated since sometime in October 1991, and is the currently in the Clearfield County Prison. Therefore, Court awards the custody of Aaron Powell to his mother, Elizabeth A. Powell, both legal and physical, and directs that David Powell refrain from any contact with Elizabeth Powell or Aaron Powell until further Order of this Court. The Court also takes judicial notice of the fact that David Powell has filed a myriad of frivolous proceedings in both the Civil and Criminal Courts of Clearfield County and Centre County, and is attempting to thwart any Court proceedings. (Emphasis added.) Subsequently, the paternal grandfather, Ronald Lee Powell, filed a May 4, complaint in Centre County seeking visitation with Aaron. On 1993, the President Judge of Centre County denied the request in the following order: -4- 95-6570 CIVIL TERM [i]t is ORDERED that Ronald Lee Powell is not, at this time, being granted visitations or periods of custody with his grandson Aaron B. Powell (born April 25, 1988), the son of Plaintiff's son, David B. Powell and Elizabeth A. Powell. The evidence in this case clearly demonstrates that neither visitation or custody would be in the best interest of the said Aaron B. Powell. There was testimony from the child's mother that Aaron has reacted negatively to approaches made by Plaintiff to Aaron during recent months. Further, Patrick J. Kutches, of PACCT, an agency of Counseling Service, Inc., who is a counselor for Aaron B. Powell, testified that said child is fearful of Plaintiff because of past incidents and fearful that Plaintiff will 'take me away.' It is clear to the Court that Aaron B. Powell needs to have his emotional well-being stabilized before visitations, even supervised short visitations, are considered. (Emphasis added.) June, 1993, In the mother and Aaron moved from Philipsburg into an apartment at 45 Winchester Gardens in Carlisle, Cumberland County. October 25, 1995, When the mother died on she and Aaron were still living in that apartment. Except for twelve days in November, 1996, Aaron's father has been continuously in prison since October, 1991. From the uncertified documents presented in this case it is difficult to determine his exact status. After serving back time on prior convictions, the father believes that the aggregate of his most recent convictions in Clearfield County total not less than eight and one-half years or more than seventeen years commencing on September 5, 1993. One of the aggregate sentences of not less than one year or more than two years on a count of simple assault at 91-848, Clearfield County, was nolle prossed on October 23, 1996, following a discharge order entered on a writ of habeas corpus in the United States District Court for the Western District of Pennsylvania at Civil Action No. 95-43J. That discharge order also resulted in the father being released from prison on November 8, 1996, on his conviction for solicitation to commit homicide because the Clearfield County Court had not allowed the father to file a nunc pro tunc appeal from the denial of his state habeas corpus petition. It appears, however, that the District Court did not reverse the father's conviction for attempted criminal homicide since, pursuant to an order of the President Judge of Clearfield County, he was reincarcerated in the State Correctional Institution at Rockview on November 19, 1996 to continue his sentence on that conviction. -5- 95-6570 CIVIL TERM Accordingly, it appears that defendant's minimum aggregated sentence will be completed at the earliest in September, 1998, and possibly as late as March, 2000, subject to further proceedings in his criminal appeals. (Footnotes 1 through 4 omitted.) Because the father was in prison, the dispute was treated as a contest between the paternal grandfather and the maternal grandmother. We concluded: Given (1) Aaron's need of a structured environment with continuing professional care of the type now being provided, (2) the needed care that is being closely monitored by professionals at the Stevens Center, (3) the progress Aaron is making under that care, (4) the strong bond of love forged between Aaron and his grandmother well before his mother died, (5) the strong family relationship Aaron has with his maternal uncles and his niece, Nicole, (6) the superb care being provided to Aaron by his grandmother, and (7) the credible evidence that any change in Aaron's current environment would result in his regression, we conclude it is in Aaron's best interest to award physical and legal custody to Kay Hoover. The more difficult question is what if any contact with Aaron should be allowed with his paternal grandfather and father. Aaron has not seen either one since 1991. He is still very young and emotionally immature. His best interests do not warrant injecting someone he does not know into his life at this time, especially given the background in this case. Ronald Powell's efforts are inevitably linked to what Aaron's father wants. We will not change the order of the Court of Common Pleas of Centre County of May 4, 1993, that denied him visitation. It clearly would not be in the best interest of Aaron to visit his father See Etter v. Rose, in prison. Pa. Super. , 684 A.2d 1092 (1996). We do not believe, however, that the father should be prohibited from sending a reasonable number of cards or letters to his son. As Aaron matures he will need to have an understanding of his father. Whether that understanding is for better or worse will in large part depend on whether his father puts Aaron's best interest above his own interests. Any communication by the father to Aaron that would even hint of his desire to ever remove Aaron from his grandmother, or disparage the grandmother or Aaron's deceased mother, would be highly inappropriate and absolutely not in the best interest of Aaron. Accordingly, we will allow the father to communicate with Aaron by sending him cards or letters not to exceed one communication every two weeks. Kay Hoover may read such correspondence prior to giving it to Aaron. If she feels that such correspondence violates these parameters, she shall return the -6- 95-6570 CIVIL TERM correspondence to the father with a written explanation of why she did not -7- 95-6570 CIVIL TERM give it to Aaron. If Aaron wishes to communicate with his father, Kay Hoover shall provide him the means. Kay Hoover shall not disparage the father before Aaron. At the current hearing on March 2, 2006, W. Paul Irvin testified that he understood that Aaron father’s was released from prison in September 2003. He knew of no contact the father ever made with Aaron after the release. He understood that after the custody order was entered on May 29, 1997, which provided the father a limited means of corresponding with Aaron, there were only a few letters sent to him. When we talked to Aaron in chambers, he confirmed having received those few letters. He has not received anything in the past couple of years. He has no memory of his father. He wants to live with the Irvins now, and eventually get his own place. The Irvins have been married for nineteen years. They live with their sixteen- April 25, 2006 year-old daughter, and now Aaron, who will be eighteen years old on . Since mid-1997, the Irvins visited the Hoover home and saw Aaron about every other week, and Aaron and his grandmother visited them in their Red Lion home every four to six weeks. When Kay Hoover died, the Irvins did not know where Aaron’s father was living. They talked with Aaron, and he agreed to live with them. Aaron had been attending high school in Mechanicsburg, and is now in the eleventh grade in a high school in York County. He had a psychological evaluation on November 11, 2005. His diagnosis is attention deficit hyperactivity disorder, combined type, oppositional defiance disorder, and learning disorder, not otherwise specified. He had an individual education plan at Mechanicsburg High School that was transferred to his new school, -8- 95-6570 CIVIL TERM where he is doing well. The Irvins had all of Aaron’s special needs services transferred to their area. There is a counseling service that manages those services which include mobile counseling up to eight hours a month, and therapeutic support services in the home of five hours a week to help Aaron gain independent skills. Aaron has a driver’s license and a part-time job. Part of his support counseling is teaching him to cook so he can become independent. He now obtains the ingredients and prepares one meal a week for the entire family in the Irvins’ home. His immediate goals are to graduate from high school and work for a landscaping business. The Uniform Child Custody Jurisdiction and Enforcement Act, 23 Pa.C.S. et seq., Section 5401, is applicable under Section 5471 to intrastate cases “(b)etween and among the courts of common pleas of this commonwealth.” This court has continuing jurisdiction to hear this case under Section 5422(a)(1), because Aaron lived in Cumberland County from June, 1993, until the death of his grandmother on August 12, 2005. The emergency order was entered ten days later. There is substantial evidence available in this county concerning Aaron’s care, protection, training and personal relationships. Aaron’s father has been out of prison since September, 2003. He has never contacted his son during that period, nor provided him with any type of support. He has abandoned him, choosing not to even attend the custody hearing. On the unique facts of this case, W. Paul Irvin’s frequent, regular and continuing involvement with Aaron since the death of his mother on October 25, 1995, gives him standing to seek legal -9- 95-6570 CIVIL TERM McDonel v. Sohn, and physical custody. See 762 A.2d 1101 (Pa. Super. 2000). Furthermore, Aaron reaches his majority on April 25, 2006. The Irvins have stepped into the void with heartfelt, caring and a loving response to Aaron’s needs. Convincing reasons appear that Aaron’s best interest will be served by awarding W. Paul Irvin McDonel v. Sohn, supra. legal and physical custody. See ORDER OF COURT AND NOW, this day of March, 2006, legal and physical custody of Aaron B. Powell, born April 25, 1988, is awarded to W. Paul Irvin. By the Court, Edgar B. Bayley, J. Stacy Wolf, Esquire For Plaintiff David B. Powell, Pro se 115 E. Maple Street P.O. Box 423 Philipsburg, PA 16866 :sal -10- W. PAUL IRVIN, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : : V. : : DAVID BRIAN POWELL, : DEFENDANT : 95-6570 CIVIL TERM IN RE: CUSTODY ORDER OF COURT AND NOW, this day of March, 2006, legal and physical custody of Aaron B. Powell, born April 25, 1988, is awarded to W. Paul Irvin. By the Court, Edgar B. Bayley, J. Stacy Wolf, Esquire For Plaintiff David B. Powell, Pro se 115 E. Maple Street P.O. Box 423 Philipsburg, PA 16866 :sal