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HomeMy WebLinkAbout2005-117 Adoption IN RE: ADOPTION OF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION DESIRA Y ANN WELCH NO. 05-117 ADOPTIONS IN RE: PETITION FOR INVOLUNTARY TERMINATION OF PARENTAL RIGHTS BEFORE OLER, J. OPINION and FINAL DECREE OLER, 1., April 25, 2006. In this involuntary termination of parental rights case, the natural mother and stepfather of a thirteen-year-old child have filed a petition requesting the involuntary termination of parental rights of the child's father, 1 with a view toward adoption of the child by the stepfather. 2 A hearing was held on the matter on April 10, 2006. At the hearing, Petitioners appeared with their counsel, the Family Law Clinic, the natural father appeared with his counsel, Keith O. Brenneman, Esq., and the child was represented by court-appointed counsel in the person of Michael M. Jerominski, Esq. F or the reasons stated in this opinion, the petition will be granted. FINDINGS OF FACT 1. Petitioners are Neal Allen Sorensen, II, and Penny Lee Sorensen, husband and wife. 2. The subject of this proceeding is Desiray Ann Welch, born November 19, 1992 (hereinafter the child), to Petitioner Penny Lee Sorensen (hereinafter the mother) and Respondent Joseph A. Abady (hereinafter the father). 1 Petition for Involuntary T ennination of Parental Rights under Section 2512 of the Adoption Act, Title 23 Pa. C.S., filed November 2,2005. The stepfather does not have standing with respect to this petition. In re: Adoption of JF, 392 Pa. Super. 39, 43-44, 572 A.2d 223, 225 (1990). However, this defect in the petition does not render it ineffective where the natural mother is also a petitioner. Id. 2 See Petition for Adoption under Section 2701 of the Adoptions Act, 23 Pa. C.S., filed November 17,2005. 3. The mother and father were married, subsequent to the child's birth, on July 3, 1996, and divorced on June 19,2002. 4. Since January 2004, the child has lived with the mother and Petitioner Neal Allen Sorensen, II (hereinafter the stepfather). 5. The mother and stepfather were married on January 21,2004. 6. The mother, stepfather and child reside at 65 Gasoline Alley, Carlisle, Pennsylvania; the father resides at 6315 Locust Lane, Mechanicsburg, Pennsylvania. 7. The petition for involuntary termination sub judice was filed on November 2,2005. 8. The father pays support for the child pursuant to a court order entered in 1999 in the present amount of $110.00 every two weeks, and is current in his support obligation. 9. Since a custody mediation process in September 2004, and prior thereto, the father has known the address of the child. 10. Following the custody mediation process, the father attempted to arrange for temporary physical custody of the child by calling a telephone number of the stepfather which had been provided to him for that purpose, but he did not pursue the subject further when he found that the number was no longer operable. 11. Since the custody mediation process, the father has not had any contact with the child except for a birthday card which he delivered through a third party to the child; this card was sent after the petition sub judice was filed, but before the father received notice of it, in November of 2005. 12. Since the aforesaid custody mediation process, the father has not exercised reasonable firmness in pursuing a parental relationship with the child. 13. A strong family relationship has developed among the mother, the stepfather and the child; the stepfather wishes to adopt the child; and the child wishes to be adopted by the stepfather. 2 14. The father has, by conduct for a period continuing for at least six months preceding the filing of the petition, failed to perform parental duties with respect to the child. 15. The best interest of the child will be served by the termination of the father's parental rights and the child's adoption by the stepfather. 16. The foregoing Findings of Fact are made on the basis of clear and convincing evidence. DISCUSSION Statement of Law In a proceeding to involuntarily terminate the parental rights of one or both parents, the burden is on the moving party to show, by clear and convincing evidence, the substantive elements for the termination of parental rights. In re Adoption of Atencio, 539 Pa. 161, 166, 650 A.2d 1064, 1066 (1994); see Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed.2d 599 (1982). The "clear and convincing" standard requires "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." Atencio, 539 Pa. at 166, 650 A.2d at 1066. In cases involving the proposed involuntary termination of parental rights, it is the province of the trial court, as the trier of fact, to resolve issues of credibility of witnesses and conflicts in the evidence, and, in this capacity, the trial court "is free to believe all, part, or none of the evidence presented." In re K. C. W., 456 Pa. Super. 1, 9, 689 A.2d 294, 298 (1997); see also Atencio, 539 Pa. at 166, 650 A.2d at 1066. Section 2511 of Title 23 of the Pennsylvania Consolidated Statutes, which establishes the substantive standards governing petitions for involuntary termination of parental rights, provides, in pertinent part, as follows: ( 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: 3 (1) The 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. (b) Other considerations.-- The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent. With respect to any petition filed pursuant to subsection (a)(1), (6) or (8), the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition. Act of Oct. 15, 1980, P.L. 934, as amended, 23 Pa. c.s. 9 2511 (2002). These provisions contemplate a "bifurcated process" in which the court determines, first, whether the parent has exhibited either a "a settled purpose of relinquishing parental claim to [the] child" or a consistent refusal or failure "to perform parental duties" and, second, whether the termination of parental rights would be in the best interest of the "developmental, physical and emotional needs and welfare of the child.,,3 In re B.L.L., 2001 Pa. Super. 341, ,-r24, 787 A.2d 1007, 1013-14. In this 3 In In re Adoption of Atencio, 539 Pa. 161, 650 A.2d 1064 (1994), the Supreme Court of Pennsylvania stated that, in acting on a petition for involuntary termination under section 2511(a)(1) of Title 23, the trial court must consider three factors: [First, w]here the evidence clearly establishes that the parent has failed to perform parental duties or has evidenced a settled purpose of relinquishing parental claim to the child for a period in excess of six months, the individual circumstances and any explanations offered by the parent must be examined to determine if that evidence, in light of the totality of the circumstances, clearly warrants the involuntary termination of parental rights. [Second], the court must consider the post- abandonment contact between the parent and child. [Third], we have held that ~ 2511(b) of [Title 23] requires the court to look to the effect of termination on the needs and welfare of the child involved. 4 inquiry, the court's focus is initially on the conduct of the parent, and, if the parent's behavior suggests that termination of parental rights may be justified, the court's focus shifts to the welfare and needs of the child. See, e.g., id With respect to the claim that a parent has "failed to perform parental duties," the party seeking termination must establish that, for at least the preceding six-month period, the parent has consistently and repeatedly neglected his or her duty to promote the "physical and emotional" development of the child. In re Q.JR., 444 Pa. Super. 460, 463, 664 A.2d 164, 165 (1995) (quoting In re Burns, 474 Pa. 615, 379 A.2d 535 (1977)). This duty requires the parent to "exert a sincere and genuine effort to maintain a parent-child relationship[,] . . . [to] use all available resources to preserve the parental relationship[, and to] exercise 'reasonable finnness' in resisting obstacles placed in the path of maintaining the parent-child relationship." Id at 463-64,664 A.2d at 165-66 (quoting In re JL.z., 492 Pa. 7, 421 A.2d 1064 (1980)). In this context, a "good-faith effort" requires Id. at 166-67, 650 A.2d at 1066-67. However, subsequent to the filing of the petition in Atencio, the Pennsylvania General Assembly amended section 2511 of Title 23 to provide that, with respect to actions commenced on the basis of subsection (a)(1), the focus of the court should be on the six-month period "immediately preceding the filing of the petition," rather than any six- month period in the child's life. See Act of May 21, 1992, P.L. 228, 1992 Pa. Laws 34 (amending 23 Pa. C.S. ~2511) (emphasis added); cf In re E.S.M, 424 Pa. Super. 296, 304-05, 622 A.2d 388, 393 (1993) (examining six-month period that occurred one year before the filing of the petition). The amended provision, when interpreted in light of the mandate of subsection (b) that, "[w]ith respect to any petition filed pursuant to subsection (a)(1) . . ., the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition[,]" requires the court to forgo any consideration of post-abandonment contact between the child and their parent, since any such contact would, under the relevant period of abandonment defined in subsection (a) (1 ), necessarily occur after the filing of the petition. See 23 Pa. C.S. ~2511 (defining relevant period as, "at least[, the] six months immediately preceding the filing of the petition"). Accordingly, the second stage of analysis, as enunciated by the Pennsylvania Supreme Court in Atencio, has been statutorily eliminated. See In re B.L.L., 2001 PA Super. 341, ~24, 787 A.2d 1007, 1013-14. But see In re JJF, 729 A.2d 79, 82 n.5 (Pa. Super. Ct. 1999) (dicta) (stating that "full compliance" with section 2511 of Title 23 requires the moving party to satisfy the aforementioned three factors and citing, for the proposition, Atencio); but see also In re D.JS., 1999 PA Super. 214, ~7, 737 A.2d 283, 286 (citing In re Hamilton, 379 Pa. Super. 274,282, 549 A.2d 1291, 1295 (1988), decided prior to the amendment of section 2511 of Title 23, for support of proposition that courts should consider post-abandonment contact). 5 that the parent do more than meet court-ordered child support obligations and send intermittent letters and gifts to the child; it requires that the parent exhibit "a serious intent. .. to [cultivate] a parent-child relationship and. . . a willingness and capacity to undertake the parental role." In re D.JS., 1999 PA Super. 214 at ,-r7, 737 A.2d 283,286 (quoting In re Hamilton, 379 Pa. Super. 274, 282, 549 A.2d 1291, 1295 (1988)); see In re Adoption of Ys., 487 Pa. 99, 105, 408 A.2d 1373, 1376 (1979), quoted with approval in In re Adoption of Baby Boy J., 354 Pa. Super. 575, 581, 512 A.2d 689,692 (1986). A failure to make a good-faith effort to preserve a connection with the child will not be excused, even by evidence that the parent was incarcerated, relied on erroneous advice from an attorney, misinterpreted his or her rights with respect to the child, or encountered other difficulties in contacting the child. See In re Adoption of ys., 487 Pa. at 105, 408 A.2d at 1376; In re C.S., 2000 P A Super. 318 at ,-r16, 761 A.2d 1197, 1202; In re D.JS. 1999 PA Super. at ~11, 737 A.2d at 286-87; In re Adoption of Baby Boy J., 354 Pa. Super. at 581,512 A.2d at 692. If, under the first prong of the analysis, the parent's behavior suggests that termination of parental rights may be justified, the court should next consider whether the termination of parental rights would be in the best interests of the child. In re B.L.L., 2001 PA Super. at ,-r24, 787 A.2d at 1013-14. "[I]t is imperative that a trial court carefully consider the intangible dimension of the needs and welfare of a child -- the love, comfort, security, and closeness -- entailed in a parent-child relationship, as well as the tangible dimension." In re C.S., 2000 P A Super. at ,-r18, 761 A.2d at 1202 (quoting In re Matsock, 416 Pa. Super. 520, 540, 611 A.2d 737, 747 (1992); see In re D.JS., 1999 PA Super. at ,-r12, 737 A.2d at 287. In essence, this requires the court to determine whether termination of the existing relationship "would destroy something . . . that is necessary and beneficiaL" In re C.S., 2000 PA Super. at ,-r18, 761 A.2d at 1202 (quoting In re Bowman, 436 Pa. Super. 10, 14, 647 A.2d 217,219 (1994). Evidence that the child does not know or recognize the parent as part of the child's family suggests that 6 the child would not be harmed by the severance and militates in favor of termination of parental rights. In re D.JS., 1999 P A Super. at ,-r13, 737 A.2d at 287. Although a primary factor in this determination is the bilateral relationship between the parent and the child, the court should also consider the child's relationship with other parties and whether the environment of a proposed adoptive family would contribute to the child's well-being and development. See In re c.s., 2000 P A Super. at ,-r19, 761 A.2d at 1203. Application of Law to Facts In the present case, the father's conduct has been exemplary in terms of meeting his obligation to provide financial support for the child. However, a parental relationship exists in name only between him and the child, and any efforts on his part during the pertinent period to change the situation do not appear to the court to have been firm enough to conclude that he has not failed to perform parental duties within the meaning of the statute quoted above. In addition, it seems clear that the best interest of the child, who understandably wants to have a viable father/daughter relationship, will be served by a termination of the father's parental rights and her adoption by her stepfather. For the foregoing reasons, the following Final Decree will be entered: FINAL DECREE AND NOW, this 25th day of April, 2006, upon consideration of the petition for involuntary termination of parental rights in the above-captioned case, following a hearing held on April 10, 2006, and for the reasons stated in the accompanying opinion, the petition is granted and the parental rights of Joseph A. Abady with respect to his daughter, Desiray Ann Welch, are hereby terminated forever. Respondent is hereby advised of his continuing right to place and update personal and medical history information, whether or not the medical condition is in existence or discoverable at the time of adoption, on file with the court and with 7 the Department of Public Welfare pursuant to Section 2905( d) of Title 23 of the Pennsylvania Consolidated Statutes (relating to impounding of proceedings and access to records). BY THE COURT, s/ 1. Wesley Oler, Jr. 1. Wesley Oler, Jr., 1. Kathleen 0' Connor Certified Legal Intern Family Law Clinic 45 North Pitt Street Carlisle, P A 17013 Thomas M. Place, Esq. Robert E. Rains, Esq. Anne MacDonald-Fox, Esq. Supervising Attorneys for Petitioners Keith O. Brenneman, Esq. Attorney for Natural Father Michael M. Jerominski, Esq. Attorney for Minor Child 8 9 IN RE: ADOPTION OF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION DESIRA Y ANN WELCH NO. 05-117 ADOPTIONS IN RE: PETITION FOR INVOLUNTARY TERMINATION OF PARENTAL RIGHTS BEFORE OLER, J. FINAL DECREE AND NOW, this 25th day of April, 2006, upon consideration of the petition for involuntary termination of parental rights in the above-captioned case, following a hearing held on April 10, 2006, and for the reasons stated in the accompanying opinion, the petition is granted and the parental rights of Joseph A. Abady with respect to his daughter, Desiray Ann Welch, are hereby terminated forever. Respondent is hereby advised of his continuing right to place and update personal and medical history information, whether or not the medical condition is in existence or discoverable at the time of adoption, on file with the court and with the Department of Public Welfare pursuant to Section 2905( d) of Title 23 of the Pennsylvania Consolidated Statutes (relating to impounding of proceedings and access to records). BY THE COURT, 1. Wesley Oler, Jr., 1. Kathleen 0' Connor Certified Legal Intern Family Law Clinic 45 North Pitt Street Carlisle, P A 17013 Thomas M. Place, Esq. Robert E. Rains, Esq. Anne MacDonald-Fox, Esq. Supervising Attorneys for Petitioners Keith O. Brenneman, Esq. Attorney for Natural Father Michael M. Jerominski, Esq. Attorney for Minor Child