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HomeMy WebLinkAbout2011-87 IN RE: ADOPTION OF ALETTE : IN THE COURT OF COMMON PLEAS OF AUDEA LEIBY : CUMBERLAND COUNTY, PENNSYLVANIA : : ORPHANS’ COURT DIVISION : NO. 87 ADOPTIONS 2011 IN RE: PETITION FOR INVOLUNTARY TERMINATION OF PARENTAL RIGHTS PURSUANT TO 23 Pa.C.S. § 2505 ORDER OF COURT th AND NOW , this 25 day of June, 2012, upon consideration of the Petition for Involuntary Termination of Parental Rights and after hearing thereon, The Court being satisfied as to the truth of the facts set forth in the Petition, and that the best interests of the child including her development, physical and emotional needs, and welfare will be best served by terminating Jesse Kenley’s parental rights and that Jesse Kenley has forfeited his parental rights; IT IS HEREBY ORDERED AND DIRECTED that: 1. The parental rights of Jesse Kenley, with respect to the child Alette Audea Leiby, who was born on January 21, 2004, are terminated forever. 2. Custody of Alette Audea Leiby is awarded to Rebekah Kegerreis and Larz Kegerreis under the provisions of Section 2521 of the Adoption Act. 3. The adoption of Alette Audea Leiby may proceed without further notice to or consent from Jesse Kenley. 4. This Order shall be mailed by the Clerk of the Orphan’s Court by first class mail with date of mailing being documented to the following: a. Jesse Kenley (#13522-067) FTC Oklahoma City Federal Transfer Center P. O. Box 898801 Oklahoma City, OK 73189 b. Marylou Matas, Esquire 26 West High Street Carlisle, PA 17013 c. Mark Bayley, Esquire 17 West South Street Carlisle, PA 17013 d. Eunice Yank, CLI Kate Cramer Lawrence, Esquire Children’s Advocacy Clinic 371 West South Street Carlisle, PA 17013 By the Court, M. L. Ebert, Jr., J. 2 3 IN RE: ADOPTION OF ALETTE : IN THE COURT OF COMMON PLEAS OF AUDEA LEIBY : CUMBERLAND COUNTY, PENNSYLVANIA : : ORPHANS’ COURT DIVISION : NO. 87 ADOPTIONS 2011 IN RE: PETITION FOR INVOLUNTARY TERMINATION OF PARENTAL RIGHTS PURSUANT TO 23 Pa.C.S. § 2505 OPINION AND ORDER OF COURT EBERT, J., June 25, 2012 - Background Alette Audea Leiby (“Child”) was born on January 21, 2004, and is now 8 years old. Rebekah Kegerreis (“Petitioner”) is the biological mother of Child. On December 11, 2008, Larz Kegerreis married Petitioner. Mr. Kegerreis and Petitioner (hereinafter “Petitioners”) are the acting providers for the Child. Petitioners and Child have resided until recently in New Cumberland, Cumberland County. Jesse Kenley, (“Respondent”) is the biological father of the Child. Respondent has been incarcerated since before the birth of the Child. Respondent is currently serving a federal sentence of 35 years imprisonment for conspiracy, witness tampering, and robbery. Respondent is not expected to be released before 2037. On October 7, 2011, Petitioners filed a petition for the involuntary termination of 12 Respondent’s parental rights. On April 16, 2012, an evidentiary hearing was held. After the evidentiary hearing, and briefs filed by the parties, this Court is now presented with the issue of whether the parental rights of Respondent should be terminated. 1 Petition for Involuntary Termination of Parental Rights Pursuant to 23 Pa.C.S. § 2505, filed Oct. 7, 2011. 2 In Re Adoption of Alette Audea Leiby, Notes of Testimony, April 16, 2012. Discussion Petitioner’s request to involuntarily terminate the parental rights of Respondent, the biological father, is decided based upon section 2511 of the Adoption Act, which provides in relevant part: § 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: (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. (2)The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent. *** (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. 23 Pa.C.S.A. § 2511(a)(1)-(2) and (b). In a termination case, Petitioner bears the burden of proving by clear and convincing evidence that the asserted grounds for seeking termination of Respondent’s parental rights are valid. See In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). As stated by the Superior Court, “[t]he standard of clear and convincing evidence is defined as testimony that is so clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without 2 hesitance, of the truth of the precise facts in issue.” Id. (internal quotations omitted). This Court “is free to believe all, part, or none of the evidence presented, and is likewise free to make all credibility determinations and resolve conflicts in the evidence.” In re M.G., 855 A.2d 68, 73- 74 (Pa. Super. 2004). Respondent’s incarceration does not toll his responsibilities as a parent. See In re Adoption of K.J., 936 A.2d 1128, 1133 (Pa. Super. 2007). “Parental rights are not preserved by waiting for a more suitable or convenient time to perform one’s parental responsibilities while others provide the child with his or her physical and emotional needs.” Id. (quotations omitted). Respondent is expected to “utilize given resources and take affirmative steps to support a parent- child relationship” while incarcerated. Id. If grounds for Respondent’s termination of parental rights are established under subsection (a), this Court will consider how Respondent’s incarceration will factor into an assessment of the child’s best interest under § 2511(b). Id. at 1134. “In that process the court must take into account whether a natural parental bond exists between child and parent, and whether termination would destroy an existing, necessary and beneficial relationship.” In re Adoption of K.J., 936 A.2d at 1134. A.§ 2511(a)(1): A court may terminate parental rights under subsection 2511(a)(1) when the parent demonstrates a settled purpose to relinquish parental claim to a child or fails to perform parental duties for at least six months prior to the filing of the termination petition. Although the six month period immediately preceding the filing of the petition is most critical to the analysis, the court must consider the whole history of the case and not mechanically apply the six-month statutory provision. The trial court must examine the individual circumstances of each case and consider all of the explanations of the parent to decide if the evidence, under the totality of the circumstances, requires involuntary termination. In re I.J., 972 A.2d 5, 10 (Pa. Super. 2009). With the above guidance from the Superior Court, this Court now turns to an analysis of the case sub judice under section 2511(a)(1). 3 The record is clear that Respondent has failed to perform his parental duties for at least 6 months prior to the filing of the petition for the involuntary termination of his parental rights. As previously stated, Respondent is incarcerated in a federal prison and has not attempted to fulfill any parental duties for Child. Viewing the totality of the circumstances in light of the whole history of the case, Respondent still has failed to perform parental duties. During Respondent’s incarceration, he has never had a visit with Child, written Child a letter, or contributed financially for Child. Respondent testified that he believes he sent two birthday cards in 2005 and 2006 but both were returned to him without ever reaching Child. Respondent also testified that he made a few attempts to have a local charity deliver Christmas gifts, but has not made any attempts since 2008. Respondent has admitted that he has not attempted to send any correspondence to Child in the last 14 months. Respondent unpersuasively claims that his correspondence with Child was stifled over the past year by Petitioner and Petitioner’s former attorney. Respondent seems satisfied with merely receiving monthly pictures of Child while making no additional attempts to be a part of Child’s life or to fulfill any parental duties. Therefore, under section 2511(a)(1) Respondent’s parental rights to Child should be terminated. B.§ 2511(a)(2): Parental rights may be terminated under Section 2511(a)(2) if three conditions are met: (1) repeated and continued incapacity, abuse, neglect or refusal must be shown; (2) such incapacity, abuse, neglect or refusal must be shown to have caused the child to be without essential parental care, control or subsistence; and (3) it must be shown that the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied. 4 In re E.A.P., 944 A.2d 79, 82 (Pa. Super. 2008) (internal quotations omitted). Additionally, “grounds for termination under subsection (a)(2) are not limited to affirmative misconduct; those grounds may include acts of incapacity to perform parental duties.” Id. Although the Pennsylvania Supreme Court has reiterated the principle that “a parent’s incarceration, standing alone, cannot constitute proper grounds for the termination of his or her parental rights,” the Court has very recently stated: [I]ncarceration, while not a litmus test for termination, can be determinative of the question of whether a parent is incapable of providing “essential parental care, control or subsistence” and the length of the remaining confinement can be considered as highly relevant to whether “the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent,” sufficient to provide grounds for termination pursuant to 23 Pa.C.S. § 2511(a)(2). In re Adoption of S.P., --- A.3d ----, 2012 WL 1764190, *11-12 (Pa.). The Court has recognized that an analysis of an incarcerated parent’s incapacity under section 2511(a)(2) “depends to a significant degree on the length of the parent’s sentence” and “whether the parent can remedy the incapacity[.]” Id. This Court now turns to analysis of the case sub judice, under section 2511(a)(2). In addition to finding that Respondent’s parental rights should be terminated under section 2511(a)(1), this Court also finds that Respondent’s parental rights could be terminated under section 2511(a)(2). The length of Respondent’s sentence is 35 years and Child will be approximately 33 years old when Respondent is released. As previously stated, Respondent has been incarcerated since prior to Child’s birth and never provided Child with essential parental care. Finally, Respondent has exhausted all avenues of appeal and thus, will remain incarcerated for the duration of his lengthy sentence. Respondent’s continued incapacity, which has caused Child to be without essential parental care, cannot be remedied. Therefore, the requirements 5 under section 2511(a)(2) have been satisfied and this Court moves to an analysis under section 2511(b). Under section 2511(b), the “development, physical and emotional needs and welfare” of Child would best be served by terminating Respondent’s parental rights. See In re Adoption of S.P., 2012 WL 1764190, *13. Child has never had a relationship with Respondent, and Respondent has made little-to-no effort to establish a relationship. Termination of Respondent’s parental rights would in no way “destroy an existing, necessary and beneficial relationship.” In re Adoption of K.J., 936 A.2d at 1134. Furthermore, Child has only ever known her father to be Mr. Kegerreis. Mr. Kegerreis has been a part of Child’s life since she was 2 years old. There is a mutual want between Mr. Kegerreis and the Child for an adoption to occur. Child’s best interest would be served by terminating Respondent’s parental rights and allowing for Mr. Kegerreis to proceed with adopting Child. Therefore, under section 2511(a)(2) and (b), Respondent’s parental rights to Child should be terminated. Conclusion This Court finds that based upon the above analysis, Respondent’s parental rights should be terminated under section 2511(a)(1) and (a)(2). Accordingly, the following Order is entered: th AND NOW , this 25 day of June, 2012, upon consideration of the Petition for Involuntary Termination of Parental Rights and after hearing thereon, The Court being satisfied as to the truth of the facts set forth in the Petition, and that the best interests of the child including her development, physical and emotional needs, and welfare will be best served by terminating Jesse Kenley’s parental rights and that Jesse Kenley has forfeited his parental rights; 6 IT IS HEREBY ORDERED AND DIRECTED that: 1. The parental rights of Jesse Kenley, with respect to the child Alette Audea Leiby, who was born on January 21, 2004, are terminated forever. 2. Custody of Alette Audea Leiby is awarded to Rebekah Kegerreis and Larz Kegerreis under the provisions of Section 2521 of the Adoption Act. 3. The adoption of Alette Audea Leiby may proceed without further notice to or consent from Jesse Kenley. 4. This Order shall be mailed by the Clerk of the Orphan’s Court by first class mail with date of mailing being documented to the following: a. Jesse Kenley (#13522-067) FTC Oklahoma City Federal Transfer Center P. O. Box 898801 Oklahoma City, OK 73189 b. Marylou Matas, Esquire 26 West High Street Carlisle, PA 17013 c. Mark Bayley, Esquire 17 West South Street Carlisle, PA 17013 d. Eunice Yank, CLI Kate Cramer Lawrence, Esquire Children’s Advocacy Clinic 371 West South Street Carlisle, PA 17013 By the Court, M. L. Ebert, Jr., J. 7