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HomeMy WebLinkAbout2012-44 IN RE: ADOPTION OF A.M.G. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : ORPHANS’ COURT DIVISION : NO. 44 ADOPT 2012 IN RE: PETITION FOR INVOLUNTARY TERMINATION OF PARENTAL RIGHTS ORDER OF COURT th AND NOW , this 15 day of January, 2013, upon consideration of the Petition for Involuntary Termination of Parental Rights, the memorandums of law filed by the parties, 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 William T. Sharp’s parental rights and that William T. Sharp has forfeited his parental rights; IT IS HEREBY ORDERED AND DIRECTED that: 1. The parental rights of William T. Sharp, with respect to the child Anna May Gore, who was born on July 16, 2007, are terminated forever. 2. Custody of Anna May Gore is awarded to Carin Marie Townsend under the provisions of Section 2521 of the Adoption Act. 3. The adoption of Anna May Gore may proceed without further notice to or consent from William T. Sharp. 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. Paul D. Edger, Esquire Law Offices of Peter J. Russo, P.C. 5006 E. Trindle Road, Suite 203 Mechanicsburg, PA 17050 Attorney for Petitioners b. Jane Adams, Esquire Attorney at Law 17 West South Street Carlisle, PA 17013 Attorney for Respondent c. Sean Shultz, Esquire Saidis, Sullivan & Rogers 26 West High Street Carlisle, PA 17013 Guardian Ad Litem By the Court, ________________________ M. L. Ebert, Jr., J. 2 3 IN RE: ADOPTION OF A.M.G. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : ORPHANS’ COURT DIVISION : NO. 44 ADOPT 2012 IN RE: PETITION FOR INVOLUNTARY TERMINATION OF PARENTAL RIGHTS OPINION AND ORDER OF COURT EBERT, J., January 15, 2013 – Background Anna May Gore (hereinafter “Child”) was born on July 16, 2007, and is now 5 years old. Carin Marie Townsend (maiden name Gore) (hereinafter “Petitioner”) is the biological mother of Child. On April 28, 2012, Petitioner married Matthew Townsend. Petitioner and Matthew Townsend (hereinafter “Petitioners”) are the acting providers for Child. Petitioners and Child reside in Mechanicsburg, Cumberland County, Pennsylvania. William T. Sharp (hereinafter “Respondent”) is the biological father of Child. Respondent has spent time in and out of prison and is currently living in Hummelstown, Dauphin County, Pennsylvania. On June 19, 2012, Petitioners filed a petition for the involuntary termination of Respondent’s parental rights based on 23 Pa.C.S.A. §2511(a)(2) (Repeated and 1 Continued Incompetency and Neglect). An evidentiary hearing was held on November 14, 2012. After the hearing, the Court entered an Order allowing the Petitioners to amend their petition in include a Request for Termination of Parental Rights pursuant to 23 Pa.C.S.A. §2511(a)(1) – (Abandonment). This was necessary because Father 1 Petition for Involuntary Termination of Parental Rights Individual Petition, filed June 19, 2012 indicated that he did not have notice of the Petitioners’ desire to proceed under this 2 particular ground for termination. Petitioners filed an amended petition on 3 November 14, 2012. A continuation of the evidentiary hearing was held on November 26, 2012, to allow Respondent to address the amended petition.All interested parties submitted memorandums on December 21, 2012. After the evidentiary hearing and memorandums filed by the parties, this Court is now presented with the issue of whether the parental rights of Respondent should be terminated. Discussion Petitioners’ 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 2 Order of Court, November 14, 2012 3 Amended Petition for Involuntary Termination of Parental Rights Individual Petition, filed November 14, 2012. 2 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. In re B.N.W., 856 A.2d 847, 854 (Pa. Super. 2004). 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 hesitance, of the truth of the precise facts in issue.” In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (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) (citations omitted). This Court must engage in a two-step process in determining whether Respondent’s parental rights should be terminated. First, this Court will focus on the conduct of the parent to determine if grounds for termination exist under 23 Pa.C.S.A. § 2511(a). In re B.N.W., 856 A.2d at 854-55, see also In re I.J., 972 A.2d 5, 10 (Pa. Super. 2009). If such grounds for termination do exist, then this Court must analyze the best interests of the child under 23 Pa.C.S.A. § 2511(b), taking into primary consideration the developmental, physical and emotional needs and welfare of the child. In re I.J., 972 A.2d at 10. 3 I. § 2511(a)(1) Termination is appropriate under 23 Pa.C.S.A. § 2511(a)(1) when the parent either demonstrates a settled purpose to relinquish parental claim to the child or has failed to perform parental duties for a period of at least six months prior to the filing of the termination petition. In re I.J., 972 A.2d at 10. Even though the six months preceding the filing of the petition to termination are the most important, the court must consider the whole history of the case. Id. The court should consider all the explanations of the parent in order to decide if under the totality of the circumstances involuntary termination is appropriate. Id. Respondent has numerous criminal convictions and has been in and out of prison since 2009. Most notably, Respondent was incarcerated from November 2011 until January 2012 and then again from February 2012 to May 2012. While Respondent’s periods of incarceration are not themselves determinative of whether his parental rights should be terminated, Respondent’s responsibilities as a parent did not end during his periods of incarceration. In re C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000); see also In re Adoption of McCray, 331 A.2d 652, 655 (Pa. 1975). “Parental rights are not preserved by waiting for some more suitable financial circumstance or convenient time for the performance of parental duties and responsibilities.” In re C.S., 761 A.2d at 1201. The court should consider whether the parent used resources available to him while incarcerated in order to continue a close relationship with the child. McCray, 331 A.2d at 655. In this case, the record is clear that Respondent has failed to perform his parental duties for at least six months prior to the filing of the petition for the involuntary 4 termination of his parental rights. As previously stated, Respondent had spent the better part of the six months immediately preceding the filing of the petition to terminate his rights, in prison. During this time in prison, Respondent never asked to see Child or speak to Child on the phone, even though he had access to a phone while incarcerated. Respondent has sent no birthday cards to Child. Respondent stated he sent a birthday gift one time, but it arrived late. Viewing the totality of the circumstances in light of the whole history of the case and not just the six months prior to filing of the petition, Respondent still has failed to perform parental duties for Child and has demonstrated a settled purpose to relinquish parental claim of Child. In fact, the last time that Respondent has even seen Child was in September 2010, over two years ago. Prior to his incarceration, Respondent was only minimally there for Child. Respondent has never supported Child financially. Additionally, Respondent only participated in helping to raise Child when she was very young. In fact, there was clear testimony that on at least one occasion, when Child was a newborn and Mother was at work, Respondent chose to have a friend of the Mother watch his child in order to allow him to attend a party. Furthermore, even though Respondent has called Petitioner at times and asked about Child, the testimony was clear that these phone calls were made more to harass Petitioner than to actually seek information regarding Child. Respondent would raise his voice while speaking with Petitioner and Petitioner always seemed upset after speaking with Respondent. Respondent would also request money from Petitioner during these phone calls. Respondent was known to follow Mother. He made threats against Mother and stated he would find ways to destroy her. This Court finds as fact 5 that Respondent used the child only as an excuse to remain engaged in the life of the Mother. The Court finds that the child was merely a tool he could use to facilitate his plan to continue to harass Mother. Respondent argues that his attempts to see Child have been thwarted by Petitioner. However, that argument seems unlikely since Petitioner has answered phone calls from Respondent and drove Child to see Respondent. Petitioner also made it clear that she would continue to do so as long as she could meet Respondent in public and have someone else with her. This Court’s decision to terminate Respondent’s parental rights is further evidenced by the Guardian Ad Litem’s well-reasoned opinion and recommendation that grounds exist for termination of Respondent’s parental rights under § 2511(a)(1). This Court finds, as pointed out by the Guardian Ad Litem, that Respondent’s claim that he did not have Child’s address was not credible. Respondent had failed to even perform a basic internet or phonebook search for Child’s current address. Such a search would have led him to Child’s address. Furthermore, Respondent did not always provide Petitioner with his contact information and was known to move frequently. Therefore, based on all the above clear and convincing evidence, Respondent’s parental rights to Child should be terminated under § 2511(a)(1). II. § 2511(a)(2) A plain reading of § 2511(a)(2) requires that termination can only be granted when the child is “without essential care, control, or subsistence.” In this case, the child is not without essential parental care because Mother, being a very conscientious individual, has provided for all of the child’s needs. However, based on the Court’s 6 finding above with regard to §2511(a)(1), Respondent’s parental rights are properly terminated. III. § 2511(b) – Best Interests of Child Since the requirements under § 2511(a)(1) have been satisfied, this Court moves to an analysis under § 2511(b) to determine what is in the best interest of Child. This Court finds that the “development, physical and emotional needs and welfare” of Child would best be served by terminating Respondent’s parental rights. See 23 Pa.C.S.A. § 2511(b). Child has not seen Respondent since September 2010, and Respondent has made little to no effort to establish a relationship with Child. Termination of Respondent’s parental rights would in no way “destroy something in existence that is necessary and beneficial”. In re C.S., 761A.2d at 1202; quoting In re P.A.B., 570 A.2d 522, 525-26 (Pa. Super. 1990). This Court finds that essentially Father has abandoned this Child. He has failed to maintain contact of any legal significance since September 2010 and has certainly not met the standard outlined in In Re: Adoption of Hamilton, 549 A.2d 1291 (Pa.Super. 1988) when it stated: To be legally significant the contact must be steady and consistent over a period of time, contribute to the psychological health of the child, and must demonstrate a serious intent on the part of the parent to recultivate a parent-child relationship and must also demonstrate a willingness and capacity to undertake the parental role. The parent wishing to reestablish his parental responsibilities bears the burden of proof on this question. Id. at 1295 Father has made no attempts or at best insignificant attempts to directly contact and communicate with this child. None of his attempts contributed to the psychological 7 health of the child or demonstrated a serious intent on his part to recultivate a parent- child relationship. Furthermore, Child has expressed in the past that she doesn’t have a dad. However, since Petitioner married Matthew Townsend, Child has started to call him dad on occasion. Petitioners take care of Child’s everyday physical and emotional needs. Petitioners financially support Child and provide her with all her necessities. Child’s best interest would be served by terminating Respondent’s parental rights and allowing Matthew Townsend to proceed with adopting Child. Therefore, under § 2511(a)(1) and § 2511(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 § 2511(a)(1). Accordingly, the following Order is entered: th AND NOW , this 15 day of January, 2013, upon consideration of the Petition for Involuntary Termination of Parental Rights, the memorandums of law filed by the parties 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 William T. Sharp’s parental rights and that William T. Sharp has forfeited his parental rights; IT IS HEREBY ORDERED AND DIRECTED that: 1. The parental rights of William T. Sharp, with respect to the child Anna May Gore, who was born on July 16, 2007, are terminated forever. 8 2. Custody of Anna May Gore is awarded to Carin Marie Townsend under the provisions of Section 2521 of the Adoption Act. 3. The adoption of Anna May Gore may proceed without further notice to or consent from William T. Sharp. 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. Paul D. Edger, Esquire Law Offices of Peter J. Russo, P.C. 5006 E. Trindle Road, Suite 203 Mechanicsburg, PA 17050 Attorney for Petitioners b. Jane Adams, Esquire Attorney at Law 17 West South Street Carlisle, PA 17013 Attorney for Respondent c. Sean Shultz, Esquire Saidis, Sullivan & Rogers 26 West High Street Carlisle, PA 17013 Guardian Ad Litem By the Court, ________________________ M. L. Ebert, Jr., J. 9