HomeMy WebLinkAbout2005-92 Adoption
IN RE: ADOPTION OF
H.O.I.
DOB: XX-XX-XXXX
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
92 ADOPTIONS 2005
IN RE: PETITION FOR INVOLUNTARY
TERMINATION OF PARENTAL RIGHTS
BEFORE OLER, J.
FINAL DECREE
AND NOW, this 26th day of July, 2006, upon consideration of the Petition for
Involuntary Termination of Parental Rights and Duties of I.C., with respect to his son,
H.O.I. (date of birth XXXX XX, XXXX), following a hearing and for the reasons stated
in the accompanying opinion, the petition is granted and the parental rights of I.C., with
respect to his son, H.O.I., are hereby terminated forever.
Respondent father 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.
Lindsay D. Baird, Esq.
37 South Hanover Street
Carlisle, P A 17013
Attorney for Petitioners
Keith D. Hickman, Certified Legal Intern
Anne MacDonald, Supervising Attorney
Family Law Clinic
45 North Pitt Street
Carlisle, P A 17013
Court-appointed Attorney for the Natural Father
Stacy B. Wolf, Esq.
10 West High Street
Carlisle, P A 17013
Court-appointed Attorney for the Child
2
IN RE: ADOPTION OF
H.O.I.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
92 ADOPTIONS 2005
IN RE: PETITION FOR INVOLUNTARY
TERMINATION OF PARENTAL RIGHTS
BEFORE OLER, J.
OPINION and FINAL DECREE
Oler, 1., July 26th, 2006.
In this involuntary termination of parental rights case, the mother of a 5-year-old
boy has filed a petition, in which her husband has joined, 1 requesting the involuntary
termination of parental rights of the child's natural father, under Sections 25 11 (a)(1) and
2511 (a )(2)2 of the Adoption Act. The termination of the natural father's parental rights
would facilitate the adoption of the child by the mother's present husband.
A hearing was held on the petition on May 25, 2006. At the hearing, Petitioner
mother and her Co-petitioner husband were represented by private counsel,3 the child was
represented by court-appointed counsel,4 and Respondent father was represented by
court-appointed counsel. 5
For the reasons stated in this opinion, the petition to terminate the natural father's
parental rights will be granted.
1 The stepfather does not have standing with respect to this petition. In re: Adoption of KR.S., 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 has joined in the petition. Id.
2 See Petition for Involuntary Termination of Parental Rights under Section 2512 of the Adoption Act,
filed September 12,2005.
3 NT. 4-5.
4 NT. 4-5, Order of Court, November 30,2005.
5 NT. 4-5, Order of Court, November 30,2005, Order of Court, March 5,2006.
FINDINGS OF FACT
1.) Petitioners are H.B. (hereinafter Petitioner mother) and her husband, 1.B.
(hereinafter Co-petitioner husband).
2.) The subject of this proceeding is H.O.I. (hereinafter the Child), born XXXX XX,
XXXX,6 to Petitioner mother, H.B. and I.C. (hereinafter Respondent father).
3.) Petitioner mother and Co-petitioner husband reside at XXX X XXXXXX,
XXXXXXXX, Cumberland County, Pennsylvania, XXXXX?
4.) Respondent father resides at the XXXXXXX Correctional Institution located at
XXXXX x:xxxxxx XXXX, XXXXXXXXXX, Washington County, Maryland. 8
5.) In 2000, Petitioner mother and Respondent father had an intimate dating
relationship for approximately three months;9 after the relationship ended in October
of 2000,10 they communicated only sporadically. 11
6.) Respondent father was aware that Petitioner mother had become pregnant around
September or October of 2000.12
7.) Respondent father was subsequently incarcerated on May 2, 2002,13 in Maryland
and is serving a 50-year prison sentence14 following convictions for first degree
murder and attempted murder. IS
6 NT. 6.
7 NT. 6.
8 NT. 29.
9 NT. 7, 31-32.
10 NT. 6-7, 33.
11 NT. 7-9, 17-18,33-36,45,48.
12 NT. 7,16,31-32.
13 NT. 44, 46, 50-51.
14 NT. 46.
15 NT. 50.
2
8.) Notwithstanding his awareness of the pregnancy when it occurred, Respondent
father testified that he thought the pregnancy had been terminated by an abortion. 16
9.) Respondent father further testified that he became aware of the Child's birth only in
July of 2005, at which time he wrote two letters to Petitioner mother, dated 7/28/05
and 8/14/05, and one letter to the Child's maternal grandmother, dated 8/8/05.17
10.) Petitioner mother, to the contrary, testified that Respondent father was aware that
the Child had not been aborted as of January 2001, a few months prior to the Child's
birth.18 In this regard, the Court found her testimony more credible than Respondent
father's testimony.
11.) Petitioner mother conceded that she had made no attempts to contact Respondent
father regarding the birth of his Child when it occurred, or thereafter,19 other than by
filing a petition for child support with the Cumberland County Domestic Relations
Office on May 24, 2001, which was dismissed without prejudice on November 26,
2002, due to the inability of the Domestic Relations Office to locate Respondent
father. 20
12.) Petitioner mother filed a petition to terminate Respondent father's parental rights on
September 12, 2005?1
13.) Respondent father testified that he intended to maintain a relationship with the Child
through letters, phone calls, and visits with the Child at his prison.22
16 NT. 35, 48.
17 NT. 11-13, 20-23, 37-39, 42-43, 46, 53, Pet'r Exhibits 2, 3, 4.
18 NT. 8-9, 17, 24-26, 45, 48.
19 NT. 19-20,22-23.
20 NT. 10-11, 18-19, Pet'r Ex. 1: Court Order, Nov. 26, 2002, (Dismissal of the Complaint for Support
without prejudice due to Domestic Relations Office's inability to locate Respondent father).
21 NT. 14, Petition for Involuntary Termination of Parental Rights (Filed September 12,2005).
22 NT. 41-42.
3
14.) Co-petitioner husband, 1.B., met Petitioner mother in January of 2000,23 and
established a relationship with and began caring for the Child when the Child was
four months 01d.24
15.) Co-petitioner husband and Petitioner mother began dating in March of 2003 and
were married on September 22, 2003.25
16.) Co-petitioner husband has performed daily parental duties such as bathing the Child,
playing and celebrating holidays with the Child, and loving the Child?6
17.) The Child refers to Co-petitioner husband as "Dad" and Co-petitioner husband is
prepared to adopt the Child.27
18.) Respondent father has failed to perform parental duties throughout the life of the
child, including the six months immediately preceding the filing of the petition for
involuntary termination of his parental rights.
19.) The continued incapacity of Respondent father has caused the Child to be without
essential paternal care, control and subsistence necessary for his physical and mental
well-being and the condition and cause of the incapacity cannot and will not be
remedied by the Respondent.
20.) The termination of Respondent father's parental rights and the adoption of the Child
by Co-petitioner, 1.B., will be in the Child's best interest.
DISCUSSION
General. "The focus and purpose of a termination hearing. . . is whether parents
have so failed in their duty that the State, because of its interest in the child's well-being,
must strip the parents of their fundamental right." In the Interest of Coast, 385 Pa. Super.
450, 461, 561 A.2d 762, 767 (Pa. Super. 1989).
23 NT. 65.
24 NT. 66-67.
25 NT. 66-67.
26 NT. 67-69.
27NT. 16,66.
4
"Before a State may sever completely and irrevocably the rights of parents in their
natural child, due process requires that the State support its allegations by at least clear
and convincing evidence." Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S. Ct. 1388,
1400 (1982).
"[T]he Due Process Clause would be offended if a State were to attempt to force
the breakup of a natural family, over the objections of the parents and their children,
without some showing of unfitness and for the sole reason that to do so was thought to be
in the children's best interest." Id at 760 (quoting Smith v. Organization of Foster
Families, 431 U.S. 816, 862-63, 97 S. Ct. 2094, 2119, 53 L. Ed. 2d 14, (1977) (Stewart,
1., concurring opinion)) (internal quotations omitted).
"[T]he party seeking termination of parental rights, [bears] the burden of proving
by clear and convincing evidence that at least one of the eight grounds for termination
under 42 Pa. C.S.A. section 25 11 (a) exists and that termination promotes the emotional
needs and welfare of the Child, as set forth in 42 Pa. C.S.A. section 2511(b )." In re c.p,
2006 WL 1460612 at 2 (Pa. Super. 2006)?8
"An inquiry into whether termination of parental rights would best serve the
developmental, physical and emotional needs and welfare of the Child is a distinct aspect
of a termination hearing, to be undertaken only after the statutory requirements of section
25 11 (a) have been met." Id at 3?9
"The 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 TF, 847
A.2d 738, 742 (Pa. Super. 2004)?0
28 Citing In re ELL., 787 A.2d 1007 (Pa. Super. 2001).
29 Citing CMS., 884 A.2d at 1286-87; 23 Pa. C.S.A. ~ 2511(b).
30 Citing In re ALD., 797 A.2d 326, 336 (Pa. Super. 2002) (quoting In re Adoption of Atencio, 539 Pa.
161, 166,650 A.2d 1064, 1066 (1994)).
5
Section 2511(a)(1) of Adoption Act. 23 Pa. C.S.A. Section 25ll(a)(1) of the
Adoption Act provides for the termination of parental rights where:
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.
Act of October 15, 1980, P.L. 934, as amended, 23 Pa. C.S.A. s25ll(a)(1).
"Pennsylvania law has recognized that. . . there a duty to love, protect and support
one's Child,31 [as well as] a duty to maintain communication and association with that
Child. [B]eing a parent is more than a passive state of mind or a financial obligation;
rather it is an active occupation, calling for constant affirmative demonstration of parental
love, protection and concern." In re Adoption ofMJH., 348 Pa. Super. 65, 72-73, 501
A.2d 648, 652 (Pa. Super. 1985)?2
"[T]he trial court must consider the whole history of a gIVen case and not
mechanically apply the six-month statutory provision. The court must examine the
individual circumstances of each case and consider all explanations offered by the parent
facing termination of his or her parental rights, to determine if the evidence, in light of
the totality of the circumstances, clearly warrants the involuntary termination." In re
B.,NM, 856 A.2d 847, 855 (Pa. Super. 2004)?3
"[A] parent's absence and/or failure to support due to incarceration is not
conclusive on the issue of abandonment." In re Adoption of McCray, 460 Pa. 210, 216-
17, 331 A.2d 652, 655 (Pa. 1975)?4 "[W]e must inquire whether the parent has utilized
those resources at his or her command while in prison in continuing a close relationship
with the child. Where the parent does not exercise reasonable fir1lllless 'in declining to
31 Citing Wischman Adoption Case, 428 Pa. 327,331,237 A.2d 205,207 (1968) (citations omitted).
32 Citing Appeal of B., supra, 456 Pa. 429, 433, 321 A.2d 618, 620 (quoting In re: Adoption of JRF, 27
Somerset LJ. 298, 304-05 (Pa.C.P.1972).
33 Citing In re D.JS, 737 A.2d 283,285-286 (Pa. Super. 1999) (internal citations omitted).
34 Quoting In re Adoption of JFR., 27 Somerset LJ. at 304 (footnotes omitted).
6
yield to obstacles' his rights may be forfeited." In re Adoption ofMJH., 348 Pa. Super.
65, 73-74, 501 A.2d 648, 652 (Pa. Super. 1985).35
In the present case, Respondent father's non-participatory conduct during the
Child's life, including his commission of crimes resulting in a 50-year period of
incarceration, represents a failure to perform his parental duties commensurate with the
language of the statute. For this reason, grounds exist for a termination of Respondent
father's parental rights under Section 2511 (a)( 1) of the Adoption Act.
Section 2511(a)(2) of Adoption Act. Section 25ll(a)(2) of the Adoption Act
provides for the termination of parental rights where:
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.
Act of October 15, 1980, P.L. 934, as amended, 23 Pa. C.S.A. s25ll(a)(2).
"[U]nlike Section 2511 (a)(1), Section 2511 (a )(2) does not emphasize the parent's
refusal or failure to perform parental duties. Rather, its emphasis is on the Child's present
and future need for essential parental care, control or subsistence necessary for his
physical or mental well-being." In re Adoption ofMJH. 348 Pa. Super. 65, 76-77, 501
A.2d 648, 654 (Pa. Super. 1985) (quotations omitted).
"The parent's behavior still constitutes the operational fact, but in a broader sense.
This effect upon the child has subsequently been expressed as the "needs and welfare" of
the child. [T]he judicial inquiry necessarily looks at whether the needs of the child, both
physical and emotional, are being served, for the purpose of determining whether or not
the parent is performing his function." In the Interest of Coast, 385 Pa. Super. 450, 460-
61, 561 A.2d 762, 767 (Pa. Super. 1989)?6
35 Citing In re Adoption ofJFR., 331 A.2d at 655,460 Pa. at 216-17 (footnotes omitted).
36 Citing Adoption of R.I., 468 Pa. 287, 361 A.2d 294 (1976), cert. denied, 429 U.S. 1032, 97 S.Ct. 722,
50 L.Ed.2d 743 (1977).
7
"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." In
re Adoption of MJH., 348 Pa. Super. 65, 76, 501 A.2d 648, 654 (Pa. Super. 1985)
(quotations omitted). 37
In the present case, Respondent father's 50-year jail sentence, being served in
XXXXXXX, Maryland, assures that the Child will be without essential parental care,
control and subsistence well into adulthood, as he has been since birth, and this condition
is no longer within the power of Respondent father to change. Recent expressions of
interest by Respondent father in the Child, while not to be disparaged, are not a substitute
for the parental care, control and subsistence that are necessary for the Child's well-
being. For this reason, grounds exist for the termination of Respondent father's parental
rights under Section 2511 (a )(2) of the Adoption Act.
Section 2511 (b) of Adoption Act. Section 25 11 (b) of the Adoption Act provides:
(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 October 15, 1980, P.L. 934, as amended, 23 Pa. C.S.A. s25ll(a)(2).
"An inquiry into whether termination of parental rights would best serve the
developmental, physical and emotional needs and welfare of the Child is a distinct aspect
of a termination hearing, to be undertaken only after the statutory requirements of section
37 Citing In re Geiger, 459 Pa. 636,639,331 A.2d 172, 174 (1975).
8
25 11 (a) have been met." In re CP, 2006 WL 1460612,3 (Pa. Super. 2006).38 "A best
interest determination requires weighing of all factors which bear upon child's physical,
intellectual, moral, and spiritual well-being." In re Adoption of A.S.H., 449 Pa. Super.
497, 674 A.2d 698 (1996).
"[I]n considering what situation would best serve the Child[ren]'s needs and
welfare, [the court] must examine the status of the natural parental bond to consider
whether terminating the natural parents' rights would destroy something in existence that
is necessary and beneficial." In re Cs., 761 A.2d 1197, 1202 (Pa. Super. 2000)?9
In the present case, no relationship whatsoever, much less a bond, has existed
between Respondent father and the Child since the Child's birth on XXXX XX, xxxx.
The Child has spent his formative years knowing only Co-petitioner husband as his father
and referring to him as "Dad." In consideration of these factors, the decision to terminate
Respondent father's parental rights, with a view toward the Child's adoption by Co-
petitioner husband, is clearly in the best interest of the Child.
For the foregoing reasons, the following Final Decree will be entered:
FINAL DECREE
AND NOW, this 26th day of July, 2006, upon consideration of the Petition for
Involuntary Termination of Parental Rights and Duties of I.C., with respect to his son,
H.O.I. (date of birth XXXX XX, XXXX), following a hearing and for the reasons stated
in the accompanying opinion, the petition is granted and the parental rights of I.C., with
respect to his son, H.O.I., are hereby terminated forever.
Respondent father 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
38 Citing CMS, 884 A.2d at 1286-87; 23 Pa. C.S.A. ~ 2511(b).
39 Citing In re PA.B., 391 Pa. Super. 79, 86, 570 A.2d 522, 525-26 (1990), appeal dismissed, 530 Pa.
201, 607 A.2d 1074 (1992). In re Eowman, 436 Pa. Super. 10, 647 A.2d 217, 219 (1994), affd by an
equally divided court, 542 Pa. 268, 666 A.2d 274 (1995) (emphasis original).
9
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).
10
Lindsay D. Baird, Esq.
37 South Hanover Street
Carlisle, P A 17013
Attorney for Petitioners
Keith D. Hickman, Certified Legal Intern
Anne MacDonald, Supervising Attorney
Family Law Clinic
45 North Pitt Street
Carlisle, P A 17013
Court-appointed Attorney for the Natural Father
Stacy B. Wolf, Esq.
10 West High Street
Carlisle, P A 17013
Court-appointed Attorney for the Child
BY THE COURT,
1. Wesley Oler, Jr., 1.
11