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HomeMy WebLinkAbout2016-10 IN RE: ADOPTION OF : IN THE COURT OF COMMON PLEAS OF N.R.S. : CUMBERLAND COUNTY, PENNSYLVANIA : : ORPHANS’ COURT DIVISION : NO. 10 ADOPTIONS 2016 IN RE: PETITION FOR INVOLUNTARY TERMINATION OF PARENTAL RIGHTS OPINION AND ORDER Statement of Facts A petition was filed to terminate the parental rights of A.S., the biological father of 7- year-old N.S., in order to allow for her adoption by her stepfather, J.G. N.S. was born on June 6, 2008, to her mother, A.G. and her father, A.S. Her mother and father remained together for a little over a year, living for several months of that time with A.G.’s parents. In June of 2009, A.G. took N.S. and moved with her to a new address on Stoner Avenue. Her biological father, A.S., continued to visit her several times after her move, and testified that he would spend time with her and take her to the mall, although he said that A.G. only allowed him limited time with N.S. Sometime during the year N.S. was residing on Stoner Avenue was the last time A.S. ever saw her. In the middle of 2010, A.G. and N.S. moved to Dover with J.G., A.G.’s then-paramour (and now husband). The father of A.S. (N.S.’s biological grandfather) testified that he visited A.G. and N.S. in Dover, but A.S. testified that when he went to visit his daughter, they were no longer living in Dover. He testified that he tried to contact A.G. through email and Facebook, but she did not respond to the former and “blocked” him on the latter. In 2013, A.G., N.S. and J.G. moved to Dallastown where they remained for one year until they all moved to their current residence in Gardners, Cumberland County, Pennsylvania. A.S. has not seen or had any contact with N.S. since N.S. was around two years of age. A.G.’s father testified that he and his wife still live at the address where A.G. and A.S. lived with them, and that they still have the same home and cell phone numbers. He testified that A.S. has not contacted him in regards to seeing N.S. Furthermore, while A.S. testified that he had sent A.G.’s father a message on Facebook about seeing N.S., A.G.’s father testified that he never received such a message. A.S.’s own mother testified that A.S. has drug issues, excuses for everything, and should have his parental rights to N.S. terminated. She admitted that she and A.S. no longer have a relationship, but testified that in recent years she regularly saw A.S. use marijuana and “shoot up” with some other drug (the name of which she did not know). She testified that earlier in N.S.’s life she had encouraged A.S. to file for custody or to attempt to see N.S., but that he did not do so, and now has “no bond” with N.S. Attorney MacGregor Brillhart testified that he contacted A.S. by telephone in late 2013 or early 2014 to see if A.S. would consent to termination of his parental rights to N.S. He testified that A.S. refused and was “explosive” and “angry.” Following the telephone conversation, Attorney Brillhart sent a letter to A.S., which contained Attorney Brillhart’s contact information, and a blank consent form in case A.S. changed his mind. The certified letter was returned unclaimed, but the first class letter was not returned. Attorney Brillhart did not hear from A.S. again until he contacted him in January of 2016, to again ask if A.S. would consent to the termination; A.S. again refused to consent. 2 C.S., A.G.’s cousin, testified that she has known A.S. since he and A.G. were a couple. She testified that between 2010 and 2013 she worked at Royal Farms convenience store, where she would see and sometimes wait on A.S. as often as once per week. Beginning in October of 2015 she was working at the Turkey Hill in Hanover, Pennsylvania, and she also saw A.S. there several times. She testified that A.S. never asked about A.G. or N.S.; A.S. disputes this testimony. C.S. also testified that A.G. asked her to get A.S.’s phone number for Attorney Brillhart, and that she was able to do so. Clearly, A.S. was aware that C.S. was in contact with A.G. A.S. testified that N.S. was the “best thing that ever happened to me.” He testified that he wanted to see N.S., but A.G. would make up reasons for him not to do so, and would “block” him at his every attempt. He said that he contacted A.G.’s younger brother over a Playstation “chat” and asked him to help him see N.S., but did not make any progress. He testified that he went to see A.G. and N.S. in Dover, but they no longer lived there. He further testified that he tried to message some of A.G.’s friends and family on Facebook, but was then “blocked” or just not answered. He told the Court that everyone else in the room who testified at the hearing, including Attorney Brillhart, was lying. A.S. did admit that he has several criminal convictions, that he has struggled with depression and drug issues, and that he has never tried to send any money, gifts or cards to N.S. He testified that since he has met his wife he has changed, and that “I’m a good man. I’m a good father. I am not the same man that I used to be.” 3 Finally, A.S.’s wife also testified (she is also A.G., so will be referred to as A.S.’s wife). She testified that A.S. is a good father to her 3 ½ year old son, and that she feels N.S. would benefit by getting to know her father. The Court conducted an in camera interview with N.S. When asked who her “Dad” was, N.S. replied with the name of her stepfather, J.G. She said she has fun with her Mom and J.G., and likes her home, her dogs, and coloring with her parents. While she was extremely shy, she appeared happy and well adjusted, and certainly was clean and well dressed. Legal Authority 23 Pa. C.S. §2511 governs involuntary termination of the rights of a parent. In pertinent part, this section states: General rule. (a) — 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. *** Other considerations. (b) — 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. 23 Pa. C.S. §2511. The statute does not require a showing of both an intention to surrender parental control and a failure to perform parental duties; either is sufficient grounds to involuntarily terminate parental rights. Baby Boy A v. Catholic Social Services, 517 A.2d 1244, 1246 (Pa. 1986). The party seeking to terminate parental rights carries the burden and must 4 satisfy the above requirements by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745 (1982). Furthermore, “\[i\]t is well established that a court must examine the individual circumstances of each and every case and consider all explanations offered by the parent to determine if the evidence in light of the totality of the circumstances clearly warrants the involuntary termination.” In re C.M.S., 832 A.2d 457, 461-62 (Pa. Super. 2003) (quoting Matter of Adoption of Charles E.D.M., II, 780 A.2d 88, 91 (Pa. 1998)). “Although it is the six months immediately preceding the filing of the petition \[to involuntarily terminate parental rights\] that is most critical to the analysis, the trial court must consider the whole history of a given case and not mechanically apply the six-month statutory provision.” In re B. N.M., 856 A.2d 847, 855 (Pa. Super. 2004). Our Supreme Court has frequently noted that parenthood is an active occupation; a parent must take active steps to maintain a place of importance in a child’s life. Baby Boy A, 517 A.2d at 1246. Parental rights are not protected by the parent merely stating a desire not to terminate parental rights. In re E.S.M., 622 A.2d 388, 396 (Pa. Super. 1993). The court will examine the efforts made by the parent in light of the totality of the circumstances, including any barriers or obstacles that prevent the parent from participating in the child’s life. Baby Boy A, 517 A.2d at 1246. Such barriers or obstructive behavior must be sufficiently high that a person of reasonable firmness cannot overcome them. Id. The parent must use all possible resources to preserve the parental relationship. In re C.M.S., 832 A.2d at 462 (Pa. Super. 2003). While a parent may have his or her parental rights involuntarily terminated if they fail to perform parental duties in the six months preceding the filing of the petition, there is no simple definition of “parental duties.” As explained by our Supreme Court, “\[p\]arental duty is best 5 understood in relation to the needs of a child. A child needs love, protection, guidance, and support. These needs, physical and emotional, cannot be met by a merely passive interest in the development of the child.” In re Burns, 379 A.2d 535, 540 (Pa. 1977). The parental obligation therefore requires affirmative performance, and encompasses more than a financial obligation. There must be continual interest in the child and a “genuine effort to maintain communication and association with the child.” Id. If the court determines that the requirements for involuntary termination of parental rights under Section 2511 have been satisfied, the court must further inquire whether termination will clearly serve the “needs and welfare” of the child. 23 Pa. C.S. §2511(b). The court must consider whatever bonds may exist between parent and child. In re Adoption of A.C.H., 803 A.2d 224, 229 (Pa. Super. 2002). However, the child’s welfare is paramount above all other concerns. Baby Boy A, 517 A.2d at 1247. Analysis In the instant case, the Petition to terminate A.S.’s parental rights claimed the statutory basis that “biological father, for a period of at least six months immediately preceding the filing of this Petition, has failed to perform parental duties.” While the attorney for A.G. argued in closing that A.G. was proceeding on the basis of both failure to perform parental duties and evidencing a settled purpose of relinquishing parental claim, only the failure to perform parental duties was presented in the Petition. Thus, the Court finds that the issue of a settled purpose of relinquishing parental claim was not properly presented. Furthermore, as the Court finds that it 6 has been established that A.S. failed to perform his parental duties for at least six months immediately preceding the filing of the petition, the other ground need not be addressed. The testimony established that A.S. has had no contact with N.S. or her mother for a period of over five years. Even though A.S. was notified of A.G.’s intent to seek termination of his rights to N.S. in late 2013 or early 2014, he attempted no further contact whatsoever, up to and including the time when the petition was filed on February 10, 2016. Like the father whose rights were terminated in In re Adoption by Shives, while A.S. also argued that he did not know the phone number or address to reach N.S. or her mother, he did not utilize the telephone book or contact people like C.S., who knew where they could be reached. In re Adoption by Shives, 525 A.2d at 801, 803 (Pa. Super. 1987). While A.S. argues, and in fact A.G. admits that she did move without informing A.S. of her new address or telephone number, the record is replete with examples of steps that A.S. failed to take to facilitate contact with A.G. or N.S. For example, A.S. never went to the home of A.G.’s parents, or called them on the phone to inquire as to his daughter’s whereabouts, even though he had lived in their same home for several months, and they had the same telephone numbers. At best, A.S. may have sent a Facebook message to A.G.’s father, whose testimony indicated that he rarely used Facebook and had never received a message from A.S. Additionally, A.S. never contacted Attorney Brillhart, from his first contact with him in late 2013 to early 2014 up until and including the date of the hearing, to inquire as to his daughter’s whereabouts, to send her gifts, cards or money, or to ask that he pass a message to 7 1 A.G. to request that she give him information about N.S. Contrary to A.S.’s conduct in the instant case, after receiving contact from his child’s attorney, the father (on the advice of counsel) in In re E.S.M. sent three care packages to his child through that attorney. In re E.S.M., 622 A.2d at 391. Even with that contact, which is more than A.S. ever even attempted, the father’s rights were terminated because he “did not take an active role in attempting to form a parental relationship with his child.” Id. at 394. Thus, while there may have been barriers to A.S. having contact with his daughter, “\[t\]he barriers were not so great as to prevent \[A.S.\] from at least showing concern for his child by inquiring about her well-being.” Id. Having determined that A.S. has failed to perform his parental duties for at least six months, the analysis now turns to A.S.’s explanation for that failure. As indicated above, A.S. testified that he was “blocked at every turn,” and was prevented from seeing N.S. The totality of the circumstances, however, paints a different picture. While A.G. may not have answered A.S.’s few emails or responded to Facebook inquiries, at least one of her addresses (at the residence following her move from Stoner Avenue) was listed in the telephone book. A.S. knew how to contact A.G.’s father, her mother, her brother, and her cousin, but failed to make any significant inquiries regarding N.S. Even accepting all of A.S.’s testimony as true, at best he sent one email message to A.G. in October of 2013, a Facebook message to A.G.’s father in November of 2013, a Playstation message to A.G.’s brother at some point, and a Facebook message to the brother in May of 2012. A.S. also 1 A.S. testified this was because he asked Attorney Brillhart for A.G. and N.S.’s address, but Attorney Brillhart said he could not provide that; Attorney Brillhart disputes this allegation. 8 testified that he attempted to visit A.G. and N.S. in Dover, but they had moved (they lived in Dover for three years, during which time they were visited by A.S.’s father but not by A.S.). It is clear that even if A.G. failed to consistently update A.S. with her address and phone number, and did respond to his occasional message, he did not put forth a substantial effort to have contact with his daughter. While he testified that he was blocked by A.G.’s friends and family, Attorney Brillhart was a contact that he did not use. A.S. never asked Attorney Brillhart to pass along a message or gift to N.S. or A.G. – in fact, he never proactively contacted him, but merely answered the two calls from Attorney Brillhart. Furthermore, A.S. was put on notice of the possibility of the filing of the termination petition in late 2013 or early 2014, and did nothing even then to contact his daughter. The sum total of A.S.’s attempts to be a father for the past five years consist of an attempted visitation more than three years after he last saw his daughter, along with a few attempted contacts by electronic means. While there may have been a few obstacles to doing so, a person of reasonable firmness would have put forth much greater effort in making contact with 2 their child. Furthermore, the testimony and evidence indicated that even A.S.’s early meager efforts ceased no later than November of 2013; thus, A.S. has clearly failed to perform parental duties for at least six months prior to the filing of the termination petition in February of 2016. The final step in the analysis regarding the termination of A.S.’s parental rights is the “needs and welfare” of N.S. In is unquestionable that the needs and welfare of N.S. will best be served by the termination of A.S.’s right to be her father. While A.S. testified that they will “always” have a bond, N.S. does not know who he is. She identifies J.G. as her father, and he is 2 “A father cannot protect his paternal rights by merely stating that he does not wish to have his parental rights terminated.” In re E.S.M., 622 A.2d at 395. 9 the only father she remembers, as she lost contact with A.S. at a very young age. She has a very settled life with A.G. and J.G., and though extremely shy, appears happy and well-adjusted. The Court cannot fathom the disruption that would occur to introduce another father to this reserved little girl, thereby disrupting the only idea of family that she has ever had. While the Court finds the evidence supporting termination to be clear, it does applaud A.S. for his efforts to improve himself, thus hopefully becoming a better husband and stepfather. This Court has not entered into this decision lightly, as termination of parental rights is an issue of utmost importance. However, A.S. decidedly fits the axiom of “too little, too late,” in his decision to be a father to N.S. The Court finds it to be undeniable that the best interests of N.S. will be served by this termination, thus preserving the only life she has ever known and allowing 3 her to continue her relationship with the only man she knows to be her Dad. ORDER And NOW, this _________ day of March, 2016, following hearing and being satisfied that Petitioner has proven by clear and convincing evidence that grounds for termination of A.S.’s parental rights exist under 23 Pa.C.S. § 2511(a)(1), and that termination of A.S.’s parental rights will best serve the needs and welfare of the child by allowing for her adoption by her stepfather, the parental rights of A.S. to N.S. are hereby TERMINATED. By this Order, A.S. is informed that he has 30 days from this date to file an appeal to the Superior Court of Pennsylvania. If he wishes to do so but no longer wishes to represent himself, the Court will, upon proper application, appoint counsel free of charge to assist him in filing this appeal. 3 It should be noted that the guardian ad litem appointed to represent N.S. wholeheartedly supported the termination of A.S.’s parental rights. 10 BY THE COURT, __________________________ Jessica E. Brewbaker, J. MacGregor J. Brillhart For the Petitioners Natural Father Diane Radcliff, Esquire For the Child :rlm 11 IN RE: ADOPTION OF : IN THE COURT OF COMMON PLEAS OF N.R.S. : CUMBERLAND COUNTY, PENNSYLVANIA : : ORPHANS’ COURT DIVISION : NO. 10 ADOPTIONS 2016 IN RE: PETITION FOR INVOLUNTARY TERMINATION OF PARENTAL RIGHTS ORDER And NOW, this _________ day of March, 2016, following hearing and being satisfied that Petitioner has proven by clear and convincing evidence that grounds for termination of A.S.’s parental rights exist under 23 Pa.C.S. § 2511(a)(1), and that termination of A.S.’s parental rights will best serve the needs and welfare of the child by allowing for her adoption by her stepfather, the parental rights of A.S. to N.S. are hereby TERMINATED. By this Order, A.S. is informed that he has 30 days from this date to file an represent himself, the Court will, upon proper application, appoint counsel free of charge to assist him in filing this appeal. BY THE COURT, __________________________ Jessica E. Brewbaker, J. MacGregor J. Brillhart For the Petitioners Natural Father Diane Radcliff, Esquire For the Child