In Re: Involuntary Termination of Parental Rights to A.W., a Minor, No. 2016-00469

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Father signed over primary custody of his minor child, who was born on May 15, 2006 and who lived with the child’s grandparents (“Grandparents”) since August of 2006, to Grandparents in 2009, and he continued to see the child on a regular basis until he relocated to Alabama in 2011 or 2012. Father objected to the Petition for Involuntary Termination filed by Grandparents on the basis that their conduct obstructed Father from maintaining a relationship with the child.

1. Title 23 Pa.C.S. § 2511(a)(1) provides that the rights of a parent may be terminated if the parent, by conduct continuing for a period of at least six (6) 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. Section 2511(b) requires that in terminating the rights of a parent, the court shall give primary consideration to the developmental, physical and emotional needs and welfare of the child.

3. A parent must maintain a concerted, deliberate effort to maintain contact with his or her child, and all circumstances must be considered when analyzing a parent’s performance or nonperformance of parental duties. Where there are allegations that the custodial party exhibited obstructive conduct, a parent’s performance must be measured in light of what would be expected of an individual in similar circumstances. A parent will not be found to have failed or refused to perform parental duties or evidenced a settled purpose of relinquishing parental claim to a child as long as he or she uses all available resources to preserve the parental relationship and exercises reasonable firmness in declining to yield to obstacles. In re Adoption of B.D.S., 431 A.2d 207 (Pa. 1981).

4. Despite the fact that the record establishes that Grandparents erected barriers that had the effect of inhibiting Father’s relationship with the child, the same does not excuse Father’s complete and utter abandonment of the child in this case by failing to provide any food, clothing, medical or dental care for the child, to send the child gifts at birthdays and/or holidays, to write letters to the child, to stop to see the child while visiting family in Pennsylvania, to hire an attorney at any time over the past five (5) years to pursue custody rights, to encourage the child’s educational growth, to ensure that the child enjoyed wholesome family activities or to contribute any support toward the child.

5. The record establishes by clear and convincing evidence that Father abandoned the child for a period far in excess of six (6) months prior to the filing of the Petition for Involuntary Termination by Grandparents.

6. In light of the fact that the child is an excellent, well socialized student and is doing well in a loving and stable home, the Court will not facilitate the potential trauma of removing the child from this environment.

L.C.C.C.P. No. 2016-00469, Opinion by Bradford H. Charles, Judge, September 22, 2016.

Horace M. Ehrgood, Esquire, for Grandparents

Father is a Self-Represented Litigant

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

ORPHANS’ COURT DIVISION NO. 2016-469

IN RE: INVOLUNTARY TERMINATION OF PARENTAL RIGHTS TO A.W., A MINOR

ORDER OF COURT

AND NOW, this 22^nd day of September, 2016, after hearing and in accordance with the attached Opinion, the Order of this Court is as follows:

1. Pursuant to 23 Pa.C.S.A. § 2511(A)(1), we conclude by clear and convincing evidence that Megan Wertz (hereafter “MOTHER”) has abandoned her daughter and therefore displayed a settled purpose to relinquish parental rights relating to A.W.

2. Pursuant to 23 Pa.C.S.A. § 2511(A)(1), we conclude by clear and convincing evidence that Kevin Wertz (hereafter “FATHER”) has abandoned his daughter and therefore displayed a settled purpose to relinquish parental rights relating to A.W.

3. Douglas Albert and Tammi Albert are directed to file a Petition for Adoption as soon as possible following thirty days after the date of this Order.

4. Pending resolution of the Petition for Adoption directed in the preceding paragraph, legal and physical custody of A.W. is awarded to Douglas and Tammi Albert. Neither Megan Wertz nor Kevin Wertz shall be entitled to any custodial rights.

5. A copy of this Order is to be served upon Kevin Wertz and Megan Wertz by personal service. Both Kevin Wertz and Megan Wertz are advised that they have thirty days from the date of this Order in which to file an appeal of our decision with the Pennsylvania Superior Court.

6. Pursuant to 23 Pa.C.S.A. § 2511(C), Kevin Wertz and Megan Wertz are advised that they have the right to deposit personal and medical history information that may be useful to A.W. in the future. This information may be provided to the Court or to the Pennsylvania Department of Welfare and it will be forwarded to individuals responsible for the care of A.W.

BY THE COURT:

BRADFORD H. CHARLES, JUDGE

APPEARANCES:

Horace M. Ehrgood, Esquire For Tammi J. Albert and Douglas C. Albert

EHRGOOD & ARNOLD

Kevin Wertz Pro Se

OPINION BY CHARLES, J., September 22, 2016

Parenting children is perhaps the most sacred of any human responsibility…and it is not easy. One cannot effectively parent only when it is convenient. Parents must be “on duty” 24 hours a day, 7 days a week and 52 weeks a year. In this case, Megan Wertz (hereafter “MOTHER”) and Kevin Wertz (hereafter “FATHER”) abandoned their parental duties to A.W. for years while she was in the care of her maternal grandparents, Douglas and Tammi Albert (hereafter “GRANDPARENTS”). Now, after GRANDPARENTS have provided daily care for A.W. for a period in excess of five years, FATHER has objected with righteous indignation to the effort of GRANDPARENTS to adopt A.W. For reasons we will articulate in more detail below, we will grant GRANDPARENTS’ Petition for Involuntary Termination of Parental Rights so that A.W. can spend the rest of her childhood with the only parental caregivers she has ever known.

I. FACTS

MOTHER and FATHER are the natural parents of A.W., who was born on May 15, 2006. Almost immediately after A.W.’s birth, MOTHER abandoned her to the care of GRANDPARENTS. Since August of 2006, A.W. has lived with GRANDPARENTS. MOTHER has relocated outside Pennsylvania. She has had practically no contact with A.W. since birth. FATHER remained in Central Pennsylvania after A.W. was born. He had an active relationship with his daughter until 2009, when he faced criminal charges for endangering the welfare of children. As a result of those criminal charges, FATHER signed over primary custody of A.W. to GRANDPARENTS. Following the Court Order that was entered in 2009, FATHER continued to see A.W. on a regular basis until he relocated to Alabama at some point in 2011-2012. According to FATHER’s fiancée, the last time that FATHER saw A.W. was in August of 2012.

Since at least 2012, A.W. has been raised exclusively by GRANDPARENTS. GRANDPARENTS have paid for the necessities of life for A.W. They have ensured that A.W. has appropriate medical and dental care. They have facilitated A.W.’s matriculation into school. They have prioritized A.W.’s education, as evidenced by the fact that A.W. is an honor roll student. They have taken A.W. on fun family activities such as camping and swimming. They have paid for her to enjoy Knoebel’s Park and Hershey Park. In the words of Tammi Albert: “What we do is what a mom and dad should do.”

Since FATHER’s relocation to Alabama, he has not paid child support through any court-ordered process. More important, FATHER has not voluntarily contributed money for the support of his daughter. In addition, FATHER has not provided Christmas or birthday presents for A.W. for six years, nor has he paid for A.W. to participate in any extracurricular activities.

On July 22, 2016, GRANDPARENTS filed a Petition for Involuntary Termination of Parental Rights as a precursor to their request to adopt A.W. MOTHER has not opposed GRANDPARENTS’ request. FATHER has. FATHER claims that he has been estranged from his daughter by virtue of GRANDPARENTS’ conduct. FATHER indicates that he has tried to contact GRANDPARENTS, but they have ignored his efforts of communication. FATHER states that he contacted lawyers in an effort to ascertain his legal rights, but could not afford to hire a lawyer because “they are very expensive.”

According to the testimony of everyone involved, FATHER did make efforts to contact GRANDPARENTS in an effort to see how his daughter was doing. The most recent contact prior to the filing of the Petition occurred on A.W.’s birthday in 2016. However, the efforts by FATHER to communicate with GRANDPARENTS were punctuated with animosity; both FATHER and GRANDPARENTS acknowledge that profane and unpleasant words were exchanged during these efforts at communication. At no time after 2012 did FATHER hire a lawyer or otherwise pursue any of his custodial rights as A.W.’s father.

There is obviously no love lost between GRANDPARENTS and FATHER’s family. When FATHER’s mother was called to testify, she almost stumbled because she was staring with daggers in her eyes at Tammi Albert as she was walking toward the witness stand. While on the stand, FATHER’s mother raised her voice to a pitch rarely seen in court. A different but no less poignant emotional reaction was displayed by FATHER’s wife, who broke down and sobbed when she described how her children have been deprived of the ability to have a relationship with A.W. From the perspective of this Court, the Wertz family believes that GRANDPARENTS have intentionally brainwashed A.W. against them. For their part, GRANDPARENTS resent the fact that the Wertz family has effectively abandoned A.W. without contributing anything monetarily or tangibly to the growth of A.W.

Following a hearing that occurred on September 6, 2016, we articulated several visceral observations based upon the evidence presented:

(1) That FATHER honestly wishes to have some sort of ongoing relationship with A.W.; and

(2) That FATHER has for a period of roughly five years effectively abandoned his daughter.

Based upon these two competing observations, we took the issue presented under advisement in order to complete additional legal research regarding our legal responsibilities. Having now conducted that legal research, we issue our Opinion today to grant GRANDPARENTS’ Petition for Involuntary Termination.

II. DISCUSSION

Legal Principles

Involuntary termination of parent rights is governed by 23 Pa.C.S.A. § 2511, which states, inter alia:

(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 evidence they 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 a 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.

…

(5) The children has been removed from the care of the parent by the Court or under voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy these conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

…

(8) The child has been removed from the care of the parent by the Court or under a voluntary agreement with an agency, twelve months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child.

…

(b) Other Considerations – The Court in terminating the rights of a parent shall give primary considerations 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.A. § 2511. Fairly summarized, we characterize the involuntary termination ground found at sub-section (a)(1) as requiring parental abandonment, the ground set forth at sub-section (a)(2) as requiring parental incapacity, and the grounds set forth in sub-section (a)(5) and (a)(8) as involving AGENCY placement.

In this case, we must focus our attention upon the abandonment provision of sub-section (a)(1); specifically, how the addition of barriers, such as the ones allegedly placed by GRANDPARENTS, would affect the ruling on a petition for involuntary termination. Where the evidence clearly establishes a parent has utterly failed to perform parental duties for a period in excess of six months, we can conclude that the parent displayed a “settled purpose of relinquishing a parental claim.” In evaluating the circumstances of the case before us, we must determine whether the totality of the circumstances clearly warrants the involuntary termination of parental rights. In re Adoption of Atencio, 650 A.2d 1064, 1066 (Pa. 1994).

In this case, FATHER acknowledges that he had little contact with A.W. for more than six months. However, he argues that GRANDPARENTS prevented him from enjoying any contact. This is not a unique claim. Courts provide guidance as to what extent a parent must work to circumvent, hurdle, or tunnel barriers placed in front of them regarding an ongoing relationship with their children.

A parent must maintain a concerted, deliberate effort to maintain contact with their child, “all circumstances must be considered when analyzing a parent’s performance or non-performance of parental obligations.” In re Adoption of B.D.S., 431 A.2d 207, 203 (Pa. 1981) (citing In re Adoption of R.W.B., 401 A.2d 347 (Pa. 1979)). Where there are allegations that the custodial parent exhibited obstructive conduct, a parent’s performance must be measured in light of “what would be expected of an individual in [similar] circumstances….” B.D.S., 431 A.2d at 207 (citing In re Adoption of David C., 387 A.2d 804 (Pa. 1978)).

Failure to maintain contact with a child attributable to a custodial parent’s deliberate actions, designed to thwart attempts to contact the child, will be scrupulously examined by the trial court. Parental performance is to be measured in light of what reasonably would be expected of an individual facing comparable hindrances, giving due consideration to the specific obstacles encountered. See, In Re Adoption of J.S.M., Jr., 424 A.2d 878 (Pa. 1981); In re Adoption of D.J.Y., supra; and In the Matter of the Adoption of David C., 387 A.2d 804 (Pa. 1978). The Pennsylvania Supreme Court has admonished parents with a stern warning that,

Obstructive behavior on the part of the custodial parent aimed at thwarting the other parent’s maintenance of a parental relationship will not be tolerated, and certainly will not provide a sound basis for the involuntary termination of parental rights.

In re Adoption of B.D.S., 431 A.2d 203, 208 (Pa. 1981).

Accordingly, a parent will not be found to have ‘failed’ or ‘refused’ to perform parental duties or evidenced a settled purpose of relinquishing parental claim to a child, as long as, he or she uses all available resources to preserve the parental relationship and exercises reasonable firmness in declining to yield to obstacles. In re Adoption of B.D.S., 431 A.2d 207, 203 (citing In re Adoption of S.H., 383 A.2d 530, 529 (Pa. 1978)). If the evidence demonstrates a parent has used all available resources to maintain a relationship with the child, courts will be at liberty to determine that the barriers served as an excuse or understandable obstacle to parental care. Otherwise, obstacles or barriers will not excuse parental abandonment or neglect.

B. Analysis

Good intentions and sincerity of belief do not put food on a child’s plate. While we have little doubt that FATHER now wishes to have an ongoing relationship with A.W., he has not done enough over the past five years to thwart GRANDPARENTS’ legitimate desire to adopt A.W. or trump what is so obviously in A.W.’s best interest. Bluntly stated, FATHER’s actions over the past five years – or lack therefore – can and must outweigh the sincerity of his current desire to reestablish a relationship with his daughter.

Pennsylvania law requires us to evaluate the conduct of a parent during the six months leading up to the date of the Involuntary Termination Petition. During this six month period of time, the evidence establishes beyond any doubt whatsoever the following:

GRANDPARENTS have provided food on a daily basis for A.W. FATHER has not provided any food whatsoever.

GRANDPARENTS have purchased and provided clothing for a growing young girl. FATHER has not.

GRANDPARENTS have facilitated medical and dental care for A.W. FATHER has not.

Despite having relatively meager income, GRANDPARENTS have hired a lawyer to pursue an adoption. Despite having far greater income, FATHER has not hired a lawyer at any time over the past five years to pursue custody rights to which he was so clearly entitled.

GRANDPARENTS have ensured that A.W. attends school and prioritizes her education. FATHER has done nothing at all to encourage A.W.’s educational growth.

GRANDPARENTS have ensured that A.W. enjoys wholesome family activities. FATHER has not.

Even though GRANDPARENTS could likely have used financial assistance to raise A.W., they have refrained from initiating a child support action against either MOTHER or FATHER and they have sacrificed financially to make sure that A.W. has everything that she needs. At no time in the past five years has FATHER contributed even one dollar to the support of his daughter.

Placing the facts of this case in the above context, it is clear that GRANDPARENTS have earned the ability to continue to raise A.W. It is equally clear that FATHER has by his actions forfeited the right to do so.

To be fair, we have little doubt that GRANDPARENTS have not encouraged A.W. to have a relationship with FATHER. We have little doubt that GRANDPARENTS view FATHER as someone who has voluntarily removed himself from his daughter’s field of gravity and they have likely concluded that permitting FATHER to reenter the picture would be both confusing to A.W. and potentially harmful should FATHER reestablish and then again disengage a father-daughter relationship. Given this dynamic, we have little doubt that GRANDPARENTS did in fact erect barriers that have had the effect of inhibiting FATHER’s relationship with A.W.

Having concluded the above does not excuse FATHER’s complete and utter abandonment of A.W. Under Pennsylvania law, a parent has an ongoing duty to undertake reasonable efforts to circumvent, hurdle or tunnel under barriers between that parent and his child. See Section II.A. infra. In this case, FATHER had every right to enforce the existing custody agreement via a Motion for Contempt. He had every right to initiate a new custody action seeking to reestablish a relationship with his daughter. He could have sent gifts at birthdays and holidays. He could have sent money on a periodic basis. He could have written letters or even stopped to see his daughter while visiting family in Pennsylvania. He did none of the above. It is the opinion of this Court based upon clear and convincing evidence that FATHER abandoned his daughter for a period far in excess of six months prior to the filing of the Involuntary Termination Petition.

Before we conclude, we also need to point out that this case is about far more than GRANDPARENTS and FATHER. At its essence, this case is about A.W. and what is best for her future. At the present time, A.W. is doing well. She is an excellent student. She is well socialized. She is living in a loving and stable home. Removing A.W. from the only environment she has known for her entire life would be traumatic, and we are not inclined to facilitate such trauma. It is our opinion that adoption by GRANDPARENTS would be in A.W.’s long-term best interest and this is also a factor that we have considered when rendering a decision in this case.

 

1) We will refer to the child who is the subject of this dispute by her initials rather than by her name.

2) A copy of GRANDPARENTS’ Petition for Involuntary Termination was served upon MOTHER on August 17, 2016. MOTHER has not taken any action to oppose GRANDPARENTS’ Involuntary Termination Petition.

3) Considering what is best for the child in an involuntary termination case has been codified. 23 Pa.C.S.A. § 2511 states: “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….”