In re Adoption of M.P.B.

4 Pa. D. & C.5th 272
CourtPennsylvania Court of Common Pleas, Lawrence County
DecidedFebruary 14, 2008
Docketno. 20036
StatusPublished

This text of 4 Pa. D. & C.5th 272 (In re Adoption of M.P.B.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lawrence County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Adoption of M.P.B., 4 Pa. D. & C.5th 272 (Pa. Super. Ct. 2008).

Opinion

HODGE, J,

— This case is before the court for a hearing on a petition for involuntary termination of parental rights, filed by the natural father, Michael P. Birckbichler II.

Both parents testified at the hearing, and the following facts were established:

[274]*274The parties were married on June 12, 1999, and the minor child, M.P.B. Ill, was bom on June 24, 1999. A divorce complaint was filed on October 4,1999, and the parties were divorced by decree dated March 22, 2000, at case number 11076 of 1999, C.A.

Included in the divorce action, was a cause of action for custody of the minor child, with the father having primary physical custody of the child since entry of an order of January 26, 2001.

On September 24,2002, this court entered a temporary protection from abuse order on behalf of the minor child and against the mother, with the court granting the mother supervised visits at Kids In Common pending final hearing. A court hearing was held on October 4, 2002, and the temporary protection from abuse order was dismissed by order of Judge Piccione dated January 8, 2003.

The most recent custody order was dated October 2, 2006, at which time the mother was granted weekly, supervised visits with the minor child, at Kids In Common. However, this court was advised by Mr. Brian Dick of Kids In Common, pursuant to letter of January 21, 2007, that on October 4,2006, the program had received a phone call from the mother requesting establishment of services, but when Mr. Dick attempted to explain the preliminary orientation, fees for services, etc., the mother became angered and terminated the phone call, and Kids In Common has not heard from her since.

Both parents agree that the last physical contact by and between the natural mother and the minor child was on Christmas Day 2004. Since that time, the mother, by [275]*275her own testimony, acknowledges that she has not seen the child.

The mother was incarcerated in the Lawrence County Jail for two periods of time, being from December 2005 through June 2006, on a probation violation, and from February 2007 through November 2007, on a sentence to a charge of conspiracy to robbery. The mother’s testimony was that she sent cards and letters to her son while incarcerated, but that she believes the father refused to give any of the cards or letters to her son.

The petition for involuntary termination of parental rights was filed November 1,2007, pursuant to 23 Pa.C.S. §2511(a)(1). The six-month look-back period then, would run from May 1,2007, through November 1,2007, during which period of time the mother was incarcerated in the Lawrence County Jail.

The statutory authority for termination of parental rights is set forth at 23 Pa.C.S. §2511, “grounds for involuntary termination; (a) general rule (1),” which provides that a parent’s rights to his or her child may be terminated 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.”

Other statutory authority of importance is set forth at 23 Pa.C.S. §2511(b), “other considerations,” which provides as follows:

[276]*276“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 base 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.”

The case law makes clear that under section 2511, the court must engage in a bifurcated process prior to terminating parental rights. Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evidence that the parent’s conduct satisfies the statutory grounds for termination delineated in section 2511(a). Only after determining that the parent’s conduct warrants termination of his or her parental rights must the court engage in the second part of the analysis: determination of the needs and welfare of the child under the standard of best interest of the child. Though the needs and welfare analysis is mandated by the statute, it is distinct from, and not relevant to, a determination whether the parent’s conduct justifies termination of parental rights under the statute. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child. See In re Adoption of R.J.S., 901 A.2d 502 (Pa. Super. 2006).

[277]*277In proceedings to involuntarily terminate parental rights, the burden of proof is on the party seeking termination to establish by clear and convincing evidence the existence of grounds for doing so. In re G.P.-R., 851 A.2d 967 (Pa. Super. 2004). In such a proceeding, the focus is on the conduct of the parent. In re B.L.W., 843 A.2d 380 (Pa. Super. 2004).

The court must first consider whether the statutory criterion for termination was met pursuant to section 2511(a)(1). In this case, the six-month statutory period under section 2511(a)(1) spans from May 1, 2007, through November 1, 2007.

The uncontradicted evidence is that the mother has not seen her son since December 25, 2004, and has never paid child support for the benefit of the child. The mother’s own testimony provides clear and convincing evidence that she failed to perform parental duties for this entire statutory period. In fact, the evidence as set forth above makes clear that the mother’s many failures far preceded the statutory period.

While incarceration of a parent does not, in itself, provide grounds for the termination of parental rights, a parent’s responsibilities are not tolled during his or her incarceration. In re Adoption of McCray, 460 Pa. 210, 331 A.2d 652 (1975). Moreover, parental rights may not be preserved by waiting for some more suitable financial circumstance or convenient time for the performance of parental duties and responsibilities. See Smith Adoption Case, 412 Pa. 501, 194 A.2d 919 (1963).

In the case of In re D.J.S., 737 A.2d 283 (Pa. Super. 1999), the Superior Court considered a situation in which [278]*278an incarcerated father had sent an occasional card or gift to his child, but had no direct phone contact with the child and had shown no interest in supporting the child financially until after the termination of parental rights petition was filed.

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Related

In Re Adoption of McCray
331 A.2d 652 (Supreme Court of Pennsylvania, 1975)
Matter of Adoption of Charles EDM, II
708 A.2d 88 (Supreme Court of Pennsylvania, 1998)
In Re Adoption of R.J.S.
901 A.2d 502 (Superior Court of Pennsylvania, 2006)
Smith Adoption Case
194 A.2d 919 (Supreme Court of Pennsylvania, 1963)
In Re Adoption of R.B.F.
803 A.2d 1195 (Supreme Court of Pennsylvania, 2002)
In re D.J.S.
737 A.2d 283 (Superior Court of Pennsylvania, 1999)
In re B.L.W.
843 A.2d 380 (Superior Court of Pennsylvania, 2004)
In re G.P.-R.
851 A.2d 967 (Superior Court of Pennsylvania, 2004)

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Bluebook (online)
4 Pa. D. & C.5th 272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-adoption-of-mpb-pactcompllawren-2008.