In re Adoption of S.L.T.

41 Pa. D. & C.5th 14, 2014 Pa. Dist. & Cnty. Dec. LEXIS 1283
CourtPennsylvania Court of Common Pleas, Chester County
DecidedSeptember 12, 2014
DocketNo. AD-2014-0035
StatusPublished

This text of 41 Pa. D. & C.5th 14 (In re Adoption of S.L.T.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Chester 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 S.L.T., 41 Pa. D. & C.5th 14, 2014 Pa. Dist. & Cnty. Dec. LEXIS 1283 (Pa. Super. Ct. 2014).

Opinion

TUNNELL, J.,

This is a step-parent adoption proceeding. The biological father of S.L.T., Scott Toombs, and his wife, Emily Toombs, the stepmother, seek to terminate the parental rights of S.L.T.’s biological mother, Jessica Puckett. After a hearing by the court sitting without a jury held September 4, 2014, and upon consideration of the testimony of all the witnesses, the court denies the Petition to Terminate Parental Rights (also referred to as “TPR”).

JURISDICTION

A threshold issue in this case concerns jurisdiction.

Although Scott and Emily Toombs (collectively “petitioners”) filed their petition for adoption and a petition for the Termination of Parental Rights in May 2014, there is no certificate that service was ever made [17]*17on Jessica Puckett. On July 3, 2014, the petitioners filed a revised petition for adoption and revised petition for Termination of Parental Rights. The court appointed Susan Potts, Esquire as counsel for S.L.T. on July 11, 2014. On that date, a preliminary decree issued scheduling the TPR hearing for September 4, 2014. On August 21, 2014, notice and a copy of the revised petition for Termination of Parental Rights was received by Jessica Puckett, two weeks before the hearing.

A prior custody matter pending in the Superior Court of New Jersey, Bergen County, is docketed as Scott Toombs v. Jessica Puckett, No. FM-02-1123-12. Jessica Puckett filed a notice of motion in that court, and Scott Toombs then requested a continuance of any proceeding in New Jersey through the date of September 19,2014, which was granted by the Bergen County Court.

S.L.T. has resided in Pennsylvania for two years.

Pennsylvania and New Jersey are both signatories to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Compare 23 Pa. C.S.A. §5401, et seq., with N.J.S.A. 2A: 34-53, et seq. Adoption cases such as that at bar here are excluded from the UCCJEA, 23 Pa. C.S.A. §5403, because adoption is a specialized area, the jurisdictional provisions for which are found elsewhere.1 [18]*18See UCCJEA, §5403, cmt. supra.

This court does not disturb the question of custody and visitation pending in Bergen County. But since the adoption is denied, any further determination of the child’s custody would be subject to the UCCJEA. This court will defer to the Bergen County Court for its determination thereon.

As reasons for terminating the rights of Jessica Puckett, the biological mother,

Petitioners cite the following sections of the Pennsylvania Adoption Act of 1980,23 Pa. C.S.A. §2101, etseq., (“Adoption Act”) as amended:

§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.

[19]*19APPLICABLE LAW

Substantively, the Pennsylvania Supreme Court has stated that there is no simple or easy definition of parental duties. Parental duty is best 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. Thus, the Supreme Court has held that the parental obligation is a positive duty which requires affirmative performance. In Re: Burns, 474 Pa. 615, 379 A.2d 535 (1977). A parent must exert himself or herself to take and maintain a place of importance in the child’s life. Id.

Parental rights may not be terminated in the absence of evidence which is clear and convincing. This high standard was formulated by the United States Supreme Court in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). This principle requires evidence which is so clear, direct, weighty and convincing as to enable the fact finder to come to a clear conviction without hesitancy of the truth of the precise facts in issue. In Re: Adoption of James J., 332 Pa. Super. 486, 493, 481 A.2d 892, 896 (1984).

The law recognizes that there are situations in which a custodial parent has deliberately created obstacles and has by devious means erected barriers intended to impede free communication and regular association between the noncustodial parent and her child. Therefore, it is incumbent upon a court, before it terminates the rights of a noncustodial parent, to consider carefully the non-custodial [20]*20parent’s explanation for her apparent neglect. Only when the totality of the circumstances demonstrates clearly and convincingly that a parent has refused or failed to perform parental duties for a minimum period of six months may an order be entered terminating parental rights. In Re: Shives, 363 Pa. Super. 225, 525 A.2d 801 (1987). The pertinent inquiiy is not the degree of success a parent may have had in reaching the child, but whether, under the circumstances, the parent has utilized all available resources to preserve the parent-child relationship. In Re: Adoption of Faith M., 509 Pa. 238, 501 A.2d 1105 (1985).

Even where it is established that a parent has failed to perform parental duties for a period in excess of six months, such a finding does not in and of itself support an order terminating parental rights. Rather, a court then must examine the individual circumstances and any explanation offered by the parent to determine if that evidence, in light of the totality of the circumstances, clearly warrants permitting the involuntary termination of said parent’s parental rights. In deciding this sensitive question, the Supreme Court has said that it is mindful of the irreversible nature and serious emotional impact which necessarily follow an involuntary termination of parental rights. In Re: Adoption of Orwick, 464 Pa. 549, 347 A.2d 677 (1975). A court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child, 23 Pa.C.S. §2511(b). Judicial inquiry is thus to be centered on the best interests of the child rather than the fault of the parent. Adoption of J.J., 511 Pa. 590, 515 A.2d 883 (1986).

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Related

Santosky v. Kramer
455 U.S. 745 (Supreme Court, 1982)
In Re Involuntary Termination of Parental Rights of Burns
379 A.2d 535 (Supreme Court of Pennsylvania, 1977)
In Re Adoption of Orwick
347 A.2d 677 (Supreme Court of Pennsylvania, 1975)
In Re Adoption of Faith M.
501 A.2d 1105 (Supreme Court of Pennsylvania, 1985)
In Re Adoption of James J.
481 A.2d 892 (Supreme Court of Pennsylvania, 1984)
In Re Adoption by Shives
525 A.2d 801 (Supreme Court of Pennsylvania, 1987)
In Re Adoption of Hamilton
549 A.2d 1291 (Supreme Court of Pennsylvania, 1988)
In Re Adoption of JJ
515 A.2d 883 (Supreme Court of Pennsylvania, 1986)

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Bluebook (online)
41 Pa. D. & C.5th 14, 2014 Pa. Dist. & Cnty. Dec. LEXIS 1283, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-adoption-of-slt-pactcomplcheste-2014.