In re Adoption of S.M.D.

49 Pa. D. & C.4th 353, 2000 Pa. Dist. & Cnty. Dec. LEXIS 130
Pennsylvania Court of Common Pleas, Chester County·Decided October 2, 2000·No. no. A00-0056·Published

Opinion

ENDY, S.J.,

Jennifer and Ryan had a non-marital relationship in the early 1990s that produced one child, Shane. Still in their teens, their relationship ended eight months after Shane’s birth. They never shared a household or lived as an intact family. Two years later, Jennifer met Charles, a machinist several years her senior. They began cohabiting in August of 1993 and married the following year. Charles has shared legal custody of his two children from a previous marriage.

Ryan maintained regular visitation with Shane on an informal basis for several years. In Shane’s fourth year, [355]*355however, Ryan reports that Jennifer refused him further contact with the child without a court order. Ryan pursued his rights in court and obtained an order granting him shared legal custody with visitation every other weekend.

Ryan, now 27, married Stacey in 1995. They have one child together, Alicia. Ryan is a long-distance hauler who has held at least seven jobs in the last nine years. He does not have health insurance at present and has never provided health care coverage to Shane.

Ryan admits that his irregular working hours and frequent absences from home impaired his ability to meet the terms of his court-ordered visitation, although he denies ever missing a scheduled visit.1 He insists that he would always telephone Jennifer if he were going to be late. Ryan claims Jennifer habitually refused to accommodate his requests for substitute visitation when conflicts arose between his work schedule and custodial time with Shane. Not surprisingly, Charles has a different recollection. Charles remembers Ryan failed to appear many times for his scheduled visitation, leaving Charles and Jennifer the task of explaining Ryan’s absence to his anxious son. Charles maintains that Jennifer offered Ryan flexibility in visitation to no avail.

[356]*356Beyond his four visitation days per month and occasional vacation with the child, Ryan did not involve himself in Shane’s life. It was Charles who immersed himself in the day to day responsibilities of childrearing. Charles changed Shane’s diapers, fed and bathed Shane, and tucked him into bed each night. Charles took Shane to the doctor and cared for Shane whenever he was sick. When Shane entered elementary school, it was Charles who attended parent-teacher conferences, sporting events, and Shane’s other scholastic and extracurricular activities. Charles even coached some of Shane’s team sports. Ryan appeared one time at Shane’s kindergarten back-to-school night, but nothing else. Ryan blamed the school for failing to provide him with notice of Shane’s progress and activities. He claims that he sent letters to the school requesting information about Shane’s curriculum and grades but he never received any response. In the four-plus years that Shane has been enrolled in elementary school, Ryan admits that he never took any additional steps, such as personally appearing at the school, to rectify the situation.

In the late 1990s, the relationship between the parties grew increasingly tense. Charles described inconsistent visitation between Ryan and Shane and mounting support arrears. Ryan disagreed, although he did admit to falling behind in support for a month or two whenever he switched jobs. The parties did concur about the conflict between Jennifer and Ryan at visitation. Custody transfers would erupt into heated exchanges, leading to police intervention on one occasion. Father’s Day 1999 would prove the last time Ryan was to visit with, or speak to, Shane for the next 14 months.

[357]*357Ryan does not dispute the characterization that he has a pervasive passivity to his personality. He alleged that he did not try to contact Shane during the summer of 1999 because he wished to avoid a confrontation with Shane’s mother. To his credit, he did send Shane a birthday card. Coincidentally, however, during this period Ryan was negotiating a surrender of his parental rights in exchange for his discharge from financial liability for Shane. Ryan signed a “consent of child’s natural father, [Ryan], to the voluntary relinquishment of all his parental rights to his son, [Shane].” Therein, Ryan set forth his belief that “it is in the best interests of my son ... to be with his mother and stepfather without any further interference from me.” Although not in the statutorily-prescribed form, this document memorialized Ryan’s acquiescence in the termination of his relationship with his son in consideration for forgiveness of support arrears. Ryan did not see Shane, call him, explain to Shane his decision, inquire after his welfare, nor even say goodbye following the execution of his consent. He simply disappeared from Shane’s life.

Charles acknowledges that he and Jennifer did not act quickly upon Ryan’s consent. He explained that they did not feel pressured to initiate proceedings immediately, believing instead that they had unlimited time. Charles stated that he and Jennifer decided they would begin Shane’s adoption at the time of their planned family vacation in July of 2000.

Tragically, Shane lost his mother on June 14, 2000 when she died suddenly of a ruptured aneurysm at the age of 28. At Charles’ request, Ryan did not attend the funeral, but did send Shane flowers. On June 22, 2000, one week after Jennifer’s death, Charles filed a petition [358]*358to confirm Ryan’s consent to Shane’s adoption. We remanded the petition for defects, including the statutory nonconformity of Ryan’s consent. Around this time, Ryan approached Charles for visitation with Shane, which Charles refused. Ryan then informed Charles that he no longer consented to Shane’s adoption and demanded immediate and permanent custody of the child. Charles responded by filing a petition for involuntary termination of parental rights on July 14, 2000. Ryan counter-sued for custody of Shane on July 20, 2000. Ryan’s complaint for custody has been deferred pending resolution of Charles’ petition for involuntary termination of parental rights.

Preliminarily, we find that Charles has in loco parentis status to pursue a termination of Ryan’s parental rights. In custody disputes, stepparents are treated as third parties vis-a-vis birth parents. Bupp v. Bupp, 718 A.2d 1278, 1281 (Pa. Super. 1998) (custody awarded to mother’s ex-husband, an unrelated third party); Karner v. McMahon, 433 Pa. Super. 290, 640 A.2d 926 (1994) (stepfather held to have in loco parentis status in custody proceeding).

“The phrase ‘in loco parentis’ refers to a person who puts himself in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formality of a legal adoption. The status of ‘in loco parentis’ embodies two ideas; first, the assumption of a parental status, and, second, the discharge of parental duties.” Bupp v. Bupp, 718 A.2d 1278, 1281 (Pa. Super. 1998) (quoting Commonwealth ex rel. Morgan v. Smith, 429 Pa. 561, 565, 241 A.2d 531, 533 (1968)).

[359]

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In re Adoption of S.M.D., 49 Pa. D. & C.4th 353, 2000 Pa. Dist. & Cnty. Dec. LEXIS 130 (Pa. Super. Ct. 2000).

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