In re the Adoption of Ellingsen

501 A.2d 1123, 348 Pa. Super. 169, 1985 Pa. Super. LEXIS 10181
CourtSuperior Court of Pennsylvania
DecidedNovember 29, 1985
DocketNo. 00664
StatusPublished
Cited by2 cases

This text of 501 A.2d 1123 (In re the Adoption of Ellingsen) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Adoption of Ellingsen, 501 A.2d 1123, 348 Pa. Super. 169, 1985 Pa. Super. LEXIS 10181 (Pa. Ct. App. 1985).

Opinion

CIRILLO, Judge:

Appellant challenges the order entered by the Court of Common Pleas of York County, Pennsylvania, which involuntarily terminated her parental rights for her son, Codyus. Our scope of review is limited to determining whether the decree of termination is supported by competent evidence. In Re Baby Boy P., 333 Pa.Super. 462, 482 A.2d 660 (1984). Appellant, Joebina Ellingsen, contends there was insufficient competent evidence to support the trial court’s finding that appellee sustained its evidentiary burden of clear and [172]*172convincing in its order that Ellingsen’s parental rights be terminated. We agree and therefore reverse.

Appellant raises two issues on appeal: 1) whether there was sufficient, competent evidence to support the trial court’s finding that York County Children and Youth Services (hereinafter YCCS) had met its burden of proving appellee was guilty of repeated and continued incapacity or neglect towards her child; and 2) whether there was sufficient, competent evidence to support the trial court’s finding that YCCS sustained its burden of proving that the conditions which led to the removal of Codyus continued to exist and appellant could not or would not remedy those conditions within a reasonable period of time. The trial court answered both of these questions in the affirmative.

Codyus was born on September 17, 1982, four months prematurely. As a result, the child suffers from retarded physical development and is a respiratory cripple requiring constant medical care. Codyus was a patient in the hospital from birth until December, 1983. In June, 1983, appellant executed a written agreement stating because of her emotional problems and the intensive medical care required by the child, appellant was unable to care for Codyus and custody should be awarded to the agency for foster care. On December 15, 1983, Codyus was released from the hospital and placed in the care of foster parents. Appellant is not permitted to visit the child. The child continues to need close and intensive care, careful monitoring of breathing and equipment for that purpose. Codyus’ hospital physician testified the condition will last several years.

Appellant testified she was working full-time in York while Codyus was hospitalized in Harrisburg. Ellingsen conceded her visits were infrequent but she went to the hospital to see Codyus as she was able. On those occasions when she was unable to visit the hospital, appellant telephoned to check on Codyus’ condition. She stated her visits ceased from July to November, 1983 because of her bad nerves, use of prescribed medication, trouble in her living situation and harassment by others. Ellingsen relinquished [173]*173custody of Codyus to YCCS but she correctly argued that a parent may fulfill her parental duties toward her child by making suitable arrangements for the child’s temporary care during the parent’s period of crisis. In Re D.K.W., 490 Pa. 134, 415 A.2d 69 (1980); Petition of Lutheran Children and Family Services of Eastern Pennsylvania, 456 Pa. 429, 321 A.2d 618 (1974); In Re Adoption of Sabrina, 325 Pa.Super. 17, 472 A.2d 624 (1984). Ellingsen now contends her living and emotional conditions are greatly improved, she is willing and able to learn to care for Codyus properly and she desires to do so.

YCCS grounded its petition to terminate appellant’s parental rights on § 2511(a)(2) and 2511(a)(5) of the Adoption Act of 1980.1 Section 2511(a)(2) provides that:

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.

23 Pa.C.S. § 2511(a)(2). While Section 2511(a)(5) is similar to § 2511(a)(2), the former provides that:

The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions of which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those 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.

23 Pa.C.S. § 2511(a)(5).

This Court has established three requirements which must be satisfied before a natural parent’s rights in a child [174]*174will be terminated under these sections: 1) repeated and continued incapacity, abuse, neglect or refusal; 2) that such incapacity, abuse, neglect or refusal caused the child to be without essential parental care, control or subsistence; and 3) that the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied. In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975). Accord In re Adoption of Michael J.C., 506 Pa. 517, 486 A.2d 371 (1984); Bartasavich v. Mitchell, 324 Pa.Super. 270, 471 A.2d 833 (1984). YCCS was required to show by clear and convincing evidence the presence of these factors to justify the complete severance of appellant’s parental ties with Codyus. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In Re Adoption of James J., 332 Pa.Super. 486, 481 A.2d 892 (1984).

On appeal, we are limited to determining whether the trial court’s finding that YCCS sustained this burden is supported by competent evidence. Matter of Adoption of Baby Boy Allen, 337 Pa.Super. 133, 486 A.2d 517 (1984). We hold the appellee, YCCS, failed to carry its evidentiary burden. The testimony of the witnesses was not so “clear, direct, weighty and convincing ... [that] it carrped] a clear conviction to the mind ... or carrped] a clear conviction of its truth." In re Baby Boy P., 333 Pa.Super. 462, 465, 482 A.2d 660, 661 (1984) (quoting La Rocca Trust, 411 Pa. 633, 192 A.2d 409 (1963)).

In the case sub judice, YCCS’ allegation of appellant’s repeated and continued incapacity in demanding termination of Ellingsen’s parental rights pursuant to §§ 2511(a)(2) and 2511(a)(5) is not supported by the record. Appellant contends, and we agree, the conditions which led Ellingsen to place Codyus in the custody of YCCS are, for the most part, no longer present. Appellant testified at trial, and such testimony was confirmed by Mr.

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Bluebook (online)
501 A.2d 1123, 348 Pa. Super. 169, 1985 Pa. Super. LEXIS 10181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-adoption-of-ellingsen-pasuperct-1985.