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[U] In re L.M.M.

Superior Court of Pennsylvania

February 20, 2014

IN RE: L.M.M.,
v.
APPEAL OF: L.M., Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered June 28, 2013 In the Court of Common Pleas of Butler County Orphans' Court at No(s): O.A. NO. 44 of 2012

BEFORE: FORD ELLIOTT, P.J.E., BOWES, and WECHT, JJ.

MEMORANDUM

BOWES, J.

L.M. ("Mother") appeals from the order entered on June 28, 2013, wherein the orphans' court denied her petition to involuntarily terminate the parental rights of T.M. ("Father") to their minor son, L.M.M. We affirm.

Mother and Father married on September 26, 2008, separated during June of 2011, and were divorced by decree entered on March 12, 2012. Father's chronic alcoholism was the primary reason that the marriage dissolved. Meanwhile, L.M.M., was born of Mother and Father's marriage during February of 2011, four months before the parties' separation. On June 24, 2011, Mother filed a custody complaint. The parties attempted to negotiate a custody agreement; however, those discussions were unsuccessful. Ultimately, Mother obtained primary physical custody of L.M.M. and Father was granted periods of partial physical custody to be determined by the mutual agreement of the parties.

As the custody arrangement required Mother's assent before Father could exercise periods of physical custody and because Mother was justifiably concerned about Father's ongoing alcohol abuse, Mother restricted Father's contact with L.M.M. to supervised visits where he resided, which was the paternal grandparents' home. Paternal Grandmother would contact Mother on Father's behalf and facilitate the temporary transfer of physical custody. Pursuant to this arrangement, between August 2011 and April 29, 2012, Father visited with his son for several hours approximately twice per month. However, during April of 2012, Mother informed Father that he could no longer exercise custody until he achieved sobriety. N.T., 3/13/13, at 65-66. Specifically, she advised that "he needed to get himself turned around before he was going to be part of [L.M.M.'s] life." Id. at 60.

Mother believed that since she had primary custody, she also had a legal right to stop Father's custodial periods until she was satisfied that Father was sober. She explained, "There comes a point when you have to do what's best for your son, and that's what I was doing. I was following my legal- since I was awarded primary custody. I was doing what was best for [L.M.M.]." Id. at 61, 74. Two months later, Father sent Mother a text inquiring about L.M.M., but, presumably, since he had not yet addressed his issues with alcohol, he did not ask to see his son at that time. Id. at 60, 61, 63, 65. Due to his alcoholism and concomitant legal troubles, on November 1, 2012, Father enrolled in the Butler County Veterans Court, a program designed to assist veterans charged with non-violent crimes who are struggling with addiction.

Six months and one day after suspending Father's partial physical custody during April of 2012, Mother filed a counseled petition to terminate Father's parental rights pursuant to 23 Pa.C.S. § 2511(a). Father received notice of the petition on November 13, 2012, approximately two weeks after he enrolled in the Veterans Court program. The grounds for involuntary termination asserted in the petition considers "a period of at least six months immediately preceding the filing of the petition[.]" 23 Pa.C.S. § 2511(a)(1). Specifically, the petition alleged, in pertinent part, that Father had failed to visit or communicate with L.M.M. in approximately six months and that his contact with his son prior to the six-month period was sporadic. The petition also alleged that Father's child support payments were minimal and infrequent and that Father "has generally failed to perform any parental duties for [L.M.M.] since birth[.]" See Mother's Petition to Involuntarily Terminate Parental Rights, 10/30/12, at 3. Lastly, the petition identified Mother's then-fiancé, R.M., to whom she had become engaged during July 2012, as the party intending to adopt L.M.M. upon the termination of Father's parental rights. Although Mother and R.M. initially intended to wed during November 2013, they accelerated the date to December 28, 2012, in part, so that they would be married before the evidentiary hearing. N.T., 3/13/13, at 49, 91.

During the evidentiary hearing, Mother testified, presented Father as if on cross-examination, and called Maternal Grandfather and R.M. to the witness stand. Father countered with his own testimony and presented Paternal Grandmother. On June 28, 2013, following the hearing and the submission of briefs, the orphans' court entered an opinion and order denying Mother's petition. The orphans' court concluded that Mother did not prove the statutory grounds outlined in § 2511(a)(1) by clear and convincing evidence. Specifically, the court reasoned that, under the totality of the circumstances, termination was not warranted because Father used reasonable firmness to address his alcoholism in order to satisfy Mother's demand that he achieve sobriety prior to reestablishing contact with L.M.M. It opined,

While the Court understands that Father's alcoholism has undoubtedly taken its toll on Mother and she wants to move on with her life, that does not warrant the finality of terminating Father's rights to Child. This is not an instance where Father had not seen Child for years; Mother filed the Petition right at the six-month mark. By the time Father was made aware of the Petition; he was already seeking help for his alcoholism and attempting to overcome his barrier to his parenting time. As soon as Father began getting help fulfilling his obligations to Child, Paternal Grandmother made a request to Mother to see Child. This request was ignored.
Even if the Court were to accept Mother's argument that Father failed to perform his parental duties for a period of at least six month[s], that failure would have more to do with Father's incapacity as a result of his alcoholism rather than an intentional failure to perform his parental duties.
This Court simply cannot mechanically apply the statute to an individual that realized he had a problem and began seeking help, while never evidencing a settled purpose to relinquish [his] parental claim to Child. Perhaps it took not seeing Child or his legal problems to seek help, but Father did ultimately get help, and he did so before notice of this Petition. Father overcame his obstacle to parenting with a reasonable firmness, and because of that the requirements of 23 Pa.C.S.A. § 2511(a)(1) have not been met. The Court urges Mother to understand the severity of terminating Father's and Child's rights to one another, and realize that it is an action that should not be taken lightly. As the Court has great hesitation over terminating Father's parental rights, the Petitioner has failed to prove by clear and convincing evidence that Father failed to perform his parental duties for a period of at least six months. This issue is one better dealt with in custody court, without the definiteness of a termination of parental rights.

Findings of Fact, Opinion, and Order, 6/28/13, at 9-10 (footnote omitted).

This timely appeal followed. Mother complied with rule Pa.R.A.P. 1925(a)(2)(i) by filing her statement of errors complained of on appeal concurrent with her notice of appeal. The Rule 1925(b) statement raised six arguments that she rephrased on appeal as follows:

A. Whether the trial court's decision to deny natural mother's petition for involuntary termination of natural father's parental rights, including the findings of fact made on the record, ...

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