Does the statute or case make an exception to terminating parental rights as a result of work schedules and distance to be traveled.? with the following case:

In re Baby Smith

STATE OF PENNSYGAN

OPINION

In this direct appeal from the termination of his parental rights, Father seeks to reverse the juvenile court's finding that he abandoned his child. After carefully reviewing the record and relevant legal authority, we affirm the juvenile court's finding of abandonment and the judgment terminating Father's parental rights.

I. Factual and Procedural History

The child was born on May 21, 1999, in Pennsygan. The parents, who were not married, had dated for more than one year while living in Pennsygan with their respective parents. Their relationship ended, according to the child's father, in June 1999. At first, Father saw the child daily, but the visits dwindled to several times a week during the first few months of the child's life.

The mother met the child's present stepfather, when the child was two weeks old. As the relationship between mother and stepfather progressed, Father's visits with the child decreased. Mother married stepfather and moved approximately four hours away from her prior address.

When the child was eight months old, paternity was legally established, and the Father was ordered to pay child support. After child support enforcement proceedings were initiated Father filed a petition to set visitation with the child. The juvenile court entered an order awarding Father four visits to take place at a local mall. Father participated in three of the visits. Mother testified that she heard nothing from Father after January of 2002. Father continued to pay child support as he was able, and he had a telephone conversation with the child on the child's fourth birthday. There has been no further contact between Father and the child Father admits that he was never denied visitation nor has he ever been told that he could not telephone the child.

In 2004, Mother and stepfather filed a petition seeking termination of Father's parental rights and adoption by stepfather. The grounds for termination were abandonment by willfully failing to visit or pay more than a token amount of child support in the four months preceding the filing of the petition.

The juvenile court found that Mother and stepfather failed to establish by clear and convincing evidence that Father willfully failed to support the child. Accordingly, the juvenile court rejected failure to pay child support as a ground for abandonment. The juvenile court found, however, that Father had not seen the child in two and one-half years and that no one had prevented visitation. Based on this failure to visit, the juvenile court found that Father had abandoned the child. The juvenile court also found that termination was in the best interest of the child. Therefore, the juvenile court entered an order terminating Father's parental rights.

The Court of Appeals affirmed the juvenile court's order terminating Father's parental rights.

Analysis

The relevant statute designates "abandonment" as a ground for the termination of parental rights. In this context, abandonment is defined as follows:

For a period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights of the parent(s) or guardian(s) of the child who is the subject of the petition for termination of parental rights or adoption, that the parent(s) or guardian(s) either have willfully failed to visit or have willfully failed to support or have willfully failed to make reasonable payments toward the support of the child[.]

Concerning "abandonment" we have stated, "Certainly, a parent who has abandoned his child, either by willfully failing to visit or by willfully failing to support, is unfit." Nonetheless, the abandonment must be willful, and where a parent has been thwarted in visitation efforts, we have refused to find willful abandonment.

It is undisputed that Father failed to visit the child during the four months immediately preceding the filing of the complaint to terminate his parental rights. The evidence supports a finding that Father's failure to visit was willful. Father testified that Mother never denied him visitation and that his reason for failing to pursue visitation with his child was that he did not want to be "a trouble maker" or "disrupt their lives." The record shows that during the four months preceding the petition to terminate his parental rights, Father made no effort to contact Mother regarding visitation with the child. In addition, the record contains no assertion that Mother prevented him from visiting the child. Accordingly, we conclude that the evidence supports the conclusion reached by the juvenile court and intermediate appellate court that abandonment for failure to visit has been established.

Furthermore, we conclude that the evidence does not preponderate against the juvenile court's conclusion that termination of Father's parental rights is in the best interest of the child.Except for a single telephone call on the child's fourth birthday, the juvenile court noted that Father failed to visit or contact the child from the age of two and one-half years until the age of almost five, when the complaint to terminate parental rights was filed. The juvenile court also concluded that the child failed to develop a meaningful relationship with Father. Moreover, the juvenile court found that it would not be in the child's best interest to "to go back now and try and establish some sort of relationship [with Father]."

Conclusion

We affirm the judgment of the Court of Appeals upholding the termination of Father's parental rights to his child, and remand the case to the juvenile court for further proceedings consistent with this opinion.