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[U] In re Adoption of M.J.S.

Superior Court of Pennsylvania

February 10, 2014

IN RE: ADOPTION OF M.J.S. APPEAL OF: D.E.P., Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order, June 28, 2013, in the Court of Common Pleas of Lawrence County Orphans' Court Division at No. 20038 OF 2012, O.C.-A

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

MEMORANDUM

FORD ELLIOTT, P.J.E.

D.E.P. ("Father") appeals the order of the Court of Common Pleas of Lawrence County that terminated his parental rights to M.J.S. ("Child") pursuant to 23 Pa.C.S.A. § 2511(a)(1) and (b) of the Adoption Act. We affirm.

The trial court has summarized the facts and procedural history as follows:

On March 27, 2010, [S.B.] (hereinafter, "Natural Mother") gave birth to a baby girl (hereinafter, [Child]). At the time of [Child's] birth, the Natural Father/Respondent, [D.E.P.] (hereinafter, "[Father]"), was serving a sentence of eleven and one-half months to twenty-four months, less one day, following a guilty plea to the charges of Aggravated Indecent Assault, in violation of 18 Pa.C.S.A. §3125(7) and Sexual Abuse of Children-Dissemination of Photos, in violation of 18 Pa.C.S.A. §6312(c)(1).[Footnote 1] Prior to [Child's] birth, Natural Mother agreed to place the child for adoption, and Natural Mother consented to the baby's being adopted by the Petitioners. Natural Mother believed that the adoption would be in the baby's best interests as [Father] was incarcerated and she was unable to care for the baby herself. Initially, Natural Mother kept the [Father] informed about the pregnancy, but in December 2009, Natural Mother ended her relationship with [Father] after leaving the residence of [K.B.], [Father]'s mother, where [Father] lived with Natural Mother. Communication between Natural Mother and the [Father] ended, and Natural Mother began to make arrangements for the baby to be adopted by the Petitioners.
Immediately following the birth of [Child] on March 27, 2010, Natural Mother placed [Child] in Petitioners' custody. On April 19, 2010, [Father] was released from prison. At the time of his release, [Child] remained in Petitioners' custody. On May 13, 2010, [Father] initiated a custody action in the Court of Common Pleas of Lawrence County. On May 26, 2010, Petitioners filed a Petition to Intervene in the custody action. The Court was advised of [Father]'s prior criminal history during the presentation of the Petition to Intervene. Pursuant to 23 Pa.C.S.A. §5329, then 23 Pa.C.S.A. §5303[footnote omitted], this Court was precluded from awarding [Father] any form of partial custody prior to an expert evaluation. Consequently, [Child] remained in the Petitioners' custody pending a hearing on the Petition to Intervene. After a full evidentiary hearing, this Court granted the Petitioners' request to intervene on September 28, 2010.
Following a custody conciliation conference in November 2010, [Father] was required to meet with a qualified professional, Dr. Douglas Bogdan, to address [Father]'s prior criminal convictions. It was the obligation of the Court to make a determination of whether [Father] posed a threat to the minor child prior to awarding [Father] any form of custodial rights. See 23 Pa.C.S.A. §5329.
[Father] began counseling with Dr. Bogdan on November 27, 2010, and he continued counseling through December 2012. After two evidentiary hearings, held on October 14, 2011 and October 12, 2012, this Court was satisfied that [Father] no longer posed a threat to the minor child, and scheduled the custody action for a trial. Prior to reaching the merits of [Father]'s initial Custody Complaint, the Petitioners filed the underlying Petition to Terminate Parental Rights. Hearings on the Petition to Terminate the Natural Father's Parental Rights were held on March 15, 2013 and April 12, 2013.
[Footnote 1] [Father] was paroled on October 12, 2005. On February 25, 2010, [Father]'s sentence of probation was revoked, and he was resentenced on the aforementioned charges. While [Father] was serving his term of probation, the subject minor child was conceived.

Trial court opinion, 6/28/13 at 1-4.

The trial court entered its order terminating Father's parental rights on June 28, 2013, and this appeal followed. Father raises two issues for our consideration:

1. Did the trial court abuse its discretion in terminating D.E.P.'s parental rights pursuant to 23 Pa.C.S.[A.] Section 2511(a)(1)?
2. Did the trial court commit an error of law in failing to bifurcate the termination proceedings?

Father's brief at 5.

The standards governing our review of an order terminating parental rights are well settled:

When reviewing an appeal from a decree terminating parental rights, we are limited to determining whether the decision of the trial court is supported by competent evidence. Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the decree must stand. Where a trial court has granted a petition to involuntarily terminate parental rights, this Court must accord the hearing judge's decision the same deference that we would give to a jury verdict. We must employ a broad, comprehensive review of the record in order to determine whether the trial court's decision is supported by competent evidence.

In re R.N.J., 985 A.2d 273, 276 (Pa.Super. 2009), quoting In re S.H., 879 A.2d 802, 805 (Pa.Super. 2005), appeal denied, 586 Pa. 751, 892 A.2d 824 (2005). The burden is upon the petitioning person or agency to prove by clear and convincing evidence that its asserted grounds for seeking the termination of parental rights are valid. In re R.N.J., 985 A.2d at 276.

Moreover, we have explained:

[t]he standard of clear and convincing evidence is defined as testimony that is so "clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue."

Id., quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa.Super. 2003). The trial court is free to make all credibility determinations, and may believe all, part, or none of the evidence. In re M.G., 855 A.2d 68, 73-74 (Pa.Super. 2004). If the findings of the trial court are supported by competent evidence, we will affirm even if the record could also support the opposite result. In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa.Super. 2003). This court may affirm the trial court's termination of parental rights with regard to any one subsection of Section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc).

Instantly, the prospective adoptive parents ("Petitioners") sought termination of Father's parental rights under Subsections (a)(1) and (a)(2) of the Adoption Act, which provide, in pertinent part:

§ 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.
. . . .
(b) Other considerations.--The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent. With respect to any petition filed pursuant to subsection (a)(1), (6) or (8), the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition.

23 Pa.C.S.A. § 2511.

The trial court determined that Petitioners were unable to meet their burden of proof under Section 2511(a)(2). The trial court did, however, determine Petitioners met their burden of proof under Section 2511(a)(1). We have explained this court's review of a challenge to the sufficiency of the evidence to support the involuntary termination of a parent's rights pursuant to Section 2511(a)(1) as follows:

To satisfy the requirements of section 2511(a)(1), the moving party must produce clear and convincing evidence of conduct, sustained for at least the six months prior to the filing of the termination petition, which reveals a settled intent to relinquish parental claim to a child or a refusal or failure to perform parental duties. In re Adoption of R.J.S., 901 A.2d 502, 510 (Pa.Super. 2006). In addition,
Section 2511 does not require that the parent demonstrate both a settled purpose of relinquishing parental claim to a child and refusal or failure to perform parental duties. Accordingly, parental rights may be terminated pursuant to [s]ection 2511(a)(1) if the parent either demonstrates a settled purpose of relinquishing parental claim to a child or fails to perform parental duties.
3In re Adoption of Charles E.D.M., 550 Pa. 595, 708 A.2d 88, 91 (Pa. 1998).
Once the evidence establishes a failure to perform parental duties or a settled purpose of relinquishing parental rights, the court must engage in three lines of inquiry: (1) the parent's explanation for his or her conduct; (2) the post-abandonment contact between parent and child; and (3) consideration of the effect of termination of parental rights on the child pursuant to [s]ection 2511(b).
Id. at 92 (citation omitted).

In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008).

Regarding the definition of "parental duties, " our supreme court has instructed:

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, this court has held that the parental obligation is a positive duty which requires affirmative performance. This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child. Because a child needs more than a benefactor, parental duty requires that a parent "exert himself to take and maintain a place of importance in the child's life."

In re Burns, 474 Pa. 615, 624-625, 379 A.2d 535, 540 (1977), quoting Appeal of Diane B., 456 Pa. 429, 433, 321 A.2d 618, 620 (1974). This court has further defined the definition of "parental duty, " as follows:

Parental duty requires that the parent act affirmatively with good faith interest and effort, and not yield to every problem, in order to maintain the parent-child relationship to the best of his or her ability, even in difficult circumstances. A parent must utilize all available resources to preserve the parental relationship, and must exercise reasonable firmness in resisting obstacles placed in the path of maintaining the parent-child relationship. Parental rights are not preserved by waiting for a more suitable or convenient time to perform one's parental responsibilities while others provide the child with his or her physical and emotional needs.
. . . .
Although a parent is not required to perform the impossible, he must act affirmatively to maintain his relationship with child, even in difficult circumstances. A parent has the duty to exert himself, to take and maintain a place of importance in the child's life.
Thus, a parent's basic constitutional right to the custody and rearing of his or her child is converted, upon the failure to fulfill his or her parental duties, to the child's right to have proper parenting and fulfillment of his or her potential in a permanent, healthy, safe environment. A parent cannot protect his parental rights by merely stating that he does not wish to have his rights terminated.

In re B., N.M., 856 A.2d 847, 855 (Pa.Super. 2004) (quotation marks and citations omitted).

In the present case, the trial court found that Father failed to perform parental duties during the six-month period prior to the filing of the petition to terminate his parental rights. The trial court explained:

The circumstances regarding [Child's] placement with the Petitioners is uncontroverted. [Father] was incarcerated when [Child] was born. Within a month of [Father]'s release, he filed a custody complaint. [Father] was precluded from exercising custody, by this Court, until the Court was satisfied that the provisions of 23 Pa.C.S.A. § 5329 [Consideration of Criminal Conviction] were met. For approximately two and one-half years, [Father] underwent counseling in an effort to convince this Court that he did not pose a threat of harm to the minor child. During this period of time, the Petitioners were the exclusive caregivers for the minor child. Petitioners provided the minor child with all of her emotional, spiritual, physical and financial needs.
Although [Father] was precluded from exercising physical custody of the minor child, he never provided the minor child with gifts, cards, letters, or financial support. When questioned about his failure to make any monetary contribution for [Child's] financial support, [Father] replied, "why would I give any money whenever I'm not ordered to pay?" (April 12, 2013, N.T. p. 10). The Court believes that while [Father] has been working to exercise his custodial rights in the custody action, [Father] failed to furnish the minor child with simple comforts and necessities that would have preserved his status as the minor child's natural father.

Trial court opinion, 6/28/13 at 13-14. Our review indicates that the record supports the trial court's findings. As such, we conclude Father failed to perform any parental duties during the statutory six months prior to the filing of the termination petition. See In re B., N.M., 856 A.2d at 855.

Instantly, Father asserts that he demonstrated a settled purpose of obtaining his parental rights and he performed the parental duties required of him; namely, counseling and rehabilitation. The trial court, however, found that the counseling Father completed was statutorily required before Father would be permitted to exercise any type of custody.

Father also asserts that Petitioners had completely assumed the parental role with respect to Child, such that there was no possibility of his establishing a parental relationship without a court order. (Father's brief at 23.) Furthermore, Father argues that any card, gift, or letter to Child from him would have done nothing to maintain or preserve a parent/child relationship that never existed. (Father's brief at 25.) He also maintains that Petitioners did not ask for financial support from him nor did they file for support. (Id. at 26.)

The trial court did not credit Father's explanation for his conduct as a sufficient excuse for his failure to perform his parental duties.

The facts of this case clearly establish that [Father] faced very significant obstacles to exercising custody of the minor child. However, the Court is not satisfied that the obstacles, which precluded [Father] from having physical custody of [Child], prevented him from establishing some relationship with the minor child. [Father] completely failed to provide the minor child with any form of support that would have established his presence in the minor child's life. Since [Child's] birth, [Father] has not sent her any form of correspondence. [Father] has never provided [Child] with any cards, gifts or monetary support. The Court finds that [Father's] actions clearly evidence a refusal and failure to perform parental duties.

Trial court opinion, 6/28/13 at 14-15.

Our review of the record supports the trial court's determination that Father failed to acknowledge Child's birthday, did not send gifts or cards to Child, and did not provide financial support. Father testified as follows:

BY [PETITIONERS' COUNSEL]:
Q [Father], have you ever contributed as much as one penny to the care and support of [Child]?
A No.
Q Have you ever sent her a birthday present?
A No.
Q Have you ever sent her a Christmas present?
A No.
Q Have you ever sent her any kind of present?
A Don't know their information to send anything, so no.
Q Okay. In fact, on -- at the end of your deposition on February 22, 2013, do you remember what I asked you right at the end of your deposition?
A Yes.
Q And what did I ask you?
A You asked me for $3.
Q For what purpose?
A I have no clue.
Q Didn't I ask you if you -- I told you I was going to see [Petitioners]. I asked you if you had a couple of dollars in your pocket you wanted to give them so they could buy a little toy for [Child] or something. What was your response?
A Yes, I do remember that. My response was, no, because of why would I give any money whenever I'm not ordered to pay? And, two, any money I do give is going to go to your pocket to terminate my rights.
Q Okay. In fact, you thought it was an insult that I would ask you for a couple of bucks?
A Yes.

Notes of testimony, 4/12/13 at 9-10.

Father's action of filing a custody complaint does not toll his responsibility to exert himself to take and maintain a place of recognition in his child's life. Moreover, Father's completion of court-ordered psychological evaluations and counseling does not justify his failure to do anything more to establish a relationship with his child. If Father had attempted to establish such a relationship and it was thwarted by Petitioners, his remedy was with the court. Accordingly, we find no abuse of discretion in the trial court's conclusion that Petitioners presented clear and convincing evidence to prove the grounds for termination of parental rights under Section 2511(a)(1).

Father next argues that the trial court erred in considering evidence offered by Petitioners pertaining to Section 2511(b) which is a determination of the needs and welfare of the child under the custody standard of best interest. Father contends the trial court combined the evidence under the two sections and did not bifurcate the process. (Father's brief at 31.)

Preliminarily, we observe that under Section 2511(b), we must inquire whether the termination of Father's parental rights would best serve the developmental, physical, and emotional needs and welfare of Child. See In re C.M.S., 884 A.2d 1284, 1286-1287 (Pa.Super. 2005); see also In re Z.P., 994 A.2d 1108, 1121 (Pa.Super. 2010) (stating that "the court must take into account whether a bond exists between child and parent, and whether termination would destroy an existing, necessary and beneficial relationship."). "Intangibles such as love, comfort, security, and stability are involved in the inquiry into the needs and welfare of the child." In re C.M.S., 884 A.2d at 1287 (citation omitted). We must also discern the nature and status of the parent-child bond, with utmost attention to the effect on the child of permanently severing that bond. Id.

Moreover, "[i]n cases where there is no evidence of any bond between the parent and child, it is reasonable to infer that no bond exists. The extent of any bond analysis, therefore, necessarily depends on the circumstances of the particular case." In re K.Z.S., 946 A.2d 753, 762-763 (Pa.Super. 2008). Further, there are some instances where direct observation of the interaction between the parent and the child is not necessary and may even be detrimental to the child. Id. at 762.

In the present case, the trial court stated:

Having determined that Petitioners have satisfied their burden of establishing [Father] has evidenced a refusal and/or failure to perform parental duties, pursuant to 23 Pa.C.S.A. 2511(a)(1), the Court next considers whether the needs and welfare of the minor child will be met by terminating [Father's] parental rights and whether doing so best serves the interest of the minor child. See Pa.C.S.A. § 2511(b).
The needs and welfare of a minor child are "essential to considerations, but bifurcated from, and not relevant to the proof of the statutory requirements for termination of parental rights." In re B., N.M., 856 A.2d at 859 (citing In re B.L.L., 787 A.2d 1007, 1014 (Pa.Super. 2010)). As previously stated, the uncontroverted evidence establishes that the Petitioners have been the sole caregivers for [Child] since her birth. Petitioners have a normal and healthy parent-child relationship with [Child], and [Child] believes that Petitioners are her parents. Petitioners explained that, given [Child's] young age, they do not feel it is appropriate at this time to explain the circumstances of this case to [Child]. Consequently, [Child] has no relationship whatsoever with [Father]. Petitioners testified at length regarding their daily lifestyle with the minor child and how she is an integral part of their family. Additionally, the minor child has a strong sibling relationship with Petitioners' natural daughter, who is several years older than [Child]. The Court concludes that terminating [Father's] parent[al] rights will best serve the needs and welfare of the minor child.

Trial court opinion, 6/28/13 at 15-16.

Based on the above, the record refutes Father's argument that the trial court improperly allowed the best interest considerations to somehow taint the court's assessment of the evidence on the grounds for termination. As a result, clear and convincing evidence supports the trial court's conclusion that terminating Father's parental rights so Child may be adopted by Petitioners will best serve the developmental, physical, and emotional needs and welfare of Child, and that no bond exists between Father and Child. See In re C.M.S., 884 A.2d at 1286-1287; In re K.Z.S., 946 A.2d at 763. We discern no abuse of discretion as to the trial court's termination of Father's parental rights pursuant to Section 2511(b).

Accordingly, we will affirm the order of the trial court terminating Father's parental rights.

Order affirmed.

Judgment Entered.


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