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[U] In re Adoption of H.E.A.

Superior Court of Pennsylvania

February 11, 2014

IN RE: ADOPTION OF H.E.A. APPEAL OF: R.J.S. AND J.L.S.

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered October 10, 2013 In the Court of Common Pleas of York County Orphans' Court at No(s): 2013-0081

BEFORE: MUNDY, J., WECHT, J., and FITZGERALD, J. [*]

MEMORANDUM

MUNDY, J.

Appellants, R.J.S. (Mother) and J.L.S. (Stepfather), appeal from the October 10, 2013 order denying their petition to involuntary terminate the parental rights of S.J.A. (Father) to H.E.A, Mother and Father's biological daughter. After careful review, we affirm.

The relevant facts and procedural history, as gleaned from the certified record, are as follows. H.E.A. was born in August 2004. Mother and Father resided together for approximately two years after H.E.A. was born. During these two years, Father assisted in caring for H.E.A., but Mother was H.E.A.'s primary caretaker.

Mother and Father separated in September 2006. After this separation, Father had sporadic contact with H.E.A. from 2006 through 2010. During that time, Father was incarcerated for an aggregate of 14 months for multiple offenses. Since the separation, Father has not provided Mother with financial support for H.E.A. or attended H.E.A.'s medical appointments and school functions. Also, Mother was incarcerated from 2008 to 2009. During Mother's incarceration, Stepfather cared for H.E.A.

In 2010, Father filed for custody of H.E.A. On March 16, 2010, Mother and Father entered into a stipulated custody order granting Father physical custody of H.E.A. on alternating weekends and every Wednesday night. Paternal Grandmother provided the transportation for these custody exchanges. On Father's weekends, H.E.A. typically stayed with Paternal Grandmother on Friday night, and Father on Saturday and Sunday.

In August 2010, Father moved to California, where he remained for approximately two and one half years. Mother testified that Father has not contacted H.E.A. since he moved to California. Specifically, Mother testified that Father has not attempted to contact H.E.A. at Mother's home. Father conceded this point during his trial testimony.

After Father moved to California, Mother allowed contact between H.E.A. and both sets of paternal grandparents.[1] H.E.A. continued to visit with Paternal Grandmother and Step Grandfather on alternating weekends. On a number of occasions, Mother told Paternal Grandmother that she did not want H.E.A. to have contact with Father during visits with Paternal Grandmother.

Unbeknownst to Mother, Father maintained contact with H.E.A. for the two and one half years that he was residing in California. Father communicated with H.E.A. while H.E.A. was with Paternal Grandmother. Father talked to H.E.A. on the phone every weekend that H.E.A. was with Paternal Grandmother. Additionally, Father talked on the phone to H.E.A. when Paternal Grandmother either picked up or dropped off H.E.A. from her weekly gymnastics classes. Father and H.E.A. sent cards and letters to each other on a weekly basis. Father and H.E.A. also exchanged emails once or twice a week through an email account that H.E.A. accessed at Paternal Grandmother's home. During each of these conversations, Father and H.E.A. spoke about a number of topics, including H.E.A.'s school and activities. Father also sent a number of gifts to Paternal Grandmother's house for H.E.A.

On July 17, 2013, Father returned to Pennsylvania. As Father violated the conditions of his parole when he absconded to California, he was incarcerated upon his return to the Commonwealth.[2] Father testified that he returned to Pennsylvania because H.E.A. asked him to come home.

On August 7, 2013, Mother and Stepfather filed a petition to involuntarily terminate Father's parental rights, pursuant to 23 Pa.C.S.A. § 2511(a)(1) and (b). On that same date, Mother and Stepfather filed a petition to adopt H.E.A.[3] Father filed a notice to contest the termination of his parental rights on August 27, 2013. On September 3, 2013, the trial court appointed a guardian ad litem (GAL) to represent H.E.A.'s interests and scheduled a hearing on the termination petition.

Approximately two weeks prior to the hearing, Mother ceased contact between H.E.A. and Paternal Grandmother. Mother stopped this contact when she discovered Paternal Grandmother was facilitating communication between H.E.A. and Father via telephone calls and trips to see Father in jail.

The trial court held a hearing on the termination petition on September 30, 2013. During the hearing, Mother and Father testified. Additionally, H.E.A. testified in camera. Thereafter, on October 10, 2013, the trial court denied Mother and Stepfather's termination petition. On October 15, 2013, Mother filed a timely notice of appeal along with her concise statement of matters complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i).[4]

On appeal, Mother and Stepfather raise the following issues for our review.

I. Whether the trial court erred in finding that [Mother and Stepfather] failed to meet their burden of proof under 23 [Pa.C.S.A.] § 2511(a)(1) to terminate [Father's] parental rights?
II. Whether the trial court erred in finding that [Mother and Stepfather] failed to meet their burden of proof under 23 [Pa.C.S.A.] § 2511(b)?

Mother and Stepfather's Brief at 4 (footnote omitted).

We begin by noting our well-settled standard and scope of review.

When reviewing a decree entered by the [trial] court [regarding a petition to terminate parental rights], this Court must determine whether the record is free from legal error and if the [trial] court's factual findings are supported by the evidence. Because the [trial] court sits as the fact-finder, it determines the credibility of witnesses, and on review, we will not reverse its credibility determinations absent an abuse of that discretion.
In other words, [i]n cases involving [the] termination of parental rights, our scope of review is broad. All of the evidence, as well as the trial court's factual and legal determinations, are to be considered. However, our standard of review is limited to determining whether the order of the trial court is supported by competent evidence, and whether the trial court gave adequate consideration to the effect of such a decree on the welfare of the child. We have always been differential to the trial court as the fact finder, as the determiner of the credibility of witnesses, and as the sole and final arbiter of all conflicts in the evidence.

In re E.M.I., 57 A.3d 1278, 1284 (Pa.Super. 2012) (citations omitted). "[W]here the hearing court's findings are supported by competent evidence of record, we must affirm the hearing court even though the record could support an opposite result." In re M.G., 855 A.2d 68, 73 (Pa.Super. 2004) (citations omitted). Moreover, "we may uphold a termination decision if any proper basis exists for the result reached." In re B.C., 36 A.3d 601, 606 (Pa.Super. 2012).

The Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, controls termination of parental rights proceedings. In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007); see 23 Pa.C.S.A. § 2511. Specifically, Section 2511 requires the trial court to engage in a bifurcated process before terminating parental rights. Id.

Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evidence that the parent's conduct satisfies the statutory grounds for termination delineated in Section 2511(a). Only if the court determines that the parent's conduct warrants termination of his or her parental rights does the court engage in the second part of the analysis pursuant to Section 2511(b): determination of the needs and welfare of the child under the standard of best interests of the child. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child, with close attention paid to the effect on the child of permanently severing any such bond.

In re J.M., 991 A.2d 321, 323 (Pa.Super. 2010) (citation omitted). "[C]lear and convincing evidence[]" requires "testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue." In re R.I.S., 36 A.3d 567, 572 (Pa. 2011) (citations omitted).

Instantly, the trial court determined Father's conduct did not warrant termination under Section 2511(a)(1); therefore, the trial court did not engage in the analysis under 2511(b). Section 2511(a) states, in pertinent part, as follows.

§ 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.

23 Pa.C.S.A. § 2511(a)(1).

When presented with a termination petition pursuant to Section 2511(a)(1), we have previously explained as follows.

The [trial] court should consider the entire background of the case and not simply:
… mechanically apply the six-month statutory provision. The [trial] court must examine the individual circumstances of each case and consider all explanations offered by the parent facing termination of his … parental rights, to determine if the evidence, in light of the totality of the circumstances, clearly warrants the involuntary termination.

In re A.S., 11 A.3d 473, 482 (Pa.Super. 2010) (citations omitted). Likewise, when presented with a petition to terminate a non-custodial parent's rights,

the [trial] court must consider the non-custodial parent's explanation, if any, for the apparent neglect, including situations in which a custodial parent has deliberately created obstacles and has by devious means erected barriers intended to impede free communication and regular association between the non-custodial parent and his or her child. Although a parent is not required to perform the impossible, he must act affirmatively to maintain his relationship with his 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.

In re N.M.B., 856 A.2d 847, 855-856 (Pa.Super. 2004) (citations omitted), appeal denied, 872 A.2d 1200 (Pa. 2005).

Further, we have described "parental duties, " as set forth in Section 2511(a)(1), as follows.

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 [C]ourt has held that the parental obligation is a positive duty which requires affirmative performance.
[T]his affirmative parental duty … requires continuing interest in the child and a genuine effort to maintain communication and association with the child.

In re E.M., 908 A.2d 297, 304-306 (Pa.Super. 2006), citing In re N.M.B., supra at 855; see also In re Burns, 379 A.2d 535, 540 (Pa. 1977). A "parental duty requires [] a parent exert himself to take and maintain a place of importance in [his] child's life" and to "act affirmatively with good faith interest and effort, … in order to maintain the parent-child relationship to the best of his [] ability, even in difficult circumstances." In re E.M., supra at 305-306 (internal quotation marks omitted), citing In re N.M.B., supra.

Herein, Mother and Stepfather argue that the trial court erred by failing to consider the "parental duties" portion of Section 2511(a)(1) and focusing its ruling on only the "settled purpose" component of the subsection. See Mother and Stepfather's Brief at 8-9, 13. As Mother and Father do not contest the trial court's settled purpose analysis, we will address only the parental duty prong of Section 2511(a)(1).

Instantly, the trial court made the following findings of fact and conclusions of law at the conclusion of the termination proceeding.

[The trial c]ourt finds that based on the testimony offered that although [Father] for a period of time was not physically present within the Commonwealth of Pennsylvania, he did have what the [trial c]ourt finds to be ongoing contact [with H.E.A. The contact] was not of a physical nature, but one of having contact by telephone or e-mail.
The [trial c]ourt does find that testimony credible.
As previously stated, the burden of proof is by clear and convincing evidence, and at this time, based on the testimony offered, the [trial c]ourt does not find that [Mother] has met her burden in this instance.

Trial Court Order, 10/10/13, at 2-3. Within its supplemental opinion, the trial court further expanded upon these conclusions as follows.

The [trial c]ourt and counsel met with [H.E.A], who was forthcoming as to questions asked of her. It is clear to th[e trial c]ourt that she has had ongoing contact with [Father], albeit without [Mother's] knowledge. This contact was by mail and by telephone. [H.E.A.] loves all of her parents and was credible when she stated that she wanted to maintain contact with [Father]. She clearly loves him as well as loves [Mother] and [Stepfather].
[Mother] has not demonstrated by clear and convincing evidence that [F]ather had a settled purpose of relinquishing his parental rights as he made efforts to maintain contact with his daughter. He testified that, from 2010 to 2013, he sent gifts for [H.E.A.] to his [sic] and that he would call or [H.E.A.] would call him to discuss how she was doing. He was living in California during the majority of this time.

Trial Court Opinion, 10/10/13, at 1-2.

We agree with Mother and Stepfather that the trial court specifically addressed the settled purpose prong of 2511(a)(1) within its supplemental opinion. Id. at 1. However, upon our review of the trial court's proceedings, post-hearing findings, order, and supplemental opinion, we must conclude that the trial court also considered the parental duty prong of Section 2511(a)(1) when it determined Mother and Stepfather failed to meet their burden of proof.

The record supports the trial court's determination that Father has maintained contact with H.E.A. throughout the two and one half years that he was residing in California. Father spoke to H.E.A. on a weekly basis, through multiple mediums, including telephone conversations, letters, cards, and emails. In addition, Father sent a number of presents to H.E.A. Not only do these actions support Father's intention to maintain his parental claims to H.E.A., they illustrate the parental duties Father undertook while he was in California. Father's ongoing contact with H.E.A. for the past two and one half years shows that he undertook his affirmative duty of "tak[ing] and maintain[ing] a place of importance in [H.E.A.'s] life" and "act[ing] affirmatively with good faith interest and effort, … to maintain [his] relationship [with H.E.A.] to the best of his [] ability, even in difficult circumstances." See In re E.M., supra. Accordingly, following our consideration of the circumstances presented in this matter, we agree that no evidence of record exists that Father "has refused or failed to perform parental duties." 23 Pa.C.S.A. § 2511(a)(1). Accordingly, we conclude that the trial court did not err when finding that Mother and Stepfather failed to meet the evidentiary burden necessary to terminate Father's parental rights. See In re E.M.I., supra at 1284.[5]

Based upon the foregoing, we conclude Mother and Stepfather's first issue is devoid of merit. Therefore, we affirm the trial court's October 10, 2013 order denying Mother and Stepfather's petition to involuntarily terminate Father's parental rights.

Order affirmed.

Judgment Entered.

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