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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NON-PRECEDENTIAL DECISION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, fail[s] to be supported [by] competent evidence?
B. Whether the trial court abused its discretion in finding that the natural Mother failed to produce clear and convincing evidence of Father's refusal or failure to perform parental duties for the child for a period of six (6) months prior to the filing of the petition by:
1) considering explanations for natural father's failure to perform parental duties prior to making a determination of whether natural father had failed to perform his parental duties pursuant to 23 P[a].C.S.§ 25([a])(1); and
2) finding that natural father exercised a reasonable firmness in resisting obstacles in the path of establishing and maintaining the parental relationship including Mother's perceived refusal to allow custody and what the trial court labeled as "severe alcoholism"?
C. Whether the trial court abused its discretion in allowing evidence of natural father's efforts to remedy the conditions described in the petition for involuntary termination?

Mother's brief at 4.[1]

We apply the following standard of review of an order terminating parental rights:

In cases concerning the involuntary termination of parental rights, our review is limited to a determination of whether the decree of the termination court is supported by competent evidence. Adoption of B.D.S., 494 Pa. 171, 431 A.2d 203, 207 (1981). The party petitioning for termination "must prove the statutory criteria for that termination by at least clear and convincing evidence." In re T.R., 502 Pa. 165, 465 A.2d 642, 644 (1983). 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 hesitancy, of the truth of the precise facts in issue." Matter of Sylvester, 521 Pa. 300, 555 A.2d 1202, 1203–04 (1989).

In re Adoption of L.J.B., 18 A.3d 1098, 1107 (Pa. 2011). As the ultimate trier of fact, the trial court is empowered to make all determinations of credibility, resolve conflicts in the evidence, and believe all, part, or none of the evidence presented. In re A.S., 11 A.3d 473, 477 (Pa.Super. 2010).

"If competent evidence supports the trial court's findings, we will affirm even if the record could also support the opposite result." Id.

Requests to terminate a biological parent's parental rights are governed by 23 Pa.C.S. § 2511, which provides in pertinent part as follows:

(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.
(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. § 2511.

The test for terminating parental rights consists of two parts. In In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007), we explained:

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.

Herein, the certified record supports the orphans' court's determination that Mother failed to established the statutory grounds to terminate Father's parental rights pursuant to 23 Pa.C.S. § 2511(a)(1) notwithstanding Father's inaction for the six-month period preceding Mother's petition. The pertinent inquiry for our review follows.

To satisfy 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. . . . 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 Section 2511(a)(1) if the parent either demonstrates a settled purpose of relinquishing parental claim to a child or fails to perform parental duties.

In re D.J.S., 737 A.2d 283, 285 (Pa.Super. 1999) (quoting Matter of Adoption of Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)) (internal citations omitted). Although it is the six months immediately preceding the filing of the petition that is the most critical to the analysis, the trial court must consider the whole history of a given case and not mechanically apply the six-month statutory provision. In re B., N.M., 856 A.2d 847 (Pa.Super. 2004).

Finally, in Matter of Adoption of Charles E.D.M., II, supra at 92, our Supreme Court explained,

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 Section 2511(b).

Instantly, the orphans court's consideration of the totality of the circumstances included Father's involvement with L.M.M. prior to April of 2012, Mother's unilateral suspension of Father's custodial rights, and Father's attempt to attain sobriety through Veterans Court. In its Rule 1925(a) opinion, the orphans' court explained,

To the Court, it is obvious from Mother's testimony and her demeanor, that she purposefully told Father not to come around, waited the six month time period, and filed to terminate his rights. This case is more about Mother using a technicality of law to enable her current Husband to adopt Child and move on with her life than it is about Father's motivation or ability to parent. It is clear from the evidence that Father desperately wants to be the parent that Child needs and deserves and that, but for his service in the military and resulting in his subsequent addiction to alcohol, this Petition may never have been filed. Father was not aware of the all important "six month deadline imposed on him under § 2511(a)(1) and, as with most people who struggle with addictions, it took him some time to get on the right path. Father did so prior to receiving notice of Mother's petition. Thus, in seeking help, Father was not motivated by the Petition, but rather by his desire to get healthy. His enrollment in the Veteran's Court, which is designed to meet the special needs of veterans, gave him the tools and support that he needed, and may not have had access to previously. The termination of Father's parental rights is a severe and final disposition that should only be used when it is clearly warranted, and not on a technicality of law.

Rule 1925(a) opinion, 8/28/13, at 4-5.

We address Mother's first two issues collectively. The crux of those complaints is that the evidence does not support the orphans' court's finding that she failed to establish the statutory grounds for termination when it is uncontested that Father failed to have any contact with L.M.M. for six months preceding her petition. However, prior to addressing that issue, we first confront Mother's related contention that the orphans' court erred in finding that Father was involved in the child's life prior to April of 2012. This issue is relevant because, pursuant to our settled case law, the orphans' court was required to consider the entire history of the case and not just the six-month period preceding the petition. See In re B., N.M., supra.

Based on Paternal Grandmother's involvement with the bi-monthly custody requests, Mother asserts that the orphans' court improperly inferred that the visitations were between L.M.M. and Father rather than between L.M.M. and his grandmother. Mother would limit evidence of Father's involvement with L.M.M. to the two occasions during January and February of 2012 that Father personally requested permission to contact L.M.M. Hence, discounting every visitation that Paternal Grandmother arranged, Mother posits that, in reality, Father failed to demonstrate any affirmative intent to interact with L.M.M. since the parties' separation. Mother's claim fails for two reasons.

First, the certified record belies Mother's basic premise that Father was not involved in the visitations. During the evidentiary hearing, Paternal Grandmother testified that she arranged the majority of the visitations because Mother and Father "could [not] really talk to each other civilly for quite a while, and it was just easier for [Mother] and I to do it." N.T., 3/13/13, at 130. She also explained that Father was present for every visitation. Id. Thus, regardless of whether Father initiated contact with Mother prior to exercising his partial physical custody or relied upon Paternal Grandmother to interact with Mother on his behalf, the record sustains the orphans' court's finding of fact that Father remained involved in L.M.M.'s life prior to April of 2012.

Moreover, the thrust of Mother's argument is simply that the orphans' court erred in failing to adopt her perspective of Paternal Grandmother's involvement and make the divergent inference that Father "took no affirmative action to have contact with the minor child." Appellant's brief at 13. This position, which essentially asks that this Court re-examine the evidence in a more favorable light, is a thinly-veiled challenge to the orphans' court's assessment of the weight of the evidence. Mother iterates these types of challenges in regard to several aspects of the orphans' court's findings, including the court's conclusion that Mother denied some requests and fashioned restrictions on others. Mindful of our limited standard of review, we decline to reassess the orphans' court's factual findings that are support by competent evidence. Hence, no relief is due.

Next, as it relates to Mother's overarching contention that she, in fact, adduced sufficient evidence to establish the statutory grounds for termination under § 2511(a)(1), Mother argues that "the court failed to properly analyze the facts pursuant to the . . . bifurcated process required in termination cases." Mother's brief at 16. Essentially, Mother assails the court's discussion of one of the considerations our Supreme Court outlined in Matter of Adoption of Charles E.D.M., II, supra at 92, i.e., Father's explanation for his conduct, before addressing whether or not Mother established Father's failure to perform parental duties. Hence, she argues that we should remand the matter for "proper analysis." Mother's brief at 18. For the following reasons, we find that remand is not warranted.

As noted, supra, the orphans' court clearly found that Father failed to have contact with L.M.M. for the six-month period immediately preceding Mother's petition and only inquired about his son's wellbeing on one occasion during that time. However, the court rejected a mechanical application of § 2511(a)(1), and instead considered Father's attempts to overcome his alcoholism as well as his explanations for his conduct. The orphans' court's deliberations were proper. See In re Adoption of M.R.B., 25 A.3d 1247, 1257 (Pa.Super. 2011) (parent must exercise reasonable firmness in attempting to overcome obstacles that prevent him from exercising parental rights); Matter of Adoption of Charles E.D.M., II, supra. (Once evidence establishes failure to perform parental duties, court must consider, inter alia, parent's explanation for conduct).

Instantly, Mother's argument equates the orphans' court's factual finding regarding Father's inaction over the six-month period with the legal conclusion that she consequently established the statutory grounds for involuntary termination. Mother is incorrect. Our Supreme Court made clear in Matter of Adoption of Charles E.D.M., II, supra, that further inquiry was required. After noting Father's period of inaction and addressing the additional factors in the case at bar, the orphans' court concluded that termination was not warranted. The record supports the orphans' court's decision to accept Father's explanation for his inaction and his efforts to overcome the barrier of alcoholism. As the orphans' court performed the proper legal analysis, we reject Mother's request for a remand.

Despite Mother's contrary protestations, the fact that the orphans' court declined to conduct a best-interest analysis pursuant to § 2511(b) does not affect our determination. Herein, the orphans' court's consideration of the factors enumerated in Matter of Adoption of Charles E.D.M., II, supra, addressed whether Father's inaction during the six-month period warranted involuntary termination of his parental rights. It is beyond cavil that an orphans' court shall not engage in the determination of the needs and welfare of the child under § 2511(b) until it first determines that the conduct warranted termination. As the orphans' court found that Father's conduct did not warrant termination in light of the totality of the circumstances and Father's explanation for his lack of contact, it properly declined to proceed to the best interest analysis.[2] See In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) ("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).").

Finally, we address Mother's assertion that the orphans' court erred in considering remedies that Father first initiated after receiving notice of her petition to terminate his parental rights. The pertinent portion of § 2511(b) provides as follows: "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. § 2511(b). Mother interprets this proviso as rendering all evidence of post-petition remediation inadmissible when adduced in defense of one of the enumerated grounds for termination. The orphans' court counters that the evidence is admissible but that the relevant provision simply restricts its ability to consider the evidence in specific situations. While we agree with the orphans' court's basic premise that § 2511(b) does not displace the rules of evidence, we observe that where, as here, a petition to terminate parental rights invokes only the grounds for termination outlined in § 2511(a)(1), (6), or (8), the orphans' court's legal position highlights a distinction without a difference.

"Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Pa.R.E. 401. While relevant evidence is generally admissible, "[e]vidence that is not relevant is not admissible." Pa.R.E. 402. Consequently, if the orphans' court is precluded from considering evidence of a parent's post-petition efforts to remedy a specific statutory ground for termination, that evidence is irrelevant and therefore inadmissible. On the other hand, where evidence of post-petition remedial measures is relevant to the the court's consideration of an alleged ground for termination other than § 2511 (a)(1), (6), or (8), the evidence is obviously admissible, subject to proscriptions that are not applicable herein. Thus, where a petition invokes grounds under § 2511(a)(1), (6), or (8) and at least one of the six remaining grounds, the orphans' court would be expected to admit the relevant evidence of post-petition remedies and consider that evidence subject to the restrictions of § 2511(b).[3]

Instantly, Mother asserted only the grounds for termination presented in § 2511(a)(1). Thus, any evidence of Father's post-petition remedial measures is irrelevant and consequently inadmissible pursuant to Rule 402. In setting forth her legal argument, however, Mother fails to identify the specific evidence that she alleges the orphans' court considered improperly. Mother simply makes general references to "Father's attempts to present evidence of post-petition remedial measures that [he] had taken[.]" Mother's brief at 27. It is undisputed, however, that Father initiated his participation in Veterans Court prior to receiving notice of the petition to terminate his parental rights. Thus, the court's consideration of that fact is appropriate. Moreover, to the extent that Mother's broad assertion can be understood as an allegation that the orphans' court improperly considered Father's subsequent progress and achievements in the Veterans Court program, the record belies that implication also. Indeed, the orphans' court specifically noted in its Opinion and Order that, while it deemed Father's prepetition enrollment in the program to be evidence of Father's effort to attain sobriety, it did not consider Father's subsequent progress in the substance-abuse program as a basis to deny Mother's petition. Trial Court Findings of Fact, Opinion, and Order, 6/28/13, at 9 n.2. Absent an allegation that the orphans' court considered specific evidence improperly, we are without any basis to provide relief. Hence, this claim must fail.

In sum, this case is one that turns upon the orphans' court's assessment of the parties' countervailing evidence and credibility determinations. The orphans' court concedes that Father failed to have any contact with his son for the six months preceding Mother's petition. Termination is not warranted under the totality of the circumstances due to the fact that the certified record sustains the orphans' court's factual findings that Father was involved with L.L.M. prior to April 2012, that Mother interfered with his custodial rights, and that Father attempted to overcome his alcoholism. Hence, due to our narrow standard of review, we affirm the order denying Mother's petition to involuntarily terminate Father's parental rights. See In re A.S., supra at 477 ("If competent evidence supports the trial court's findings, we will affirm even if the record could also support the opposite result.").

Order affirmed.

Judgment Entered.


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