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[U] In re Adoption of J.T.D.

Superior Court of Pennsylvania

February 25, 2014

IN RE: ADOPTION OF: J.T.D., JR., MINOR APPEAL OF: C.D., MOTHER

NON-PRECEDENTIAL DECISION

Appeal from the Decree August 15, 2013 In the Court of Common Pleas of Luzerne County Orphans' Court at No(s): A-7716

BEFORE: MUNDY, J., OLSON, J., and STABILE, J.

MEMORANDUM

MUNDY, J.

Appellant, C.D. (Mother), appeals from the August 15, 2013 decree involuntarily terminating her parental rights to her son, J.T.D., Jr.[1] After careful review, we affirm.

The trial court summarized the factual history of this case as follows.

The minor child, J.T.D., Jr.[, ] was born [i]n July [] 2007. J.T.D., Jr.[, ] is currently six years old. Th[is] appeal involves the proposed termination of Mother's parental rights.
It is unrebutted that [J.T.D., Jr., ] has been in placement and therefore removed from the care of Father and Mother since [J.T.D., Jr.'s, ] birth and placed with [C.H. (Maternal Grandmother)]. [Maternal] Grandmother testified that J.T.D., Jr.[, ] had been living with her [from a] few days after his birth until the present. According to [Maternal] Grandmother, after [J.T.D., Jr., ] was born, a dependency hearing was held, and Children and Youth placed [J.T.D., Jr., ] in foster care. According to [Maternal] Grandmother, the dependency was terminated in April of 2008 due to the parents not complying with services directed by Children and Youth. [Maternal] Grandmother has had physical and legal custody of [J.T.D., Jr., ] until the present. According to [Maternal] Grandmother, … the natural parents resided with her for approximately 6-7 months after [J.T.D., Jr.'s, ] birth. After that time[-]period, only [J.T.D., Jr., ] resided with her and the natural parents moved out. [Maternal] Grandmother testified that after the natural parents moved out [of her home], they rarely visited [J.T.D., Jr.]

Trial Court Opinion, 10/11/13, at 2-3 (citations to transcript omitted).

On November 11, 2010, Maternal Grandmother petitioned to involuntarily terminate Mother and Father's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1) and (b). On March 30, 2011, Maternal Grandmother filed an amended petition to terminate Mother and Father's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1)-(2), (5), (8), and (b). On October 18, 2012, the trial court appointed a guardian ad litem to represent J.T.D., Jr.'s, interests.

The trial court held a hearing on Maternal Grandmother's petition on August 14, 2013. Despite amending her petition to include multiple subsections of Section 2511(a), Maternal Grandmother proceeded solely on subsection 2511(a)(1) and (b). During the hearing, Maternal Grandmother, Father, and Mother testified. Thereafter, on August 15, 2013, the trial court entered decrees terminating Mother and Father's parental rights. On September 16, 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).[2]

On appeal, Mother raises the following issues for our review.

I. Whether the trial court erred in finding that the elements of termination with respect to 23 Pa.C.S.A. § 2511(a)(1) and 23 Pa.C.S.A. § 2511(b) were proven through clear and convincing evidence?
II. Whether the trial court erred in finding there was sufficient evidence presented at trial?

Mother's Brief at 3.

As developed within Mother's brief, the issues that she presents on appeal are indistinguishable from one another. Instantly, Mother argues that the trial court erred in terminating her parental rights because Maternal Grandmother did not present clear and convincing evidence to support the termination. Id. at 7-8. Accordingly, we will address Mother's issues concomitantly.

Turning to the basis of Mother's argument, she claims the trial court erroneously terminated her parental rights pursuant to Section 2511(a)(1) for the reasons that follow.

[Mother has been] confronted with a number of obstacles in life. She has been diagnosed [as] bipolar[] and [with] paranoid schizophrenia. She is physically disabled and has a metal rod in her back. As a result, she collects Social Security Disability and lives on a fixed income. [Mother] does not own a motor vehicle and must either walk or rely on the public bus. She did not even have a bicycle as that was taken from her. The testimony painted a clear picture that [Mother] did not have the financial means to pay support, buy gifts and clothing for [J.T.D., Jr.], or to take him on vacation.
Despite these unfortunate obstacles in life, [Mother] made attempts to visit [J.T.D., Jr.] However, these attempts appear to have been met with additional obstacles. When [Mother] visited [J.T.D., Jr., ] at [Maternal] Grandmother's house, her family would start fights with her. She did not feel welcome in her own mother's house. There were occasions when [Mother] would attempt to visit [J.T.D., Jr.], but he was not even there. [Mother] was not allowed to go to day care with [J.T.D., Jr.] She was never invited to any of [J.T.D., Jr.'s, ] doctor appointments after his first appointment. Unlike [Mother]'s mental and physical handicaps, these obstacles were man[]made. The record is devoid of any attempts by [Maternal] Grandmother to facilitate visits with [Mother] and [J.T.D., Jr., ] outside of [Maternal] Grandmother's home.
In the instant matter, the [t]rial [c]ourt did not give consideration to [Mother]'s physical and mental disabilities, her limited financial means and her lack of transportation in reaching its decision.

Mother's Brief at 7-8 (citations to transcript 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 [trial] 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 also 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 Mother's conduct warranted termination under Section 2511(a)(1) and (b). Section 2511 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.
(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)…, 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(a)(1), (b).

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). Moreover, we have concluded, "[p]arental 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 … physical and emotional needs." In re E.A.P., 944 A.2d 79, 83 (Pa.Super. 2008) (citation omitted). "This Court cannot and will not subordinate indefinitely a child's need for performance and stability to a parent's claims of progress and hope for the future." Id.

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., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 872 A.2d 1200 (Pa. 2005); accord In re Burns, 379 A.2d 535, 540 (Pa. 1977). This affirmative "parental duty requires [] a parent exert [herself] to take and maintain a place of importance in [her] 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 [her] ability, even in difficult circumstances." In re E.M., supra at 305-306 (citation and internal quotation marks omitted).

Regarding Maternal Grandmother's petition to terminate Mother's parental rights pursuant to Section 2511(a)(1), the trial court concluded as follows.

The credible and un[-]contradicted testimony of [Maternal] Grandmother was that since [J.T.D., Jr.'s, ] birth until the filing of the [p]etition for [t]ermination of [p]arental rights, [J.T.D., Jr., ] has been living with [Maternal] Grandmother. [Maternal] Grandmother testified [that] during the six (6) months prior to filing [the p]etition for [t]ermination of [p]arental rights, Mother only saw [J.T.D., Jr., ] seven (7) times. [Maternal] Grandmother testified that when Mother visited her home, she did not interact with [J.T.D., Jr.] According to [Maternal] Grandmother, Mother's main reason to visit [Maternal Grandmother's home], was not to see [J.T.D., Jr.], but to ask for help for [] Father. When Mother would come [to Maternal Grandmother's home], she would only visit for ten (10) minutes or one hour and simply acknowledge [J.T.D., Jr.'s, ] presence. [Maternal] Grandmother testified that at times, Mother would state that she was coming to [Maternal] Grandmother's home, and she would not appear.
Further, [Maternal] Grandmother testified that [in the] six (6) months prior to the filing of the termination petition, Mother did not do the following parental duties: Pay support towards [J.T.D., Jr.]; Request photos of [J.T.D., Jr.]; Inquire about [J.T.D., Jr.'s, ] school and report cards; Ask for teacher's names; Attend any parent/teacher conferences; Inquire about [J.T.D., Jr.'s, ] health; Attend any doctors' appointments; Request the doctors' name and [J.T.D., Jr.'s, ] medical records; Contribute to [J.T.D., Jr.'s, ] health insurance; Buy [J.T.D., Jr., ] clothes; Take [J.T.D., Jr., ] on vacation; or Send [J.T.D., Jr., ] gifts, cards or letters on the holidays.
Mother also admitted that she did not pay for [J.T.D., Jr.'s, ] clothing and food and that those items were paid for by [Maternal Grandmother].

Trial Court Opinion, 10/11/13, at 6-7 (citations to transcript and list omitted).

Upon review, we conclude that competent evidence of record exists to support the trial court's conclusion that Mother "evidenced a settled purpose of relinquishing parental claim to [J.T.D., Jr., ] or has refused or failed to perform [her] parental duties[, ]" in the six month period preceding the filing of the termination petition. 23 Pa.C.S.A. § 2511(a)(1); see also In re E.M.I., supra. Mother testified that she stopped going to Maternal Grandmother's home to visit J.T.D., Jr., in 2009. N.T., 8/14/13, at 47, 51. Yet, in the six months preceding the filing of the termination petition, Mother was present within Maternal Grandmother's home approximately seven times to speak with Maternal Grandmother, typically about Father. Trial Court Opinion, 10/11/13, at 6. Mother did not visit with J.T.D., Jr., during these seven times.[3] Id. Mother's testimony supports this finding. See N.T., 8/14/13, at 41-58. Maternal Grandmother also testified that she has lived in her home since 2006, and, accordingly, Mother has always known where J.T.D., Jr., resided. Id. at 20. Mother additionally testified that she lived only a few blocks from Maternal Grandmother's home. Id. at 49.

Maternal Grandmother also testified that Mother has not performed any parental duties within the six months preceding the filing of the termination petition. Id. at 13-14, 19. Maternal Grandmother testified that Mother has not paid support for J.T.D., Jr., requested photographs of him, inquired about J.T.D., Jr.'s, school or health, attended his doctors' appointments, bought him clothes, or sent him gifts, cards or letters. Id. Mother's own testimony supports Maternal Grandmother's assertion. Id. At 47, 51, 55. By failing to maintain contact with J.T.D., Jr., Mother did not meet J.T.D, Jr.'s, physical or emotional needs. See In re E.M., supra at 304-306. For at least the six months preceding the filing of the termination petition, Mother failed to show even a passing interest in J.T.D., Jr.'s development. Id. Mother failed to "exert [herself] to take and maintain a place of importance in [J.T.D., Jr.'s, ] life" and to "act affirmatively with good faith interest and effort" to maintain her relationship with J.T.D., Jr. Id. at 305-306. Therefore, we conclude competent evidence exists to support the trial court's termination of Mother's parental rights pursuant to Section 2511(a)(1). See In re E.M.I., supra. Accordingly, Mother's claim that the trial court erred in its decision to terminate her parental rights pursuant to Section 2511(a)(1) fails.

As the trial court properly concluded Mother's rights should be terminated pursuant to Section 2511(a)(1), we now must examine whether the trial court correctly found that Mother's conduct warranted termination pursuant to Section 2511(b).

"Once the evidence establishes a failure to perform parental duties or a settled purpose of relinquishing parental rights [pursuant to Section 2511(a)(1)], the [trial] 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)." In re J.T., 983 A.2d 771, 777 (Pa.Super. 2009).

Pursuant to Section 2511(b), the trial court must engage in an analysis of the best interests of the child by taking into primary consideration the developmental, physical, and emotional needs of the child. The trial court must consider intangibles such as love, comfort, security, and stability. To this end, this [C]ourt has indicated that the trial court must also discern the nature and status of the parent-child bond, paying close attention to the effect on the child of permanently severing the bond.

In re J.F.M., 71 A.3d 989, 997 (Pa.Super. 2013) (citations and quotation marks omitted).

Herein, the trial court concluded that Mother had no viable explanation for her failure to perform her parental duties. Trial Court Opinion, 10/11/13, at 7-9. The trial court concluded that "Mother simply relied upon [Maternal Grandmother] to perform the parental duties for [J.T.D., Jr.]" Id. at 9. Likewise, the trial court held that "there is credible and un[-]contradicted testimony given by [Maternal] Grandmother and even [] Mother that there has been minimum post-abandonment contact between Mother and [J.T.D., Jr.]" Id. Regarding its Section 2511(b) analysis, the trial court reasoned as follows.

There was testimony given by [] Father that [Maternal] Grandmother met [J.T.D., Jr.'s, ] physical needs. Father testified that [Maternal] Grandmother took care of J.T.D., Jr. She prepared his meals. She cleaned for him. She taught him how to get dressed and brush his teeth. She bought him his clothes. She put him to bed and read to him at night.
[Maternal] Grandmother also took him to his doctor's appointments and took care of him when he was sick.
[Maternal] Grandmother also met [J.T.D., Jr.'s, ] developmental needs. She testified that she did activities with him. She took him to church. She also supervised and monitored the shows he watched on television. She also attended the parent/teacher conferences at [J.T.D., Jr.'s, ] school. [Maternal] Grandmother also has [J.T.D., Jr., ] involved in extracurricular activities such as soccer and little league baseball.
[Maternal] Grandmother also met [J.T.D., Jr.'s, ] emotional needs. [Maternal] Grandmother testified that J.T.D., Jr.[, ] views [her] as a mother figure. J.T.D., Jr.[, ] seeks comfort and reassurance from [Maternal] Grandmother. [Maternal]
Grandmother testified that there is not an emotional bond between [] Mother and J.T.D., Jr. [J.T.D., Jr., ] refers to [] Mother by her first name. [Maternal] Grandmother testified that she would like to adopt J.T.D., Jr.[, ] should the [trial c]ourt terminate [Mother and Father's] parental rights. [Maternal] Grandmother testified that she never stopped [] Mother from seeing J.T.D., Jr. Also, should [Maternal] Grandmother be allowed to adopt J.T.D., Jr.[, Maternal] Grandmother testified that she would still permit contact between [J.T.D., Jr., ] and his natural parents.

Id. at 10-11 (citations to transcript omitted).

Upon review, we conclude there is competent evidence within the certified record to support the trial court's finding that the termination of Mother's parental rights will best serve J.T.D., Jr.'s, developmental, physical, and emotional needs and welfare. See In re E.M.I., supra. Similarly, we conclude, "the trial court gave adequate consideration to the effect of [the termination] decree on the welfare of [J.T.D., Jr.]" See id. Herein, Maternal Grandmother testified that J.T.D., Jr., has been living in her home since a few days following his birth. N.T., 8/14/13, at 4. Maternal Grandmother testified that she assists J.T.D., Jr., with his school projects, attends his parent/teacher conferences, volunteers for school events, enrolls him in extra-curricular activities, prepares his meals, cooks and cleans for him, buys his clothes, puts him to bed, knows his friends, takes him to doctors' appointments, cares for him when he's sick, supervises his entertainments, provides for his spiritual and emotional well-being, and taught him how to bathe and brush his teeth. Id. at 17-19. Maternal Grandmother testified that Mother has no emotional bond with J.T.D., Jr., and that the termination of her parental rights would have no effect upon him. Id. at 20, 31. Maternal Grandmother testified that J.T.D., Jr., knows that Mother is his biological mother; however, J.T.D., Jr., refers to Mother by her first name. Id. at 22. Interestingly, Mother did not testify otherwise. See id. at 41-58. Additionally, Maternal Grandmother testified that she intends to adopt J.T.D., Jr., if Mother (and Father's) parental rights are terminated. Id. at 20. Accordingly, Mother's claim that the trial court erred in concluding that it would be in J.T.D., Jr.'s, best interest to terminate her parental rights also fails. See In re E.M.I., supra.

Based upon the foregoing, we conclude Mother's issue is devoid of merit. Therefore, we affirm the trial court's August 15, 2013 decree involuntarily terminating Mother's parental rights.

Decree affirmed.

Judgment Entered.


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