In Re: S.M.R., Appeal of: S.L.R. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: S.M.R., A MINOR CHILD : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: S.L.R. :
:
:
:
:
: No. 1612 WDA 2019
Appeal from the Order Entered September 27, 2019
In the Court of Common Pleas of Washington County Orphans’ Court at
No(s): No. 63-19-0863
BEFORE: BENDER, P.J.E., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 11, 2020
S.L.R. (“Father”) appeals from the order dated September 24, 2019,
and entered September 27, 2019, that granted the petition filed by the
adoptive parents, S.R.B. (“Adoptive Mother”) and G.B. (“Adoptive Father”)
(collectively “Adoptive Parents”), to involuntarily terminate Father’s parental
rights to his minor child, S.L.R. (born in July of 2015) (“Child”), pursuant to
sections 2511(a)(1), (2), and (b) of the Adoption Act, 23 Pa.C.S. §§ 2101-
2938. We affirm.
The orphans’ court summarized the facts of this case in its Pa.R.A.P.
1925(a) opinion:
[Child] was born [in] July [of] 2015[] to Father and J.B.
[(“Mother”),] who died on November 20, 2015. On November 20,
2015, Father was involved in a high speed chase with police in
Blair County[,] while driving under the influence and without a
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* Former Justice specially assigned to the Superior Court.
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license. Mother and [] Child, who was only four months old at the
time, were both in the vehicle. While fleeing the police, Father
lost control of the vehicle resulting in an accident which caused
the death of Mother. [] Child was thrown 70 feet from the vehicle
resulting in a traumatic brain injury. [] Child had to be
resuscitated on scene before being life-flighted to Children’s
Hospital in Allegheny County. In addition to the death of Mother
and [] Child’s severe injuries, Father was paralyzed as a result of
the accident.
When it was time for [] Child to be released from the
hospital, Adoptive Mother and Adoptive Father came forward and
volunteered to take her into their care. Adoptive Father [is the]
brother of [C]hild’s late Mother. [Adoptive Parents] live in
Washington County with their two [biological] sons. [] Child has
lived with [] Adoptive Parents in Washington County since her
release from the hospital. Upon her release, [] Child had to wear
a neck brace due to unsecured ligaments in her neck and her
traumatic brain injury. As a result of her injuries, … Child required
surgery and the implant of a permanent shunt to regulate the fluid
retention in her brain.
On March 22, 2017, after guardianship proceedings began
in Blair County, Pennsylvania, a hearing was held to transfer the
case to Washington County. The order of transfer set forth various
provisions to facilitate a relationship between Father and [] Child.
The order awarded residential custody to Adoptive Mother and
Adoptive Father, but permitted contact via Skype between Father
and [] Child. Father was also to set up an e-mail account to
facilitate the exchange of information between the parties. A
notebook was also created to be used to pass on medical
information from [] [A]doptive [P]arents to Father about [] Child’s
health.
On March 22, 2018, Father received his sentence for
vehicular homicide[,] arising out of the police chase and accident
that resulted in Mother’s death and [] Child’s severe injuries.
Father has been incarcerated since 2018 in the State Correctional
Institution [(“SCI”)] at Laurel Highlands. Father has not had any
visitation with [] Child since his incarceration. [] Child is unable
to identify Father from photographs. Adoptive [P]arents have
facilitated visits with [] Child’s paternal grandparents. Despite
visits with her grandparents, [] Child has never mentioned
receiving any gifts from Father or having any communication with
Father. Father has never provided [A]doptive [P]arents with any
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financial support for [] Child. Father has never been to any
doctor[] appointments or therapy appointments for … Child.
Father has never visited … Child at [A]doptive [P]arents’ home,
he has never telephoned to talk to … Child, or to even ask how
she is doing. Father has not had any direct communication with
[A]doptive [P]arents since March of 2018. To Adoptive Mother’s
knowledge, there has been no direct contact between [] Child and
Father since March of 2018.
[] Child suffers from emotional and physical trauma, as well
as various developmental delays, due to the injuries she suffered
in the accident. Despite the lengthy medical history of [] Child,
Father has never personally asked [A]doptive [P]arents about how
[] Child is progressing. Since his incarceration, Father has never
contacted [A]doptive [P]arents, directly or indirectly, to arrange a
visit. Prior to his incarceration, Father never made any effort to
arrange a visit or to be driven to Washington County to see []
Child. Prior to his incarceration, [A]doptive [P]arents made all
arrangements to facilitate visitation with [] Child and Father.
Orphans’ Court Opinion (“OCO”), 12/20/19, at 1-3 (citations to record
omitted).
On July 10, 2019, Adoptive Parents filed a petition for involuntary
termination of Father’s parental rights. On that same date, the orphans’ court
appointed Christine DeMarco-Breeden, Esquire, as Child’s guardian ad litem
(“GAL”).1 See Order, 7/10/19, at 1 (single page). A hearing date was initially
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1 Pursuant to 23 Pa.C.S. § 2313(a), a child has a right to counsel in a contested
involuntary termination proceeding. “During contested termination-of-
parental-rights proceedings where there is no conflict between a child’s legal
and best interests, an attorney-[GAL] representing the child’s best interests
can also represent the child’s legal interests.” In re T.S., 192 A.3d 1080,
1092 (Pa. 2018). “[W]here the child’s preferred outcome is not ascertainable,
such as where the child is very young or is unable to express a preference,
there can be no conflict between the child’s legal and best interests.” Interest
of M.V., 203 A.3d 1104, 1109 (Pa. Super. 2019) (citing T.S., 192 A.3d at
1092). Instantly, we discern no conflict between Child’s legal interest and
best interests that would require the appointment of separate counsel. We
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set for August 22, 2019, and was continued to September 24, 2019, after
Father expressed his intention to contest termination. The orphans’ court
arranged for Father to participate in the termination hearing via
teleconference, as he remained incarcerated in SCI Laurel Highlands and could
not appear in person. OCO at 4. On the date of the termination hearing,
Adoptive Parents filed a report of their intention to adopt Child. After the
hearing, upon consideration of all the evidence and testimony presented, the
orphans’ court entered an order terminating Father’s parental rights, citing on
the record the reasons therefore. Id. See also N.T. Termination, 9/24/19,
at 261-263.
On October 28, 2019, Father filed a timely notice of appeal, along with
a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P.
1925(a)(2)(i). Father now presents the following sole issue for our review on
appeal: “Whether the [orphans’] [c]ourt committed an abuse of discretion in
finding that [] Father’s incarceration and physical abilities incapacitate his
ability to parent … [C]hild and that Father has made no effort to perform a
parental role?” Father’s Brief at 5.
We review an order terminating parental rights in accordance with the
following standard:
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.
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conclude that Attorney DeMarco-Breeden dutifully represented Child in both
respects.
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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)). Moreover, we have explained that:
The 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. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
The trial court is free to believe all, part, or none of the evidence presented
and is likewise free to make all credibility determinations and resolve conflicts
in the evidence. In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004). If
competent evidence supports the trial court’s findings, 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).
We are guided further by the following: Termination of parental rights
is governed by section 2511 of the Adoption Act, which requires a bifurcated
analysis.
Our case law has made clear that under [s]ection 2511, the court
must engage in a bifurcated process prior to terminating parental
rights. 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 [s]ection 2511(a). Only if the court
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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 [s]ection 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 L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citing 23 Pa.C.S. § 2511,
other citations omitted). The burden is upon the petitioner to prove by clear
and convincing evidence that the asserted grounds for seeking the termination
of parental rights are valid. R.N.J., 985 A.2d at 276.
With regard to section 2511(b), we direct our analysis to the facts
relating to that section. This Court has explained that:
Subsection 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. In In re C.M.S., 884
A.2d 1284, 1287 (Pa. Super. 2005), this Court stated, “Intangibles
such as love, comfort, security, and stability are involved in the
inquiry into the needs and welfare of the child.” In addition, we
instructed that the trial court 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. However, in
cases where there is no evidence of a bond between a parent and
child, it is reasonable to infer that no bond exists. In re K.Z.S.,
946 A.2d 753, 762-63 (Pa. Super. 2008). Accordingly, the extent
of the bond-effect analysis necessarily depends on the
circumstances of the particular case. Id. at 763.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
In this case, the trial court terminated Father’s parental rights pursuant
to sections 2511(a)(1), (2), and (b). We need only agree with the trial court
as to any one subsection of section 2511(a), as well as section 2511(b), in
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order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc). Here, we analyze the court’s decision to terminate under section
2511(a)(2) and (b), which provide 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:
***
(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. § 2511(a)(2), (b).
We first address whether the orphans’ court abused its discretion by
terminating Father’s parental rights pursuant to section 2511(a)(2).
In order to terminate parental rights pursuant to 23 Pa.C.S. [] §
2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has caused the child to
be without essential parental care, control or subsistence
necessary for his physical and mental well-being; and (3) the
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causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted). “The grounds for termination due to parental incapacity that cannot
be remedied are not limited to affirmative misconduct. To the contrary, those
grounds may include acts of refusal as well as incapacity to perform parental
duties.” In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002) (citations
omitted).
In the case of an incarcerated parent, this Court has stated:
[T]he fact of incarceration does not, in itself, provide grounds for
the termination of parental rights. However, a parent’s
responsibilities are not tolled during incarceration. The focus is
on whether the parent utilized resources available while in prison
to maintain a relationship with his or her child. An incarcerated
parent is expected to utilize all available resources to foster a
continuing close relationship with his or her children…. 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.
Thus, a parent’s basic constitutional right to the custody and
rearing of his child is converted, upon the failure to fulfill his …
parental duties, to the child’s right to have proper parenting and
fulfillment of his … 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, 855-56 (Pa. Super. 2004) (internal citations
and quotation marks omitted). “Thus, the fact of incarceration alone neither
compels nor precludes termination of parental rights. Parents must still
provide for the emotional and physical well-being of their children.” In re
Z.P., 994 A.2d 1108, 1120 (Pa. Super. 2010). Moreover, we note that “[t]he
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cause of incarceration may be particularly relevant to the [s]ection 2511(a)
analysis, where imprisonment arises as a direct result of the parent’s actions
which were ‘part of the original reasons for the removal’ of the child.” Id.
(quoting In re C.L.G., 956 A.2d 999, 1006 (Pa. Super. 2008)).
Here, Father contends that he had a relationship with Child prior to his
incarceration and that he “did what he could during his incarceration to
maintain the parent-child relationship.” Father’s Brief at 10. In support of his
claim, Father alleges that, while incarcerated, he called Child weekly from
prison, sent the occasional card to Child in care of her paternal grandmother,
and that he had been working with a counselor at the prison regarding Skype
or establishing some other form of contact with Child. Id. Father also states
that he did not write to Child at the Adoptive Parents’ address “because he did
not have their address and he did not think that they would appreciate him
sending things there[,] given [their] ill will towards him.” Id.
Additionally, Father claims that the orphans’ court erred in finding that
his “incapacity could not be remedied.” Id. at 11. Father argues that he is
due to be released from prison in two years and that he “can take care of his
daily needs[,] as well as [Child’s].” Id. at 11-12. He asserts that Adoptive
Parents failed to meet their burden under section 2511(a)(2), as they provided
no evidence regarding the impact that his additional two years in prison would
have on Child or that he could not care for Child. Id. at 12. The record clearly
belies Father’s claims.
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Multiple witnesses were presented at the termination hearing, including
Adoptive Mother, Adoptive Father, and Bonnie McNally-Brown, Child’s
therapist. The orphans’ court relied heavily on the extensive testimony of
these three witnesses in reaching its determination to terminate Father’s
parental rights. OCO at 7. In addition to testifying about Father’s criminal
actions, which not only led to the death of Mother and severe injuries to Child,
but also his incarceration, Adoptive Mother testified,
that since Father’s incarceration in 2018[,] … Father has not had
any personal contact with [] Child. [She] further testified that,
despite facilitating visits with [the] paternal grandparents, [] Child
has never mentioned speaking with Father or receiving any form
of gifts from Father. Adoptive Mother testified that Father has
never provided any form of financial support for [] Child. [She]
also testified that Father has never been to any doctor[]
appointments, has never called to talk with [] Child, and has never
called to simply ask about … Child’s health, safety, or welfare.
Adoptive Mother additionally testified that [] Child does not
recognize Father from his photograph.
Id. (citations to record omitted). Prior to his incarceration, Father never once
made an effort to be driven to Washington County to visit with Child. Id.
Instead, Adoptive Father was the one who drove Child to visit with Father.
Id.
Adoptive Father would drive 85 miles and approximately an hour
and twenty-five minutes to a meeting point so that [] Child could
visit [with her] paternal grandparents and Father. [] Child would
then be taken to [the] paternal grandparents’ home, an additional
hour away from the meeting point. Adoptive Father added that,
prior to incarceration, Father was present for two pickups, but he
never left the vehicle to talk with Adoptive Father and he never
saw any affectionate interaction between [] Child and Father.
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Adoptive Father testified that he has never received any
phone calls, letters, or cards from Father for [] Child. [He] further
testified that, despite continuing to facilitate a relationship with
[the] paternal grandparents following Father’s incarceration, []
Child has never mentioned speaking to Father on the phone or
[S]kyping with Father while visiting with [them].
Id. at 8 (citations to record omitted). Additionally, Ms. McNally-Brown
testified that Child “has never once mentioned Father in any of their
counseling sessions.” Id. (citation to record omitted).
At the hearing, Father admitted to overdosing at least twice since the
accident, by improperly consuming Fentanyl patches. Id. Moreover,
Father admitted that he did not bother to ask for an address from
[A]doptive [P]arents[,] because he did not want to go to their
home to visit [] Child. Rather, he wanted them to bring [] Child
to him. [He] admitted that he made little to no effort to ascertain
… Child’s address to write letters or send cards. Father admitted
that between his sentencing on March 22, 2018[,] and his
incarceration [in] April of 2018[,] that he had access to the
internet and telephones, but he did not attempt to [S]kype or
ascertain the correct address. Father further testified that during
his time of incarceration, he has sent possibly two cards, but that
neither of them were addressed to [] Child’s home. Father
acknowledged that he will not be released from incarceration for
at least two more years.[2] [H]e additionally admitted that he
never attended any doctor[] appointments or therapy sessions
prior to his incarceration.
Id. at 8-9 (citations to record omitted). When asked by the court for an
example of how he has acted in a parental role towards Child, Father was not
able to offer any such testimony. Id. at 9.
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2Father agreed that it would not be in Child’s best interest to wait for him to
get out of jail in 2½ years, “because we’re not even certain that is what’s
going to happen.” N.T. Termination at 151.
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After consideration of all the testimony and evidence presented at the
termination hearing, the orphans’ court found the testimony of Adoptive
Parents, as well as Child’s therapist, to be credible, and it opined:
The testimony provided established sufficient grounds to
terminate Father’s parental rights, especially in light of Father’s
own admission that he has failed to act in a parental role…. The
testimony clearly established that Father has made little to no
effort to be a part of … Child’s life. Father failed to provide any
evidence that he acknowledged … Child’s birthdays or holidays or
that he sent any form of gifts, letters, or cards. Father made no
attempt to call … Child before or after his incarceration. [] Child
suffers from severe medical injuries due to the accident caused by
Father, but Father has made no effort to be a part of her recovery.
To the contrary, [A]doptive [P]arents have stepped into the
parental role since her release from the hospital and have done
everything to care for … Child.
Id. at 9-10. The court added:
Father has shown no interest in [] Child’s well-being, though her
injuries were caused by Father’s own recklessness. [] Child needs
to have a stable home environment, especially in light of her
serious medical needs, and it is clear that Father cannot provide
such an environment now or in the near future, nor has he
demonstrated a desire to do so.
Id. at 10.
The orphans’ court also addressed the relevance of Father’s
incarceration in regard to its decision:
The orphans’ court acknowledges that Father’s incarceration is not
a sufficient reason alone to terminate his parental rights.
However, … it was not Father’s incarceration alone that resulted
in the termination of his parental rights. The testimony presented
clearly indicated that Father had failed in his parental role prior to
his incarceration. [He] continued to neglect his parental
responsibilities subsequent to his incarceration.36 Father did not
offer sufficient evidence to demonstrate that he put forth any
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effort to overcome the obstacles which were the direct result of
his own actions.
36 Father claimed that he had been calling his mother’s
house from the SCI to speak with [] Child during her
monthly visits with [her] paternal grandparents. The
orphans’ court did not find this testimony credible…. Child
never mentioned the alleged communications with anyone,
including her therapist. Father offered no corroborating
evidence for the calls, such as phone records of his mother’s
account or from the SCI.
Furthermore, the orphans’ court did not terminate Father’s
parental rights solely because he suffers from paralysis, as a result
of the horrific accident. Father’s incapacity in this regard was
merely one factor in the totality of the circumstances that resulted
in his parental rights being terminated. Father will be incarcerated
for at least two more years, he suffers from paralysis that would
make it difficult for him to care for the medical needs of [] Child,
and the evidence indicates that Father has not fulfilled his parental
role in any case. The orphans’ court found that the totality of the
circumstances necessitated the termination of Father’s parental
rights. Upon Father’s act of gross negligence on the night of the
fatal accident in 2015, the disruption of the family [had] already
occurred, [] [M]other was killed, Father was paralyzed, and []
Child suffered severe injuries, from which she is still recovering,
and there is no reasonable prospect for reuniting it.
Id. at 12-13 (internal quotation marks and footnote omitted). We deem the
orphans’ court’s determination under section 2511(a)(2) to be well-supported
by the record, and we discern no abuse of discretion.
As for its analysis under section 2511(b), Father argues that the
orphans’ court failed to inquire as to the bond between him and Child. Father
also avers that the court erred in relying on the testimony of Child’s therapist
in making its determination to terminate Father’s parental rights. Father’s
Brief at 12-13. We deem Father’s claims to be wholly without merit.
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Contrary to Father’s statement, it is clear that the orphans’ court
considered the bond, if any, between Father and Child; however, the court
found credible Ms. McNally-Brown’s testimony that she does not believe there
to be any bond between Father and Child and that there is no relationship
there to preserve. OCO at 11. We must defer to the orphans’ court credibility
findings. See In re M.G., supra. Moreover, Ms. McNally-Brown observed a
bond and affection between Child and Adoptive Parents. Id. This is supported
by Adoptive Mother’s testimony that Child calls her “Mommy[,]” and that
“[s]he always runs to me, like I’m her safe place.” Id. Adoptive Mother
added:
[W]e snuggle, we play, we do things that you do with your
children. And honestly, there’s no difference between [Child] and
my biological children to me, in my heart. And … all I do is try to
do the best for her, no matter what she needs despite my personal
discomfort or feelings.
Id. (citing N.T. Termination at 33). Adoptive Mother also testified that Child
loves Adoptive Father “very much,” that “[h]e’s really wonderful with her[,]”
and that Child and Adoptive Parents’ two biological children “love each other
so much [and] … they adore each other.” N.T. Termination at 34.
The orphans’ court concluded that Child’s welfare was best served by
terminating Father’s parental rights. In support of its decision, it opined:
Adoptive [P]arents provide all the love, security, and comfort that
… Child needs[,] especially in light of the trauma she has endured
since an extremely young age. In contrast, Father has not offered
anything to demonstrate that he has even attempted to provide
for … Child’s needs and her overall well-being. Adoptive [P]arents
have been meeting all of [] Child’s emotional, mental, and physical
needs since she was released from the hospital, and it was
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appropriate to terminate Father’s parental rights to allow
[A]doptive [P]arents to be legally recognized as [] Child’s parents,
and to provide permanency for [] Child.
OCO at 11-12. As there is competent evidence in the record to support the
orphans’ court’s credibility and weight assessments regarding Child’s needs
and welfare, and the absence of any bond with Father, we conclude that the
court did not abuse its discretion as to section 2511(b).
Accordingly, we affirm the order terminating Father’s parental rights to
Child, pursuant to 23 Pa.C.S. § 2511(a)(2) and (b).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/2020
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