In Re: J.H. & S.M. Appeal of: G.H. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: J.H. AND S.M., MINOR CHILDREN IN THE SUPERIOR COURT OF
PENNSYLVANIA
.
APPEAL OF: G.H.
No. 213 MDA 2017
Appeal from the Decree entered December 20, 2016
In the Court of Common Pleas of Lycoming County
Orphans' Court at No(s): 6501
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED JULY 03, 2017
G.H. (Father) appeals from the trial court’s December 20, 2016 decree
involuntarily terminating his parental rights to his children, J.H. (born
2/2009) and S.M. (born 6/2010) (collectively, Children). After careful
review, we affirm.
Children were born in Tennessee. In 2012, Children were removed
from the family home and adjudicated dependent and placed in temporary
foster care. Father separated from Mother1 in the spring of 2013. In April
2013, Tennessee Children Services gave physical custody of Children to
paternal grandmother, R.S. (Grandmother), after she was approved as an
appropriate placement. Father currently lives in Tennessee; Grandmother
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*
Retired Senior Judge assigned to the Superior Court.
1
Mother, whose parental rights to Children were also terminated, is not a
party to this appeal.
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lives in Lewistown, Pennsylvania. From March 2013 throughout 2014,
Father claims that he attempted to contact Grandmother by phone several
times a week to find out the status of Children. Father visited Children for
three days in June 2015 when he was in Pennsylvania for his grandmother’s
funeral. Father last saw Children in October 2015.
On April 26, 2016, Grandmother filed the instant petition to
involuntarily terminate Father’s parental rights2 under 23 Pa.C.S. §§
2511(a)(1), (a)(2), and (b) of the Adoption Act.3 On November 17, 2016,
the court held a termination hearing. On December 20, 2016, the trial court
issued a decree terminating Father’s rights. Father filed his notice of appeal
on January 31, 2017. On appeal, Father raises the following issues for our
consideration:
(1) Whether the trial court erred in determining that clear and
convincing evidence existed to show that [Father] had a
settled purpose to relinquish a parental claim under 23
Pa.C.S.A. § 2511(a)(1) in that Father was rebuffed by
paternal grandmother in his attempts to maintain contact
with the Children and perform parental duties and utilized
all available resources to overcome obstacles [erected by
the] . . . custodial parent.
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2
In June 2016, Father filed a custody petition in Tennessee. In July 2016,
the Tennessee Circuit Court determined that Pennsylvania is the appropriate
forum for litigating the current custody matter. Tennessee relinquished
jurisdiction and transferred Father’s petition to Pennsylvania. On August 1,
2016, the Lycoming County Court of Common Pleas incorporated the
Tennessee order into the current certified record.
3
See 23 Pa.C.S. §§ 2101-2910.
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(2) Whether the trial court erred in determining that clear and
convincing evidence existed to show that [Father’s] rights
should be terminated under 23 Pa.C.S.A. § 2511(b), in
that the developmental, physical, and emotional needs and
welfare of the Child are not best served by terminating
Father’s parental rights.
Father’s Brief, at 4.
Before we reach the merits of this appeal, we must address
Grandmother’s renewed claim4 that this appeal should be quashed as
untimely filed. In general, a party invokes appellate jurisdiction by filing a
notice of appeal within 30 days of a judgment, decision, decree, sentence or
adjudication that disposes of all claims and all parties. See Pa.R.A.P. 903(a)
(a "notice of appeal . . . shall be filed within 30 days after the entry of the
order from which appeal is taken"); Pa.R.A.P. 102 (defining the term "order"
for purposes of the appellate rules to include a judgment, decision, decree,
sentence or adjudication); Pa.R.A.P. 341(a) and (b)(1) (providing that
appeals as of right may be taken from "final orders" and defining that term).
Instantly, the final order from which Father appeals is the court’s December
20, 2016 decree involuntarily terminating his parental rights to Children.
The order was time-stamped and docketed in the trial court on December
20, 2016.
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4
Grandmother filed a motion to quash Father’s appeal as untimely. On
March 27, 2017, our Court, in a per curiam order, denied the motion without
prejudice to Grandmother’s right to raise the issue again in her appellate
brief. Grandmother has raised this issue in her brief.
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Pursuant to Pa.R.A.P. 108(b), the date of entry of an order is the day
on which the clerk makes the notation in the docket that notice of entry of
the order has been given as required by Pa.R.C.P. No. 236(b). See
Pa.R.A.P. 108(b). An order is not appealable until it is entered on the docket
with the required notation that appropriate notice has been given. Where
there is no indication on the docket that Rule 236(b) notice has been given,
then the appeal period has not started to run. This is a bright-line rule, to be
interpreted strictly. In re L.M., 923 A.2d 505, 509 (Pa. Super. 2007).
Moreover, the fact that the appealing party did receive notice does not alter
the rule that the 30-day appeal period is not triggered until the clerk makes
a notation on the docket that notice of entry of the order has been given.
Id. Here, the docket does not indicate when and if Rule 236(b) notice of the
termination decree was given to the parties. Thus, under In re L.M., the
30-day rule was not triggered and Father’s notice of appeal will not be
considered untimely.
Moreover, while Father did not concomitantly file a concise statement
of errors complained of on appeal, as required by Pa.R.A.P. 1925(a)(2)(i), on
February 22, 2017, this Court directed Father to file his concise statement
by March 6, 2017. Father timely complied by filing a concise statement with
the trial court and opposing counsel, a copy of which was then transmitted
to this Court. Because no one has objected or claimed any prejudice as a
result of Father’s failure to file a concise statement until ordered to do so by
this Court, we will accept his concise statement. See In re Adoption of
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C.J.P., 114 A.3d 1046, 1049 n.4 (Pa. Super. 2015), citing In re K.T.E.L.,
983 A.2d 745 (Pa. Super. 2009) (holding that parent’s failure to comply
strictly with Rule 1925(a)(2)(i) did not warrant waiver of claims, as there
was no prejudice to any party).
In a proceeding to terminate parental rights involuntarily, the
burden of proof is on the party seeking termination to establish
by clear and convincing evidence the existence of grounds for
doing so. 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.” It is well established that a court must examine the
individual circumstances of each and every case and consider all
explanations offered by the parent to determine if the evidence
in light of the totality of the circumstances clearly warrants
termination.
In re adoption of S.M., 816 A.2d 1117, 1122 (Pa. Super. 2003) (citation
omitted). See also In re C.P., 901 A.2d 516, 520 (Pa. Super. 2006) (party
seeking termination of parental rights bears burden of proving by clear and
convincing evidence that at least one of eight grounds for termination under
23 Pa.C.S. § 2511(a) exists and that termination promotes emotional needs
and welfare of child set forth in 23 Pa.C.S. § 2511(b)).
After a careful review of the certified record, relevant case law and the
parties’ briefs on appeal, we affirm the trial court’s decree involuntarily
terminating Father’s parental rights based upon the cogent opinion, dated
December 20, 2016, authored by the Honorable Joy Reynolds McCoy. As
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Judge McCoy concludes, termination is proper under section 2511(a)(1)5
where “Father failed to bring [the fact that he is employed, goes to
counseling, receives services through the VA, and has a stable residence] to
the attention of Grandmother or the Court and did not actively pursue
regaining custody of the Children until after the Petition for Termination was
filed.” Trial Court Opinion, 12/20/16, at 14. While Father claims he called
or texted Grandmother “at least 3-4 times a week,” N.T Termination
Hearing, 11/17/16, at 150, parental duty requires “continuing interest in the
child and a genuine effort to maintain communication and association with
the child.” In re Burns, 372 A.2d 535, 540 (Pa. 1977) (“[A] . . . child
needs more than a benefactor, parental duty requires that a parent ‘exert
himself to take and maintain a place of importance in the child’s life.’”).
Moreover, despite Father’s claim that Grandmother “made [his] attempt at
maintaining contact with his children very difficult by simply not replying to
text messages and not answering phone calls,” N.T. Termination Hearing,
11/17/16, at 150-151, the trial court found Father’s obstructionist claims to
be invalid. See Trial Court Opinion, 12/20/16, at 1. Simply put, Father
“exhibited a lackadaisical attitude towards his parental responsibilities and
was content to sit back and allow someone else to tend to the everyday
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5
We note that an appellate court need only agree with the trial court as to
any one subsection of § 2511(a), as well as § 2511(b), in order to affirm.
In re Adoption of C.J.P., 114 A.3d 1046 (Pa. Super. 2015).
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needs and welfare of his Children. Id. at 12. Unfortunately for Father his
efforts are “too little, too late.”
With regard to termination under section 2511(b), while Father
admittedly loves Children, he has failed to provide Children the comfort,
security and closeness they fundamentally need. Angela Lovecchio, esquire,
Guardian Ad Litem, testified that there was no apparent bond between
Father and Children. N.T. Termination Hearing, 11/17/16, at 245.
Accordingly, the court concluded that there was no longer a beneficial
parent-child bond that would be destroyed by terminating Father’s parental
rights, id. at 16, termination would serve the needs and welfare of Children
who are thriving and happy in a loving home with their pre-adoptive parents
whom they call “mommy and daddy.” Id. See In the Interest of M.T.,
101 A.3d 1163, 1182 (Pa. Super. 2014) (termination of parental rights
proper under section 2511(b) where Children were “developing very well”
and were “very bonded” with pre-adoptive foster parents; foster parents
were meeting Children’s needs and they were “thriving and growing and
developing in the adoptive home.”).
We instruct the parties to attach a copy of Judge McCoy’s opinion in
the event of further proceedings in the matter.
Decree affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/3/2017
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Circulated 06/16/2017 03:49 PM