In Re: D.T.P., a Minor, Appeal of: A.T.E. ( 2017 )


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  • J-S31014-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    IN RE: D.T.P., A MINOR                    :    IN THE SUPERIOR COURT OF
    :         PENNSYLVANIA
    :
    APPEAL OF: A.T.E., III, FATHER            :
    :
    :
    :
    :
    :    No. 64 WDA 2017
    Appeal from the Decree entered December 9, 2016
    In the Court of Common Pleas of Butler County
    Orphans’ Court at No(s): O.A. No 9
    BEFORE:      PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
    MEMORANDUM BY PANELLA, J.                                    FILED MAY 15, 2017
    A.T.E., III. (“Father”) appeals from the decree entered on December 9,
    2016, granting the petition filed by D.P. (“Mother”) and involuntarily
    terminating his parental rights to his male child, D.T.P., born in May 2009,
    (“Child”), pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1) and (b),
    so that Child may be adopted by her current husband, E.C., (“Stepfather”).
    We affirm.
    On      February   22,   2016,   Mother   filed   the    petition   seeking   to
    involuntarily terminate Father’s parental rights to Child. On September 28,
    2016, the trial court held a hearing on the petition. At the hearing, Mother
    presented the testimony of Father, as on cross-examination, and Stepfather,
    and then testified on her own behalf.
    J-S31014-17
    On December 9, 2016, the trial court entered its findings of fact and
    termination decree setting forth the following facts that it found credible
    from the evidence.
    The clear and convincing evidence shows that while Father
    desired visitation with Child, he did not perform any parental
    duties. Father had minimal contact with Child from his date of
    birth, [in May 2009], until Father’s incarceration May 14, 2010.
    During this time[,] Father did pay child support. Over the next
    three years[,] Father sent a handful of letters to Child while
    incarcerated. After his release from prison in December, 2013,
    […], Father contacted Mother on several occasions requesting
    visits with Child which Mother denied, [and] Mother informed
    Father that she would only consider visits if mandated through
    the [c]ourts. Father testified that he made a knowing decision
    not to proceed through the judicial system because he believed
    that process was not in Child’s best interest.
    In December 2015, Father purchased and provided to
    Child Christmas gifts. However, Father did not provide any other
    financial support for Child after his release from incarceration.
    The evidence showed that Mother did not acquiesce to
    Father’s request for visits. The evidence also reveals that Mother
    did not want Father to have a relationship with Child.
    Mother refused to give Father her address. However, the
    issue before the [c]ourt is whether Father performed parental
    duties, and he did not. While Mother did not agree to introduce
    Father back into Child’s life, she did not create such an
    impediment that prevented Father from performing parental
    duties. In fact, Father’s testimony was clear that he knew he
    could use the judicial system to gain parenting time, but made a
    specific decision not to do so. He could have[,] after
    incarceration[,] continued to send letters, cards, gifts, or
    financial support to Child. Simply put, Father accepted Mother’s
    unwillingness to provide visitation with Child and took no other
    affirmative steps to perform parental duties except occasionally
    making additional request[s] to Mother.
    The court[,] finding that Mother proved by clear and
    convincing evidence §2511(a)(1), the [c]ourt considers [sic] 23
    -2-
    J-S31014-17
    Pa.C.S.A. §2511(b). Child had minimal contact with Father for
    the first year of his life. The last contact between Child and
    Father was July 2010. Until shortly before the hearing, Child was
    unaware that Mother’s current husband was not his Natural
    Father. The clear and convincing evidence is that there is no
    bond between Child and Father. Child has a strong positive bond
    with Mother’s husband[,] who desires to adopt Child. Child has
    other [step]-siblings who are either biologically related to
    Mother’s husband or are being adopted by him.
    There is no evidence that Child would be emotionally
    harmed by the termination of Father’s parental rights. Primary
    consideration was given to the developmental, physical and
    emotional needs and welfare of Child. The court finds that it
    would best serve the needs and welfare of the [c]hild to
    terminate the parental rights of Father so that he could be
    adopted by Mother’s husband[,] who is the only father figure
    Child has known.
    Orphans’ Court Findings of Fact, 12/9/16, at 1-2 (unnumbered).
    Father timely appealed.
    On appeal, Father raises two issues:
    1. Did the [trial court] commit an error of law in determining
    that Mother . . . proved by clear and convincing evidence that
    Father’s parental rights should be terminated pursuant to 23
    Pa.C.S.A. § 2511(a)(1)?
    2. Did the [trial court] commit an error of law in determining
    that the Natural Father . . . failed to perform parental duties
    pursuant to 23 Pa.C.S.A. § 2511(a)(1)?
    Father’s Brief, at 5.1
    ____________________________________________
    1
    In his brief, Father contends that the trial court abused its discretion or
    erred as a matter of law in concluding that the evidence was sufficient to
    support the involuntary termination of his parental rights under §
    2511(a)(1). He does not raise the termination of his parental rights under
    subsection (b) in either his concise statement or the statement of questions
    (Footnote Continued Next Page)
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    In reviewing an appeal from an order terminating parental rights, we
    adhere to the following standard:
    [A]ppellate courts must apply an abuse of discretion standard
    when considering a trial court’s determination of a petition for
    termination of parental rights. As in dependency cases, our
    standard of review requires an appellate court to accept the
    findings of fact and credibility determinations of the trial court if
    they are supported by the record. If the factual findings are
    supported, appellate courts review to determine if the trial court
    made an error of law or abused its discretion. As has been often
    stated, an abuse of discretion does not result merely because
    the reviewing court might have reached a different conclusion.
    Instead, a decision may be reversed for an abuse of discretion
    only upon demonstration of manifest unreasonableness,
    partiality, prejudice, bias, or ill-will.
    [T]here are clear reasons for applying an abuse of
    discretion standard of review in these cases. We observed that,
    unlike trial courts, appellate courts are not equipped to make the
    fact-specific determinations on a cold record, where the trial
    judges are observing the parties during the relevant hearing and
    often presiding over numerous other hearings regarding the child
    and parents. Therefore, even where the facts could support an
    opposite result, as is often the case in dependency and
    termination cases, an appellate court must resist the urge to
    second guess the trial court and impose its own credibility
    determinations and judgment; instead we must defer to the trial
    judges so long as the factual findings are supported by the
    record and the court’s legal conclusions are not the result of an
    error of law or an abuse of discretion.
    _______________________
    (Footnote Continued)
    involved section of his brief. Thus, he has waived any challenge to the
    termination under subsection (b). See Krebs v. United Refining Company
    of Pennsylvania, 
    893 A.2d 776
    , 797 (Pa. Super. 2006) (holding that an
    appellant waives issues that are not raised in both his concise statement of
    errors complained of on appeal and the statement of questions involved in
    his brief on appeal).
    -4-
    J-S31014-17
    In re Adoption of S.P., 
    47 A.3d 817
    , 826-827 (Pa. 2012) (internal 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. See In re R.N.J., 
    985 A.2d 273
    , 276 (Pa. Super. 2009).2
    Moreover, we have explained that
    [t]he 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., 
    837 A.2d 1247
    , 1251 (Pa. Super. 2003)).
    In his brief, Father contends that the court abused its discretion or
    erred as a matter of law in concluding that the evidence was sufficient to
    support the involuntary termination of his parental rights under § 2511(a)(1)
    and (b).
    This Court may affirm the trial court’s decision regarding the
    termination of parental rights with regard to any one subsection of section
    2511(a). See In re B.L.W., 
    843 A.2d 380
    , 384 (Pa. Super. 2004) (en
    banc). Here, as noted, the court terminated Father’s parental rights under §
    2511(a)(1) and (b), which provides as follows:
    § 2511. Grounds for involuntary termination
    ____________________________________________
    2
    Thus, the burden to support the petition is not on both the petitioner and
    the guardian ad litem, as alleged by Father.
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    J-S31014-17
    (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.A. § 2511(a)(1), (b).
    With respect to subsection 2511(a)(1), our Supreme Court has held
    that
    [o]nce 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).
    In re Adoption of Charles E.D.M., 
    708 A.2d 88
    , 92 (Pa. 1988) (citation
    omitted).
    Further, this Court has stated that
    -6-
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    the trial court must consider the whole history of a given case
    and not mechanically apply the six-month statutory provision.
    The court must examine the individual circumstances of each
    case and consider all explanations offered by the parent facing
    termination of his or her parental rights, to determine if the
    evidence, in light of the totality of the circumstances, clearly
    warrants the involuntary termination.
    In re B.,N.M., 
    856 A.2d 847
    , 854-855 (Pa. Super. 2004) (citations
    omitted).
    Father argues that the record established that the Mother failed to
    sufficiently demonstrate that his conduct over the six months immediately
    preceding the filing of the petition demonstrated that he had a settled
    purpose of relinquishing his parental claim and failed to perform his parental
    duties. See Father’s Brief, at 8. Additionally, Father asserts that he put forth
    reasonable and significant efforts to find and contact the Child, considering
    all of the circumstances surrounding this case, and that Mother’s refusal to
    allow him to see Child was a barrier to his ability to parent. See 
    id. In support
    of his argument, Father relies on Adoption of S.H., 
    383 A.2d 529
    (Pa. 1978), and Lookabill v. Moreland, 
    485 A.2d 1204
    , 1206 (Pa.
    Super. 1984), in urging that the court failed to consider the circumstances of
    this case. Specifically, Father contends that he was incarcerated, and he
    utilized all of the resources available to him to attempt to establish a
    connection with Child. At the same time, Mother was engaging in ongoing
    efforts to evade Father and prevent a relationship between him and Child.
    Father alleges that Mother utilized his incarceration to further these efforts
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    J-S31014-17
    by changing her address and telephone number without telling him.
    Moreover, Father contends that the record also clearly established that
    Mother actively sought to prevent and obstruct his relationship with Child,
    and that, by terminating Father’s parental rights, the trial court rewarded
    Mother’s misconduct. Father claims that, considering the totality of the
    circumstances and the bad faith conduct of Mother, the trial court should
    have excused his lack of success in contacting Child. See Father’s Brief, at
    8-11.
    Father testified that he was convicted and incarcerated for dealing in
    illegal drugs. See N.T., 9/28/16, at 11. He was incarcerated in July 2010,
    was released to a half-way house in October 2013, and was released on
    parole at the time of the hearing on September 28, 2016. See 
    id., at 7-9.
    Father was drug tested on a weekly basis as of the time of the hearing. See
    
    id., at 11.
    Obviously, incarceration makes performance of the duty to protect,
    support, and maintain communication with a child much more difficult. Our
    Supreme Court has instructed that
    a parent’s absence and/or failure to support due to incarceration
    is not conclusive on the issue of abandonment. Nevertheless, we
    are not willing to completely toll a parent’s responsibilities during
    his or her incarceration. Rather, we must inquire whether the
    parent has utilized those resources at his or her command while
    in prison in continuing a close relationship with the child. Where
    the parent does not exercise reasonable firmness in declining to
    yield to obstacles, his other rights may be forfeited.
    -8-
    
    J-S31014-17 47 A.3d at 828
    (quoting In re: Adoption of McCray, 
    331 A.2d 652
    , 655
    (Pa. 1975)). “[I]ncarceration neither compels nor precludes termination of
    parental rights.” 
    Id. (quoting In
    re Z.P., 
    994 A.2d 1108
    , 1120 (Pa. Super.
    2010)).
    With the above standards of review in mind, we have thoroughly
    reviewed the record, the parties’ briefs, and the applicable law. We find that
    the trial court ably and methodically considered the evidence presented at
    trial, and addressed Father’s issues.
    After a careful review of the record in this matter, we find the record
    supports the trial court’s factual findings, and the court’s legal conclusions
    are not the result of an error of law or an abuse of discretion. This Court
    finds that the trial court’s determinations are supported by competent
    evidence.3 Accordingly, we affirm the trial court’s decree on the basis of the
    discussion in the trial court’s findings of fact, set forth verbatim above, see
    ante, at 2-3, entered on December 9, 2016.        See Trial Court Findings of
    Fact, 12/9/16, at 1-2.
    Decree affirmed.
    ____________________________________________
    3
    Although Father has waived any argument regarding subsection (b), had
    he preserved the issue, we would have found it lacked merit. There was
    sufficient evidence to allow the trial court to make a determination of Child’s
    needs and welfare and as to the existence of a bond between Father and
    Child that, when severed, would have no detrimental impact on Child.
    -9-
    J-S31014-17
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 5/15/2017
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