Adoption of: S.R.A., Appeal of: A.M.A. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: S.R.A. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: A.M.A. :
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:
:
:
: No. 877 WDA 2020
Appeal from the Decree Entered July 22, 2020
In the Court of Common Pleas of Allegheny County Orphans' Court at
No(s): No. A 88 of 2019
BEFORE: BOWES, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED DECEMBER 29, 2020
A.M.A. (“Father”) appeals from the order dated July 21, 2020, and
entered July 22, 2020, granting the petition filed by C.M. (“Mother”), seeking
to involuntarily terminate Father’s parental rights to S.R.A. (“Child”) (born in
June of 2013), Mother’s minor, female child with Father, pursuant to the
Adoption Act, 23 Pa.C.S. § 2511(a)(1) and (b), so that her husband, G.M.,
(“Stepfather”), may adopt Child. We affirm.
On December 19, 2019, Mother and Stepfather filed the petition to
involuntarily terminate Father’s parental rights to Child pursuant to 23 Pa.C.S.
§ 2511(a)(1) and (b). On December 23, 2019, Mother and Stepfather filed a
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* Retired Senior Judge assigned to the Superior Court.
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petition for Stepfather to adopt Child.1 Mother and Stepfather filed an
amended termination petition on February 10, 2020, again raising 23 Pa.C.S.
§ 2511(a)(1) and (b). On March 10, 2020, the trial court appointed Attorney
Margaret Gold to represent Child as Child’s guardian ad litem and legal
interests counsel (“GAL/Counsel”). On July 20, 2020, the GAL/Counsel filed a
report, in which she summarized her interviews with Father, Mother,
Stepfather, and Child. At the conclusion of her report, the GAL/Legal Counsel
recommended that Father’s paternal rights should be terminated. See Trial
Court Opinion, 9/9/20, at 1.
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1 In In re Adoption of L.B.M., 639 Pa. 428, 161 A.3d 172 (2017) (plurality),
our Supreme Court held that 23 Pa.C.S. § 2313(a) requires the appointment
of counsel to represent the legal interests of any child involved in a contested
involuntary termination proceeding. The Court defined a child’s legal interest
as synonymous with his or her preferred outcome. In In re T.S., 648 Pa.
236, 192 A.3d 1080 (2018) (filed August 22, 2018), the Supreme Court held
that the trial court did not err in allowing the children’s GAL to act as their sole
representative during the termination proceeding because, at two and three
years old, they were incapable of expressing their preferred outcome. The
Court explained, “if the preferred outcome of the child is incapable of
ascertainment because the child is very young and pre-verbal, there can be
no conflict between the child’s legal interests and his or her best interests; as
such, the mandate of Section 2313(a) of the Adoption Act that counsel be
appointed ‘to represent the child,’ 23 Pa.C.S. § 2313(a), is satisfied where the
court has appointed an attorney-[GAL] who represents the child’s best
interests during such proceedings.” Id. at 257, 192 A.3d at 1092-1093. Here,
Child was seven years old at the time of when GAL/Counsel interviewed her.
We do not comment on the quality of the GAL/Counsel’s representation of
Child. See In re: Adoption of K.M.G., 219 A.3d 662, 669 (Pa. Super. 2019)
(en banc) (filed September 13, 2019) (holding that this Court has authority
only to raise sua sponte the issue of whether the trial court appointed any
counsel for the child, and not the authority to delve into the quality of the
representation) (affirmed, ___ A.3d___ (Pa., filed November 10, 2020).
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On July 21, 2020, the trial court held an evidentiary hearing on the
petition. Mother and Stepfather testified on their own behalf. N.T.,
7/21/20, at 6, 27. Father presented the testimony of his mother, Child’s
paternal grandmother (“Paternal Grandmother”), and testified on his own
behalf. Id. at 37, 48. In the order dated July 21, 2020, and entered on July
22, 2020, the trial court terminated Father’s parental rights pursuant to 23
Pa.C.S. § 2511(a)(1) and (b).
On August 21, 2020, Father filed a notice of appeal, along with a concise
statement of errors complained of on appeal, pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). In his brief, Father raises the following issues:
1. Did the lower court abuse its discretion and commit an error of
law when it held that the statutory grounds for involuntary
termination of Father’s parental rights to Child were met under 23
Pa.C.S.A. § 2511(a)(1), thereby determining that Father, by
conduct continuing for at least six (6) months immediately
preceding the filing of the petition to involuntarily terminate his
parental rights, had failed or refused to perform parental duties?
2. Did the lower court abuse its discretion when it determined that
terminating Father's parental rights best serves the development,
physical and emotional needs and welfare of the Child?
Father’s Brief, at 3-4.2
Father states his argument as follows:
The lower court’s holding that the statutory grounds exist to
involuntarily terminate parental rights of Father under 23
Pa.C.S.A. § 2511(a)(1) is not supported by competent evidence
and accordingly constitutes an abuse of discretion and/or an error
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2While Father stated his issues somewhat differently in his concise statement,
we, nevertheless, find his issues preserved for our review.
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of law. The evidence of record demonstrates that Father, despite
his issues with substance abuse and addiction, made numerous
attempts to see or otherwise have contact with Child and
endeavored to perform parental duties for Child by offering
financial support for Child. Additionally, to the extent that it
appears that Father should have done more during the pertinent
six-month time period, the totality of circumstances must be
considered, including the obstacles Father faced due to the PFA
[Protection From Abuse order], his incarceration and Mother’s
failure to answer his calls and respond to his messages asking to
see Child. The totality of circumstances does not support
termination of Father’s parental rights under 23 Pa.C.S.A. §
2511(a)(1).
Even if the statutory grounds for involuntary termination
exists under 23 Pa.C.S.A. § 2511(a)(1), the trial court’s analysis
of the needs and welfare of Child under 23 Pa.C.S.A. § 2511(b)
does not take into account Mother’s exclusion of Father from
Child’s life, precluding Father from sustaining the bond that he
had with Child during her first year of life.
Father’s Brief, at 9-10.
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. In re: R.J.T., 608 Pa. 9, 9
A.3d 1179, 1190 (Pa. 2010). If the factual findings are supported,
appellate courts review to determine if the trial court made an
error of law or abused its discretion. Id.; R.I.S., [614 Pa. 275,
284,] 36 A.3d 567, 572 (Pa. 2011) (plurality opinion)]. As has
been often stated, an abuse of discretion does not result merely
because the reviewing court might have reached a different
conclusion. Id.; see also Samuel Bassett v. Kia Motors
America, Inc., 613 Pa. 371[, 455], 34 A.3d 1, 51 (Pa. 2011);
Christianson v. Ely, [575 Pa. 647, 654-655], 838 A.2d 630, 634
(Pa. 2003). Instead, a decision may be reversed for an abuse of
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discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. Id.As we discussed in R.J.T., there 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. R.J.T., [608 Pa. at 28-
30], 9 A.3d at 1190. 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. In re Adoption of Atencio, [539
Pa. 161, 165,] 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 616 Pa. 309, 325-26, 47 A.3d 817, 826-27 (2012).
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. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, we have explained, “[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)).
This Court may affirm the trial court’s termination of parental rights if
any one subsection of section 2511(a) has been satisfied. See In re B.L.W.,
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843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Here, we focus on section
2511(a)(1) and (b), which provides:
§ 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), (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.
With respect to subsection 2511(a)(1), our Supreme Court has held as
follows.
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).
In re Adoption of Charles E.D.M., 550 Pa. 595, 602, 708 A.2d 88, 92
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(1988).
Further, this Court has stated:
[T]he 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).
Regarding the definition of “parental duties,” this Court has stated as
follows:
There is no simple or easy definition of parental duties.
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 court has held
that the parental obligation is a positive duty which requires
affirmative performance.
***
Parental duty requires that the parent act affirmatively with
good faith interest and effort, and not yield to every problem, in
order to maintain the parent-child relationship to the best of his
or her ability, even in difficult circumstances. A parent must utilize
all available resources to preserve the parental relationship, and
must exercise reasonable firmness in resisting obstacles placed in
the path of maintaining the parent-child relationship. Parental
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 or her physical and emotional
needs.
In re B.,N.M., 856 A.2d at 855 (citations omitted).
This Court has stated “once the statutory grounds for termination have
been met under [s]ection 2511(a), the [trial] court must consider whether
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termination serves the needs and welfare of the child, pursuant to [s]ection
2511(b).” See In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super.
2008) (en banc). The focus in terminating parental rights under section
2511(a) is on the parent, but it is on the child pursuant to section 2511(b).
Id. In reviewing the evidence in support of termination under section
2511(b), our Supreme Court has stated as follows.
[I]f the grounds for termination under subsection (a) are
met, a court “shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child.” 23 Pa.C.S. § 2511(b). The emotional needs and welfare
of the child have been properly interpreted to include
“[i]ntangibles such as love, comfort, security, and stability.” In
re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M., [533
Pa. 115, 121, 620 A.2d 481, 485 (Pa. 1993)], this Court held that
the determination of the child’s “needs and welfare” requires
consideration of the emotional bonds between the parent and
child. The “utmost attention” should be paid to discerning the
effect on the child of permanently severing the parental bond. In
re K.M., 53 A.3d at 791.
In re: T.S.M., 620 Pa. 602, 628-629, 71 A.3d 251, 267 (2013).
When evaluating a parental bond, “the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal
citations omitted). Although it is often wise to have a bonding evaluation and
make it part of the certified record, “[t]here are some instances . . . where
direct observation of the interaction between the parent and the child is not
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necessary and may even be detrimental to the child.” In re K.Z.S., 946 A.2d
753, 762 (Pa. Super. 2008).
We will review Father’s first issue regarding whether the trial court failed
to consider the obstacles and barriers erected by Mother and/or Stepfather to
impede Father’s performance of his parental duties, together with his second
issue, whether the trial court failed to consider Child’s best interest, and the
effect that severing the parental relationship between Father and Child would
have on Child’s current and future developmental, physical, and emotional
needs and welfare. See Father’s Brief, at 9-10; 14-16. Father argues:
[T]he totality of circumstances demonstrates that Father,
despite his substance abuse history, attempted on numerous
occasions to see Child and provide her with financial support.
However, his efforts were thwarted by Mother, who, on the
occasions when she responded to his calls and messages,
answered his requests to see Child by telling him to go to court,
and who caused him to believe that he had no legal rights.
Moreover, Paternal Grandmother's credible testimony reveals that
Mother told Child that she did not have a father. This statement
demonstrates Mother’s mindset in barring Father from Child’s life.
Father’s Brief, at 14-15.
Father cites In re: J.R.E., 218 A.3d 920 (Pa. Super. 2019), in which
this Court reversed an involuntary termination order, and urges that In re:
J.R.E. and the instant appeal are similar, so that this Court should follow In
re: J.R.E. as precedent and reach the same result. He asserts:
In In re J.R.E., the birth mother had no direct contact with her
child for almost ten (10) years before the filing of the involuntary
termination petition. In the instant matter, Father was a part of
Child’s life for her first year, after which Mother completely shut
Father out of Child’s life. The totality of circumstances in this case
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warrants reversal of the lower court's application of 23 Pa.C.S.A.
§ 2511(a)(1) to involuntarily terminate Father’s parental rights.
Father’s Brief, at 15-16.
We do not agree. In In re: J.R.E., the father filed a petition to
involuntarily terminate the parental rights of the mother of his minor, male
child. The father had legal and physical custody of the eleven-year-old child,
who had suffered shaken baby syndrome as an infant, while residing in the
mother’s home, at the hands of an undetermined individual. The child had
been removed from the mother’s care and custody at the age of six months.
When the child was approximately fourteen to seventeen months old, the
mother had unsupervised physical custody on weekends in Florida, until the
individual who was suspected of committing the child abuse was found in the
mother’s home. At that point, when he was one year and nine months old,
the child was placed in the physical custody of his father in Pennsylvania. The
child remained in the physical custody and care of the father and his wife in
Pennsylvania, and, thereafter, the child did not have any contact with the
mother. In fact, the child believed that the father’s wife, his stepmother, was
his biological mother.
The mother had only sporadic contact with the father and had only
indirect contact with the child. The mother occasionally communicated with
the father by telephone and through social media, and infrequently forwarded
packages containing clothing for the child. The father did not cooperate with
the mother’s efforts to contact the child. The father declined the mother’s
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telephone calls and rejected most of her packages. When the father allowed
the child to keep any items that the mother sent to the child, he did not inform
the child who had sent the gifts. The trial court involuntarily terminated the
mother’s parental rights under section 2511(a)(1) and (b). On appeal by the
mother, this Court reversed, finding that the father had not satisfied his
burden with regard to section 2511(a)(1), as there was no clear and
convincing evidence that the mother had evidenced a settled purpose of
relinquishing parental claim to a child or had refused or failed to perform
parental duties.
This Court stated:
Although the record establishes that Mother had no contact
with [the child] during the relevant statutory period, and very little
contact for a lengthy period prior to that timeframe, it is equally
clear that the lack of contact and support is due, in substantial
part, to a lack of cooperation and reasonable accommodation on
the part of [the father], the custodial parent. As the October 30,
2018 opinion makes clear, the trial court made no effort to
examine [the mother’s] explanation for her conduct. In the
absence of an individualized assessment of the explanations
offered by [the mother] who faced permanent severance of her
parental connection to [the child], there could be no reasoned
determination that the circumstances of this case clearly called for
involuntary termination. Hence, the trial court abused its
discretion in finding that the record was sufficient to support
termination under section 2511(a)(1)
In re: J.R.E., 218 A.3d at 925-926.
Regarding section 2511(b), we stated:
In the exceptional circumstances presented in this case,
where [the child] has not been informed of [the mother’s]
existence and believes that [his stepmother] is his biological
mother, the trial court elected to forgo the mandatory analysis
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under section 2511(b), which examines the emotional bond
between a parent facing termination and her child. The court
instead considered [the child’s] “best interests” under 23
Pa.C.S.A. 5328(a), a statutory provision that sets forth the factors
to be considered in making an award of custody. We strongly
suspect that this clearly erroneous choice was made to avoid the
disclosure of [the mother’s] true identity to [the child], as the
court adopted the GAL’s belief that [the child’s] reintroduction to
[the mother] would be highly disruptive. See Trial Court Opinion,
10/30/18, at 3 (“It is [the trial court’s] opinion that it is in [the
child’s] best interest to maintain the lifestyle that he has been
living for approximately the past eleven years. Reintroducing [the
mother] to [the child] as his biological mother would be highly
disruptive and detrimental to his life, considering that he is under
the belief that [his stepmother] is his mother. The [GAL] also held
this same viewpoint.”). In any event, while it may be correct that,
in the short term, reintroduction may prove disruptive, it is more
probable that [the child’s] longer term interests in stability and
security in knowing his true parentage can only be served by a
comprehensive program of counseling and accurate identification
of his biological parents. Permanently severing a bond between a
natural parent and a child in order to perpetuate a relationship
built upon a misrepresentation does not, clearly and convincingly,
serve the long-term well-being and emotional interests of [the
child]. As these unique and challenging issues were never
explored by the trial court, we cannot agree that the record would
support termination under section 2511(b). Accordingly, we
reverse.
In re: J.R.E., 218 A.3d at 926-927 (footnote omitted).
In the instant appeal, the trial court made the following determinations
regarding section 2511(a)(1) and (b):
Here, Father simply “failed to perform his parental duties”
shortly after the child’s first birthday. Mother did not prevent
Father from visiting with or speaking to the child. In fact, the child
visited with the paternal grandparents on a regular basis. By his
own admission, Father’s attempts to contact Mother were feeble,
at best. Father did not file a Petition with the [c]ourt seeking
visitation or custody of the child and Father did not bother to send
the child birthday or Christmas cards or gifts. Moreover, even
when he was not incarcerated, Father made no attempt to
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financially support the child. Rather, Father stood by and put the
burden of supporting the child solely on Mother’s shoulders.
Fortunately, Mother dated and married a man that was willing to
love and support the child. Accordingly, this [c]ourt affirms its
finding that Mother proffered clear and convincing evidence with
regard to subsection (a)(1).
Having determined that Father’s conduct warranted
termination, the [c]ourt then turned to the issue of whether
termination served the emotional needs and welfare of the child.
The testimony at the hearing established without a doubt that the
child’s best interests would be served by terminating Father’s
parental rights and permitting the adoption by Stepfather to
proceed. The child and Stepfather have a very strong parent[-
]child bond, which, as a result of Father’s actions, no longer exists
between Father and the child. In addition, even though the child
is not his “legal” daughter, the [s]tepfather treats her as a
daughter by supporting her developmentally, emotionally, and
financially. As such, the second prong of the statute has been
satisfied.
For the foregoing reasons of fact and law, the [c]ourt finds
that the Order of Court dated July 21, 2020 terminating Father’s
parental rights was supported by clear and convincing evidence;
[sic] and therefore, proper under the facts of this case.
Trial Court Opinion, 9/9/20, at 3-4.
The present case is distinguishable from the scenario in In re: J.R.E.,
in that Mother had informed Child about Father’s existence when Child was
pre-kindergarten age. There was no evidence that Mother rejected any cards
and/or gifts that Father would send to Child, as there was no evidence that
Father, in fact, did attempt to send Child cards and/or gifts. The trial court
specifically found that Mother did not serve as an obstacle between Father and
Child, but, rather, that Father did not attempt to assert any rights to contact
with Child. The competent evidence in the record supports the trial court’s
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finding. Moreover, unlike the trial court in In re: J.R.E., the trial court in the
instant case properly considered section 2511(b) and determined that there
is no bond between Child and Father that, if severed, would cause emotional
harm to Child. Rather, the trial court found that, because of Father’s lack of
maintaining contact with Child, Stepfather has filled the role of father for Child,
and it is with Stepfather that Child has a strong bond.
Thus, after a careful review of the record, this Court finds the trial court’s
decision to terminate the parental rights of Father under section 2511(a)(1)
and (b) is supported by competent, clear and convincing evidence in the
record. In re Adoption of S.P., 616 Pa. at 325-326, 47 A.3d at 826-827.
Accordingly, we affirm the trial court order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2020
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