In Re: K.J.K., a Minor ( 2018 )

J-A04026-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: K.J.K., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: T.W. :
:
:
:
:
: No. 1260 MDA 2017
Appeal from the Order Entered July 12, 2017
In the Court of Common Pleas of Berks County Orphans' Court at No(s):
85249
BEFORE: STABILE, J., NICHOLS, J., and RANSOM, J.*
MEMORANDUM BY NICHOLS, J.: FILED APRIL 18, 2018
Appellant T.W. (Stepfather) appeals from the order that denied his
petitions to involuntarily terminate the parental rights of M.K. (Father) to his
daughter K.J.K., who was born in January of 2008 (Child).1 Stepfather argues
that the trial court erred in denying his petition to terminate Father’s parental
rights under 23 Pa.C.S. § 2511(a)(1) and (b), that the trial court’s initial
opinion filed in support of its decision was defective, and that the trial court
abused its discretion in finding Father’s testimony credible. We affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 As noted below, Stepfather also filed a petition to adopt and change Child’s
last name, which the trial court also denied. Stepfather’s arguments on appeal
focus on the trial court’s rulings as to his petition to terminate Father’s
parental rights.
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We summarize the factual and procedural history as follows. Child was
born to T.J.W. (Mother) and Father, and Child shares Father’s last name.
Mother and Father were never married, but lived together before Child’s birth
and for a short period after Child’s birth.
Mother married Stepfather in 2013. Mother and Stepfather also have a
daughter (Maternal Half-Sister) together. Child currently lives with Mother,
Stepfather and Maternal Half-Sister.
On January 12, 2017, Stepfather filed separate petitions seeking to
terminate Father’s parental rights to Child and seeking to adopt Child and
change her last name. On June 14, 2017, the trial court held an evidentiary
hearing on Stepfather’s petitions.2 At the hearing, Stepfather presented the
testimony of Mother. Stepfather and Child did not testify at the hearing.
Father, who was incarcerated at the time of the hearing, was present in the
courtroom with counsel and testified on his own behalf. Neither party
presented expert testimony.
From the testimony, the trial court found the following facts:
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2 On March 16, 2017, the trial court initially appointed Attorney Melissa
Krishock, Esq., as a guardian ad litem (GAL) for Child for purposes of the
termination hearing. However, there was no dependency proceeding in this
matter, and there was no indication on the record that Attorney Krishock took
any actions as GAL. Subsequently, on April 6, 2017, the trial court vacated
Attorney’s Krishock’s appointment as GAL and appointed her as legal counsel
for Child. At the hearing on the termination petition, Attorney Krishock
actively conducted questioning of the witnesses and made legal argument on
behalf of Child. We conclude that Attorney Krishock appointment as legal
counsel comports with In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017).
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Custody Orders after Their Time Together
Mother testified that when the parties had first separated, each
parent had equal custody as set forth in a February 2009
Montgomery County custody order. In April 2012, Mother
discovered that Father had overdosed on heroin during his
custodial period with Child. Mother petitioned to reduce Father’s
custody. Father’s physical custody was reduced to partial physical
custody on alternate weekends and Wednesdays after school.
Sometimes Father did not pick Child up on Wednesdays. Mother
claimed that Child was upset when Father did not show up for
visitation.
In June 2016, Mother petitioned for Father to have only supervised
visitations because she had found out that he had been arrested
in April 2016, for heroin possession. Mother’s petition was granted
and visitation only under supervision was ordered for Father.
One supervised visit was scheduled for August 7, 2016, but Father
cancelled it because he did not have the money for the supervision
fee. The fee for Father to pay for supervised visitation was $35.00
per hour, or $70.00, for a two[-]hour period. Mother testified that
Father has not contacted Child by telephone, mail, or personal
visits since June 2016. The last time that Father spoke to Child
was during his custody period on June 21, 2016.
Child was not upset when she returned home to Mother after her
last visit with Father on June 21, 2016. Father also had Child on
June 1, 2016. Mother admitted on cross-examination that Father
sent her text messages requesting to see Child after August 2016.
On the day that Father received the petition for the involuntary
termination of his parental rights, he went to Mother’s home[,]
but [M]other denied his seeing [C]hild.
Mother’s and Father’s Testimony
Father testified that he believed that he would soon be released
on a parole violation. Father could not afford supervised visitation
because he had not been working at the time. Father testified
that he went several times to Mother’s residence to see Child, but
they refused to permit him contact because it was in violation of
the supervised visitation order. He sent Child a Christmas card in
December 2016.
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Mother disputes Father’s testimony. She contended that she
never received any mail from Father and that he showed up at her
residence only once in January 2017[,] after he was served
Stepfather’s court documents for this proceeding. Mother testified
that she and Stepfather called the police when he came uninvited
to their home.
Father testified that he loves [C]hild, and she loves him. He wants
a chance to be able to get back into Child’s life. He does not
believe that Child wants to be adopted by Stepfather. Father has
a two-and-a-half year old daughter [(Paternal Half-Sister)] with
his wife.
Stepfather and Child did not testify.
Substance Abuse
Father has a problem with substance abuse. He injured his back
on the job and became addicted to prescribed pain medicine which
led to [his] heroin addiction. He fought the addiction without any
treatment until 2016. Father went for drug treatment three times
in 2016. These included a five-day inpatient detoxification
program in January and a twenty-one-day inpatient program
completed in June. After his visits were ordered to be supervised,
Father was arrested again on July 4, 2016 and August 31, 2016
for possession of heroin. He immediately entered and completed
a twenty-eight-day inpatient treatment program in September.
Father testified that after he was served with Stepfather’s petition
to terminate his parental rights, he soon relapsed. He was
arrested again [on] February 15, 2017 and immediately admitted
himself into a long-term treatment program at Eagleville. Father
went to inpatient treatment from February to April 2017. He
would have stayed longer[,] but [his Montgomery County
Probation Officer had him arrested for violating his probation due
to his February 2017] arrest[,] removed him from treatment and
placed [him] in Montgomery County Prison. He admits that he is
an addict and he went to treatment to become a better parent.
He missed visitation during his inpatient treatments. Besides
treatment programs, Father also attended [Narcotics Anonymous
(NA)] meetings.
Father claimed that he could not remember everything due to his
drug use. Father had two driving under the influence [(DUI)]
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charges in 2006 and 2009. He served thirty days for the 2009
DUI charge. He had no further arrests until 2016. Father does
not recall how many bags of heroin he had when arrested a second
time for possession. Father does not remember how much he
spent daily on his addiction. Father further testified that he does
not remember emails from Mother’s attorney or a suicide attempt.
Child Support
Father was behind on his child support. Mother received a lump
sum payment from Father that came from Father’s mother
[(“Paternal Grandmother”)] in October 2016. He borrowed it to
pay off the arrears. She also received payments from Father’s
income tax refunds. His child support is approximately $131.00
per month[,] which Mother instituted for the first time on June 28,
2016.
Trial Ct. Op., 12/5/17, at 2-5 (citations omitted).
On July 12, 2017, the trial court entered an order with a supplemental
discussion memorandum, denying Stepfather’s petitions to involuntarily
terminate Father’s parental rights, and to adopt Child and change her last
name to Stepfather’s. On August 7, 2017, Stepfather filed a notice of appeal,
along with a concise statement pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
The trial court failed to file an opinion pursuant to Pa.R.A.P. 1925(a) in
response to Stepfather’s Rule 1925(b) statement. On November 21, 2017,
this Court entered an order, remanding this matter to the trial court for a Rule
1925(a) opinion. This Court’s November 21, 2017 remand order also provided
Stepfather with seven days to file a supplemental brief, and Father and Child
with seven days thereafter to file supplemental responsive briefs. On
December 5, 2017, the trial court filed a Rule 1925(a) opinion pursuant to this
Court’s November 21, 2017 order.
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In his initial brief on appeal, Stepfather raises the following issues:
1. Did the trial court err in determining that the parental rights of
Father should not be terminated as to Child?
2. Did the trial court err in finding Father has a strong bond with
Child?
3. Did the trial court err in not applying the law and statute to this
matter?
4. Did the Court err in accepting the credibility of an admitted
drug addict and discounting the testimony of Stepfather and
Mother?
Stepfather’s Initial Brief at 4.3
Stepfather first argues that the trial court erred in refusing to terminate
Father’s parental rights under Section 2511(a)(1).4 He asserts that the trial
court erred in finding Father acted affirmatively and made a good faith effort
to maintain his parent-child relationship to the best of his ability even during
difficult circumstances. Stepfather’s Initial Brief at 6. Stepfather contends
that Father has failed to be a parent to Child for much longer than the requisite
six-month requirement based on his admission that he has been an active
____________________________________________
3 Stepfather’s supplemental brief raises the following issue:
1. Did the trial court abuse its discretion and/or err as a matter of
law in denying the petition to involuntarily terminate Father’s
parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), and (b)?
Stepfather’s Supp. Brief at 4. However, Stepfather’s arguments in his
supplemental brief are duplicative of those set forth in his initial brief.
4 Stepfather does not raise an issue with respect to the trial court’s denial of
his petition to terminate Father’s parental rights under Section 2511(a)(2).
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heroin addict for over five years. Id. at 16. Stepfather further avers that in
the six months preceding the filing of his petition to terminate Father’s
parental rights, Father made no effort to parent, visit, or contact Child, and
opted to spend his money on drugs rather than pay for scheduled supervised
visits with Child. Id. at 5-6, 10. Stepfather points out that Father has been
incarcerated for nearly a year with no set release date, while he and Mother
have been caring for Child in his absence. Id. at 10. Stepfather also avers
that Child wants to be adopted by him. Id. Stepfather thus claims that he
met his burden of showing that Father’s parental rights as to Child should be
terminated under Section 2511(a)(1).
In matters involving the involuntary termination of parental rights, our
standard of review is as follows:
The standard of review in termination of parental rights cases
requires appellate courts “to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record.” In re Adoption of S.P., 47 A.3d 817, 826 (Pa.
2012). “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. “[A] decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will.” Id. The
trial court’s decision, however, should not be reversed merely
because the record would support a different result. Id. at 827.
We have previously emphasized our deference to trial courts that
often have first-hand observations of the parties spanning
multiple hearings. See In re R.J.T., 9 A.3d [1179, 1190 (Pa.
2010)].
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013).
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“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. & J.G., 855 A.2d 68, 73-74 (Pa.
Super. 2004) (citation omitted). “[I]f 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) (citation omitted).
The termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S. §§ 2101-2938, and requires a bifurcated analysis of
the grounds for termination, followed by the needs and welfare of the child.
Our case law has made clear that under Section 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 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.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). We
have defined clear and convincing evidence as that which 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.” In re
C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en banc) (citation omitted).
Section 2511(a)(1) provides as follows:
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(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.
23 Pa.C.S. § 2511(a)(1).
We have explained this Court’s review of a challenge to the sufficiency
of the evidence to support the involuntary termination of a parent’s rights
pursuant to Section 2511(a)(1) as follows:
To satisfy the requirements of Section 2511(a)(1), the moving
party must produce clear and convincing evidence of conduct,
sustained for at least the six months prior to the filing of the
termination petition, which reveals a settled intent to relinquish
parental claim to a child or a refusal or failure to perform parental
duties. In addition,
Section 2511 does not require that the parent demonstrate
both a settled purpose of relinquishing parental claim to a
child and refusal or failure to perform parental duties.
Accordingly, parental rights may be terminated pursuant
to Section 2511(a)(1) if the parent either demonstrates a
settled purpose of relinquishing parental claim to a child or
fails to perform parental duties.
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 Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citations omitted).
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As it relates to the crucial six-month period prior to the filing of the
petition, this Court has instructed:
[I]t is the six months immediately preceding the filing of the
petition that is most critical to our analysis. However, the trial
court must consider the whole history of a given case and not
mechanically apply the six-month statutory provisions, but
instead consider the individual circumstances of each case.
In re D.J.S., 737 A.2d 283, 286 (Pa. Super. 1999) (citations omitted). This
requires the Court to “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, 855 (Pa. Super. 2004) (citation omitted).
Further, we have stated:
[T]o be legally significant, the [post-abandonment] contact must
be steady and consistent over a period of time, contribute to the
psychological health of the child, and must demonstrate a serious
intent on the part of the parent to recultivate a parent-child
relationship and must also demonstrate a willingness and capacity
to undertake the parental role. The parent wishing to reestablish
his parental responsibilities bears the burden of proof on this
question.
In re Z.P., 994 A.2d 1108, 1119 (Pa. Super. 2010) (citation omitted); see
also In re Adoption of C.L.G., 956 A.2d 999, 1006 (Pa. Super 2008) (en
banc).
Regarding the definition of “parental duties,” this Court has stated:
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
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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.
This affirmative duty encompasses more than a financial
obligation; it requires continuing interest in the child and a
genuine effort to maintain communication and association
with the child.
Because 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.
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 . . . her physical and emotional
needs.
In re B., N.M., 856 A.2d at 855 (citations omitted).
With regard to a parent’s incarceration, in In re Adoption of S.P., our
Supreme Court reiterated the standard of analysis pursuant to Section
2511(a)(1) for abandonment and added that:
[a]pplying [In re Adoption of McCray, 331 A.2d 652 (Pa.
1975),] the provision for termination of parental rights based upon
abandonment, now codified as § 2511(a)(1), we noted that a
parent “has an affirmative duty to love, protect and support his
child and to make an effort to maintain communication and
association with that child.” We observed that the father’s
incarceration made his performance of this duty “more difficult.”
***
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[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.
In re Adoption of S.P., 47 A.3d at 828 (citations omitted). Further, the
Supreme Court stated, “incarceration neither compels nor precludes
termination” of parental rights. Id.
In the instant matter, in finding a lack of grounds for termination under
Section 2511(a)(1), the trial court concluded:
[Stepfather’s and Mother’s] evidence is not sufficient to provide
grounds for termination under § 2511(a)(1) because this court
does not find that Father had evidenced a settled purpose of
relinquishing [his] parental claim and duties to Child. . . . Father
had completed detoxification and two inpatient treatment
programs before the petition for termination was even filed. He
enrolled in an additional long-term care inpatient treatment
program after he was served with Stepfather’s court papers and
arrested for a fourth possession of heroin. Thus, the conditions
and causes of neglect of his parental duties can and will be
remedied by Father if he is able to attain and remain in sobriety.
Certainly if he is unsuccessful in the treatment of this addiction,
his parental neglect will sadly become long-term; however, at this
point, the benefit of any doubt must be resolved in Father’s favor
because of his earnest treatment efforts to deal with the addiction.
* * *
To Father’s credit, the evidence shows that he finally accepted his
need for sobriety and that he did, six months before the
supervised visitation order became effective. This is also a year
before Stepfather filed the petition for termination of Father’s
parental rights, and three months before his first arrest for
possession. Father went into a detoxification program followed by
twenty-one days of inpatient treatment. His third inpatient stay
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was in September for twenty-eight days, all three clearly
evidencing progression of effort on his part to save his relationship
with Child.
Mother did not petition for supervised visitation until after Father’s
arrest for possession of heroin on April 18, 2016. Father’s second
and third arrests did not happen until after the custody order of
June 28, 2016 was entered which permitted Father only
supervised visits. Father lost his critical . . . eight-year fatherly
life with his child when his custody was reduced to only supervised
visitation.
When considering whether to terminate parental rights on the
ground that the parent failed to perform parental duties for at
least six months prior to the termination petition, a court should
consider the entire background of the case and not simply
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 parental rights, to determine if the evidence, in light of the
totality of the circumstances, clearly warrants the involuntary
termination. In re Z.P., 994 A.2d 1108 (Pa. Super. 2010). This
court did this examination in the case sub judice.
Trial Ct. Op., 12/5/17, at 6-10.
Additionally, the trial court noted that Mother and Stepfather
immediately counted off the first time that a six-month period existed of
Father having little contact with Child, and then filed Stepfather’s termination
petition two weeks after the six-month period. Id. at 10. The trial court
opined that termination of Father’s parental rights is a drastic step at this
time. Therefore, the trial court concluded that Stepfather did not meet his
burden of proof of providing clear and convincing evidence under Section
2511(a)(1). Id.
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We conclude that the trial court did not commit an error of law or abuse
its discretion in concluding that Father’s conduct was not so deficient as to
meet the statutory requirements necessary for termination of parental rights
under Section 2511(a)(1). In the six months immediately preceding the filing
of the petitions, Father missed two scheduled supervised visitations with Child,
claiming he could not afford to pay for the visits. Father asked Mother to pay
half of the visitation fee in order for him to see Child, but she refused. Id. at
25, 41-42. Mother admitted that she received text messages from Father
requesting to see Child but ignored them due to the June 28, 2016 custody
order. Id. at 25-26.
In addition, Father paid child support from November 2016 to January
2017, and borrowed money from Paternal Grandmother to pay his child
support arrears. Id. at 29, 49-51. Father also testified to sending Child a
Christmas card in December 2016 even though Mother testified she did not
receive anything from Father. Id. at 17, 30, 42-44. Father also requested to
see Child when he went to Mother’s residence after receiving notice of
Stepfather’s petition to terminate his parental rights, but Mother and
Stepfather would not permit him to see Child. Id. at 26, 43.
Most importantly, the record evidences that Father zealously took steps
on his own accord to rectify his drug problem in order to be a better parent
and resume his parental duties by enrolling himself in rehab three times in
2016 and once in 2017. Id. at 44-45, 52-53. Father testified that when he
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is released from jail, he will continue with seeking help for his addiction, and
recognizes he needs support from his family and friends. Id. at 46.
Moreover, while the trial court focused on the six months prior to the
filing of Stepfather’s petition, it also examined the entire history of this case.
See In re D.J.S., 737 A.2d at 286. The record shows that Father has been
an active parent in Child’s life since birth. After Mother and Father separated,
Father obtained shared 50/50 physical custody of Child from November 11,
2009 until January 23, 2014, when his custody was modified to partial physical
custody, where he had Child every other weekend and Wednesdays. N.T.,
6/14/17, at 23-24, 39-40. Both custody orders demonstrate that Father has
resided, cared for and provided for Child’s needs during his ordered custodial
periods. However, we note that Father’s drug addiction has not only led to
several arrests and incarcerations, but it has considerably interfered with his
ability to maintain a relationship with Child and parent her safely. After Father
was arrested for possession of heroin in April 2016, Father’s custodial time
with Child was significantly reduced to supervised visitation on June 28, 2016.
Id. at 11-12. Father last saw Child on June 21, 2016. Id. at 17, 40.
Accordingly, after careful review of the record, we agree with the trial
court’s conclusion that Father has acted affirmatively and has made sufficient
efforts and/or attempts to preserve his relationship with Child to the best of
his ability, during his difficult struggle with his heroin addiction. See In re
Dale A., II, 683 A.2d 297, 302 (Pa. Super. 1996). Thus, as the trial court’s
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determinations regarding are supported by competent, clear and convincing
evidence in the record, we discern no abuse of discretion and will not disturb
them. See In re T.S.M., 71 A.3d at 267; In re Adoption of T.B.B., 835
A.2d at 394.
Stepfather next argues that the trial court erred in refusing to terminate
Father’s parental rights under Section 2511(b) because Father has a strong
bond with Child.5 Stepfather’s Initial Brief at 12. Stepfather claims that Father
spent time getting high on heroin instead of bonding with Child. Id.Stepfather contends that Father’s bond with Child was so poor that he was
unable to provide information regarding his daughter’s teachers or her
extracurricular activities. Id. at 13. Stepfather claims that he helps Mother
with Child by scheduling her appointments, handling her homework and
performing the day-to-day parental responsibilities for Child while Father has
made no efforts in this regard. Id.
Section 2511(b) states:
(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
____________________________________________
5 We may affirm based solely on our conclusion that the trial court did not err
in refusing to terminate Father’s parental rights based on Section 2511(a)(1).
See In re L.M., 923 A.2d at 511 (“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)”).
Nevertheless, we will review Stepfather’s argument that the trial court erred
in refusing to terminate Father’s parental rights under Section 2511(b) as an
independent basis.
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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(b).
This Court has stated that the focus in terminating parental rights under
Section 2511(a) is not on the parent, but on the child pursuant to Section
2511(b). See In re Adoption of C.L.G., 956 A.2d at 1008. 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., [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., 71 A.3d at 267.
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 at 1121 (citations omitted). Although it is
often wise to have a bonding evaluation and make it part of the certified
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record, “[t]here are some instances . . . where direct observation of the
interaction between the parent and the child is not necessary and may even
be detrimental to the child.” In re K.Z.S., 946 A.2d 753, 762 (Pa. Super.
2008).
With regard to Section 2511(b), the trial court found as follows:
Even if the evidence is found sufficient to terminate under §
2511(a)(1) . . . it does not satisfy the purpose of § 2511(b): “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.” This analysis must include the
consideration of the bond between the child and the parent.
Father, even though a heroin addict, was able to function, from
2012 until the summer of 2016, with regard to his parental
relationship and his bond with [C]hild. Mother obviously
acknowledges that the bond between Father and Child was so
strong that the developmental, physical, and emotional needs and
welfare of Child would have been destroyed by the termination of
Father’s parental rights in 2012. Mother testified that it was 2012
when she learned of Father’s heroin addiction. No petition for
termination of Father’s parental rights was filed during this time[,]
even when he overdosed while having custody of [C]hild. It was
only after his first arrest that a petition was filed[,] and that is
after Father completed detoxification and other treatment.
* * *
Unquestionably, Child had a very close relationship, a bond with
Father. Even Mother testified that Child was upset if Father
missed visitation and that she was fine upon her return from her
last custodial period with Father. Unquestionably, [F]ather also
has a very serious addiction. According to the totality of the
circumstances, Father is trying very hard to remedy his drug
addiction, even after several relapses. It would be an unjust result
if he is successful as he testified he is laboring to be, only to have
his parental rights terminated.
Father voluntarily fought hard to maintain the bond [with Child]
by dealing with the devil of his addiction; he did not simply pay lip
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service to this concept, but he completed detoxification, a twenty-
one-day inpatient, and then a twenty-eight-day inpatient
treatment program in the first eight months of 2016. He did so,
not after, but before it was too late. This court does not find, at
this time, that the evidence clearly warranted an involuntary
termination. Father is attempting to remedy his problem.
In a termination of a parental rights case, a court may consider
post-petition efforts of a parent to reestablish parental
responsibilities if the efforts were initiated before the filing of the
termination petition and continued after the petition date. In re
Z.P., 994 A.2d 1108 (Pa. Super. 2010). [Father] may fail, but
this court believes that after eight years of participation in
[C]hild’s life and the clear establishment of a close bond, he
deserves to be given an opportunity to succeed and to resume his
parenting duties and continue to fight his daily battle for sobriety.
Even assuming arguendo that the evidence did meet the
standards to terminate Father’s parental rights, the second prong
of the test was not met. The complete and irrevocable termination
of parental rights is one of the most serious and severe steps a
court can take, carrying with it a great emotional impact for the
parent and the child. In re Bowman, 436 Pa. Super. 10, 647
A.2d 217 (1994). Even when a statutory requirement for
termination of parental rights has been established, a court must
consider whether the child’s needs and welfare will be met by a
termination. The court must take into account whether a bond
exists between the child and parent, and whether the termination
would destroy an existing, necessary, and beneficial relationship.
In re Z.P., 994 A.2d 1108 (Pa. Super. 2010).
* * *
. . . Father testified and Mother, to a lesser extent, also testified
that a bond existed between Father and Child. Mother presented
no evidence that a bond did not exist between Father and Child or
that a bond even existed between Child and Stepfather. Child will
be ten years old on January 1, 2018. No party stated what her
preference was except Father[,] who testified Child would not
want to eliminate him from her life. Neither Child nor Mother
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offered any testimony to contradict this.[6] Although it is not a
requirement under the Act, there was also no evidence from a
professional who examined the strength of the bond between
Father and Child and the effect that termination of that bond
would have on Child to help this court make a decision.
Trial Ct. Op., 12/5/17, at 6-10.
Additionally, the trial court determined that Mother and Stepfather
presented evidence only on the grounds for termination based on Father’s
conduct, but never sufficiently addressed the issue of whether termination
promotes this Child’s emotional needs and welfare. Id. at 10. The trial court
was unconvinced that Father cannot rehabilitate himself and assume his vital
relationship with Child. Id. Moreover, without any evidence to support the
conclusion that termination promotes the emotional needs and welfare of
Child, the trial court concluded that Stepfather did not meet his burden of
proof. Id.
We find that the trial court’s conclusions regarding Section 2511(b) are
supported by the record. The record demonstrates that Father actively
parented Child for most of her life, and Child recognizes Father as her parent.
Accordingly, Father and Child have a parent-child bond. Mother admitted that
Child was upset and would cry if Father missed visitation. See N.T., 6/14/17,
at 10. Furthermore, Stepfather and Mother did not present any evidence that
____________________________________________
6 We note that Child’s legal counsel, Attorney Krishock, stated in arguments
that Child “wants this to go forward.” N.T., 6/14/17, at 92. However, the
court noted that it was not clear whether Child understood the ramifications
of the proceeding. Id. at 93.
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severing the ties between Father and Child was in her best interests and that
she would not be negatively affected by the termination of Father’s parental
rights. Stepfather also failed to present evidence of his bond with Child or
that Child was thriving under his care without Father. In accordance with the
law, the trial court properly considered Child’s bond with Father and the
importance of continuity of relationships, finding that any existing parent-child
bond between Father and Child cannot be severed without causing detrimental
effects on Child. Thus, we find the record supports the trial court alternative
decision to deny Stepfather’s petition to terminate Father’s parental rights
pursuant to Section 2511(b).
Next, Stepfather contends that the trial court’s initial opinion
accompanying its order did not reference 23 Pa.C.S. § 2511 or any relevant
case law regarding termination of parental rights. Stepfather’s Initial Brief at
13. Stepfather thus submits that the trial court failed to properly analyze
Section 2511(a)(1) and (b) because had it done so, it would have realized that
Stepfather met his burden of proving that Father has demonstrated a settled
purpose to relinquish his parental claim and bond with Child by continuing in
his active addiction and trying to kill himself. Id. at 13-14.
Although we agree that the trial court’s initial July 12, 2017 opinion was
deficient, this Court entered an order on November 21, 2017, remanding this
matter to the trial court for a Rule 1925(a) opinion. On December 5, 2017,
the trial court filed a Rule 1925(a) opinion pursuant to this Court’s November
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21, 2017 order. The trial court’s December 5, 2017 Rule 1925(a) opinion
complied with the mandate of this Court, containing references to the
evidence, stating the court’s reasons, analyzing Sections 2511(a)(1) and (b),
and assessing the demeanor and credibility of those witnesses upon whose
testimony the court relied. See Commonwealth ex rel. Debeary v.
Debeary, 456 A.2d 221 (Pa. Super. 1983). Furthermore, as stated above,
the trial court did not misapply the law or abuse its discretion in finding the
requirements for termination of Father’s parental rights were not met under
Section 2511(a)(1) and (b). Accordingly, Stepfather’s third issue merits no
relief.
Finally, Stepfather contends that the trial court erred in accepting
credibility of an admitted drug addict and discounting the testimony of
Stepfather and Mother. Stepfather’s Initial Brief at 14; Stepfather’s Supp.
Brief at 4. Stepfather contends that Father had selective memory when he
testified about matters that could hurt his case, but had precise memory of
instances that helped his case. Stepfather’s Initial Brief at 14.
Our review of the record refutes Stepfather’s claims. The trial court
found that:
Neither parent was entirely credible. Father conveniently did not
remember certain things, which he blamed on his drug use.
Mother testified that she did not receive certain texts from Father,
although she admitted that she had received them in the petition
for the involuntary termination of his parental rights . . .
[Stepfather] had filed.
Trial Ct. Op., 12/5/17, at 9.
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Moreover, Stepfather’s arguments largely focus on the credibility of
Mother’s testimony, a determination that we cannot disturb on appeal. See
In re M.G. & J.G., 855 A.2d at 73-74. As was within its province, the trial
court resolved the factual disputes in favor of Father. See id. We find that
the trial court’s credibility and weight determinations are supported by
competent evidence in the record. In re Adoption of S.P., 47 A.3d at 826-
827.
Accordingly, based upon our review of the record, we find no abuse of
discretion and conclude that the trial court appropriately declined to terminate
Father’s parental rights.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/18/18
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