In Re: A.M.K., a Minor ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: A.M.K., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: M.A.K., FATHER :
:
:
:
:
: No. 1090 MDA 2021
Appeal from the Decree Entered July 16, 2021,
in the Court of Common Pleas of Schuylkill County,
Orphans' Court at No(s): A63-061-20.35018-21
BEFORE: OLSON, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: FEBRUARY 11, 2022
In this matter, M.A.K. (Father) appeals the decree that involuntarily
terminated his rights to 6-year-old son, A.M.K. (the Child), pursuant to the
Adoption Act. See 23 Pa.C.S.A. § 2511(a)(1), (b). The termination petition
was brought by L.D. (Mother) and M.D. (Stepfather). The crux of Father’s
argument is that termination under Section 2511(a)(1) was improper,
because Mother obstructed his ability to perform parental duties. After careful
review, we affirm.
The relevant factual and procedural history is as follows. The Child was
born in 2015, and the parents separated when the Child was about seven
months old. Mother and Father had an informal custody arrangement,
whereby Father would see the Child several times per week. When the Child
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* Retired Senior Judge assigned to the Superior Court.
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was nine months old, Mother met Stepfather. Approximately two years later,
in September 2017, Mother and Stepfather married.
Meanwhile, Father became inconsistent in his exercise of custody.
Father would appear late, or not come at all, or fail to return the Child as the
parties agreed. Mother also heard that Father was selling drugs. As a result,
Mother filed a custody complaint in April 2019. The parents reached a formal
custody agreement in May 2019. The agreement included a requirement that
Father submit to a hair follicle test to detect the presence of illicit substances.
The custody order directed Father to submit to the drug test within 14 days,
and it directed Mother to pay for it. By July 2019, Father had still not
submitted a hair follicle test, and so Mother brought a contempt petition.
Father failed to appear – apparently because he was evicted and did not
receive notice – and the court issued an order prohibiting contact between
Father and the Child until Father submitted to the test. Mother remained
obligated to pay for the testing. Ultimately, Father never submitted to the
hair follicle test. In Mother’s estimation, Father had little contact with the
Child since May 2019.
Mother and Stepfather brought a petition to terminate Father’s parental
rights on October 12, 2020. They alleged that Father’s termination was
warranted under Section 2511(a)(1), (b). The orphans’ court held the hearing
on May 19, 2021. See generally N.T. 5/19/21 (Day 1), at 1-71. The court
held the record open to allow Father’s witness to testify on June 2, 2021. See
generally N.T. 6/2/21 (Day 2), at 1-22.
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The hair follicle test was a central focus of Father’s argument during the
termination proceeding. He testified that he could not schedule the test until
Mother paid for it. According to Father, Mother’s noncompliance was an
example of the ways she tried to obstruct Father’s ability to exercise custody
of the Child. Father testified that he had tried to see the Child several times,
but that Mother had blocked his attempts. Father cited one incident where,
instead of letting him see the Child, Mother called the police. According to
Father, he was arrested on a warrant relating to an unpaid fine, and only when
he was being placed in the police car did Mother come outside with the Child
so they could watch. Father also testified that Mother refused to return his
text messages.
Father claimed he had been trying to parent the Child, notwithstanding
Mother’s obstruction. Father testified he had been paying child support to
Mother, and that he had delivered birthday gifts to the Child. Father also
claimed that he had retained an attorney with MidPenn Legal Services in an
attempt to work out the custody dispute.
The MidPenn attorney testified that Father had contacted her office in
September 2019, August 2020, and in 2021. In January 2021, Father’s
attorney requested that the hair follicle test provision be lifted, because
Mother refused to pay. The court denied the request. The parties made
arrangements for the test to be conducted at the MidPenn Legal Services
office, but by that point Mother and Stepfather’s termination petition was
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pending, unbeknownst to Father’s attorney. Father’s attorney decided to hold
off on the testing, pending the outcome of the termination hearing.
Mother testified that Father never contacted her to coordinate the
payment for the hair follicle test. She also explained that she did not receive
much child support until the Covid-19 pandemic, when Father received
unemployment compensation. Furthermore, Mother denied that Father ever
brought the Child any gifts or cards. Stepfather testified at the hearing that
he met the Child as a baby, and that he believed Father had seen the Child
“two plus years ago.” Stepfather testified that the Child refers to him as “my
[Stepfather’s first name]” and occasionally refers to him as “Dad.”
The orphans’ court ultimately granted the petition and terminated
Father’s rights under Section 2511(a)(1), and (b). Father timely-filed this
appeal. He presents the following issues for our review:
1. Whether the [orphans’] court abused its discretion in
determining that [Mother and Stepfather] produced
clear and convincing evidence that [Father] by
conduct continuing for a period of at least six (6)
months immediately preceding the filing of the
petition, either had evidenced a settled purpose of
relinquishing parental claim to the minor child or had
refused or failed to perform parental duties, as
required by 23 Pa.C.S.A. § 2511(a)(1)?
2. Whether the [orphans’] court abused its discretion in
addressing the second part of the bifurcated process
and determining that the parental rights of [Father]
should be terminated pursuant to 23 Pa.C.S.A. §
2511(b)?
Father’s Brief at 4.
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We review these issues mindful of our well-settled standard of review.
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. If the factual findings are
supported, appellate courts review to determine if the trial
court made an error of law or abused its discretion. A
decision may be reversed for an abuse of discretion only
upon demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will. The trial court's
decision, however, should not be reversed merely because
the record would support a different result.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
We emphasize that with termination cases, the record often supports
the opposite result. See id.; see also, e.g., In re Adoption of T.B.B., 835
A.2d 397, 394 (Pa. Super. 2003). Recently, our Supreme Court cautioned
that the Superior Court is not in a position to make “close calls” when
reviewing appeals from termination decisions. “When a trial court makes a
‘close call’ in a fact-intensive case involving…the termination of parental
rights, the appellate court should review the record for an abuse of discretion
and for whether the evidence supports that trial court’s conclusions; the
appellate court should not search the record for contrary conclusions or
substitute its judgment for that of the trial court.” Interest of S.K.L.R., 256
A.3d 1108, 1124 (Pa. August 17, 2021). To that end, we observe that the
orphans’ 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
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in the evidence. In re M.G. & J.G., 855 A.2d 68, 73-74 (Pa. Super. 2004)
(citation omitted).
With our standard of review in mind, we turn to the substantive law
governing the termination of parental rights. Termination of parental rights
is governed by Section 2511 of the Adoption Act, which requires a bifurcated
analysis.
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[.]
In re C.M.K., 203 A.3d 258, 261-262 (Pa. Super. 2019) (citation omitted).
Clear and convincing evidence is evidence 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.” In re
C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en banc) (quoting Matter of
Adoption Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)). We add that we
may uphold a termination decision if any proper basis exists for the result
reached. In re C.S., 761 A.2d at 1201.
Father’s first appellate issue corresponds with the first prong of the
termination under Section 2511(a)(1). His second appellate issue concerns
the second prong of the bifurcated termination analysis under Section
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2511(b). We therefore begin our discussion with a review of the first prong
of the termination analysis under Section 2511(a)(1):
(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 had evidenced a settled purpose of
relinquishing parental claim to a child or has refused or
failed to perform parental duties.
23 Pa.C.S.A. § 2511(a)(1).
Termination under Section 2511(a)(1) will be warranted if Father has
either evidenced a settled purpose of relinquishing his parental claim, or if
Father has refused or failed to perform parental duties. Under either scenario,
Father’s offending conduct must have been continuing for a period of at least
six months immediately preceding the filing of the termination petition.
With respect to the inquiry as to whether the parent refused or failed to
perform parental duties, we have held:
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.
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.
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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.’
In re C.M.S., 832 A.2d 457, 462 (Pa. Super. 2003) (citing In re Burns, 379
A.2d 535 (Pa. 1977)).
With respect to the timing element of the Section 2511(a)(1) analysis,
we have held that “although the six-month period immediately preceding the
filing of the petition is most critical to the analysis, the court must consider
the whole history of the case and not mechanically apply the six-month
provision.” In re I.J., 972 A.2d 5, 10 (Pa. Super. 2009) (citation omitted).
Our Supreme Court has recently clarified that the termination analysis
necessitates consideration of the totality of the circumstances:
[E]ven where the evidence clearly establishes a parent has
failed to perform affirmative parental duties for a period in
excess of six months as required by Section 2511(a)(1), the
court must examine the individual circumstances and any
explanation offered by the parent to determine if that
evidence, in light of the totality of circumstances, clearly
warrants permitting the involuntary termination [of parental
rights]. Consideration of the totality of the circumstances
includes evaluation of the following: (1) the parent's
explanation for his or her conduct; (2) the post-
abandonment contact between the parent and child, if any,
including any efforts made by the parent to reestablish
contact with the child; and (3) the effect that termination of
parental rights would have on the child pursuant to Section
2511(b).
In re Adoption of L.A.K., 265 A.3d 580, 593 (Pa. December 23, 2021)
(citations and quotations omitted).
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Instantly, the termination petition was filed on October 12, 2020, thus
the most critical period of evaluation is the six months after March 12, 2020.
On appeal, Father provides several reasons why termination under Section
2511(a)(1) was erroneous. See Father’s Brief at 14. First, he argues that he
was unable to see the Child until he took the hair follicle test, but that it was
his understanding that Mother had to schedule and pay for the test before he
could comply. Id. Second, notwithstanding Mother’s obstruction, Father was
still able to see the Child three times. Id. Third, Father has paid child support
to Mother through voluntary withholdings, unemployment compensation
garnishments, and federal income tax refunds. Id. Fourth, Father argues he
has given gifts, or left gifts, for the Child on two occasions. Id. at 15. For
these reasons, Father argues that he did not evince a settled purpose to
relinquish his parental claims, nor had he abandoned the Child, nor refused to
parent the Child.
In essence, Father argues that he demonstrated a sufficient attempt to
fulfill his parental duties, but that Mother obstructed his ability to perform the
same. The question then is whether, under the totality of the circumstances,
Father “acted with reasonable firmness in refusing to yield to obstacles, or
barriers, that have prevented the performance of parental duties.” See
L.A.K., 265 A.3d at 592-93. As our Supreme Court explained in L.A.K., the
orphans’ court has the discretion to resolve this issue:
What constitutes a “barrier” in the context of a Section
2511(a)(1) analysis is a finding within the discretion of the
trial court, and what may constitute a barrier necessarily will
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vary with the circumstances of each case. In some
instances, obstructive behavior by the child's custodian
presents a barrier to the parent's ability to perform parental
duties, which mitigates the parent's failure to maintain the
parent-child relationship. See, e.g., [In re Adoption of
Atencio, 650 A.2d 1065, 1067 (Pa. 1994); In re D.J.Y.,
408 A.2d 1387, 1389-90 (Pa. 1979).] In other instances,
trial courts have found substance abuse, mental health
issues, homelessness, joblessness, criminal charges, or a
confluence of some or all of these issues created barriers to
the maintenance of the parent-child relationship. See In re
S.S.W., 125 A.3d 413, 417-18 (Pa. Super. 2015). In all
instances, the trial court considered the explanation offered
by the parent when deciding whether termination of
parental rights was warranted.
Id. at 593.
Here, the orphans’ court was not persuaded by Father’s argument that
he exercised reasonable firmness to overcome the barrier to performing his
parental duties. In its Rule 1925(a) opinion, the court found:
Father did not act affirmatively with good faith interest and
effort to maintain the parent child relationship. His choice
to not take the [hair follicle] test was what has caused his
prolonged estrangement from his son. Since Father seemed
sincere in his desire to see his son, one can only conclude
that he continued to avoid the hair follicle test because he
knew the result would not be favorable.
Father paid child support only when it was automatically
withdrawn from his unemployment compensation. Father’s
testimony about dropping gifts off was not credible.
[…]
Father did very little to take on any parental duties and was
content just to visit with [the Child,] and avoiding the hair
follicle test was more important than even that. He did little
to achieve any further parental role in the past three years.
[…]
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Father’s own testimony reveals that he would be okay if he
could just “see” or “visit” with [the Child] in Mother’s front
yard. Such testimony is revealing about Father’s lack of
desire to be a true parent.
Trial Court Opinion, 8/13/21 (T.C.O.) at 7-8
In our review, we discern no abuse of discretion. The court considered
the totality of the circumstances in this case, including Father’s explanation
for his conduct and the amount of post abandonment contact. See L.A.K.,
supra. The court did not believe Father’s testimony that Mother’s “refusal”
to pay for the hair follicle test was the reason why he failed to submit one.
Rather, the court inferred that Father did not submit to a drug test, because
Father knew he would test positive for illicit substances. Father admitted to
using methamphetamines as recently as Summer 2020. See N.T. at 55.
But even if Father’s allegation was correct, that Mother’s refusal to
schedule and pay for a drug test constituted a legitimate barrier to Father’s
performance of his parental duties, the orphan’s court did not err when it
determined that Father failed to act with reasonable firmness to overcome
such a barrier.
We recognize that Father consulted an attorney several times to resolve
the custody dispute, specifically the drug test confusion.1 This is certainly a
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1 Father’s custody attorney testified that Father contacted the MidPenn Legal
Services office in 2019, 2020, and 2021. See N.T. at 62. Without realizing
Mother and Stepfather had filed the termination petition, Father’s custody
attorney filed to modify the provision of the child custody order concerning
the hair follicle test. Id. at 65. Counsel explained that the court denied
Father’s modification petition, but allowed Father to present an amended
petition, which resulted in a custody conference set for May 4, 2021. Id. at
(Footnote Continued Next Page)
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mitigating factor. Still, three consultations in as many years does not
constitute any real effort to remove the barrier preventing him from
performing his parental duties.
Moreover, Father could have paid for his own drug test to demonstrate
his sobriety. Perhaps it would be unreasonable to expect Father to routinely
perform Mother’s duties in order to stave off the termination of his parental
rights, especially when the performance of said obligations could be
prohibitively expensive. See B., N.M., 856 A.2d 847, 856 (Pa. Super. 2004)
(“[A] parent is not required to perform the impossible[.]”) But not once did
Father pay for his own drug testing, even when he received an extra $600 per
week in unemployment compensation during the beginning of the Covid-19
pandemic. See N.T. at 58. Nothing prevented Father from paying for the test
upfront and seeking reimbursement from Mother. Doing so would have either
removed the barrier completely, or, at the very least, demonstrated his
commitment to resuming his parental duties. Instead, Father testified that he
was unaware that that was an option, and that he was just trying to follow the
custody order. See N.T. at 31, 58.
The orphans’ court was not satisfied by Father’s explanation. In
essence, the court determined that Father did not “exert himself,” nor did he
“refuse[]” to yield” to the obstacle in his way. B., N.M., 856 A.2d at 855; see
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66. Counsel coordinated with a laboratory so that Father could collect the
sample, and then the parties could work out the payment later through
counsel. Id. at 66-67. The hair follicle test was never completed, however,
because counsel became aware of the pending termination hearing and
decided to wait. Id. at 67.
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also L.A.K., 265 A.3d at 592-93. This determination does not constitute an
abuse of discretion. “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. B.,
N.M., 856 A.2d at 855.
Regarding Father’s post-separation contact with the Child, the orphans’
court simply did not believe Father’s testimony that he bought presents or
cards for the Child’s birthday. Instead, the court believed the testimonies of
Mother and Stepfather that he did not. We cannot disturb this finding,
because credibility determinations and resolutions of conflicting evidence are
squarely within the purview of the trier-of-fact. See M.G., 855 A.2d at 73-74.
The court also determined that even if Father’s testimony was true, that he
saw the Child three times since May 2019, each of these visits lasted mere
minutes. See T.C.O. at 10.
As to whether Father actually performed parental duties, we observe
that Father’s financial support of the Child indicates an effort to parent the
Child. In this case, however, the orphans’ court was well within its discretion
to afford this factor limited weight. For one thing, the affirmative duty to
parent the child “encompasses more than a financial obligation” because “a
child needs more than a benefactor.” See B., N.M., 856 A.2d at 856 (citation
omitted). Second, testimony revealed that Father did not pay Child support
in any real amount until he received substantial unemployment benefits during
the Covid-19 pandemic; and even then, his support was automatically
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deducted from his benefit.2 See N.T. at 15. More importantly, the record
discloses no other performance of parental duties, no acts of “love, protection,
[or] guidance”, and no attention to the Child’s “physical and emotional” needs.
See C.M.S., 832 A.2d at 462.
Had the orphans’ court resolved the conflicting evidence in favor of
Father, or had the court believed Father’s testimony over Mother’s, then
perhaps the record would support a contrary result. But as the record stands,
this Court cannot search for contrary conclusions, and then substitute its
judgment for that of the trial court. See Interest of S.K.L.R., 256 A.3d at
1124. For these reasons, we conclude the court did not err or abuse its
discretion when it determined that Mother and Stepfather met their burden
under Section 2511(a).
We turn now to Father’s second appellate issue, which concerns the
second prong of the termination analysis under Section 2511(b). Section
2511(b) provides:
(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
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2 Mother testified that she received $117 in child support for all of 2019. See
N.T. at 14. Mother also testified that she received additional support in the
beginning of 2020, which was apparently deducted from Father’s income tax
refund. Id. at 17.
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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)(b).
This Court has explained that:
[S]ection 2511(b) focuses on whether termination of
parental rights would best serve the developmental,
physical, and emotional needs and welfare of the child.
In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005),
this Court stated, “Intangibles such as love, comfort,
security, and stability are involved in the inquiry into the
needs and welfare of the child.” In addition, we instructed
that the trial court must also discern the nature and status
of the parent-child bond, with utmost attention to the effect
on the child of permanently severing that
bond. Id. However, in cases where there is no evidence of
a bond between a parent and child, it is reasonable to infer
that no bond exists. In re K.Z.S., 946 A.2d 753, 762-63
(Pa. Super. 2008). Accordingly, the extent of the bond-
effect analysis necessarily depends on the circumstances of
the particular case. Id. at 763.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
Concerning the bond, the question is not merely whether a bond exists,
but whether termination would destroy this existing, necessary and beneficial
relationship. See C.M.K., 203 A.2d at 264 (citation omitted); see also K.Z.S.,
946 A.2d at 764 (holding there was no bond worth preserving where the child
had been in foster care for most of the child’s life, which caused the resulting
bond to be too attenuated). We add, the court is not required to use expert
testimony to resolve the bond analysis but may rely on the lay witnesses. See
In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). Finally, we emphasize
that “[w]hile a parent’s emotional bond with her and/or her child is a major
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aspect of the Section 2511(b) best-interest analysis, it is nonetheless only one
of many factors to be considered by the court when determining what is in the
best interest of the child.” In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)
(citation omitted). However, a parent’s own feeling of love and affection for
the child does not preclude the termination of parental rights. Z.P., 994 A.2d
at 1121.
With these principles in mind, we turn to Father’s argument. Father
claims that the orphan’s court should never have reached the second part of
the bifurcated process and therefore abused its discretion. See Father’s Brief
at 29. In other words, Father argues that because the orphans’ court should
have found termination was unwarranted under Section 2511(a)(1), the court
erred by considering Section 2511(b). See id. at 29.
Father is correct that when a court determines the grounds under
Section 2511(a) have not been established, the analysis should cease, and
the court should not consider the second prong under Section 2511(b). He
made no separate argument that termination was improper based upon his
bond with the Child. Since we determined Section 2511(a) was met, we could
end our analysis here. To the extent Father preserved a substantive review
of the court’s determinations under Section 2511(b), we would still conclude
that court’s decision was proper.
The orphans’ court opined that the Child has very little, if any, bond with
Father. See T.C.O. at 10. The Child’s counsel represented to the court that
the Child does not remember Father. See N.T., at 3. Stepfather testified that
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he began his relationship with Mother and Child in 2016, when the Child was
nine months old, and that he moved in with Mother and Child by the end of
that year. Id. at 22. The court determined that Mother and Stepfather have
ensured the Child’s physical, emotional, and developmental needs are met.
See T.C.O. at 9. As mentioned above, when the record is devoid of evidence
of a bond between the parent and the child, it is reasonable to infer none
exists. In re K.Z.S., supra. Such an inference is warranted in this case.
Thus, the court was within its discretion when it determined that no bond was
worth preserving, and that termination would best serve the Child’s needs and
welfare.
In sum: the orphans’ court did not error or abuse its discretion when it
concluded Mother and Stepfather met their burden of proof that termination
of Father’s rights was warranted under Section 2511(a)(1). Father has
refused or failed to perform his parental duties throughout the pendency of
this case, as evidenced by his refusal to utilize all available resources to
maintain contact with Child, or to exert himself to maintain a place of
importance in Child’s life. Moreover, we discern no abuse of discretion nor
error of law when the court determined termination would best serve the
Child’s needs and welfare, pursuant to Section 2511(b). The orphans’ court
made a reasonable inference, supported by the record, that no worthwhile
bond between Father and the Child exists.
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Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/2022
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