In Re: L.M., Appeal of: M.M. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: L.M., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: M.M., FATHER : No. 1860 EDA 2021
Appeal from the Decree Entered August 26, 2021
In the Court of Common Pleas of Montgomery County
Orphans’ Court at No(s): 2021-A0001
BEFORE: OLSON, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY KING, J.: FILED FEBRUARY 28, 2022
Appellant, M.M. (“Father”), appeals from the decree entered in the
Montgomery County Court of Common Pleas, Orphans’ Court Division,
granting the petition of Appellees, J.P. (“Mother”) and C.P. (“Stepfather”), for
involuntary termination of Father’s parental rights to his minor child, L.M.
(“Child”). We affirm.
The trial court opinion set forth the relevant facts of this appeal as
follows:
After [Child] was born in 2011, [Mother] and Child lived
separately from [Father]; [Mother] lived with her
grandmother and [Father] lived next door with his mother.
[Father] made routine visits for a period of time. [Father]
was incarcerated from 2012-2015 at SCI Chester. In 2012,
while [Father] was incarcerated, [Mother] took [Child] to
visit him two to four times. According to [Father], he saw
[Child] “like every other weekend” for the first year of his
incarceration. Thereafter, [Mother] did not bring [Child] to
see [Father] while he was in prison through June 2015.
[Father] attempted to contact [Mother] by phone, but
according to [Mother], the calls became threatening and
more frequent, so she issued a no-call request at the jail.
[Mother] claims she continued to send photos and letters to
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[Father]. However, [Father] was not able to receive
anything from [Mother] through the prison because of the
no-contact order. As [Mother] received no
acknowledgement of the pictures she sent to [Father], she
began to send them to him through paternal grandmother.
In July 2015, after [Father] was released from prison,
paternal grandmother contacted [Mother] about visitation
with [Father]. At that time, [Mother] lived in Eagleville,
Pennsylvania with her husband whom she married in a
Presbyterian Church on July 18, 2015. [Mother] met her
current spouse, [Stepfather], a correctional officer at SCI
Phoenix, around October 2014. [Stepfather] met [Child]
around November 2014. The two developed a bond and
eventually, [Stepfather] wanted to adopt her. He supplies
financial support for [Child]. Their “tight bond” is
demonstrated by his involvement in her life, supporting her
school and extracurricular life, transporting her to ballet,
swim lessons, and tap, as well as viola and archery lessons.
After [Father] was released from incarceration, [Mother]
would not permit [Child] to see [Father] unless a court
ordered it. On August 1, 2016, a Delaware County custody
order awarded joint legal custody of [Child] to [Father] and
[Mother]; primary physical custody to [Mother]; and partial
physical custody to [Father] on the weekends every other
week.[1] Additionally, the family court ordered the parties
to keep in contact, speak regularly regarding custody,
prevent the child from being pierced/tattooed without both
parties’ consent, provide the necessary transportation for
the child, with [Father] beginning overnight visits on a trial
basis. Visitations occurred with [Father] and [Child] for a
period of time, however, [on] September 8, 2017, [Father]
was incarcerated again. He posted bail on May 8, 2018.
[Father] contacted [Mother] upon release and visits
resumed. As a result of his re-incarceration, the last time
[Father] saw [Child] was November 4, 2018. He served a
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1 When the court entered the 2016 custody order, Mother and Father both
lived in Delaware County. (See N.T. Hearing, 8/26/21, at 54). Mother moved
from Delaware County to Montgomery County in October 2018. (Id. at 49).
Around that time, Father moved from Delaware County to the state of
Delaware. (Id. at 56, 87).
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sentence and was released from prison in May of 2019.
During his incarceration, he did not make contact with
[Child]. According to [Father], he did not have the number
or address of [Mother] or [Child] after he lost his phone.
When he was released from prison, [Father] tried contacting
[Mother] via text but she did not respond. He also claims
he went to the Media Courthouse to try to file a “complaint”
to amend the custody order but that he could not file
anything because he did not have a current address for
[Child]. [Father] made no other efforts to locate or contact
[Mother] or [Child] after his release.
[Father] was incarcerated again from 2019 to 2021.
(Trial Court Opinion, filed October 11, 2021, at 2-3) (internal record citations
omitted).
On January 5, 2021, Appellees filed a petition for involuntary
termination of Father’s parental rights and a petition for Stepfather to adopt
Child. The court conducted a termination hearing on August 26, 2021.
Immediately following the hearing, the court entered a final decree
terminating Father’s parental rights. The decree also permitted Child’s
adoption to proceed without further notice to Father. Father timely filed a
notice of appeal on September 15, 2021. The notice of appeal included a
concise statement of errors complained of on appeal.
Father now raises two issues for our review:
Did the trial court err in granting the petition for involuntary
termination of parental rights of Father under 23 Pa.C.S. §
2511(a)(1)?
Did the trial court err in granting the petition for involuntary
termination of parental rights of Father under 23 Pa.C.S. §
2511(a)(2)?
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(Father’s Brief at 7).
Appellate review in termination of parental rights cases implicates the
following principles:
A parent’s right to make decisions concerning the care,
custody, and control of his or her children is among the
oldest of fundamental rights. The time-tested law of the
Commonwealth requires that we balance this intrinsic
parental interest within the context of a child’s essential
needs for a parent’s care, protection, and support. We
readily comprehend the significant gravity of a termination
of parental rights, which has far-reaching and intentionally
irreversible consequences for the parents and the child. For
these reasons, the burden of proof is upon the party seeking
termination to establish by clear and convincing evidence
the existence of the statutory grounds for doing so. [C]lear
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. Because of this
serious impact attending the termination of parental rights,
it is important that a judicial decree extinguishing such
rights be based solely on competent evidence.
In cases concerning the involuntary termination of parental
rights, appellate review is limited to a determination of
whether the decree of the termination court is supported by
competent evidence. This standard of review corresponds
to the standard employed in dependency cases, and
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are
supported by the record, but it does not require the
appellate court to accept the [trial] court’s inferences or
conclusions of law. That is, if the factual findings are
supported, we must determine whether the trial court made
an error of law or abused its discretion. An abuse of
discretion does not result merely because the reviewing
court might have reached a different conclusion; we reverse
for an abuse of discretion only upon demonstration of
manifest unreasonableness, partiality, prejudice, bias, or ill
will. Thus, absent an abuse of discretion, an error of law,
or insufficient evidentiary support for the trial court’s
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decision, the decree must stand. We have previously
emphasized our deference to trial courts that often have
first-hand observations of the parties spanning multiple
hearings. However, [w]e must employ a broad,
comprehensive review of the record in order to determine
whether the trial court’s decision is supported by competent
evidence.
In re Adoption of C.M., ___ Pa. ___, ___, 255 A.3d 343, 358-59 (2021)
(internal citations and quotation marks omitted).
Appellees filed a petition for the involuntary termination of Father’s
parental rights on the following grounds:
§ 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.A. § 2511(a)(1), (b). “Parental rights may be involuntarily
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terminated where any one subsection of Section 2511(a) is satisfied, along
with consideration of the subsection 2511(b) provisions.” In re Z.P., 994
A.2d 1108, 1117 (Pa.Super. 2010).2
On appeal, Father contends that he “has made every effort to maintain
a place of importance in his Child’s life.” (Father’s Brief at 15). Father
emphasizes his testimony from the termination hearing indicating: 1) he
provided Mother with a one-time payment of $1,500.00 for Child’s care; 2) he
taught Child how to fish, ride a bike, and throw a football; and 3) he has
several other children with whom Child should develop relationships. Father
maintains that he “has fought extensively to maintain his visitation [rights]
throughout the case,” even utilizing his own family members “to assist him in
continuing visitation while he was incarcerated.” (Id. at 16).
Father complains that the court should have considered his explanation
for his apparent neglect of Child, which Father blames on barriers created by
Mother. Father asserts that Mother refused to bring Child for visits while he
was incarcerated, and Mother demanded a court order for all visitation
following Father’s release. Father also argues that Mother has “moved and
changed her [phone] number in a manner that made it exceedingly difficult
for Father to maintain contact with” Child. (Id. at 17). Father insists that his
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2Appellees also sought the involuntary termination of Father’s parental rights
under Section 2511(a)(2), but we need only analyze Section 2511(a)(1) for
purposes of this appeal.
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“conduct shows that he has made every effort to provide for his daughter in
the only ways he can.” (Id.) Father concludes that the trial court erred in
terminating his parental rights pursuant to Section 2511(a)(1). We disagree.
“A court may terminate parental rights under subsection 2511(a)(1)
when the parent demonstrates a settled purpose to relinquish parental claim
to a child or fails to perform parental duties for at least six months prior to
the filing of the termination petition.” In re I.J., 972 A.2d 5, 10 (Pa.Super.
2009).
Though we do not adhere to any strict definition of parental
duty, a child has a right to essential parental care, and our
jurisprudence reveals certain irreducible qualities of a
parent’s attendant obligation. Foremost, it is a positive duty
requiring affirmative performance. [C]ommunication and
association are essential to the performance of parental
duty[.] [P]arental duty requires that a parent exert himself
to take and maintain a place of importance in the child’s life.
A parent must exercise reasonable firmness in resisting
obstacles placed in the path of maintaining the parent-child
relationship, or his rights may be forfeited. 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.
Adoption of C.M., supra at ___, 255 A.3d at 364 (internal citations and
quotation marks omitted).
Regarding the six-month period prior to filing the termination petition:
[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
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totality of the circumstances, clearly warrants the
involuntary termination.
In re B., N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.
718, 872 A.2d 1200 (2005) (internal citations omitted).
“Each case of an incarcerated parent facing termination must be
analyzed on its own facts, keeping in mind … that the child’s need for
consistent parental care and stability cannot be put aside or put on hold[.]”
Interest of K.M.W., 238 A.3d 465, 474 (Pa.Super. 2020) (en banc) (quoting
In re E.A.P., 944 A.2d 79, 82-83 (Pa.Super. 2008)). “The focus is on whether
the parent utilized resources available while in prison to maintain a
relationship with his or her child. An incarcerated parent is expected to utilize
all available resources to foster a continuing close relationship with his or her
children.” In re B., N.M., supra at 855 (internal citations omitted).
“Importantly, a parent’s ‘recent efforts to straighten out [his] life’ upon release
from incarceration does not require that a court ‘indefinitely postpone
adoption.’” Interest of K.M.W., supra at 474 (quoting In re Z.P., supra at
1125).
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) (internal citations
omitted).
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Under Section 2511(b), the court must consider whether termination
will meet the child’s needs and welfare. In re C.P., 901 A.2d 516, 520
(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability
are involved when inquiring about the needs and welfare of the child. The
court must also discern the nature and status of the parent-child bond, paying
close attention to the effect on the child of permanently severing the bond.”
Id. (internal citations omitted). “In this context, the court must take into
account whether a bond exists between child and parent, and whether
termination would destroy an existing, necessary and beneficial relationship.”
In re Z.P., supra at 1121.
Instantly, Mother and Father both testified that Father has not seen
Child since November 4, 2018. (See N.T. Hearing at 40, 89). Thus, Father
failed to perform parental duties for at least six months prior to the filing of
the January 2021 termination petition. See In re I.J., supra. Regarding
Father’s attempts to foster a continuing, close relationship with Child, Mother
testified that Father made no effort to contact Child after November 2018.
(See N.T. Hearing at 40). Mother stated that Father did not attend Child’s
school activities or provide birthday/holiday gifts or cards. (Id. at 58, 61).
Mother admitted, however, that Father provided financial support in the form
of a one-time payment of $1,500.00 after Father obtained funds from an
accident settlement. (Id. at 62).
Father’s testimony focused on providing explanations for his extended
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absences from Child’s life. Specifically, Father conceded that he was
incarcerated from 2012 to 2015 and 2019 to 2021. (Id. at 80, 94). During
the first period of incarceration, Father relied on Mother and Paternal
Grandmother to bring Child to the prison for visits. (Id. at 80-82). Upon his
release in 2015, Mother insisted that Father obtain a custody order before she
would make Child available for visitation. (Id. at 84). Thereafter, Father
obtained partial custody under the Delaware County order, and he stayed in
continuous contact with Child until his next prison term. (Id. at 86).
Father blamed Mother and Stepfather for keeping him “out [of] the loop”
about all aspects of Child’s life, including school and extracurricular activities.
(Id.) Although Father conceded that he was aware of Mother’s move to
Montgomery County, Father claimed that he did not memorize her address.3
Instead, Father kept the address stored in his phone, and he lost the phone
while incarcerated. (Id. at 89). Father maintained that the loss of the phone,
and the corresponding loss of Mother’s new address, left him unable to contact
Child after 2018. (Id. at 89-90). Complicating matters further, Mother
changed her phone number at some point in 2019. (Id. at 51). Father did
not have Mother’s new phone number, and the text messages he sent to
Mother’s old phone number went unanswered. (Id. at 92).
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3Father testified that he drove to Mother’s new residence in 2018 for the final
custody exchange before his incarceration. (See N.T. Hearing at 88-89).
Nevertheless, Father was “not familiar with that area,” and he “put the address
on [his] GPS … and it took [him] there.” (Id. at 89).
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Father claimed that he went to the Delaware County Court of Common
Pleas to enforce his custody rights in 2019, but “they wouldn’t allow [Father]
to follow through with the complaint” because Father did not know Mother’s
new address. (Id. at 93). Father also claimed to have hired a private
investigator to find Mother’s address, but the investigator was unsuccessful.
(Id.) Father made no additional attempts to find Child, deciding to wait until
the termination hearing to obtain information about her whereabouts. (Id.)
Significantly, the court did not find Father credible:
[Father] claims that he did not contact [Child] because he
did not have her phone number or address and he was
imprisoned. However, the [c]ourt found Father’s
explanation unpersuasive and not credible. In light of the
totality of the circumstances, Father’s absence from
[Child’s] life was far more prevalent than his effort to
connect with her.
* * *
Father could have had access to a computer while in prison
and could have undertaken greater efforts to locate the
number or address for [Child]. He could have asked prison
guards to retrieve the telephone number from his cellphone.
The law imposes a duty on him to use all available resources
to foster a continuing relationship with his child—and he did
not do so.
This [c]ourt considered Father’s explanation and found his
efforts to be insufficient. Although [Mother] had imposed
obstacles by failing to respond to Father’s texts or failing to
inform the Delaware County court about her address
change, the [c]ourt found that the duty imposed upon
Father—to affirmatively maintain a relationship with his
child—was not met by his actions.
(Trial Court Opinion at 7-8) (internal citations omitted).
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Here, the court properly examined Father’s individual circumstances,
and it considered his explanations before determining that involuntary
termination was warranted. See In re B., N.M., supra. Likewise, competent
evidence supported the court’s credibility determinations. See Adoption of
C.M., supra. Although Father expressly testified that he loves Child and takes
care of his children, our review of the record reveals that Father allowed his
relationship with Child to lapse due to a lost cellphone and some unanswered
text messages. Such relatively minor setbacks did not justify Father’s failure
to perform any parental duties since 2018. See Interest of K.M.W., supra.
Regarding Section 2511(b), the court recognized that termination of
Father’s parental rights would best serve Child’s needs and welfare.
[Mother] met [Stepfather], who is a correctional officer at
SCI Phoenix in or around October 2014. He met [Child]
around November 2014. He had a bond with her and
wanted to adopt her. He supplies financial support for
[Child]. [Child] and [Stepfather] have a close relationship—
a “tight bond”—he picks her up and takes her to ballet, swim
lessons, and tap, as well as viola and archery lessons.
[Child’s] best interests would be served by adoption by her
stepfather.
(Trial Court Opinion at 11). Again, the record supports the court’s conclusion
that Stepfather provides the love, comfort, security, and stability that Child
needs. See In re C.P., supra. Consequently, we affirm the decree
terminating Father’s parental rights to Child.
Decree affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/2022
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