Adoption of: M.B.B., Appeal of: C.B. ( 2019 )

J-S40030-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF M.B.B. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: C.B., FATHER :
:
:
:
:
: No. 519 WDA 2019
Appeal from the Order Entered March 12, 2019
In the Court of Common Pleas of Venango County Orphans' Court at
No(s): 114-2016
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 24, 2019
C.B. (“Father”) appeals from the order terminating his parental rights to
M.B.B. (“Child”). We conclude the trial court did not abuse its discretion when
it terminated his parental rights and therefore affirm.
T.M.R. (“Mother”) and Father are the biological parents of Child (born
October 2012). Although not married, Mother and Father previously resided
together. In January 2013, when Child was three months old, Mother and Child
left Father due to his addiction to heroin. Trial Court Opinion, filed Mar. 12,
2019, at 3-4 (“Trial Ct. Op.”). Mother has since married A.G., with whom she
has been in a relationship since August 2013. Id. at 3. Mother and A.G. have
a child, E.G., born September 2017. Id.
Custody proceedings were initiated in July 2013. Mother had primary
physical custody, and Mother and Father shared legal custody. Various
custody orders were entered, with most providing that Father would have
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S40030-19
supervised times of partial custody. The visits were supervised due to
concerns for Child’s safety because of Father’s addiction. Id. at 5.
During the weekend of March 18-20, 2016, Father had unsupervised
custody of Child from Friday night to Sunday. Id. at 9-10. Mother testified
that, because she had a bad feeling about the weekend, she went to Father’s
residence early on Sunday to transfer custody. She testified that it was a cold
morning, but that, when she arrived, she saw Father dressed only in a t-shirt
and basketball shorts and Child on the sofa in a tank top and shorts. Id. at
10. Mother, based on her prior experience with Father’s addiction, concluded
he was under the influence of drugs. Id. He had blotches on his face that were
bloody, had pinpoint pupils, was incoherent, and incapable of safely
supervising Child. Id. Mother testified that when she went to her car to call
Father’s Mother, Father brought Child to the car in the tank top and shorts.
N.T., Jan. 29, 2019, at 81, 240.
Father testified that on March 20, 2016, Mother arrived early, saying
Child had a play date. N.T., Jan. 30, 2019, at 109-110. Father told Mother
that Child could not leave yet, as his time had not ended. Id. However, Child
wanted to go, so he dressed Child and took her to Mother’s car. Id. at 110.
He stated he was in basketball shorts and no shirt and Child wore pajamas
because they had just woken up. Id. He testified that he was not under the
influence of narcotics that weekend. Id. at 112.
This was the last time Father had unsupervised custody of Child. Trial
Ct. Op. at 10. After the March 2016 visit, Mother and Father agreed to an
-2-
J-S40030-19
arrangement where Mother and A.G. would bring Child for supervised visits
with Father. Id. The first supervised visit went well, but the five additional
supervised visits between March 2016 and September 2016 did not. Id. at
10-11. Mother and A.G. testified that Father had track marks and seemed high
during the visits, and after the first visit, he was “progressively less interested
in parenting.” Id. at 11. Father testified the visits were too structured and
claimed he could not parent Child because Mother and A.G. were hovering.
Id. Father did not file any document in court to challenge the arrangement.
Id. The last visit Father had with Child was around Labor Day weekend in
2016. Id.
Between April 2016 and September 2016, Father spoke to Child on the
phone and FaceTimed with Child. Id. at 12. However, the court credited
Mother’s testimony as to these interactions. Id. She testified that the three-
year-old Child “would not stand still for more than a couple minutes and . . .
every time Father FaceTimed with [C]hild it was for no more than a couple
minutes.” Id. She stated the longer conversations were between Mother and
Father.
From 2013 to 2016, Father had three arrests for driving under the
influence of a controlled substance (“DUI”), including an arrest in April 2016.
Id. at 6-7. In December 2016, he was arrested for a drug-related offense.
Mother and A.G. testified that Child views A.G. as her father, that they
are bonded, and that he is involved in her life.
-3-
J-S40030-19
In September 2016, Mother and A.G. filed a petition to terminate
Father’s parental rights to Child. The trial court held a hearing in May 2017,
after which the trial court terminated Father’s rights. Father appealed, and
this Court remanded because the trial court had not appointed an attorney to
represent Child.
In March 2019, following a January 2019 hearing before a different trial
judge, the court entered a decree terminating Father’s parental rights. It
concluded that Mother and A.G. had established by clear and convincing
evidence that Father refused or failed to perform parental duties for a period
continuing for at least six months prior to the filing of the petition, and that
termination would be in Child’s best interest. See Decree, filed Mar. 12, 2019;
23 Pa.C.S.A. § 2511(a)(1), (b). Father filed a timely Notice of Appeal.
Father raises the following issues:
1. The trial court erred in relying upon [Mother and A.G.’s]
testimony to alleged incidents that occurred prior to the six
month look back period.
2. The trial court erred in finding that Mother proved by
clear and convincing evidence that Father evidenced a
settled purpose of relinquishing parental claim to [Child]
without making the requisite finding that Father made a
deliberate decision to terminate his parent-child relationship
throughout the statutory six-month period, as required by
Pennsylvania law.
3. The trial court erred in finding that Mother proved by
clear and convincing evidence that Father had refused or
failed to perform parental duties, especially considering
Father’s physical custody periods continuing until three
weeks before the petition to terminate was filed, and
Father’s telephone calls and text messages regarding
-4-
J-S40030-19
[Child] during the six (6) months preceding Mother’s
petition.
4. The trial court erred in relying on Father’s criminal
charges, rather than the disposition of his criminal cases,
especially the incidents occurring in April and December
2016.
5. The trial court erred in finding that “where the rubber
meets the road” is Father’s addiction, and that Father’s
“past behavior is the best indicator of [his] future behavior,”
and thus terminating Father’s rights solely on the basis of
his addiction.”
6. The trial court erred in finding that [Child’s] best interests
were served by terminating Father’s parental rights
pursuant to 23 Pa.C.S. § 2511(b).
Father’s Br. at 5-6. Father has abandoned his first issue in his brief and we
therefore will not address it. Id. at 5 n.1 (stating “Father is not pursuing this
issue on appeal”). Father’s remaining issues challenge the termination of his
parental rights.
A party seeking to terminate parental rights has the burden of
establishing grounds for termination by clear and convincing evidence. In re
Adoption of K.C., 199 A.3d 470, 473 (Pa.Super. 2018). Clear and convincing
evidence means evidence “that is so clear, direct, weighty, and convincing as
to enable the trier of fact to come to a clear conviction, without hesitation, of
the truth of the precise facts in issue.” Id. (internal quotation marks and
citation omitted in In re Adoption of K.C.).
When we review termination of parental rights cases, we “accept the
findings of fact and credibility determinations of the trial court if they are
supported by the record.” In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (quoting
-5-
J-S40030-19
In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012)). “If the factual findings
have support in the record, we then determine if the trial court committed an
error of law or abuse of discretion.” In re Adoption of K.C., 199 A.3d at 473.
A trial court decision may be reversed for an abuse of discretion “only upon
demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-
will.” In re Adoption of S.P., 47 A.3d at 826.
Our Supreme Court has explained the reasons for applying an abuse of
discretion standard of review in termination of parental rights cases:
[U]nlike trial courts, appellate courts are not equipped to
make the fact-specific determinations on a cold record,
where the trial judges are observing the parties during the
relevant hearing and often presiding over numerous other
hearings regarding the child and parents. Therefore, even
where the facts could support an opposite result, as is often
the case in dependency and termination cases, an appellate
court must resist the urge to second guess the trial court
and impose its own credibility determinations and
judgment; instead we must defer to the trial judges so long
as the factual findings are supported by the record and the
court’s legal conclusions are not the result of an error of law
or an abuse of discretion.
Id. at 826-27 (citations omitted).
Termination of parental rights is controlled by Section 2511 of the
Adoption Act. In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007). Under Section
2511, the trial court must engage in a bifurcated analysis 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
-6-
J-S40030-19
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. One major aspect of the needs and welfare
analysis concerns the nature and status of the emotional
bond between parent and child, with close attention paid to
the effect on the child of permanently severing any such
bond.
Id. (citations omitted).
In the present case, the trial court terminated Father’s parental rights
pursuant to 23 Pa.C.S.A. §§ 2511(a)(1) and 2511(b) of the Adoption Act.
Father argues the trial court erred in finding he had a settled purpose of
relinquishing his parental claim to Child. The trial court, however, specifically
stated that it did not make such a finding. Trial. Ct. Op. at 15. We therefore
conclude this claim is meritless.
Father next claims the trial court erred in finding that he refused or
failed to perform parental duties for at least six months before the filing of the
petition to terminate. He notes that he exercised physical custody of Child in
March 2016 and called or FaceTimed with Child one to two times per week.
He also notes that prior to March 2016 he continually sought more time with
Child.1 Father argues that he had sought help and had a period of sobriety
before a relapse in 2018, and that he has developed a sobriety plan.
____________________________________________
1 Father also notes that he filed a petition for custody after Mother and A.G.
filed the petition to terminate his parental rights. We cannot consider the filing
of this petition, as it happened after the filing of the petition. 23 Pa.C.S.A. §
2511(b).
-7-
J-S40030-19
Section 2511(a)(1) provides:
(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.A. § 2511(a)(1). Further, with respect to section 2511(a)(1), “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(b).
“Although it is the six months immediately preceding the filing of the
petition that is most critical to the analysis, the trial court must consider the
whole history of a given case and not mechanically apply the six-month
statutory provision.” In re B., N.M., 856 A.2d 847, 855 (Pa.Super. 2004).
Further:
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.
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’.
-8-
J-S40030-19
Id. (quoting In re C.M.S., 832 A.2d 457, 462 (Pa.Super. 2003)). Parental
duty requires that a 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.”
Id. (quoting In re Adoption of Dale A., II, 683 A.2d 297, 302 (Pa.Super.
1996)). A parent is required to “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.” Id.Here, the trial court concluded:
Where the rubber meets the road in this case . . . is that
during that entire time and continuing, essentially right up
to the time when the father was incarcerated on the most
recent criminal charge (or even to the date of the hearing),
he has been a prisoner to his addiction and has allowed his
addiction to totally dominate his life, his judgment, and the
lives of those persons who are closest to him. The mother’s
testimony was compelling on how she would recognize that
[Father] was addicted but attempted to enable him to
parent, and the mother’s testimony was convincing that she
made protracted and conscientious efforts to enable the
father to remain involved in [Child’s] life. In reaching the
findings we come to in this case, we have to conclude that
the father did not have control of his life during the relevant
period and, in fact, did not have control of his life through
November of 2018 when his probation was again revoked
for heroin use while on probation supervision and he was
locked up in jail. We hear it frequently said that it has
become axiomatic that “a person’s past behavior is the best
indicator of their future behavior.” . . .
Trial Ct. Op. at 15-16. The trial court noted that “[Father] is an intelligent,
well-educated, responsible person when sober, but does not have control of
his life because of his addiction.” Id. at 16. It concluded that, although he
-9-
J-S40030-19
maintains sobriety while incarcerated, he has demonstrated “an inability to
control his life, to control his addiction, and he has demonstrated that he is
not motivated to parent this little girl by dealing responsibly with his
addiction.” Id. at 16-17. The trial court concluded that, during the relevant
time period, Father did not make “a credible effort to parent. He has
consistently failed to perform even the most basic parental duties.” Id. at 17.
It found “that the six (6) visits, which deteriorated and grew less and less
beneficial for the child, were not a good faith effort to parent as contemplated
in the act” and that “the telephone calls, which the father made were not an
effort to parent as contemplated in the act.” Id.
The court further addressed Father’s claim that he agreed to the
supervised format following the March 2016 visit because he did not want to
go to court. Id. It stated that Father “would have [the court] accept and find
that his desire not to go to court was beneficial for the parental relationship
of the parties and ultimately for [Child].” Id. It noted, however, that if a
parent’s rights are being impaired by the conduct of the primary custody
parent, the parent “should assert their right to get relief in court.” Id. at 18.
It noted that Father “did not seek to expand his time with the child but instead
attended just six (6) visits, lasting about an hour, with [Child] which were not
beneficial to her and which did nothing to maintain or reestablish any bond
between her and [Father].” Id. The court concluded that Father “was so
bogged down with his addiction and his additional criminal entanglements
during the relevant period that parenting [Child] was not a priority in his life
- 10 -
J-S40030-19
and his parenting efforts were perfunctory.” Id. It stated that it “[did] not for
a minute doubt that the father loves his daughter and in some abstract aspect
wants to parent, but [found] he made palpable choices that impaired his ability
to parent and ultimately compelled the mother to decide to proceed to
terminate because she had been up this road time and time again with his
addiction.” Id.
The court concluded:
The child is entitled to permanency. And if the Court could
plausibly make a finding today that [Father] was not going
to re-engage in the cycle that has occurred several times
since before the little girl was born as to his relapse due to
addiction, we could respect his desire to parent and project
benefit for [Child] to have her biological father involved in
her life. We conclude that the likelihood of father
recidivating, the likelihood of him again being unable to
competently parent is overwhelming in this case. We
therefore find this outcome is a function of his derelict
behavior and the poor decisions that, he has made. The child
deserves permanency and the father just cannot have the
personal luxury of coming in and out of her life as his
addiction vacillates.
Id. at 19-20.
The record supports the trial court’s findings of fact and credibility
determinations. Further, the trial court did not abuse its discretion in finding
termination proper under Section 2511(a). Father suffers from an addiction to
heroin. Although he has made efforts to overcome this addiction, those efforts
have not yet been successful. Further, the addiction prevents Father from
being able to parent Child.
- 11 -
J-S40030-19
In his next two issues, Father argues the trial court erred in relying on
his criminal charges, rather than the criminal disposition of his cases, and
erred in finding that his “past behavior is the best indicator of [his] future
behavior,” and therefore terminating his parental rights based solely on his
addiction. Father claims that “[i]n applying the aforestated mantra,” the court
found Father demonstrated “an inability to control his life, to control his
addiction, and . . . demonstrated that he is not motivated to parent this little
girl by dealing responsibly with his addiction.” Father. Br. at 35 (quoting Trial
Ct. Op. at 35). Father argues he testified regarding the efforts he made to
obtain and maintain sobriety, which show he is motivated to parent Child. He
argues that in March 2016, when Mother claimed he was using, Father dressed
Child and took her to Mother’s car. He further argued that, even if the court
credited Mother’s version of the March incident, one “instance of improper
care is insufficient to permanently sever Father’s parental rights.” Id. at 36.
Father’s claim lacks merit. The evidence establishes that Father
struggles with addiction, and that this addiction has prevented him from being
able to parent Child. The court did not err in considering evidence of his
addiction and finding the addiction had prevented Father from parenting Child.
In his final issue, Father argues that the court erred in finding
termination of his parental rights would be in Child’s best interest. He argues
that he should be involved in Child’s life because she can benefit from him
intellectually, as he has obtained college and post-college degrees and “he can
help her develop the fundamentals and help her throughout the rest of her life
- 12 -
J-S40030-19
with educational pursuits in performing well and her academics.” Father’s Br.
at 38 (quoting N.T., 1/30/19, at 150). He also argued he would never stop
loving Child and that she can benefit from him spiritually because of his
addiction struggles, as he can teach her about “humility, perseverance, and
integrity.” Id. (quoting N.T., 1/30/19, at 150-51).
Under Section 2511(b), the court must consider “the developmental,
physical and emotional needs and welfare of the child” to determine if
termination of parental rights is in the child’s best interest. See 23 Pa.C.S.A.
§ 2511(b). The focus under Section 2511(b) is not on the parent, but on the
child. In re Adoption of R.J.S., 901 A.2d 502, 514 (Pa.Super. 2006). This
Court has explained that “[i]ntangibles such as love, comfort, security, and
stability are involved in the inquiry into [the] needs and welfare of the child.”
In re C.M.S., 884 A.2d 1284, 1287 (Pa.Super. 2005). 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.Importantly, “[t]he mere existence of an emotional bond does not preclude
the termination of parental rights.” In re N.A.M., 33 A.3d 95, 103 (Pa.Super.
2011). Instead, the trial court “must examine the status of the bond to
determine whether its termination would destroy an existing, necessary and
beneficial relationship.” Id. (internal quotation marks and citation omitted).
Here, the trial court found:
Overwhelming evidence was presented by [Mother and
A.G.] that [A.G.] has been . . . [Child’s] ever-present,
dependable and loving father (figure). The record is replete
- 13 -
J-S40030-19
with evidence that [Child] is bonded with her stepfather.
There were numerous pictures presented . . . which showed
the relationship between the stepfather and [Child]. [Child]
may at one point way back have had some form of a bond
with [Father], but that has dissipated if it ever existed and
per the mother’s credible tesmony does not exist at this
time.
Trial Ct. Op., at 20-21. The court noted Father presented photographs showing
Child happy when with him, but found the pictures were “dated.” Id. at 21.
The court concluded there was no evidence that a bond between Father and
Child exists at this time. It concluded that:
Weighing the needs of this child for permanency, taking into
account her present auspicious situation in life with the very
powerful bond with her stepfather, that the risks of allowing
[Father] back in and his dangerous cycle of “in again, out
again,” outweighs our taking the chance to allow him to
continue to parent, and we find clearly that the best
interests of [Child] are to allow the stepfather to adopt and
become the legal parent.
Id. at 22.
The evidence supports the trial court findings. Father has had minimal
contact with Child since March 2016, and A.G. has been a central figure in
Child’s life. The trial court did not abuse its discretion in finding termination
would be in Child’s best interest
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2019
- 14 -