In Re: M.A.H.R., a Minor ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: M.A.H.R., A MINOR IN THE SUPERIOR COURT
OF
PENNSYLVANIA
APPEAL OF: M.R., FATHER
No. 919 EDA 2017
Appeal from the Order Entered February 14, 2017
In the Court of Common Pleas of Delaware County
Orphans' Court at No(s): 025-2016
BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 23, 2017
M.R. (“Father”) appeals from the order, entered in the Court of Common
Pleas of Delaware County, granting Mother’s petition to involuntarily terminate
Father’s parental rights to the parties’ minor child, M.A.H.R. (“Child”) (born
4/2009), pursuant to 23 Pa.C.S.A. § 2511(a)(1). After our review, we affirm.
Mother and Father are not married. On September 23, 2013, the court
entered a custody order granting Mother primary physical custody and
granting Father partial physical custody. See Order, 9/23/13. The order
required the parties to resume co-parenting counseling and specified review
on December 9, 2013.
On February 11, 2014, the court modified the custody order, changing
Father’s Sunday custody from noon to 7:00 p.m. to 11:00 a.m. to 6:00 pm.
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* Retired Senior Judge assigned to the Superior Court.
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See Order, 2/11/14. That order also provided that Father shall have one
phone call per day with Child, and that the “[p]arties shall immediately resume
co-parent counseling with Mr. DeMayo for a minimum of 5 sessions or until
released by Mr. DeMayo.” On March 5, 2015, the court entered an order
suspending Father’s partial custody rights for failing to attend co-parenting
counseling pursuant to the February 11, 2014 order. Order, 3/5/15.
On February 11, 2016, Mother filed a petition to terminate Father’s
parental rights. The court held a hearing on November 30, 2016. Mother
argues the evidence supported termination of Father's parental rights under
section 2511(a)(1) because Father failed to perform parental duties or had
evidenced a purpose of relinquishing parental claim to Child in excess of six
months prior to the filing of the petition for involuntary termination of his
parental rights. Mother testified that she and Father attended one co-
parenting counseling session together. N.T. Termination Hearing, 11/30/16,
at 15. She also testified that Father had not seen Child since 2013. Id.
Father testified that, as of September 2015, he was employed, part-
time, with the Philadelphia School District; he also stated that he had just
been offered full time employment that week (November 30, 2016). Id. at
74. Prior to that time, from 2010 to 2015, Father was employed by the
Philadelphia Parking Authority. Id. He stated that as a result of the various
hearings and co-parenting counseling sessions that he was required to attend,
he had lost his job with the Philadelphia Parking Authority, was unemployed
from April 2015 to September 2015, and was unable to pay support. Id. at
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75. Father testified that he had been in court for custody litigation at least
fifteen times in seven years. Id. at 82. In the spring of 2016, Father
attempted to modify support. He explained:
Q: And you recall being ordered to attend co-parenting classes.
Is that correct?
A: Yes.
Q: Did you attend co-parenting classes?
A: Yes.
Q: When did you attend co-parenting classes?
A: Over the course of the last three years, at least six to ten
sessions with two different counselors.
****
Q: Okay. Very well. When was the last co-parenting class that
you attended?
A: It had to be spring of 2014. I want to say April or May, either
March or April, 2014.
Q: Okay.
A: Or ’15.
Q: Okay. The co-parenting classes that you attended, who paid
for those classes?
A: I did.
Q: Okay. And if you recall, at what rate were they?
A: They were one hundred twenty-five dollars a session, and I
told him about my financial hardship and he kind of knocked it
down to about eighty-five a session, but it was still expensive
because we actually had one, we went to three sessions in one
month. . . . Which was past my rate. So it was very expensive.
Id. at 79-81. Father continued:
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Q: Will you tell the court why you didn’t continue to attend co-
parenting?
A: They were becoming increasingly expensive, and I asked the
counselor about it. We went to the sessions and I told him I didn’t
have the money[.] He didn’t take too kindly to it, and, basically,
a verbal altercation came between me and him. That’s when co-
parenting counseling ceased.
****
Q: What was the last thing the custody court told you?
A: To go to the co-parenting, with the same counselor. I had no
problem with the co-parenting counseling.
Q: Would you be able to pay for co-parenting counseling at this
point?
A: Yes.
Id. at 95-97.
Father also testified that, as of the hearing date, he did not know where
Mother and Child were living, and that it “seemed like the family doesn’t want
me to have any involvement with [C]hild.” Id. at 88-89. He did admit,
however, that he did have Mother’s cell phone number, but had not received
any messages from Mother since 2014, and that he got no response from his
text messages, meant for Child, that he had sent to her number. Id. at 89-
90.
Father stated that Mother has filed “three to five” petitions for Protection
from Abuse (PFA) against him, and that they were filed after he had filed for
custody. Id. at 84-85. None of the PFA orders became permanent. Father
testified that he has never been arrested, with the exception of failing to pay
child support in the summer of 2016. Id. at 85-86. Father testified that he
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wanted to be a part of Child’s life, and that his family would like to have
contact with Child. Id. at 88, 92-95.
On cross-examination, Father acknowledged that he failed to show up
for the custody hearing on January 20, 2016, and that he lost custody as a
result. Id. at 100-01, 105-06. Father also admitted that he failed to appear
for a custody hearing in March 2014, and he failed to appear for a hearing on
his petition to modify custody on March 9, 2015. Id. at 104.
Maternal grandparents and paternal grandmother testified. Maternal
grandmother testified that she felt threatened by Father when she witnessed
Father verbally abusing Mother. Id. at 119-21. Maternal grandfather, a
pastor, testified that: he has been the pastor of Mount Olive Church in Trainer,
Pennsylvania, for thirteen years; he is involved with Child in church and school
activities; and he is there to support Mother and Child, financially and
emotionally. Id. at 63.
Paternal grandmother testified that she lives in St. Louis, Missouri, and
works for a regional airline and is able to travel to Philadelphia regularly. Id.
at 107. She also stated that: she has only seen Child a few times since his
birth; she would like to have contact with Child; she believes Father can care
for Child; and she tried to contact Mother by “friending” her on Facebook, but
received no response. Id. at 108-15.
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At the conclusion of the hearing, the trial court entered a final order
terminating Father’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a).
Father appealed, and he raises the following issue for our review:1
Whether the trial court erred in entering an order terminating
Father’s parental rights where Mother failed to provide sufficient
evidence to grant termination under 23 Pa.C.S.A. § 2511(a)(1)?
The following statutory language governs termination of Father's
parental rights in this case:
§ 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.
******
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1 We note that Father’s brief on appeal is missing page 4, which is listed in the
Table of Contents as containing his Statement of the Issue Involved. We have
taken Father’s issue from his Pa.R.A.P. 1925(b) statement of errors
complained of on appeal, filed April 11, 2017, and the trial court’s opinion.
See Opinion, 5/17/17, at 9-10. We also note that Father failed to file his Rule
1925(b) statement concomitantly with his Fast Track notice of appeal, as
required by Pa.R.A.P. 1925(a)(2), and instead filed it pursuant to the trial
court’s order. We will not find waiver for this procedural defect. See In re
K.T.E.L., 983 A.2d 745 (Pa. Super. 2009) (failure to file Rule 1925(b)
statement concomitantly with children’s fast track appeal, although
considered defective notice of appeal, will not be grounds for dismissal since
failure to file statement is a violation of procedural rule, not court order).
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(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). See In the Interest of C.S., 761 A.2d 1197,
1201 (Pa. Super. 2000).
In an involuntary termination of parental rights proceeding, the burden
of proof is on the party seeking termination to establish by clear and
convincing evidence the existence of grounds for termination. In re Adoption
of Atencio, 650 A.2d 1064, 1066 (Pa. 1994) (citing Santosky v. Kramer,
455 U.S. 745, (1982)). The standard of “clear and convincing” evidence is
defined as “testimony that is so clear, direct, weighty, and convincing as to
enable the trier of fact to come to a clear conviction, without hesitance, of the
truth of the precise facts in issue.” In re A.L.D., 797 A.2d 326, 336 (Pa.
Super. 2002). It is the trial court, not this Court, that is charged with the
responsibility of evaluating the credibility of the witnesses and resolving any
conflicts in testimony. In re Adoption of R.J.S., 901 A.2d 502, 506 (Pa.
Super. 2006). The trial court is free to believe all, part, or none of the
evidence. Id. If the court’s factual findings are supported by the record,
“appellate courts review to determine if the trial court made an error of law or
abused its discretion.” In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012).
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We may reverse based on an abuse of discretion only upon demonstration of
“manifest unreasonableness, partiality, prejudice, bias, or ill-will.” Id. “We
may not reverse, however, merely because the record would support a
different result.” Id. at 827.
The focus of the termination proceeding is on the conduct of the parent
and whether his conduct justifies termination of parental rights. In re B.L.L.,
787 A.2d 1007, 1013 (Pa. Super. 2001); In re Child M., 681 A.2d 793, 797
(Pa. Super. 1996). 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 D.J.S., 737 A.2d 283, 286 (Pa. Super. 1999)
(internal citations omitted). The court must examine the individual
circumstances of each case and consider all explanations offered by the parent
facing termination of his or her parental rights, to determine if the evidence,
in light of the totality of the circumstances, clearly warrants the involuntary
termination. Id. at 285. See Adoption of M.S., 644 A.2d 1370 (Pa. Super.
1995) (failure of parent to have contact with child for six months will not
automatically forfeit that parent’s rights). See also In re Shives, 525 A.2d
801, 803 (Pa. Super. 1987) (where non-custodial parent faces termination of
parental right, court must consider non-custodial parent’s explanation for
apparent neglect, including whether custodial parent has deliberately created
obstacles and erected barriers intended to impede communication and
association between non-custodial parent and child).
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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 conduct; (2) the
post-abandonment contact between parent and child; and (3) consideration
of the effect of termination of parental right on the child pursuant to Section
2511(b). Matter of Adoption of Charles E.D.M., II, 70 A.2d 88, 91 (Pa.
1998).
Here, Father does not dispute that he failed to perform parental duties
for the six months preceding Mother’s filing of her February 11, 2016 petition.
The trial judge, the Honorable Kathrynann W. Durham, found that Father last
saw Child in 2013. Findings of Fact and Conclusions of Law, 2/14/17, at ¶¶
15-16. The trial court, therefore, went on to consider Father’s explanations
for his failure to perform parental duties, his subsequent contact with Child
and the effect of termination on Child. E.D.M.,II, supra.
Father argues that Mother’s “accusations of abuse have served as an
excuse” to prevent Father from knowing where Mother and Child reside and
prevent him from getting to know Child. Appellant’s Brief, at 18. However,
Judge Durham specifically found that “[t]here was no evidence that Mother
and her family deliberately created obstacles or erected barriers with the
intent to prevent Father from communicating and associating with Child.” Trial
Court Opinion, 5/17/17, at 12. The trial court found that Father had texted
Mother, stating he did not want to be in Child’s life, and he wanted his name
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off the child’s birth certificate. Id. at ¶ 23; N.T. Termination Hearing,
11/30/16, at 18-19.2
With respect to post-abandonment contact, the record indicates only
that Father attempted to make contact through a birthday text message to
Child, which he sent to Mother’s phone, and to which he received no response.
Id. at 89-90. Judge Durham also found that Father did not appear for
scheduled custody and support hearings, despite notice, and did not cooperate
with court-ordered co-parenting counseling.
Parental duty requires that the parent act affirmatively with good
faith interest and effort, and not yield to every problem, in order
to maintain the parent-child relationship to the best of his or her
ability, even in difficult circumstances. A parent must utilize all
available resources to preserve the parental relationship, and
must exercise reasonable firmness in resisting obstacles placed in
the path of maintaining the parent-child relationship. Parental
rights are not preserved by waiting for a more suitable or
convenient time to perform one’s parental responsibilities while
others provide the child with his or her physical and emotional
needs.
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2 The March 1, 2014 text provides, in full:
I don’t understand why you do this. Why did you even have him?
All I am is a sperm donor. You don’t have to be putting me and
my family through this. You could have went to a sperm bank.
You treat him like he doesn’t have a dad. And if that’s the case,
I need you take me off child support. I need you to legally change
his name, and I want my name off the birth certificate. I’m not
doing this for 18 years. Someone will contact you. Whatever I
have to do to not be a part of this BS anymore.
N.T. Custody Hearing, 11/30/16, at 19; Plaintiff’s Exhibit 3.
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In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004).
We agree with the trial court that Father’s financial difficulties and
frustration with the system do not excuse him from parental responsibilities.
Father’s failure to attend court-ordered co-parenting counseling and failure to
attend hearings also factored into the court’s determination that his
explanations fell short. Essentially, Father failed to act with reasonable
firmness to pursue his partial custody. Id. Unlike the cases involving lengthy
incarceration, serious crimes, substance abuse, or mental health issues, the
facts that converged to create this situation are atypical, but nonetheless
result in Child being without a Father for three years. “A child’s life simply
cannot be put on hold in the hope that the parent will summon the ability to
handle the responsibilities of parenting.” In re Adoption of M.E.P., 825 A.2d
1266, 1276 (Pa. Super. 2003). We are bound by the court’s findings that are
supported in the record, and, as an appellate court, we cannot reverse simply
because the record would support a different result. S.P., supra.
Finally, the court concluded that “there is no emotional bond between
Father and Child because of Father’s refusal to comply with the Custody
Orders.”3 See In re Adoption of G.L.L., 124 A.3d 344, 347 (Pa. Super.
2015) (major aspect of section 2511(b) analysis is status of parent-child bond
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3 Father did not preserve a challenge related to section 2511(b) as he failed
to present argument in his brief and, as noted above, failed to include a
Statement of Issues in his brief. See fn. 1, supra. See also In re Adoption
of R.K.Y., 72 A.3d 669, 679 n.4 (Pa. Super. 2013 (declining to address
Section 2511(b) where not challenged on appeal). Nevertheless, in light of the
requisite bifurcated analysis, we do not find waiver here.
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and effect that severance of bond would have on child). In cases where there
is no evidence of any bond between the parent and child, it is reasonable to
infer that no bond exists. Further, from Father’s failure to perform his parental
duties for three years, his non-compliance with court orders, his failure to
attend custody hearings and his failure to affirmatively foster a relationship
with Child, the court could properly infer that there was no emotional bond
between Father and Child. See In re K.Z.S., 946 A.2d 753, 762–63 (Pa.
Super. 2008) (where there is no evidence of bond between a parent and child,
it is reasonable to infer that no bond exists). Where there is no bond,
termination would not have a detrimental impact on Child. 23 Pa.C.S.A. §
2511(b).
The record supports the court’s finding that Mother met her statutory
burden of establishing that Father evidenced a settled purpose of relinquishing
his parental claim to Child and that termination would best serve Child’s needs
and welfare. 23 Pa.C.S.A. §§ 2511(a)(1), (b). We, therefore, affirm the order
terminating Father’s parental rights.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/23/2017
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