In Re: Adoption of: T.M.S., Appeal of: N.S. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF T.M.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: N.S., FATHER :
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:
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: No. 1414 EDA 2019
Appeal from the Decree Entered April 10, 2019
In the Court of Common Pleas of Montgomery County Orphans' Court at
No(s): No. 2018-A0162
BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 22, 2019
N.S. (“Father”) appeals from the decree entered on April 10, 2019,
granting the petition filed by T.L. (“Mother”) and her husband, A.G.
(“Stepfather”), to terminate Father’s parental rights to his son, T.M.S., born
in February of 2007, pursuant to the Adoption Act, 23 Pa.C.S. § 2511(a)(1),
(2), and (b). We affirm.
On September 1, 2018, Mother and Stepfather filed a petition to
terminate Father’s parental rights to T.M.S. so that Stepfather can adopt
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* Retired Senior Judge assigned to the Superior Court.
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T.M.S. The trial court held an evidentiary hearing on April 10, 2019. Mother,
Stepfather, and Father testified at the hearing.1
We note initially that neither counsel for T.M.S. nor counsel for Mother
has elected to file a brief, and the trial court dictated its findings at the
conclusion of the hearing. This Court benefits when the parties and the trial
court present their views with citation to the record and to relevant law. Given
these omissions, we detail the evidence presented at the hearing prior to our
discussion of the disposition of this case.
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1 We observe that the trial court appointed Attorney Louise Petrillo to
represent T.M.S.’s legal interests and stated that it did not appoint a guardian
ad litem (“GAL”) because there is no conflict in T.M.S.’s legal interests and
best interests. N.T., 4/10/19, at 112. See In re Adoption of L.B.M., 161
A.3d 172 (Pa. 2017) (plurality) (23 Pa.C.S. § 2313(a) requires that counsel
be appointed to represent the legal interests of any child involved in a
contested involuntary termination proceeding). The L.B.M. Court defined a
child’s legal interest as synonymous with the preferred outcome. Id. at 432;
see also In re T.S., 192 A.3d 1080 (Pa. 2018) (trial court did not err in
allowing the children’s GAL to act as their sole representative during the
termination proceeding because, at two and three years old, they were
incapable of expressing their preferred outcome). Herein, Attorney Petrillo
testified that she interviewed T.M.S., who was twelve years old at the time of
the hearing, and T.M.S. wanted Stepfather to adopt him. Attorney Petrillo
told the trial court that T.M.S. “was very eloquent for his age” and was “as
clear as a 12 year old could be about his feelings and what he would like in
his life.” N.T., 4/10/19, at 108. Attorney Petrillo stated: “[T.M.S.] told me
that he feels that his dad does not love him[,] and he wants him out of his
life. He does not want any further contact with [Father].” Id. We conclude,
because there is no conflict in T.M.S.’s best interests and T.M.S.’s preferred
outcome, the requirements of L.B.M. and T.S. have been met. See In re:
Adoption of K.M.G., ___ A.3d ___, 2019 Pa. Super. 281 (Pa. Super. filed
September 13, 2019) (en banc) (this Court has authority to raise, sua sponte,
the issue of whether the trial court appointed any counsel for the child).
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Mother testified that T.M.S., her only child, is in sixth grade and resides
with her and Stepfather. N.T., 4/10/19, at 7–8. Mother, who met Father
when she was fifteen years old and in the eighth grade, never married Father,
but they were in a relationship for approximately seven years and resided
together for two years until 2009, when T.M.S. was two years old. Id. at 8–
9, 15. Mother and T.M.S. moved to Collegeville, Pennsylvania, in 2015, where
they currently reside with Stepfather. Id. at 7, 9.
In 2010, Mother filed a complaint for custody of T.M.S. and subsequently
agreed to an order whereby she transported T.M.S. to Father on Tuesdays and
Fridays, picked him up after two or three hours, and returned T.M.S. to her
home. N.T., 4/10/19, at 9. Mother testified the custody schedule failed
because Father was not present on many occasions, he would be present but
“high” on drugs, or Father would have to go somewhere and would leave
T.M.S. in his mother’s care. Id. at 10. Moreover, Father often had people in
his home, whom Father claimed he did not know, and he would not allow
Mother to come to his house because it was “not safe.” Id. at 10, 11.
On October 26, 2011, Mother filed a petition to modify custody. N.T.,
4/10/19, at 11. Mother testified that Father was unable to parent T.M.S.
because Father was addicted to heroin, Oxycontin, and Xanax. Id. at 12. In
2012, the trial court awarded Mother sole legal custody and primary physical
custody of T.M.S. Id. Thereafter, Mother arranged supervised visits between
Father and T.M.S. in a public place. Id. at 12–13. Mother asserted that during
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the visits, Father was uninterested in T.M.S. and instead, verbally attacked
Mother or questioned her about her personal life. Id. at 13. Therefore, Mother
enlisted her family to meet Father with T.M.S. until her family members, as
well, became uncomfortable with the situation. Id. Mother told Father that
if he wanted to see T.M.S., he would have to file a custody modification
petition. Id.
At that time, Father, who did not work and sold illegal drugs, was
intermittently paying child support for T.M.S. N.T., 4/10/19, at 13, 15. He
did not graduate from high school, but obtained a Graduate Equivalency
Diploma online. Id. at 14. When Father fell behind in his support payments,
he faced incarceration, and asked Mother for financial assistance. Id. at 13.
On four occasions, the trial court held Father in contempt and incarcerated
him once for not paying child support for T.M.S. Id. at 14. When Father was
imprisoned for another crime, Mother decided not to seek additional child
support from Father. Id.
Mother and Father last corresponded via text messages in 2013 or 2014.
N.T., 4/10/19, at 16, 51. In the final text message, Father asked Mother to
give him $10 when she transported T.M.S. to Father’s home. Mother refused
because she believed Father would use the money to buy illegal drugs. Id.
Mother stated that because Father always asked her for money and could not
care for T.M.S., there was no reason for her to continue transporting T.M.S.
to visit Father. Id. at 16-17. Mother claimed that because Father sold illegal
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drugs, he frequently changed cellular telephones; for this reason he utilized
the cellular telephone of his mother (“Paternal Grandmother”) to correspond
with Mother. Id. at 17. Father admitted utilizing Paternal Grandmother’s
cellular telephone to text Mother. Id. at 91. In one of the messages, Mother
described to Father how to file a custody modification petition. Id. at 17-18,
91–92.
Father last saw T.M.S. in a park in 2013 or 2014, more than five years
prior to the hearing. N.T., 4/10/19, at 18. Thereafter, Father did not send
T.M.S. any cards, letters, Christmas gifts, or pictures, nor did he request
pictures of T.M.S. Id. at 18–19. On one earlier occasion, Christmas Day
2013, Father arrived fifteen minutes late at the Limerick Bowling Alley to meet
Mother and T.M.S. with what Mother believed were needle track marks in his
arm. Id. at 19.
During Father and Mother’s relationship, Father was physically abusive
toward Mother when she directed him to leave their house. N.T., 4/10/19, at
19-20. Father threw a television to the ground and threw something at
Mother, hitting the light above her. Id. at 20. Father picked up the broken
glass and threw it at Mother’s face as she held T.M.S. and shielded his head.
Id. On another occasion, Father shoved Mother off of the deck, blocked her
automobile, kicked her car’s doors, and dented her car’s hood with his hands.
Id. at 20-24. The trial court admitted the photographs of the damaged
vehicle. Id. at 23, 51. At the time of the incident, T.M.S. was at the maternal
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grandparents’ home. Id. at 21. Mother attempted to defend herself until her
parents arrived and called the police. Id. at 21. Police filed an incident report,
but Mother testified she did not pursue charges against Father regarding the
incident because “the police said I could get in trouble for defending myself.”
Id. On an earlier occasion, when T.M.S. was an infant and Mother was holding
him, Father told Mother, “[Y]ou are lucky you are not a dude; I would punch
you right in the f---in’ mouth,” and he punched his hand past Mother’s head
and into the wall. Id. at 22. On yet another occasion, when T.M.S. was
approximately two years old and just learning to speak, Father made a video
of himself holding T.M.S. and instructing T.M.S. to say, “[M]ommy is a bitch.”
Id. at 3–5, 22.2 Father admitted these behaviors and incidents. Id. at 93–
94.
Mother testified that when T.M.S. was approximately five years old,
Father bought the child a “BB” handgun, which Mother described as a poor,
ill-advised gift. N.T., 4/10/19, at 24. Mother took the BB gun to the police
station and disposed of it. Id. at 24–25. Father also gave T.M.S. a cellular
telephone, which Mother found inappropriate and threw away. Id. at 25-26.
Father opined that the person in the videos “is not who I am today.” Id. at
94.
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2 Father stipulated that the trial court could consider the oral summary by
counsel for Mother and Stepfather as to what the video would show. N.T.,
4/10/19, at 5.
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Mother met Stepfather, who does not have children of his own, at the
end of 2011, and she introduced Stepfather to T.M.S. three months later.
N.T., 4/10/19, at 26, 50. Mother and Stepfather married in September of
2018, and Mother plans to change her surname. Id. at 26. T.M.S. desires to
change his last name as well. Id. at 26-27. T.M.S. utilizes Stepfather’s last
name on his schoolwork, despite Mother’s instruction not to do so. Id. at 27.
Stepfather attends T.M.S.’s school conferences and meetings and pays for
T.M.S.’s needs, such as clothing, doctors’ appointments, school lunches, toys,
and entertainment. Id. at 27, 48. Stepfather also pays for a babysitter for
T.M.S. when needed or babysits T.M.S. himself. Id. at 27-28. Stepfather
assists T.M.S. with his homework and school projects. Id. Stepfather, who
is an electrician, plays videogames with T.M.S., takes him fishing, and enjoys
going to fun places with T.M.S. Id. at 28, 29, 47. Stepfather provides T.M.S.
with guidance, and they eat dinner together with Mother as a family. Id. at
28. T.M.S. calls Stepfather “Dad.” Id. at 28-29, 47. Every day when T.M.S.
leaves the house, T.M.S. and Stepfather say, “I love you.” Id. at 29, 48.
Stepfather also pays for the family’s vacations, such as a trip to visit Mother’s
grandparents in Arizona. Id. at 29–30. T.M.S. wrote a letter in school
describing Mother and Stepfather as his “mom and dad.” Id. at 31.
T.M.S. has Attention Deficit Hyperactivity Disorder, and he attends
therapy to learn how to refocus his energy and discuss his life situations. N.T.,
4/10/19, at 31. T.M.S.’s therapist told Mother that T.M.S. has anger and fear
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regarding Father, and he does not intend to meet him. Id. T.M.S. does not
remember Father, and Mother does not believe that T.M.S. would recognize
Father. Id. at 32. Mother opined that termination of Father’s parental rights
would serve the physical and emotional needs and welfare of T.M.S. Id. at
32–33.
Mother lived in Limerick for seven years and then in Collegeville since
September of 2015. N.T., 4/10/19, at 32. Her parents lived in Linfield,
Pennsylvania, in the same home for thirty years, and they had the same
telephone number during that time, with which Father was familiar. Id.
Mother had the same telephone number since 2014, used the same e-mail
address for six or seven years prior to the hearing, and has a Facebook
account. Id. at 32–33. On cross-examination by T.M.S.’s counsel, Mother
testified that she had not had any contact from Father’s family, although they
continued to live in the same residence in Pottstown, Pennsylvania, where
they resided when Mother and Father lived together. Id. at 34.
Mother confirmed that T.M.S.’s counsel had come to her home the week
prior to the hearing to visit with Mother, Stepfather, and T.M.S., and had spent
time alone with T.M.S. in his room. N.T., 4/10/19, at 34. Mother did not
pursue criminal charges against Father for any incident, and although Father
represented that he completed rehabilitation, she does not believe him. Id.
at 35. Mother has had sole legal custody since 2012. Id.
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On cross-examination by Father’s counsel, Mother acknowledged that
she had formerly taken T.M.S. to a park to visit with Father and Paternal
Grandmother on many occasions. N.T., 4/10/19, at 38. Mother testified that
Father had filed a petition to modify custody in 2014 but had not appeared at
the hearing. Id. at 38–39. He also filed a petition to modify custody in 2018.
Id. Mother requested a stay of Father’s 2018 modification petition so that she
could file her termination petition. Id. at 40. Mother admitted that she
opposed Father’s 2018 modification petition. Id. at 41.
Father testified that he was thirty-two years old at the time of the
hearing, twenty years old when T.M.S. was born, and fourteen years old when
he began dating Mother; the pair separated at age twenty-two. N.T., 4/10/19,
at 53. Father admitted his past drug use and revealed his incarceration in
2015 and 2016. Id. at 56. After his release from prison in 2016, Father
completed a thirty-three-day inpatient rehabilitation at Livengrin in Bensalem,
Pennsylvania. Id. at 56, 80–81. Father acknowledged that he had completed
dual-diagnosis treatment at Creative Health Services (“CHS”), but he asserted
that he did not have a history of mental illness; he could not explain why CHS
required him to complete the dual-diagnosis program. Id. at 56, 79–80.
Father testified that since 2016, he has attended Connection Training Services
(“CTS”) once per week for one hour of individual counseling and one-half-hour
of group counseling. Id. at 57. At the time of the hearing, Father was on
probation for a period of ten years, and he is required to undergo random
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urine drug screens. Id. at 57, 82. Father testified that he has not had a
“dirty” urine sample since his release from prison in 2016. Id. at 57. He
admitted that he takes methadone and candidly admitted receiving treatment
for drug addiction that “didn’t work out” due to his many relapses. Id. at 81,
97–98. Father stated that he participates in a parenting class with
Montgomery County Children and Youth Services on a biweekly basis, he
completed Rise Above, Court Reporting Network (“CRN”) in 2009, and safe
driving school for a 2008 DUI. Id. at 57–58, 80–81.
Father testified that he arrived late for the custody-modification hearing
in 2014 because he was delayed by an accident, and upon his tardy arrival,
the judge told him he “lost [his rights]” by arriving late. N.T., 4/10/19, at 60.
Father explained that he then “went on a downward spiral” and started using
drugs, which led to his criminal convictions and incarcerations. Id. Father
maintained that he wanted to achieve sobriety for one and one-half years
before seeking visitation with T.M.S. Id. Father also averred that his prior
attempts to pursue custody all failed. Id. at 61.
Father explained that he gave T.M.S. the BB gun because his father had
presented him with a gun and trained him in gun safety when he was six years
old, and he wanted T.M.S. to be similarly trained at a young age. N.T.,
4/10/19, at 61–62. He admitted, however, that his father was imprisoned for
murder “with a handgun.” Id. at 98–100. Father testified that Mother’s
repeated refusals of contact with T.M.S. five years earlier prompted his
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conclusion that “there was no point in trying” to contact T.M.S. Id. at 63.
Father believed that if he sent T.M.S. a letter at the maternal grandparents’
address, which was the only address knew, T.M.S. would not receive it. Id.
at 63–64. Father stated that Mother did not permit Father’s name to be
spoken in her home. Id. at 64.
Father admitted he was “doing pills” on the aforementioned video, and
represented that he did them “all the time.” N.T., 4/10/19, at 64–65. Father
also acknowledged telling T.M.S. to call Mother a “bitch” on the video, which
he admitted was “not right,” but he maintained it was an “isolated incident.”
Id. at 64. Father admitted that he had punched the closet and threatened
Mother that if she “were a dude, I would hit you.” Id. at 65. Father
emphasized that the incidents occurred when he was a teenager. Id. Father
admitted that Mother told him to leave their home when they lived together
because he refused to stop seeing “Callie,” another woman. Id. He further
admitted punching Mother’s car and denting it.
Father testified that he contacted Mother about T.M.S. until he no longer
had a current telephone number for her. N.T., 4/10/19, at 69. Father claimed
that he did not go to the maternal grandparents’ home because he feared they
would call the police. Id. Father asserted that he was focused on completing
his rehabilitation programs and counseling and that he had been employed as
a landscaper for the past three years. Id. at 69–70.
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Father stated that he lives in the Pottstown School District in a three-
bedroom home with his girlfriend, Lindsey Tuzzi. N.T., 4/10/19, at 70–71,
73. Father’s brother occasionally resides with Father and has a separate
bedroom. Id. at 70. Father pays the mortgage and the bills. Id. Paternal
Grandmother lives with her boyfriend, which is three minutes away from
Father’s home. Id. Father has health insurance through the Commonwealth
of Pennsylvania. Id. at 71. In 2018, Father served his petition for
modification of the custody order by searching Mother’s address on the
Internet, went to Mother’s home with his girlfriend, and served the petition on
Stepfather. Id. 71-72. Father admittedly had the address where T.M.S. was
living since he served the petition, but he did not try to mail T.M.S. a letter or
a card, believing that Mother would immediately throw them away. Id. at 72.
Father stated that he had been drug-free without relapse for four years. Id.
at 72-73. Father did not present proof of his completion of the various
programs he described participating in except a letter dated November 3,
2018, admitted into evidence. Id. at 58. He testified, “I did not bring [the
documents] today.” Id. at 73.
Ms. Tuzzi, employed at a Sunoco gas station, has a previous criminal
conviction for theft. N.T., 4/10/19, at 74. Despite Father’s testimony that
Ms. Tuzzi does not have drug or mental health issues, Father admitted that
she was arrested with Father “where [they] had a bunch of heroin . . . .” Id.
at 75, 96. Father claimed that he placed the syringe found in Ms. Tuzzi’s
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purse. Id. at 96. Ms. Tuzzi remained on probation at the time of the hearing.
Id. at 74, 96.
On cross-examination by counsel for Mother and Stepfather, Father
admitted that he last saw T.M.S., who is now twelve, when the child was three
years old, and that he does not know his son. N.T., 4/10/19, at 78. Father
stated that he filed the petition for modification of custody because he wanted
to get to know T.M.S. and find out “what [T.M.S.] is into.” Id. The trial court
questioned Father about Father’s parenting during the period between March
of 2018, when Father filed his petition for modification of custody, and
September of 2018, when Mother and Stepfather filed the termination
petition. Id. at 101. Father admitted he did not pay any child support or
attempt contact. Id.
At the close of testimony, the trial court conducted a colloquy of T.M.S.’s
legal-interests counsel, Attorney Petrillo. Id. at 106–110. Attorney Petrillo
testified that Mother and Stepfather satisfied T.M.S.’s needs, and they provide
him with love, stability, and everything he needs to be successful. Id. at 109-
110. Attorney Petrillo testified that Father had not attempted to parent T.M.S.
in the six months preceding the filing of the termination petition or, indeed,
anytime before that. Id. at 110. She testified that Father’s environment
would not be conducive to T.M.S.’s success. Id.
At the close of the hearing on April 10, 2019, the trial court dictated its
findings into the record as support of its written decree. On May 10, 2019,
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Father filed a notice of appeal, along with a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925. The trial court relied on
its dictated findings for its Pa.R.A.P. 1925(a) opinion. N.T., 4/10/19, at 111–
122.
In his brief on appeal, Father raises two issues:
1. Did the trial court err in terminating [Father’s] parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(1) where [Mother and
Stepfather] failed to prove by clear and convincing evidence that
[Father] evidenced a settled purpose of relinquishing his parental
claim and/or failed or refused to perform parental duties?
2. Did the trial court err in terminating [Father’s] parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(2) where the evidence at trial
failed to establish by clear and convincing evidence that the
conditions and causes of any incapacity, abuse, neglect, or refusal
to parent by [Father] could not or would not be remedied?
Father’s Brief, at 6.3
In reviewing an appeal from an order terminating parental rights, we
adhere to the following standard:
[A]ppellate courts must apply an abuse of discretion
standard when considering a trial court’s determination of a
petition for termination of parental rights. As in dependency
cases, our standard of review requires an appellate court to accept
the findings of fact and credibility determinations of the trial court
if they are supported by the record. In re: R.J.T., 608 Pa. 9, 9
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3 Father has not challenged the sufficiency of the evidence to support the
termination of his parental rights under Section 2511(b) in his concise
statement, his statement of questions involved, or his brief. We observe,
however, that the trial court conducted a full inquiry regarding the
requirements of Section 2511(b) and found those requirements satisfied.
N.T., 4/10/19, at 119–122. For the reasons expressed by the trial court, infra,
we agree that Mother and Stepfather satisfied the requirements of 23 Pa.C.S.
§ 2511(b).
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A.3d 1179, 1190 (Pa. 2010). If the factual findings are supported,
appellate courts review to determine if the trial court made an
error of law or abused its discretion. Id.; R.I.S., 36 A.3d 567,
572 (Pa. 2011) (plurality opinion)]. As has been often stated, an
abuse of discretion does not result merely because the reviewing
court might have reached a different conclusion. Id.; see also
Samuel Bassett v. Kia Motors America, Inc., 613 Pa. 371, 34
A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 838 A.2d 630, 634
(Pa. 2003). Instead, a decision may be reversed for an abuse of
discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. Id.
As we discussed in R.J.T., there are clear reasons for
applying an abuse of discretion standard of review in these cases.
We observed that, unlike 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. R.J.T., 9 A.3d at 1190.
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. In re Adoption of Atencio, 650 A.2d 1064, 1066
(Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).
The burden is upon Mother and Stepfather, as petitioners, to prove by
clear and convincing evidence that the asserted grounds for seeking the
termination of parental rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa.
Super. 2009). Moreover, we have explained, “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,
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without hesitance, of the truth of the precise facts in issue.’” Id. at 276
(quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
This Court may affirm the trial court’s decision regarding the termination
of parental rights with regard to any one subsection of Section 2511(a). In
re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). In the case sub
judice, we consider Section 2511(a)(1), which provides, in relevant part, as
follows:
§ 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.
23 Pa.C.S. § 2511(a)(1).
With respect to subsection 2511(a)(1), our Supreme Court has held as
follows:
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 Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1988).
Further, this Court has stated:
[T]he trial court must consider the whole history of a given case
and not mechanically apply the six-month statutory provision. The
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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.
In re B.,N.M., 856 A.2d 847, 854-855 (Pa. Super. 2004) (citations omitted).
We have explained that the focus in terminating parental rights under Section
2511(a) is on the parent. In re Adoption of C.L.G., 956 A.2d 999, 1008
(Pa. Super. 2008) (en banc).
In reviewing the evidence in support of termination under Section
2511(b), our Supreme Court has stated as follows:
[I]f the grounds for termination under subsection (a) are met, a
court “shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child.” 23 Pa.C.S.
§ 2511(b). The emotional needs and welfare of the child have
been properly interpreted to include “[i]ntangibles such as love,
comfort, security, and stability.” In re K.M., 53 A.3d 781, 791
(Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa. 1993)],
this Court held that the determination of the child’s “needs and
welfare” requires consideration of the emotional bonds between
the parent and child. The “utmost attention” should be paid to
discerning the effect on the child of permanently severing the
parental bond. In re K.M., 53 A.3d at 791.
In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).
A parent’s abuse and neglect are likewise a relevant part of this analysis:
concluding a child has a beneficial bond with a parent simply
because the child harbors affection for the parent is not only
dangerous, it is logically unsound. If a child’s feelings were the
dispositive factor in the bonding analysis, the analysis would be
reduced to an exercise in semantics as it is the rare child who,
after being subject to neglect and abuse, is able to sift through
the emotional wreckage and completely disavow a parent . . . Nor
are we of the opinion that the biological connection between [the
parent] and the children is sufficient in of itself, or when
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considered in connection with a child’s feeling toward a parent, to
establish a de facto beneficial bond exists. The psychological
aspect of parenthood is more important in terms of the
development of the child and [his or her] mental and emotional
health than the coincidence of biological or natural parenthood.
In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations and
quotation marks omitted). Thus, the court may emphasize the safety needs
of the child. See In re K.Z.S., 946 A.2d 753, 763 (Pa. Super. 2008) (affirming
involuntary termination of parental rights, despite existence of some bond,
where placement with the mother would be contrary to child’s best interests).
“[A] parent’s basic constitutional right to the custody and rearing of his or her
child is converted, upon the failure to fulfill his or her parental duties, to the
child’s right to have proper parenting and fulfillment of [the child’s] potential
in a permanent, healthy, safe environment.” B.,N.M., 856 A.2d at 856
(internal citations omitted).
Father argues that he exercised reasonable firmness in his attempts to
see T.M.S. during the statutory period, and that Mother precluded him from
doing so. Father’s Brief, at 10, 13-16, 19.
The trial court provided its findings regarding Section 2511(a)(1) and
(b), as follows:
Under ground 2511(a)(1)[,] I have to consider whether
[Father] failed or refused to perform his parental responsibilities
for the six-month period prior to the filing of this petition. So[,]
as I stated earlier in my questions of [Father], the petition was
filed on September the 1st, 2018, so the time period at issue here
is that of March 1, 2018, to September 1, 2018.
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During that six-month period[,] I have to determine
whether or not [Father] evidenced what they call a settled purpose
of relinquishing a parental claim.
***
In this case[, Father] last saw [T.M.S.] sometime between
2013 and 2014.
[Mother] in this case bears the burden of proof for each
element by a standard of clear and convincing evidence. In
interpreting Pennsylvania law, the Superior Court of Pennsylvania
has identified certain what they call irreducible minimum
requirements that all children are entitled to from their parents,
including adequate housing, adequate clothing, food, love, and
support. Those concepts are taken from the 1995 case In re:
Diaz, [669 A.2d 372 (Pa. Super. 1995)].
The necessary implication then when you look at these
factors is a parent who cannot or will not meet those minimum
requirements—remember I said adequate housing, clothing, food,
supervision, support,—within a reasonable time may properly
have their parental rights terminated. That sentiment is taken
from the 1990 case of In re: J.W., [578 A.2d 952 (Pa. Super.
1990)].
***
All of these cases that I have just mentioned make clear that
children have rights. [T.M.S.] has rights here. The emphasis in
the cases that I have mentioned focus[es] on parents providing
housing, clothing, food, supervision, support, and love.
Now, the Supreme Court of Pennsylvania has held that it is
not a violation of constitutional rights for an individual’s parental
rights to be terminated due to the parent’s mental disability or
handicaps that prevent the parent from providing proper care for
the child. That is from the 1978 case of In re: William L., [383
A.2d 1228 (Pa. 1978)].
In this matter[,] I heard very credible testimony from
[Father] that he did complete, although there is no documentation
to that effect from the facility, but he does have[,] according to
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[Father’s Exhibit] F-1[,] that treatment was provided and
completed for dual diagnosis therapy.
Those of us who have been involved in working with people
with substance abuse issues know that dual diagnosis means two
diagnoses. There are two [diagnoses,] side by side, usually
involving mental health in addition to the addiction of whatever
that is.
I did hear testimony from [Father] that he does not have
mental health issues. Lacking any contradictory evidence, I have
to believe him. So[,] in this matter[,] I will not consider the
disability of [Father] as a factor in this matter.
I will, however, consider [Father’s] drug use as a factor.
This [c]ourt heard credible evidence regarding drug use by
[Father]. I understand that according to Mother’s Exhibit 8[,]
[Father] is placed on addict supervision[,] which requires random
urinalysis, but that goes as far as starting, I believe, in 2016. As
I stated earlier, there was uncontradicted evidence that the last
time [Father] saw [T.M.S.] was in 2013 or 2014.
Regardless, this [c]ourt heard very credible, convincing
evidence from [Father’s] testimony that he felt he needed to be—
it needed to be the right time before he could get reinvolved in
[T.M.S.’s] life. I want to make sure I use the correct wording
here. [Father] testified that he purposely did not want to reunite
with his son only to relapse, and so there was the chosen time
period by [Father] without significant reason for that choice, but
the chosen time period of one-and-a-half years of sobriety before
determining that he could be involved in [T.M.S.’s] life.
So[,] looking chronologically at the time periods that may
be evidence of [Father’s] reasoning for finally going to court and
getting the custody petition in 2018, . . . I get it. And I also heard
very clearly [Father’s] testimony that he is doing the very best he
can. I believe him. I believe that he is doing the very best he
can.
But the major thing and the reason why we are all here
today is because of [T.M.S.] In that one-and-a-half-year time
period[, which Father arbitrarily set,] what is [T.M.S.] supposed
to do? What is he supposed to use for food? What is he supposed
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to use for clothing? What is he supposed to use for support? What
is he supposed to use for love and supervision? Life goes on.
I also heard testimony from [Father] that he was
incarcerated for a period of time. Other than [Father’s] testimony
about his term of imprisonment, this [c]ourt did not receive
additional evidence one way or another, so in the realm of my
decision today, I will not incorporate his period of incarceration as
a factor in this.
I [do], however, find neglect. It may be tied into the drug
use, but since 2013, 2014[,] the neglect is the glaring factor that
just stands out with this [c]ourt. Love drives people to do many
things. If the love and concern are really there, parents are over
at the counter in the administration office of the courthouse every
week filing repeated petitions for custody. Having sat in the family
law division for two years, that’s what people do. They come back
over, over, and over. They don’t just throw up their hands and
give up, because it is not helping the child to give up. When you
give up on your child, that’s called neglect, because who else is
supposed to take care of him? Who else is supposed to love him?
Who else is supposed to go to parent-teacher conferences? Who
is supposed to take him to church? Who is supposed to do all of
these other things? Because life goes on.
I find in this matter that [Section 2511(a)(1) has] been
proven by clear and convincing evidence. Having done so, I will
next address the needs and the welfare analysis under Section
[2511](b).
. . . Our Supreme Court in the case of In re: K.M., [53 A.3d 781,
791 (Pa. 2012)], says that if grounds for termination under
subsection (a) are met, and they have been, the [c]ourt shall give
primary consideration to the developmental, physical and
emotional needs and welfare of the child. So those issues include
intangibles, love, comfort, security, and stability.
In a 1993 case that’s cited at In re: E.M., 620 A.2d 481[,
485 (Pa. Super. 1993),] the Court held that determining a child’s
needs and welfare requires considering those emotional bonds
between a parent and a child. The utmost attention has to be
made by this [c]ourt to discerning the effect of permanently
severing any parent-child bond on the child.
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In considering [T.M.S.’s] needs and welfare, this [c]ourt
must consider the role of a parental bond in his life. I am required
by prior case law to fully consider whether a parental bond exists
to such an extent that severing this natural relationship would be
contrary to the needs and the welfare of [T.M.S.].
The Pennsylvania Supreme Court has observed a delicate
balance between preserving the family unit and presenting a state
of constant uncertainty and limbo for a child who has no
reasonable prospect of permanently reuniting with their natural
parent.
In this case, credible testimony clearly establishes that
there is no significant bond between [T.M.S.] and [Father],
especially given the time period of absence in [T.M.S.’s] life.
Therefore, I find from the evidence and the testimony that
termination of [Father’s] rights best serves the needs and the
welfare of [T.M.S.] and that termination of the parental rights will
not irreparably harm [T.M.S.]
In addition, I have heard testimony that [T.M.S.’s] home life
is one that reflects love, stability, and security.
On this date, April the 10th, 2019, based upon the facts
presented and the law, I must enter a final decree terminating the
parental rights of [Father] to [T.M.S.]
[Mother] has established a legal basis for terminating the
parental rights under Section 2511(a)(1) and (a)(2). Accordingly,
it is hereby ordered, adjudged[,] and decreed that the parental
rights of [Father] to [T.M.S.] are forever terminated. The
adoption of [T.M.S.] may continue without further notice to or
consent of [Father].
Custody of [T.M.S.] shall remain with [Mother], which is by
this decree specifically authorized to consent to any necessary
routine and/or emergency medical, dental and/or mental health
treatment for [T.M.S.], and to consent to his adoption without
further consent of or notice to [Father].
N.T., 4/10/19, at 113–121.
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We conclude that the testimonial evidence supports the trial court’s
determination that far in excess of six months preceding the filing of the
involuntary termination petition on September 1, 2018, Father has not
performed his parental duties. B.,N.M., 856 A.2d at 854-855. Indeed:
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.
B.,N.M., 856 A.2d at 855 (emphases added; internal citations omitted).
The trial court considered Father’s abandonment of T.M.S., Father’s lack
of contact with T.M.S., and his explanation for both. Charles E.D.M., 708
A.2d at 92. The trial court found that Father’s reasons for not providing any
care, support, or contact with T.M.S. were his own desire to be “clean” of
drugs for an arbitrary period of one and one-half years before attempting
contact with T.M.S. and his fear that Mother would reject his contact attempts.
The trial court found that Father failed to perform his parental duties for T.M.S.
for the requisite six-month period. Instead, Father relied upon Mother and
Stepfather to provide for T.M.S.’s needs and welfare since at least 2013 or
2014. Moreover, the testimonial evidence supports the trial court’s conclusion
that T.M.S. has no bond with Father.
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Although Father professes fondness for T.M.S. and a desire “to get to
know” him, this Court has stated that a parent’s own feelings of love and
affection for a child, alone, will not preclude termination of parental rights. In
re L.M., 923 A.2d 505, 512 (Pa. Super. 2007). We have stated that a “child’s
life ‘simply cannot be put on hold in the hope that [a parent] will summon the
ability to handle the responsibilities of parenting.’” In re: Z.P., 994 A.2d
1108, 1125 (Pa. Super. 2010). Rather, “a parent’s basic constitutional right
to the custody and rearing of his child is converted, upon the failure to fulfill
his or her parental duties, to the child’s right to have proper parenting and
fulfillment of his or her potential in a permanent, healthy, safe environment.”
B.,N.M., 856 A.2d at 856.
After our careful review of the record, we conclude that the trial court’s
decision to terminate the parental rights of Father is supported by competent,
clear and convincing evidence of record. Adoption of S.P., 47 A.3d at 826-
827. Thus, we find no abuse of discretion in the trial court’s termination of
Father’s parental rights to T.M.S. For the reasons expressed by the trial court,
we affirm.
Decree affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/19
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