In the Int. of: K.M.M., Appeal of: M.M. ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN THE INT. OF: K.M.M., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: M.M., FATHER : No. 443 MDA 2020
Appeal from the Decree Entered February 6, 2020,
in the Court of Common Pleas of Dauphin County,
Orphans’ Court Division at No. 86 AD 2019
BEFORE: PANELLA, P.J., BENDER, P.J.E. AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED: AUGUST 28, 2020
M.M. (“Father”) appeals from the decree dated February 4, 2020, and
entered February 6, 2020,1 in the Court of Common Pleas of Dauphin County,
granting the petition of C.H. (“Mother”) and involuntarily terminating his
parental rights to his minor child, K.K.M. (the “Child”), a female born in
October of 2014, pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1),
(2), and (b). After careful review, we affirm.
Mother and Father are the biological parents of Child, who was born in
October 2014, in Dauphin County, Pennsylvania. Mother and Father never
1 While dated and filed February 4, 2020, the decree was not entered for
purposes of Pa.R.C.P. 236(b) until February 6, 2020 upon the docketing of
notice. See Frazier v. City of Philadelphia, 735 A.2d 113, 115 (Pa. 1999)
(holding that “an order is not appealable until it is entered on the docket with
the required notation that appropriate notice has been given”); see also
Pa.R.A.P. 108(a) (entry of an order is designated as “the day on which the
clerk makes the notation in the docket that notice of entry of the order has
been given as required by Pa.R.C.P. 236(b)”.).
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married, but lived together briefly in the home of Mother’s parents after Child’s
birth. (Notes of testimony, 1/17/20 at 8-9, 59, 62.) Mother testified that
Father moved out after about three months. (Id. at 8-9.) Father saw Child
off and on until approximately February 2018, when he went to Georgia for
work opportunities.2 (Id. at 4-5, 18, 67.) Thereafter, Father moved to
North Carolina, where he currently resides. (Id. at 66-68.) He was
subsequently incarcerated in June 2018 for a period of 14 months.3 (Id. at
11-12, 87-88, 105-106.)
2 Mother instituted a custody action in the fall of 2017. Mother and Father
reached an agreement after participating in a conciliation in December 2018
whereby Father was to have custody of Child for only one night for
approximately three weeks, and then every other weekend. (Notes of
testimony, 1/17/20 at 25-26.) Although the testimony suggests the entry of
a written order reflecting this agreement, we observe that such custody order
was not presented as evidence and is not a part of the record. While Mother
testified that she was not aware that Father was moving, Father indicated that
this was made clear at the time of the conciliation. (Id. at 5, 70.) Father
further challenged the nature of his relationship with Child and frequency of
custody prior to the institution of this agreement. (Id. at 79.)
3Father pled guilty to precursor charges with respect to methamphetamines,
which relates to possession of chemicals for production. (Id. at 11-12, 87-88,
105-106.)
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Father last saw Child in mid-January 2018 and last spoke with Child in
March 2018.4 (Id. at 4-6, 69-70, 73-74, 77, 84; see also Exhibit 1.) He last
asked to speak with Child in May 2018.5 (Id. at 6, 18, 21). Father did not
send any cards, letters, or gifts for Child (id. at 6-9, 11, 59, 64) and did not
pay any support (id. at 29-30, 92-93). Likewise, Father failed to enforce the
custody order that existed between him and Mother and never filed a petition
to modify. (Id. at 28, 87.)
Mother and her current husband, Z.H. (“Stepfather”), started dating
three years ago and began living together shortly thereafter. (Id. at 12.)
Mother and Stepfather married in August 2019. (Petition for involuntary
termination of parental rights, 8/27/19 at ¶ 10.) Mother filed a petition for
involuntary termination of parental rights pursuant to 23 Pa.C.S.A.
4 Father testified that he had to replace his phone and lost Mother’s phone
number in February 2018. (Id. at 73, 84.) Although Mother did not respond
to his Facebook message providing his phone number and asking her to text
him her phone number in return, Father did have several communications,
including video chats, with Child through Facebook. (Id. at 18-19, 71-74,
84.) While Mother acknowledged blocking one of Father’s accounts on
Facebook, as well as his sister, she testified that she never blocked a second
Facebook account utilized by Father. (Id. at 21-25, 30-31, 39.) Father,
however, contends that he and his family were blocked on social media,
including Facebook and Snapchat, beginning in mid-March 2018, and that he
was not able to message Mother on Facebook again until September 2019.
(Id. at 75, 77, 102.) Notably, Mother changed her phone number in
December 2018, as she got a new phone as part of a new plan. (Id. at 9-10.)
5Upon review of the certified record, it is possible this message came from
Father’s girlfriend. (Notes of testimony, 1/17/20 at 32-33.)
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§ 2511(a)(1), (2), and (b) on August 27, 2019.6 A hearing was held on
January 17, 2020. Mother testified on her own behalf. Mother additionally
presented the testimony of Stepfather; V.H., her mother; and S.J.H., her
father-in-law. Father testified on his own behalf. He additionally presented
the testimony of T.S., his sister’s fiancé. Heather Paterno, Esq., the
attorney/guardian ad litem appointed to represent Child, was also present.7
6Stepfather filed a contemporaneous Petition for Adoption with respect to
Child. (Petition for adoption, 8/27/19.)
7 See In re Adoption of L.B.M., 161 A.3d 172, 175, 180 (Pa. 2017)
(plurality) (stating that, pursuant to 23 Pa.C.S.A. § 2313(a), a child who is
the subject of a contested involuntary termination proceeding has a statutory
right to counsel who discerns and advocates for the child’s legal interests,
defined as a child’s preferred outcome); see also In re T.S.,192 A.3d 1080,
1089-1090, 1092-1093 (Pa. 2018) (finding the preferred outcome of a child
who is too young or non-communicative unascertainable in holding a child’s
statutory right to counsel not waivable and reaffirming the ability of an
attorney/guardian ad litem to serve a dual role and represent a child’s
non-conflicting best interests and legal interests). We note, however, our
recent opinion in In re: Adoption of K.M.G., 219 A.3d 662 (Pa.Super. 2019)
(en banc), granting appeal in part, 221 A.3d 649 (Pa. 2019) (holding that
this court has authority only to raise sua sponte the issue of whether the trial
court appointed any counsel for the child, and not the authority to delve into
the quality of the representation). Attorney Paterno stated:
Your Honor, just real quick, I met with the child.
She’s 5, not very talkative, very difficult to get a lot of
information out of her.
At this point in time, I don’t think there’s a conflict
between best interest counsel and legal interest
counsel. Both attorneys have no objection to me
serving on both capacities. Obviously[,] if something
pops up and I think there’s a conflict, I’ll let you know.
Notes of testimony, 1/17/20 at 1.
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Attorney Paterno recommended that Father’s parental rights be terminated.8
(Notes of testimony, 1/17/20 at 116-118.)
By decree dated February 4, 2020, and entered February 6, 2020, the
orphans’ court granted Mother’s petition and involuntarily terminated the
parental rights of Father pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), and (b).
Thereafter, on March 4, 2020, Father, through counsel, filed a timely notice
of appeal, along with a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
On appeal, Father raises the following issues for our review:
I. Whether the [orphans’] [c]ourt erred and/or
abused its discretion by terminating the
parental rights of Father, M.M., pursuant to
23 Pa.C.S.A. Section 2511(a)(1)[,] where
Father presented evidence that he tried to
perform his parental duties however was
intentionally denied access and contact with the
minor child by Petitioner Mother?
II. Whether the [orphans’] court erred and/or
abused its discretion by terminating the
parental rights of Father, M.M., pursuant to
23 Pa.C.S.A. Section 2511(a)(2)[,] where
Father presented evidence that he tried to
provide the minor child with essential parental
care and control but was prevented from doing
so by Mother’s deliberate interference regarding
Father’s communication and visitation with the
minor child despite Father’s repeated attempts
to contact Mother and locate his child?
III. Whether the [orphans’] court erred and/or
abused its discretion by terminating the
8Attorney Paterno submitted a letter dated June 8, 2020, and filed June 9,
2020, in lieu of a brief, concurring with the orphans’ court’s opinion.
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parental rights of Father, M.M., pursuant to
23 Pa.C.S.A. Section 2511(b) and failing to give
primary consideration to the developmental,
physical and emotional needs and welfare of the
child?
Father’s brief at 7 (extraneous capitalization omitted).9
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
The standard of review in termination of parental
rights cases requires appellate courts “to accept the
findings of fact and credibility determinations of the
trial court if they are supported by the record.” In re
Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012). “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. “[A] decision may
be reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will.” Id. The trial
court’s decision, however, should not be reversed
merely because the record would support a different
result. Id. at 827. We have previously emphasized
our deference to trial courts that often have first-hand
observations of the parties spanning multiple
hearings. See In re R.J.T., [9 A.3d 1179, 1190 (Pa.
2010)].
9 Father failed to preserve any challenge related to Subsection (a)(2), as he
failed to include any argument and/or discussion related to such issues in his
brief. See In re W.H., 25 A.3d 330, 339 n.3 (Pa.Super. 2011), appeal
denied, 24 A.3d 364 (Pa. 2011), quoting In re A.C., 991 A.2d 884, 897
(Pa.Super. 2010) (“[W]here an appellate brief fails to provide any discussion
of a claim with citation to relevant authority or fails to develop the issue in
any other meaningful fashion capable of review, that claim is waived.”); see
also In re M.Z.T.M.W., 163 A.3d 462, 465-466 (Pa.Super. 2017). As such,
any claim as to Subsection (a)(2) is waived.
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In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). “The trial court is free to believe
all, part, or none of the evidence presented and is likewise free to make all
credibility determinations and resolve conflicts in the evidence.” In re M.G.
& J.G., 855 A.2d 68, 73-74 (Pa.Super. 2004) (citation omitted). “[I]f
competent evidence supports the trial court’s findings, we will affirm even if
the record could also support the opposite result.” In re Adoption of T.B.B.,
835 A.2d 387, 394 (Pa.Super. 2003) (citation omitted).
The termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, and requires a bifurcated analysis
of the grounds for termination followed by the needs and welfare of the child.
Our case law has made clear that under Section 2511,
the court must engage in a bifurcated process 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 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.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted). We have
defined clear and convincing evidence as that which is so “clear, direct,
weighty and convincing as to enable the trier of fact to come to a clear
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conviction, without hesitance, of the truth of the precise facts in issue.”
In re C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000), quoting Matter of
Adoption of Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998).
In the case sub judice, the orphans’ court terminated Father’s parental
rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), and (b). We have long held
that, in order to affirm a termination of parental rights, we need only agree
with the trial court as to any one subsection of Section 2511(a), as well as
Section 2511(b). See In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004)
(en banc). We analyze the court’s termination decree pursuant to
Section 2511(a)(1) and (b), which provide as follows:
(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
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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).
We have explained this Court’s review of a challenge to the sufficiency
of the evidence to support the involuntary termination of a parent’s rights
pursuant to Section 2511(a)(1) as follows:
To satisfy the requirements of [S]ection 2511(a)(1),
the moving party must produce clear and convincing
evidence of conduct, sustained for at least the six
months prior to the filing of the termination petition,
which reveals a settled intent to relinquish parental
claim to a child or a refusal or failure to perform
parental duties. In addition,
Section 2511 does not require that the
parent demonstrate both a settled
purpose of relinquishing parental claim to
a child and refusal or failure to perform
parental duties. Accordingly, parental
rights may be terminated pursuant to
Section 2511(a)(1) if the parent either
demonstrates a settled purpose of
relinquishing parental claim to a child or
fails to perform parental duties.
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).
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In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations
omitted).
As it relates to the crucial six-month period prior to the filing of the
petition, this court has instructed:
[I]t is the six months immediately preceding the filing
of the petition that is most critical to our analysis.
However, the trial court must consider the whole
history of a given case and not mechanically apply the
six-month statutory provisions, but instead consider
the individual circumstances of each case.
In re D.J.S., 737 A.2d 283, 286 (Pa.Super. 1999) (citations omitted). This
requires the court to “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, 855 (Pa.Super. 2004), appeal denied, 872 A.2d 1200 (Pa.
2005) (citation omitted).
Further, we have stated:
[T]o be legally significant, the [post-abandonment]
contact must be steady and consistent over a period
of time, contribute to the psychological health of the
child, and must demonstrate a serious intent on the
part of the parent to recultivate a parent-child
relationship and must also demonstrate a willingness
and capacity to undertake the parental role. The
parent wishing to reestablish his parental
responsibilities bears the burden of proof on this
question.
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In re Z.P., 994 A.2d at 1119 (citation omitted); see also In re Adoption of
C.L.G., 956 A.2d 999, 1006 (Pa.Super 2008) (en banc).
Regarding the definition of “parental duties,” this court has stated:
There is no simple or easy definition of parental
duties. Parental duty is best understood in relation to
the needs of a child. A child needs love, protection,
guidance, and support. These needs, physical and
emotional, cannot be met by a merely passive interest
in the development of the child. Thus, this Court has
held that the parental obligation is a positive duty
which requires affirmative performance.
This affirmative duty encompasses more than a
financial obligation; it requires continuing interest in
the child and a genuine effort to maintain
communication and association with the child.
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.
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 . . . her physical and
emotional needs.
In re B., N.M., 856 A.2d at 855 (internal citations omitted). Critically,
incarceration does not relieve a parent of the obligation to perform parental
duties. An incarcerated parent must “utilize available resources to continue a
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relationship” with his or her child. In re Adoption of S.P., 47 A.3d 817, 828
(Pa. 2012) (discussing In re Adoption of McCray, 331 A.2d 652 (Pa. 1975)).
Instantly, in finding grounds for termination pursuant to
Section 2511(a)(1), the orphans’ court stated:
Here, Mother has met her burden of proving, through
clear and convincing evidence, that [Father] has failed
to perform, for a period of at least six months,
parental duties for the minor child. [Pa.C.S.A.]
§ 2511(a)(1). Mother credibly testified that [Father]
has not been involved in parenting the minor child in
the past two years. Following their custody
conciliation, [Father] only exercised two of the regular
periods of alternating weekend custody he was
granted under that agreement before moving to
Georgia.
By his own admission, [Father] has not performed any
parental duties for the minor child in the past two
years, blaming Mother’s lack of communication with
him. While society has begun to rely more on social
media as a form of communication, reaching out to
Mother only a few times over social media platforms
like Facebook and Snapchat is not enough to establish
that [Father] was serious and intent on contacting
Mother in an effort to see the minor child. Both parties
participated in the custody conciliation; therefore,
[Father] was aware of the custody process.
Furthermore, while [Father] testified that he was
unaware that he could have gone to the self-help
center at the Dauphin County Courthouse to assist
with his custody matter[,] he, nevertheless, obtained
the appropriate paperwork to request an attorney be
appointed on his behalf for these proceedings.
Pursuant to [In re B., N.M. (supra)], the court is not
to apply the six month statutory time frame
mechanically, but rather, must look at the history of
the custody matter. From the [f]all of 2017[,]
following the custody agreement[,] until January of
2018, [Father] only exercised two of his custodial
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weekends. He moved out of state in February, 2018.
He had two FaceTime calls with the minor child in
February and May[10] of 2018. At some point, Mother
blocked him on social media platforms. He tried on a
few occasions to contact Mother on social media
unsuccessfully. In the past three years, he only
purchased a pair of shoes, three toys and a bag of
lollipops for the minor child. [Father] failed to perform
any parental duties for a time period well in excess of
six months. Here, in over a two-year period,
[Father]’s attempts to overcome the alleged obstacles
put in place by Mother, only included contact via social
media and two phone calls. Even if [Father]’s
testimony were credible regarding his one interaction
with Mid Penn Legal Services, and their failure to
direct him to the self-help center, [Father] essentially
gave up. His hesitancy to pursue any other contact or
form of communication with Mother does not exhibit
reasonable firmness or perseverance in attempting to
see the minor child.
Our courts have repeatedly defined “parental duties”
in general as the affirmative obligation to provide
consistently for the physical and emotional needs of a
child. If a parent is to avoid an involuntary
termination of parental rights, it is incumbent upon
the parent when separated from his child to maintain
communication and association with the child, which
requires an affirmative demonstration of parental
devotion, imposing upon the parent the duty to exert
himself, to take and maintain a place of importance in
the child’s life. Here, [Father] failed to provide for any
physical or emotional needs of the minor child. The
mere fact that Mother blocked him on social media
does not account for his failure to pursue multiple
available avenues to perform his duties. He knew her
address for many months after he abandoned contact,
as well as where Mother’s parents resided. He never
exerted himself to take a place of any importance in
the minor child’s life. As such, under the
circumstances, Mother by clear and convincing
10 We believe the court meant March 2018.
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evidence has proven that [Father] failed to perform
parental duties.
Orphans’ court opinion, 3/27/20 at 9-11 (unpaginated; footnote added).
Father, however, argues that he made various attempts to reach out to
Mother in order to communicate with and see Child but was thwarted by
Mother. (Father’s brief at 16-18.) Father states:
From March 17, 2018, the date that Mother first
denied Father contact with the minor child, through
August 27, 2019, the date when Mother and
[Stepfather] filed for Termination of Biological
Father’s Rights, Father attempted to contact Mother
and child and/or obtain Mother’s contact information
ten (10) different ways in an effort to speak to and
see his minor child; such as, (1) requesting Mother’s
telephone number after losing all of his contacts;
(2) reaching out to Mother on Facebook Messenger to
speak to his daughter and to see her; (3) attempting
to reach out to Mother via Snapchat; (4) requesting
several family members to reach out to Mother on
social media on Father’s behalf; (5) requesting that
his girlfriend reach out to Mother on Father’s behalf;
(6) requesting that family members reach out to
Step-Father regarding the minor child; (7) contacting
[D]omestic [R]elations to try and obtain Mother’s
telephone number and address; (8) contacting private
attorneys; (9) contacting Mid[]Penn Legal Services for
assistance; and (10) contacting third party mutual
friends to reach out to Mother on his behalf and
provide him Mother’s information. Despite trying
ten (10) different methods to see/speak to his minor
child, obtaining Mother’s contact information and
location proved to be practically impossible even
though Father utilized all available resources to
preserve the parental relationship and exercised a
reasonable firmness against Mother’s resistance and
attempts toward alienation.
Accordingly, Father presented evidence that he was
intentionally prevented from performing his parental
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duties by Mother’s deliberate interference regarding
communication and visitation with the minor child
despite Father’s repeated attempts to contact Mother
and locate his child.
Id. at 17-18.
Upon review, the record supports termination pursuant to
Section 2511(a)(1) and we discern no abuse of discretion. The record reveals
that Father has a history of substance abuse. Notably, Mother testified that
Father used heroin and that she found needles within Child’s reach. (Notes of
testimony, 1/17/20 at 16, 24.) Father was incarcerated in June 2018 for a
period of approximately 14 months related to methamphetamines. (Id. at
11-12, 87-88, 105-106.) He further had issues with respect to misuse of
medication while incarcerated. (Id. at 109.)11
Beyond Father’s history of substance abuse and incarceration, the
record also reveals a lack of support and contact between Father and Child.
At the time of the hearing, Father last saw Child in mid-January 2018, when
he then left Pennsylvania for work in Georgia and then North Carolina, and
last spoke with Child in March 2018. (Id. at 4-6, 69-70, 73-74, 77, 84; see
also Exhibit 1.) He last asked to speak with Child in May 2018.12 (Id. at 6,
11 With respect to the precursor charges relating to methamphetamines,
Father testified that he was driving someone else’s vehicle and was charged
because he would not “tell” on that person. He did, however, plead guilty.
(Notes of testimony, 1/17/20 at 88.) As to misuse of medication, Father
explained that he had two bottles of Tylenol. (Id. at 109.)
12 As noted supra, this message possibly came from Father’s girlfriend. (Id.
at 32-33.)
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18, 21.) Father did not send any cards, letters, or gifts13 for Child (id. at 6-9,
11, 59, 64) and did not pay any support (id. at 29-30, 92-93).
In contravention to Father’s claims of obstacles created by Mother, the
evidence establishes that Father did not “utilize all available resources to
preserve the parental relationship” or “exercise reasonable firmness in
resisting obstacles placed in the path of maintaining the parent-child
relationship.” In re B., N.M., 856 A.2d at 855. Father indicated that he had
to replace his cell phone and lost Mother’s telephone number in mid-February
2018. (Id. at 73, 84.) When blocked in March 2018, after prior successful
social media contact, Father made additional attempts to contact Mother and
Stepfather on social media, including creating fake accounts and having others
do so on his behalf (id. at 30-32, 76-77, 102-03), and attempted to obtain
Mother’s address from the court14 (id. at 77-78, 91-92, 95, 102-103).
Notwithstanding, Father never sent any cards, letters, or packages for Child
to Mother’s parents’ address, or to Mother’s in-laws’ address, where Mother
resided until September 2018. (Id. at 7-9, 11, 59, 64.) Despite his
13 Father, however, testified to gifts in his Mother’s attic that he was unable
to give Child. (Id. at 80.)
14Specifically, Father stated that he contacted Domestic Relations in order to
obtain Mother’s contact information. (Id. at 77-78, 91-92, 95, 102-103.)
Father explained that he thought the court would have such information as a
result of the custody matter. Despite acknowledging a support matter with
respect to his older son, he indicated a lack of knowledge of a support matter
with respect to Child, as well as a lack of knowledge that Domestic Relations
handles support but not custody matters. (Id. at 70, 93-96.)
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incarceration, Father conceded that he had access to paper, envelopes, and
stamps. (Id. at 88.) Mother testified that Father knew these addresses, and
both her mother and her father-in-law confirmed Father’s knowledge of where
they resided. (Id. at 7-9, 11, 59, 64-65.) Specifically, Mother provided her
in-laws’ address at the time of the custody conciliation. (Id. at 7.)
Additionally, Father’s sister had picked up Child from this address. (Id. at 7,
90-91.) Father further knew where Mother’s parents lived, as he lived there
for three months with Mother and Child following Child’s birth. (Id. at 8-9,
59, 62.) Father, however, never sent any correspondence or packages to
either of these addresses. (Id. at 59, 64.) Moreover, Father never sought
out Mother and Child and/or their location at either of these addresses in
person, despite a trip back to Pennsylvania in the spring of 2018.15 (Id. at
60, 65.) While Father testified that he forgot or did not know these
addresses16 (id. at 89-91), it strains credulity that Father did not recall either
of these addresses, particularly Mother’s parents’ address, where he had
previously lived.
15 Father testified that he would not have been given a warm welcome if he
turned up at the maternal grandmother’s home and suggested a letter would
have been thrown out in the garbage. (Id. at 76, 89.) He further suggested
that he would not have just shown up on Mother’s doorstep, even if he knew
her address, for fear of legal trouble. (Id. at 99-100.)
16 Father additionally suggested that Mother’s in-laws moved. (Id. at 90.)
Mother’s father-in-law, however, testified to the same address for the last
five years. (Id. at 64.)
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As to support, Father stated that he “had no way to send [Mother]
money because she don’t answer the phone.” (Id. at 92-93.) Again, we
observe that Father could have sent money to Mother at her parents’ address
or in-law’s address. Further, Father’s familiarity with support matters through
his older son, as well as his contact with Domestic Relations seeking Mother’s
contact information (id. at 70, 77-78, 91-92, 95, 102-103), belies Father’s
asserted lack of knowledge of a support matter with respect to Child, as well
as a lack of knowledge that Domestic Relations handles support but not
custody matters (id. at 93-96).
Likewise, Father failed to enforce his custody under the order that
existed between him and Mother (id. at 87), nor did he file a petition to modify
(id. at 28). Although Father stated that he contacted attorneys but was
unable to afford an attorney, and unsuccessfully sought assistance from
Mid Penn Legal Services in 201817 (id. at 87, 96-99, 102-103), Father sought
no other action with respect to the custody matter. He took no further actions
involving contact with Mid Penn Legal Services or the courthouse in 2019.
(Id. at 103.) Father further acknowledged that he never even sought a copy
of the custody order from the court. (Id. at 101.) While testifying that he
contacted the court (id. at 77-78, 91-92, 95, 102-103), Father indicated that
17 Father noted a conflict of interest with respect to Mid Penn Legal Services.
(Id. at 87, 97.) Upon questioning by Attorney Paterno, he stated that they
did not refer him to a self-help clinic at the Dauphin County courthouse. (Id.
at 97-99.)
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this was solely to seek Mother’s contact information (id. at 95). He stated,
“It had nothing to do with me getting any paperwork or anything like that.”
(Id. at 95.) Moreover, Attorney Paterno indicated that from her experience it
is unlikely that Mid Penn would not have referred Father to the self-help center
at the courthouse. (Id. at 118-119.) She stated:
I -- I’m not entirely persuaded by what he did here. I
worked extensively with Mid Penn Legal Services. I
worked extensively in this county to provide access to
the legal system to people of low income. I know what
the self-help clinic is about. I know that that is given
to the clients universally when they call Mid Penn if
there is, in fact, a conflict.
Id. She was further skeptical because of Father’s prior participation in and
knowledge of and familiarity with the legal process related to his older son.
(Id. at 119.)
As this court has stated, “[A] child’s life cannot be held in abeyance
while a parent attempts to attain the maturity necessary to assume parenting
responsibilities. The court cannot and will not subordinate indefinitely a child’s
need for permanence and stability to a parent’s claims of progress and hope
for the future.” In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa.Super.
2006). Thus, as the trial court’s termination pursuant to Section 2511(a)(1)
is supported by competent, clear, and convincing evidence in the record, we
find no abuse of discretion. See In re T.S.M., 71 A.3d at 267; In re
Adoption of T.B.B., 835 A.2d at 394.
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As noted above, in order to affirm a termination of parental rights, we
need only agree with the trial court as to any one subsection of
Section 2511(a) before assessing the determination under Section 2511(b).
In re B.L.W., 843 A.2d at 384. We, therefore, need not address any further
subsection of Section 2511(a) and turn to whether termination was proper
under Section 2511(b).
As to whether termination was proper 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.[A.] § 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. However, as discussed below,
evaluation of a child’s bonds is not always an easy
task.
In re T.S.M., 71 A.3d at 267. “In cases where there is no evidence of any
bond between the parent and child, it is reasonable to infer that no bond
exists. The extent of any bond analysis, therefore, necessarily depends on
the circumstances of the particular case.” In re K.Z.S., 946 A.2d 753,
762-763 (Pa.Super. 2008) (citation omitted).
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When evaluating a parental bond, “[T]he court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, Section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d at 1121 (internal citations omitted).
Moreover,
While a parent’s emotional bond with his or her child
is a major aspect of the subsection 2511(b) best-
interest analysis, it is nonetheless only one of many
factors to be considered by the court when
determining what is in the best interest of the child.
[I]n addition to a bond examination, the
trial court can equally emphasize the
safety needs of the child, and should also
consider the intangibles, such as the love,
comfort, security, and stability the child
might have with the foster parent. . . .
In re Adoption of C.D.R., 111 A.3d at 1219, quoting In re N.A.M., 33 A.3d
95, 103 (Pa.Super. 2011) (quotation marks and citations omitted).
In determining that termination of Father’s parental rights favored the
Child’s needs and welfare, the court reasoned as follows:
Next, the [c]ourt must analyze the determination of
the needs and welfare of the child under the standard
of best interests of the child. 23 Pa C.S.A. 2511(b).
“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 of the child permanently severing any such
bond.” [In re L.M., 923 A.2d 505, 511 (Pa.Super.
2007)]. In the instant case, testimony from Mother,
her parents, and her husband clearly and convincingly
established that the needs and welfare of the child
were adequately being met with no assistance from
[Father]. Further, there was no evidence presented
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of an emotional bond between [Father] and the minor
child. This [c]ourt does not believe that permanently
terminating parental rights would have an adverse
effect on the minor child given the lack of contact
between [Father] and minor child, as well as
[Father]’s failure to take any meaningful role in the
minor child’s life whatsoever.
Further, the guardian ad litem opined that the best
interests of the minor child would be served by
terminating [Father]’s parental rights. Specifically,
Attorney Paterno was not persuaded by [Father]’s
failure to act over an 18-month period and that he
could have done more to preserve and assert his
parental rights.
Orphans’ court opinion, 3/27/20 at 11-12 (unpaginated).
Father, however, argues that Mother alienated Child from him and that
such alienation prevented a meaningful relationship between him and his
child. (Father’s brief at 18-20.) Father states, “Due to Mother’s intentional
interference and alienation of the minor child, Father never had an opportunity
to further develop a significant relationship with his minor child. Thus, it
cannot fairly and adequately be determined whether permanently terminating
parental rights would have an adverse effect on the minor child.” (Id. at 19.)
He further asserts that by granting termination the court is “condoning” and
not only tolerating, but encouraging, Mother’s behavior. (Id. at 19-20.)
Upon review, we again discern no abuse of discretion. The record
supports the trial court’s finding that Child’s developmental, physical, and
emotional needs and welfare favor termination of Father’s parental rights
pursuant to Section 2511(b). There was sufficient evidence to allow the trial
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court to make a determination of Child’s needs and welfare and, as to the
existence of a lack of a bond between Father and Child that, if severed, would
not have a detrimental impact on her.
Significantly, Mother expressed that Child is not safe with Father,
referencing his substance abuse history. (Notes of testimony, 1/17/20 at
16-17.)
Further, as described by the guardian ad litem/counsel for the Child,
Child had not seen Father in a while. Child knew that Father was incarcerated
and only remembered Father buying her candy. She could not, however,
speak to any of the positive interactions. (Id. at 117.)
She knows -- She talked about [Father], said she had
not seen him for [a while]. She said I know that he
was in jail. There seemed to be some hesitation there.
And, you know, I just talked about the fun things they
did together. She couldn’t speak about that. She
said, you know, he got me candy and recalled saying
that. Otherwise, you know, not a whole lot. She
didn’t indicate that there was any negative discussions
regarding him.
Id. Similarly, Mother testified that she tells Child that Father is her dad.
Mother stated, “I do still tell her that that’s dad.” (Id. at 13.) Nevertheless,
Child does not discuss Father, and when asked, there was nothing she wanted
Mother to say to Father. (Id. at 36.)
Moreover, and more importantly, Child is bonded to Stepfather, whom
she calls “dad” or “daddy” and with whom she has lived for approximately
three years. (Id. at 13, 44, 46.) Stepfather testified that he and Child “hit it
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off right away.” (Id. at 45.) Mother observed that Stepfather and Child “love”
one another and that Stepfather does “a lot with and for [Child].” (Id. at
12-13.) Stepfather and Child do things together surrounding nature, such as
fishing, foraging for mushrooms, hiking, and gardening. (Id. at 12-13,
45-46.) Stepfather further provides for Child and teaches Child. (Id. at
14-15, 44.) Stepfather taught Child to tie her shoes, bought Child clothes,
reads to Child, puts Child to bed at night, and cares for Child when she is sick.
(Id. at 14, 36.) Additionally, Child seeks comfort from Stepfather and goes
to Stepfather when she has problems. (Id. at 14, 36, 46.) Mother confirmed
that Stepfather fulfills the role of father for Child. (Id. at 14.) Likewise,
Stepfather testified that he considers himself to be Child’s father. (Id. at 47.)
Thus, as supported by the record, termination of Father’s parental rights
serves Child’s developmental, physical, and emotional needs and welfare and
was proper pursuant to Section 2511(b). While Father may profess to love
Child, a parent’s own feelings of love and affection for a child, alone, will not
preclude termination of parental rights. In re Z.P., 994 A.2d at 1121. As we
stated, 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.” Id. at
1125. 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
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potential in a permanent, healthy, safe environment.” In re B., N.M., 856
A.2d at 856 (citation omitted).
Accordingly, based upon our review of the record, we find no abuse of
discretion and conclude that the orphans’ court appropriately terminated
Father’s parental rights under 23 Pa.C.S.A. § 2511(a)(1) and (b).
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/28/2020
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