In Re: Adopt. of: P.M.IV., Appeal of: S.L. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: P.M., IV., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: S.L., MOTHER :
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: No. 1448 MDA 2022
Appeal from the Decree Entered September 14, 2022
In the Court of Common Pleas of York County Orphans' Court at No(s):
2022-0002a
BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.
DISSENTING MEMORANDUM BY DUBOW, J.: FILED MAY 25, 2023
I respectfully dissent from the Majority’s decision to reverse the trial
court’s conclusion that Paternal Aunt presented clear and convincing evidence
to involuntarily terminate Mother’s parental rights to Child pursuant to 23
Pa.C.S. § 2511(a)(1).
Our well settled standard of review dictates that we defer to the factual
findings and credibility determinations of the trial court if they are supported
by the record and bars this Court from reversing a decision simply because
the record would support a different result. In re T.S.M., 71 A.3d 251, 267
(Pa. 2013).
Here, upon review, the record supports the trial court’s factual findings
and credibility determinations. Although the majority highlights evidence that
could support a different result, it is not this Court’s job to reweigh the
evidence or generate our own findings of fact. On the contrary, we are
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constrained to show “deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.” Id. As explained
below, because I believe the majority is misapplying our required standard of
review, I respectfully dissent and would affirm the trial court’s decision to
terminate Mother’s parental rights to child.
A.
In its Opinion in Support of Order Granting Petition for Involuntary
Termination of Parental Rights issued contemporaneously with its termination
decree, the trial court set forth the following findings of fact:
[Child] was born in August of 2017 to [Mother] and [Father].
Father instituted a custody action against Mother in August of
2020 relating only to Child. In September of 2020, [Paternal
Aunt] petitioned to intervene in the custody action, claiming she
had had sole physical custody of Child since July of 2019.
Presumably based upon [Paternal Aunt]’s intervention, Mother
and Father agreed to withdraw the first custody complaint.
Shortly thereafter, [Paternal Aunt] brought her own custody
action against both Mother and Father on the same grounds as
her intervention. Prior to the conciliation of this custody action,
the Court awarded temporary physical custody of Child to
[Paternal Aunt].
After the parties failed to reach an agreement at conciliation, the
Court entered an interim custody order dated October 22, 2020,
which awarded legal custody of Child to [Paternal Aunt] and
primary physical custody to [Paternal Aunt]. Mother and Father
were each awarded partial physical custody in the form of
supervised visitation. After a full custody trial, the Court entered
its final order for custody on March 5, 2021. This order mostly
affirmed the interim order, with minor changes. Mother and
Father’s supervised visitations were limited to one time per week,
whether together or separate. The final order also made clear its
finding that both Mother and Father are a risk of harm to Child.
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On November 10, 2021[,] [Paternal Aunt] sought special relief in
the form of suspending Mother’s visits with Child. On November
16, 2021, at a session of family current business court, the Court
temporar[il]y suspended Mother’s visits and schedul[ed] a hearing
for January 13, 2022. . . . At the conclusion of the February 10,
2022 hearing, the Court suspended Mother’s visits complete[ly]
and ordered that only therapeutic visits supervised by Child’s
therapist would be permitted. No appeal was taken to any of the
custody orders entered.
The previous findings stem from the Court’s taking of judicial
notice of the custody action, docketed at 2020-FC-002305-03.
N.T.[, 5/12/22, at 4-5]. While the above facts took place more
than 6 months prior to [Paternal Aunt] filing her Petition for
Involuntary Termination of Parental Rights, they are fundamental
to an understanding of the facts which occurred inside the 6-
month timeframe.
On January 11, 2022, [Paternal Aunt] filed her Petition for
Involuntary Termination of Parental Rights under Section
2511(a)(1). . . . [Paternal Aunt]’s case with respect to Mother was
continued to May 20, 2022. During that just under two[-]hour
portion of the trial, the Court heard from one of Mother’s
witnesses, the Child’s therapist, as well as [Paternal Aunt].
[Child’s therapist] testified Child was experiencing very negative
play therapy and episodes of soiling after visitations with Mother.
She further testified, “[Child is] progressing in his therapy since
the visits have been paused.” N.T.[, 5/20/22, at 11]. Additionally,
she opined if the visits between Mother and Child were to resume,
Child “would have aggression. I believe that he would return to
noncompliance, soiling, difficult days, dinginess, nightmares, and
I do think it would re-trigger trauma.” Id. at 15[].
[Paternal Aunt] testified next, with the importance of her
testimony being the frequency of Mother’s visits and phone calls
with Child. Within the time period relevant to our review, which
is between July 11, 2021 and January 11, 2022, Mother had 6
visits with Child in person. Mother also conducted 13 FaceTime
calls with Child. Based upon the custody orders then in effect,
Mother could have [had] 18 in person visits with Child and 36
FaceTime calls. However, 4 in persons visits were cancelled in
September due to Mother’s exposure to COVID-19. N.T.[,
5/20/22, at 61]. Also of note, Mother did purchase a birthday gift
or gifts for Child. Id. at 57[]. However, in communication
between Mother and [Paternal Aunt] before Child’s birthday,
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Mother stated, “I don’t know the child, so I need some ideas on
how to buy him a present for his birthday.” Id. at 57[].
Mother also testified on July 22, 2022. While Mother testified, the
Court found Mother’s testimony incredible and self-serving. Most
of her testimony focused on blaming others for her lack of contact
with Child. The remainder of the testimony was either outside the
six-months period this Court is to examine or an attempt to re-
litigate the final custody orders that had been entered. However,
of somewhat greater importance, Mother admitted that after being
found to be a risk of harm to Child, she took no action to address
that finding. N.T.[, 7/22/22, at 69-70].
Trial Ct. Op., 9/14/22, at 1-4. Based on these findings, the trial court
concluded that Mother failed to perform affirmative parental duties for a period
of more than six months and that termination of parental rights would be in
Child’s best interest.
On appeal, Mother raises numerous allegations of error, including that
the trial court abused its discretion when it terminated Mother’s parental rights
pursuant to Sections 2511(a)(1) and (b).1 Mother’s Br. at 5.
B.
In addressing Mother’s issues, we are mindful of our well settled
standard of review. As discussed above, when we review a trial court’s
decision to grant or deny a petition to involuntarily terminate parental rights,
we must accept the findings of fact and credibility determinations of the trial
court if the record supports them. In re T.S.M., 71 A.3d at 267. “If the
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1 Mother also claims that the trial court failed to properly consider Paternal
Aunt’s “gamesmanship” and the obstacles Mother faced, refused to permit
Father to testify on behalf of Mother, and refused to hear testimony
establishing the whole history of the case. In its Rule 1925(a) Opinion, the
trial court adequately addressed these issues, and I decline to address them
here. See Trial Ct. Op., 10/19/22, at 1-5.
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factual findings are supported, appellate courts review to determine if the trial
court made an error of law or abused its discretion.” Id. (citation omitted).
“Absent an abuse of discretion, an error of law, or insufficient evidentiary
support for the trial court’s decision, the decree must stand.” In re R.N.J.,
985 A.2d 273, 276 (Pa. Super. 2009) (citation omitted).
Section 2511 of the Adoption Act governs termination of parental rights
and requires a bifurcated analysis. “Initially, the focus is on the conduct of
the parent.” In re Adoption of A.C., 162 A.3d 1123, 1128 (Pa. Super. 2017)
(citation omitted). “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).” Id. (citation omitted). “[I]f
the court determines that the parent’s conduct warrants termination of his or
her parental rights,” the court then engages 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.” Id. (citation omitted).
C.
Mother first challenges the trial court’s termination of her parental rights
pursuant to Section 2511(a)(1). The trial court concluded that Mother failed
to perform parental duties as demonstrated by her by failure to attend all
available video and in-person visits with Child, reach out in a timely and
assertive fashion to child’s therapist for updates, and request a modification
of the custody order. Trial Ct. Op., 9/14/22, at 7-10. In analyzing the post-
abandonment contact between Mother and Child, the trial court found:
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We are also concerned with the way Mother proports her efforts
as “all she could do given the Custody Order.” Of the 36 permitted
Facetime calls under the Order, Mother performed 13. Even if
viewed in light of Mother’s claim that half of those calls were set
aside for [] Father, that still left 18 for Mother. We are
unpersuaded that Mother exerted herself with every means
possible to have regular contact with Child when she missed 5
calls and could call twice each week, regardless of any outside
circumstances. Similarly, Mother was permitted 14 physical visits
with Child under the Order. However, between July 2021 and
January 2022, Mother performed less than half, visiting only 6
times. Even with the suspension of supervised visits under the
November 16, 2021 Order pending a hearing, Mother was still
permitted one visit per week prior to the suspension, a period of
18 full weeks. Again, these numbers lend themselves towards
more of a passive interest in the development of Child and a failure
to take all available avenues for performing parental duties.
Trial Ct. Op., 9/14/22, at 8-9.
The trial court placed little weight on Mother’s argument that the
Custody Order in place prevented her from making more of an effort to
perform parental duties, explaining:
[B]y her own admission and understanding [the Custody Order]
strips her of legal custody, not contact. . . . Performing parental
duties do not require custody. Custody orders and extraneous
circumstances, such as incarceration [], do not prohibit a parent
from exerting themselves and taking active steps know their child
or to take every advantage of every means possible to know about
the health and well-being of their child, too. And, ignorance of
law or one’s understanding of potential legal avenues to pursue is
not a valid excuse. See In re B.,N.M., [856 A.2d 847, 856-57
(Pa. Super. 2004)] (where the court granted petition for
involuntary termination of parental rights of an incarcerated father
who consistently pointed to external circumstances keeping him
from performing parental duties but also sat idle for months at a
time without attempting to take any legal action).
Id. at 9.
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The trial court also emphasized Mother’s passive interest in Child’s
physical and mental well-being as evidenced by her failure to reach out to
Child’s therapist. The trial court found:
Child’s therapist had been treating him since October 30, 2020[,]
and held more than 50 sessions with Child in that time. And with
all of that, Mother still did not avail herself of one of the most
important ways to re-engage with her son – reaching out for
updates on Child’s sessions or for ways she could better support
and connect with him. Mother testified that she did not reach out
to the therapist during that time because “it wasn’t something that
seemed to be a concern at the time.” N.T.[, 7/22/22, at 61].
Despite her belief, this was clear inaction on her part. She never
once reached out [to the therapist] for updates. Such decisions
display a passive interest in the development of Child, not a desire
to exert herself within the relationship.
Trial Ct. Op. at 7-8.
Finally, in considering Mother’s efforts to re-establish contact with Child,
the court placed great weight on the fact that Mother failed to pursue any legal
action to change her custody orders or dispute the custody court’s finding that
she was a risk of harm to Child. Id. at 9-10.
Upon review, I believe that the record supports the trial court’s findings.
I decline to reweigh the evidence or interfere with the court’s credibility
determinations and, therefore, would find no abuse of discretion in the trial
court’s conclusion that Paternal Aunt presented clear and convincing evidence
to terminate Mother’s parental rights pursuant to Section 2511(a)(1).
D.
As discussed below, in reversing the trial court’s decision, the Majority
reweighs the evidence, usurps credibility determinations, and creates factual
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findings. In its decision, the Majority agrees with Mother’s claims that she
performed parental duties to the best of her ability when she: (1) exercised
as much visitation as allowed by the custody order, (2) maintained consistent
email contact with Paternal Aunt, and (3) contacted Paternal Aunt one time to
request a meeting with Child’s therapist – despite the trial court’s findings to
the contrary. Majority Memo. at 15-16.
Further, the Majority acknowledges that the trial court did not find
Mother to be credible, but nevertheless credits Mother’s testimony that
Paternal Aunt created obstacles and barriers to Mother’s contact with Child
when Paternal Aunt enforced strict rules surrounding visitation. Id. at 16-17.
The Majority finds, “Paternal Aunt and Paternal Grandmother generated
extrajudicial obstacles which impeded Mother from exercising additional calls
and visits.” Id. at 16. This is a finding for the trial court to make in the first
instance, and directly conflicts with the trial court’s finding that Mother’s
“passive interest” in Child prevented additional visitation. Trial Ct. Op.,
9/14/22, at 8-9.
Rather than concluding that Paternal Aunt created barriers for Mother,
the trial court found, “Mother has tended to blame others, particularly
[Paternal Aunt] and the courts, for her inability to perform specific parental
duties.” Trial Ct. Op. at 11. Notably, the trial court declined to find that
Mother faced barriers that justified her failure to take legal action. Id.
Moreover, the Majority ignores the trial court’s credibility determinations
and not only credits, but also emphasizes Mother’s testimony that she was
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focusing on her sobriety, was making progress, and “didn’t feel like [she] had
enough to stand on in court yet in order to modify anything.” Majority Memo.
at 19 (citing N.T., 7/22/22, at 126). Additionally, the Majority places greater
weight on the fact that Mother appeared in court to defend her custodial rights
to Child, rather than deferring to the trial court’s findings that Mother failed to
initiate any legal proceedings to increase her visitation schedule. See id.
Finally, the Majority cites L.A.K., 265 A.3d 580 (Pa. 2021), to support
their overall disposition, and the proposition that Mother was overcoming
obstacles when she was working towards obtaining sobriety and maintaining
stability before she pursued additional visitation with Child. Majority Memo.
at 19-20. L.A.K. is easily distinguished from the instant case and, therefore,
unpersuasive.
In L.A.K., a father struggled with alcoholism, made repeated attempts
at obtaining sobriety, and did not contact his children during that time out of
concern for their best interests. Id. at 599. The trial court credited Father’s
testimony and found that father acted with reasonable firmness in
overcoming obstacles that kept him from performing parental duties and
denied the termination petition. Id. This Court reversed and, on appeal, our
Supreme Court concluded that because the record supported the trial court’s
findings and it was in the trial court’s discretion to make credibility
determinations and weigh the evidence, that the trial court did not abuse its
discretion. Id. Our Supreme Court concluded that this Court erred in ruling
to the contrary. Id.
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The key difference between L.A.K. and the instant case is that here the
trial court did not find Mother’s testimony to be credible. To the
contrary, the trial court found Mother’s testimony to be “incredible and self-
serving.” Trial Ct. Op., 9/14/22, at 4. Accordingly, in my view, L.A.K.
instructs this Court to defer to the trial court when, as here, the record
supports the trial court’s findings.
The Majority’s findings reweigh the evidence and usurp the trial court’s
credibility determinations in contravention of our standard of review. As
stated above, although the majority highlights evidence that could support a
different result, it is not this Court’s job to reweigh the evidence or generate
our own findings of fact. On the contrary, we are constrained to show
deference to the trial court when the findings are supported by the record,
even in cases where the evidence could support two different results.
Accordingly, I respectfully dissent.
E.
Mother also argues that the trial court abused its discretion when it
terminated her parental rights pursuant to Section 2511(b). With respect to
Section 2511(b), our analysis focuses on the effect that terminating the
parental bond will have on the child. This Court reviews whether “termination
of parental rights would best serve the developmental, physical, and
emotional needs and welfare of the child.” In re Adoption of J.M., 991 A.2d
321, 324 (Pa. Super. 2010). It is well settled that “[i]ntangibles such as love,
comfort, security, and stability are involved in the inquiry into needs and
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welfare of the child.” In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005)
(citation omitted).
One major aspect of the “needs and welfare” analysis concerns the
nature and status of the emotional bond that the child has with the parent,
“with close attention paid to the effect on the child of permanently severing
any such bond.” In re Adoption of N.N.H., 197 A.3d 777, 783 (Pa Super.
2018) (citation omitted). The fact that a child has a bond with a parent does
not preclude the termination of parental rights. In re A.D., 93 A.3d 888, 897
(Pa. Super. 2014). Rather, the trial court must examine the depth of the bond
to determine whether the bond is so meaningful to the child that its
“termination would destroy an existing, necessary, and beneficial
relationship.” Id. at 898. Moreover, the trial court may consider intangibles,
such as the love, comfort, security, and stability the child might have with the
adoptive resource. In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011).
Ultimately, the concern is the needs and welfare of the child. In re Z.P., 994
A.2d 1108, 1121 (Pa. Super. 2010).
Mother avers that the trial court should have credited her testimony that
visits between her and Child were playful, happy, comforting and positive over
the testimony from the Child’s play therapist that Child did not have a bond
with Mother. Mother’s Br. at 64. Mother argues that the Child’s therapist
never witnessed a visit and did not have first-hand knowledge of Child’s
relationship with Mother. Id. at 65-66.
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Instantly, the trial court credited Child’s therapist’s testimony that visits
with Mother were stressful for Child and that Child was not bonded to Mother.
The trial court opined:
Mother is quick to highlight her perception of Child’s “happiness
and comfort” level when interacting with her during supervised
visits, stating that Child would warm up to her in time and
sometimes enjoyed sitting with her, holding her hand, or laying
his head on her shoulder. Mother’s Exhibits 28A-E, and 24.
However, Child’s therapist, who again worked with him for a
significant amount of time, testified that visits were actually very
stressful on [C]hild and not beneficial to him. And, the therapist
again contradicted Mother’s testimony, stating that from his
professional viewpoint, there was not a bond between Mother and
Child. N.T.,[5/20/22, at 38]. Additionally, further testimony by
the therapist indicates Child was actually progressing in therapy
since visits with Mother were suspended in November 2021.
These facts alone, unfortunately, indicate that the termination of
parental rights here would not destroy an existing beneficial
relationship or bond.
Trial Ct. Op, 9/14/22, at 11-12. Upon review, I believe that the record
supports the trial court’s findings.
F.
In conclusion, because the record supports the trial court’s findings, I
would affirm the court’s decision to terminate Mother’s parental rights
pursuant to Sections 2511(a)(1) and (b). Accordingly, I respectfully dissent.
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