J-S07001-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF G.X.E. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: S.M.E., NATURAL FATHER
No. 1537 MDA 2014
Appeal from the Decree Entered August 15, 2014
In the Court of Common Pleas of Franklin County
Orphans' Court at No(s): 6 Adopt 2014
IN RE: ADOPTION OF S.L.E. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: S.M.E., NATURAL FATHER
No. 1557 MDA 2014
Appeal from the Decree Entered August 15, 2014
In the Court of Common Pleas of Franklin County
Orphans' Court at No(s): 7 Adopt 2014
BEFORE: BENDER, P.J.E., OLSON, J.and OTT, J.
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 27, 2015
S.M.E. (Father) appeals from the August 15, 2014 decrees that
involuntarily terminated his parental rights to S.L.E. (born in September of
2010) and G.X.E. (born in September of 2011) (Children) pursuant to 23
Pa.C.S. § 2511(a)(1), (2) and (b).1 We affirm.
M.D. (Mother) filed termination petitions in which she asserted inter
alia that A.A. (Stepfather), her present husband, wished to adopt the
Children. A hearing was held on June 3, 2014, after an attorney was
____________________________________________
1
Father’s appeals from the two decrees were consolidated sua sponte by
order of this Court, dated October 7, 2014.
J-S07001-15
appointed to represent Father. On August 5, 2014, the court issued two
identical opinions setting forth the factual and procedural background of the
case, its findings relating to the testimony presented, and its reasons for
determining that Father’s parental rights should be terminated. On August
15, 2014, the court issued two decrees terminating Father’s parental rights
to both Children. Father filed timely notices of appeal and concise
statements of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i). On October 1, 2014, the court issued two identical opinions
pursuant to Rule 1925(a)(2)(ii) in which it addressed the seven issues raised
by Father in his concise statements. Essentially, the court relied on its
August 5, 2014 opinions, citing to pages in those decision that addressed
Father’s issues. These appeals are now ripe for review.
In his brief, Father raises the following issues:
I. Did the trial court err in considering testimony excluded from
evidence in its opinion and decree terminating Father’s rights?
II. Did the trial court err in terminating Father’s parental rights
under 23 Pa.C.S.A. § 2511(a)(1) and § 2511(a)(2) when Father
was incarcerated the entire six-months preceding filing of the
Petition, utilized services and programs while incarcerated,
attempted to contact the Children through Mother and Mother’s
family, and whose sentence is not of such a length that his
inability to presently care for the [C]hildren cannot be remedied
in the near future?
III. Did the trial court err in determining there was sufficient
evidence that termination of Father’s parental rights would best
serve the developmental, physical, and emotional needs and
welfare of the Children?
Father’s brief at 9.
-2-
J-S07001-15
When considering an appeal from an order involuntarily terminating
parental rights, we are guided by the following:
In cases involving termination of parental rights, our scope of
review is broad. All of the evidence, as well as the trial court's
factual and legal determinations, are to be considered.
However, our standard of review is limited to determining
whether the order of the trial court is supported by competent
evidence, and whether the trial court gave adequate
consideration to the effect of such a decree on the welfare of the
child. We have always been deferential to the trial court as the
fact finder, as the determiner of the credibility of witnesses, and
as the sole and final arbiter of all conflicts in the evidence. In re
S.D.T., Jr., 934 A.2d 703, 705-06 (Pa. Super. 2007), appeal
denied, 597 Pa. 68, 950 A.2d 270 (2008) (citations omitted).
The burden of proof in a termination case is on the petitioning
party, who must establish valid grounds for termination by clear
and convincing evidence.
In re E.M.I., 57 A.3d 1278, 1284 (Pa. Super. 2012) (quoting In re J.L.C.,
837 A.2d 1247, 1251 (Pa. Super. 2003)).
We have reviewed the certified record, the briefs of the parties, the
applicable law, and the comprehensive opinions authored by the Honorable
Shawn D. Meyers of the 39th Judicial District—Franklin County Branch, issued
on August 5, 2014 and October 1, 2014. We conclude that Judge Meyers’
thorough, well-reasoned opinions properly dispose of the issues raised by
Father. Accordingly, we adopt Judge Meyers’ opinions as our own and affirm
the decrees appealed from on that basis. Additionally, as requested by the
trial court, we remand the cases to the trial court for the limited purpose of
correcting the decrees as outlined in Judge Meyers’ October 1, 2014
opinions.
-3-
J-S07001-15
Decrees affirmed. Cases remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/2015
-4-
/co 4F j
Circulated 02/20/2015 02:03 PM
•...
IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT
OF PENNSYLVANIA •• En ANKLlN COUNTY BRANCllHr------------
In Re Adoption of
, " ORPHANS' COURT DIVISION
No,6·ADOPT·2014
Honorable Shawn D, Meyers
OPINION
irLD,
This Opinion addresses PetitionerlMother·s,~• •_', petition to tenninate
6,('(1, i::;,
the natural rights ofRespondentlFather,.s.III',;8:1111
5
_ _ _if.
711'iI!I'
FACTUAL AND PROCEDURAL mSTORY
-:5 ,/.:, ?;',
The parties are natural parents of two minor children: - - , .• •_IIIIIP" born
&, X,r;,
September. 2010, and_..._ ._ _IIII, born Septemher.201 I, Motherand
Father previously resided together with the children, They separated as a couple ill May
4,/1,
of 201 I, but continued to reside together. Mother is currently roamed to . . .
: ' • the children's stepfather. He has resided with the children since July of2012,
Father previously served in the military and was deployed twice. Father was first
deployed to Iraq in 2008. Father served in Afghanistan from May of2012 . May of
2013, which involved short periods of active service and training. In September of2011,
Father was arrested for sexual assault of another man in Maryland. Father entered a
guilty plea on July 10,2013,
2
Circulated 02/20/2015 02:03 PM
Mother filed a Petition for Involuntary Tennination of Parental Rights on
February 24, 2014, seeking to tenninate Father's rights in anticipation of an adoption by
Mother's. husband, the children's stepfather. This COUIt set a hearing on May 9, 2014.
Upon receipt of pro se correspondence from Father, indicating the desire to proceed with
counsel, the Court appointed counsel to represent him. Father's first two appointed
attorneys had conflict issues, and the Court subsequently appointed Kristin Nicklas as
Father's counsel. The Court continued the hearing to June 3, 2014 in order to ensure that
Father had adequate time to consult with his counsel.
The parties appeared on June 3, 2014 for the involuntary termination hearing.
The Court heard testimony from both sides, and subsequently set a briefing schedule for
the parties. Mother filed her brief in support and Father filed his brief in opposition.
This matter is now ready for decision.
DISCUSSION
1. Applicable Timeftame for the Court's Detennination:
This Court will first address the relevant timeftarne for its decision. In his brief,
Father raises an argument he previously raised before the Court. At that hearing, counsel
for Mother first called Stepfather as a witness. Stepfather was asked several questions
about his past involvement with the children and Mother, at which point counsel for
Father objected. Counsel for Fatller argued that the questions reflected content that was
not included in the petition, and thus the witness was impelmissible testifying to facts not
previously pled. The Court sustained the objection in part, finding that if counsel for
Mother sought to develop certain fucts and to support certain grounds for tenmnation,
those fucts should have been properly pled in the petition. Counsel for Mother was
3
Circulated 02/20/2015 02:03 PM
instructed to move on from questions regarding stepfather's own involvement with the
children, and focus on Stepfather's knowledge of Father and his involvement with his
children.
In his brief, Father argues that Mother's petition includes only one relevant fact
for the Court's consideration: the avennent that Father "has had no contact with (Mother]
since April 2013 and is currently serving a sentence in Maryland for sex offense(s)."
Father argues that Mother is precluded from offering evidence of facts that occurred prior
to April 2013 in support of any grounds for termination.
Tllis Court agrees that any potential ground for tennination must be sufficiently
aIleged in the petition. As previously stated at the hearing, any facts regarding
Stepfather's prior relationship with the children that were not included in the petition
would not be relevant to this Court's determination on Father's parental rights. It is weIl-
settled .that "[t)he focus. .oflhe ternlination proceeding is on the conduct of the parent and
whether his conduct justifies termination of parental rights." In re B..N.M., 856 A.2d
847,854-55 (pa. Super. 2004). Notably, such conduct includes Father's actions during
the six month period preceding the tennination petition, but also encompasses the time
before that. In re B..N.M., 856 A.2d at 855 ("Although it is the six months immediately
preceding the filing oflhe petition that is most critical to the analysis, the trial COUlt must
consider the whole history of a given case and not mechanically apply the six-month
statutory provision."). The Court will now address the legal grounds for involuntary
tennination and the evidence submitted by both parties.
4
Circulated 02/20/2015 02:03 PM
II. Applicable Standard - Involuntary Tennination of Parental Rights:
Section 2511 of the Adoption Act governs tennination of parental rights. The statute
requires this Court to engage in a bifurcated analysis to determine if termination is
warranted. In interpreting Section 2511, the Pennsylvania Courts have set out this
analysis as follows:
Initially, the focus is on the conduct of the parent. The party seeking
tennination must prove by clear and convincing evidence that the parent's
conduct satisfies the statutory grounds for tennination delineated in
Section 2511(a). Only if the court detennlnes that the parent's conduct
warrants tennination of his or her parental rights does the court engage in
the second part of the analysis pursuant to Section 2511(b): detennination
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 I.B.P" 87 A3d 340, 344 (Pa. Super. 2014) (quoting In re L.M" 923 A2d 505, 511
(pa. Super. 2007». Thus, the Court must first look to the grounds for involuntary
termination, and then proceed into the analysis of the needs and welfare of the children.
The grounds for involuntary tennination are found in Section 2511 (a) of the Adoption
Act. In this case, Mother asserts 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 perfonn parental duties
(2) The repeated and continued incapacity, abuse, neglect or refusal of the
parent has caused the child to be without essential parental care,
control or subsistence necessary for his physical or mental well-being
and the conditions and causes of the incapacity, abuse, neglect or
refusal cannot or will not he remedied by the parent.
23 Pa. C.S.A. § 2511(a)(I), (2).
5
Circulated 02/20/2015 02:03 PM
The party seeking termination must establish) by clear and convincing evidence,
"that grounds existed for terminating Father's parental rights." In re Z.S.W.) 946 A.2d
726) 728-29 (pa. Super. 2008). This means that Mother must present evidence that "is so
clear, direct, weighty) and convincing as to enable the trier of fact to come to a clear
conviction, without hesitation) of the truth of the precise facts in issue." In re Z.S.W.)
946 A.2d at 728-29 (quoting In re J.D.W.M., 810 A.2d 688,690 (pa. Super. 2002». The
Court must consider the totality of the situation, "examine the individual circumstances
of each case and consider all explanations offered by the parent facing termination of his
or her parental rights," in order to determine iftermination is warranted by the
circumstances. In re B.,N.M., 856 A.2d at 855. With this framework in mind, the Court
will now consider Mother's termination petition.
III. Analysis Under Section 2511(a) - Evidence In Support of Terminating
Father's Parental Rights:
a. Termination Pursuant to Section 2511(8)(1): ..
As stated above) the relevant inquiry under subsection (a)(I) is whether there has
been a "settled purpose of relinquishing parental claim" to the minor children by Father)
or whether Father has "refused or failed to perform his parental duties." The
Pennsylvania Supreme Court has explained "parental duties" as follows:
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.
6
Circulated 02/20/2015 02:03 PM
In re Bums, 379 A,2d 535, 540 (Pa. 1977) (citations omitted). Thus, the courts place
upon a parent an affirmative duty. See.~, In re B.,N.M., 856 A,2d at 855 ("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."). This Court must determine whether
Father has ''failed or refused to perform parental duties ... in relation to the particular
circumstances ofthe case." In re Bums, 379 A.2d at 540.
I. Father's Efforts w Contact the Childretl During his Active Service:
Mother asserts that Father has not served in his parental role since May of 2012.
Mother argues that Father has not provided financial support to the children, or any
parental support for the children, for several years. From May 2012 until March 201~,
during his period in Afghanistan, Mother avers that Father did not communicate with the
. children in any way.. pather did not attempt to communicate with the children on their
birthdays or holidays. Father did not send the children letters, cards, or emails.
According to Mother, the ouly contact Father had with the children was when he sent
them each a teddy bear on January 13,2013. Mother did testify on rebuttal however, that
she only recalls two times during the ten months that Father served in Afghanistan did he
utilize Skype to communicate with the children.
Father stated that on November 27,2013, he mailed Mother a letter to read to the
children. Father used Mother's address in Maryland, where he believed she was residing.
According to Father, the letter was returned to him marked "return to sender." Father
then forwarded that letter to Mother's cousin, Marjorie Jean. At the hearing, Ms. Jean
testified to this, stating the letter was dated November 27, 2013, addressed to Mother at
7
Circulated 02/20/2015 02:03 PM
her address in Hagerstown, Maryland. Father wanted Ms. Jean to send the letter to
Mother, but she testified that she did not wish to do that as she was not getting along with
Mother at the time. Ms. Jean stated that the "return to sender" on the envelope was in
Mother's handwriting. When asked where the envelope was, Ms. Jean said that she
shredded the envelope but kept the letter.
Father also presented testimony fi'om Deborah Cotes, Father's aunt. She testified
that she sent a package to Mother, containing Christmas gifts for the children, but Mother
did not open the package. According to Ms. Cotes, Father knew of the package but it was
not actually from him, it was from her.
2. Father's Efforts to Spelld Time with the Childrell UpOII his Return:
In her brief, Mother cites three occasions where Father saw the children. Upon
Father's return from Afghanistan in March of2013, Mother and the children met him at
the airport. Mother states that the meeting was brief. It was at that time that Father
learned that Mother and the children no longer lived in their former marital home. Two
months later, in May of2013, Father visited with the children for approximately an hour
and a half. In June, Father and the children "crossed paths" while visiting a relative's
home. According to Mother,"that was the extent of Father's efforts to parent or spend
time with the children.
father argues that he attempted to see the children "numerous times, estimated to
be approximately twenty (20) times, from May 2013 until he was incarcerated in August
2013." Father does not provide any specific dates or context for that assertion. Father
asserts that Mother prohibited contact between he and the children, except for two
instances where the parties went to dinner, and where the children spent time with Father
8
Circulated 02/20/2015 02:03 PM
at their home. Mother states that neither she nor her husband have acted in any way to
prevent Father from exercising his parental rights.
In support of his argument that Mother erected obstacles, Father avers that
Marjorie Jean wrote an email to Mother in May of2013, stating that it was not a good
idea for her to "keep the children away from their Father." Father also draws attention to
Mother's testimony that the children refer to her husband as "dad" and therefore it would
be confusing for them to be involved with their Father.
3. Father's Efforts to Contact the Children During his Illcarceration:
. Father has been incarcerated in Maryland since August of2013. Father was
placed in county jail for approximately two months prior to his incarceration. Father
testified that while in county jail, he was unable to send any leiters or make any phone
calls. Father claims that he pleaded with Mother to see the children prior to his
sentencing date in August, but she refused. Father avers Ulat Ms. Jean overheard iliat
conversation, Mother states that Failier has not attempted to contact the children while he
has been incarcerated.
On direct examination, Father first testified that it was his understanding that
because his cell phone was inactivated, that meant Moilier's cell phone was also turned
off He stated iliat he could not call the place of her employment because iliey do not
accept collect calls. Father testified that he asked Ms, Jean to get Mother's work address
but she declined to do so. Father did not send any letters to Mother to be forwarded to
her address, Father testified that he would ask Ms. Jean ifshe had heard from ilie
children. Mother stated that she maintains the same work address and phone number she
9
Circulated 02/20/2015 02:03 PM
had when she and Father were together, and thus Father had the resources to contact
Mother about the children.
On cross-examination by Mother's counsel, Father was asked if, from May 2013
to August 2013, he had taken any steps to enforce his legal rights as a Father, i.e., going
through the court system. Father testified in the negative. He indicated that it was not in
liis nature to "bring it all into the court system like that." He also stated that "at that time,
I was too wrapped up in all kinds oflegal stuffI didn't want to see any lawyers,"
presumably referring to the criminal action in Maryland. When asked what he was doing
during this time, he stated that he was making preparations "for every possible outcome,"
which included looking for work and moving to Ms. Jean's home.
On cross-examination by the Guardiail ad Litem, Father testified that he did have
the ability to make calls from his the facility in Jessup. There does not appeal' to be a
limit on how many calls he can make as an inmate, but there are a limited number of
phones to use. Father testified that he can send letters out but he must pay for postage.
His family sent him money to buy postage at the jail, ifhe knew the correct address.
On cross-examination by Mother's counsel, Father was asked about his lack of
communication from the time he was arrested until the hearing date. Father indicated
that he did not have enough money to send letters to the children prior to November of
2013. Father states in his briefthat, because of his unsuccessful attempts at contacting
the children, he did not wish to send additional letters or make additional phone calls. He
states that Mother erected intentional baITiers to his communication which prevented
Father from reaching out to his children, and he tried "over and over" to make contact
with the children with no success. Because he was not successful in those efforts, Father
10
Circulated 02/20/2015 02:03 PM
did not pursue additional efforts. For further explanation, Father cites the definition of
insanity attributed to Albert Einstein ("doing the same thing over and over again
expecting different results"), and argues that for him to continue the same action
(attempting to contact his children) while expecting different results (from Mother)
would be insanity.
4. The Court's Findings:
This Court finds that the threshold under Section 2511 (a)(I) has been met.
Regarding the time that Father served in Afghanistan, he argues that it is improper to
consider that period in support of terminating his parental rights. This Court is not using
the mere fact that Father was deployed overseas for a period of time as support of
terminating his rights. A parent's deployment overseas is not in itself a SUPPOlting factor.
See• .!hlb In re Bowman, 666 A.2d 274, 279 (Pa. 1995) (recognizing that military service
and employment made father's "ability to perform his parental duties more difficult").
Being in active military service however, "do[es) not relieve [the parent) of all parental
responsibility." Bowman, 666 A.2d at 279. That parent is required to affirmatively act to
"to maintain the parent-child relationship to the best of his or her ability, even in difficult
circumstances." In re B"N.M., 856 A.2d at 855. The Court finds that Father failed to
live up to litis affirmative duty. Mother testified as to Father's lack of commination with
the chlldren during this time. Father sent no letters to the children, but sent them each a
teddy bear near the end of his service time. Mother testified to only two instances during
Father's deployment IIlat he communicated with the children via Skype. Father presented
testimony that he did send one letter to Mother, by way of her cousin, but it never got to
her. Even if this Court accepts that as true, sporadic attempts at communication do not
11
Circulated 02/20/2015 02:03 PM
satisfy the affinnative duty of a parent. Father's knowledge of his aunt's Christmas gifts
to the children also does not fulfill his obligation, as it was clear that the gift was not
actually from Father, but from his aunt.
As. to Father's efforts upon his return from Afghanistan up until the hearing date,
the Court finds the type of passive acceptance Father has displayed towards his
relationship with his children to be troubling, and in complete opposition to what the law
requires of a parent. "[T]he parental obligation is a positive duty which requires
affinnative perfonnance," In re Bums, 379 A.2d 535, 540 (pa, 1977), This is an
"affirmative duty," that requires "continuing interest in the child and a genuine effort to
maintain communication and association with the child," !!h Father's sporadic
interaction with his children upon his return from military service does not fulfill this
affirmative duty, This duty requires action by the parent.
Father cannot ''yield to every problem" that presents itself, and must take steps to
maintain the relationship with his children, "to the best of his or her ability, even in
difficult circumstances," In re B"N,M" 856 A.2d at 855, Certainly upon his return
Father was faced with difficult circumstances, and the Court acknowledges as such,
Father returned to find out that Mother and the children no longer resided in the home,
Mother had taken up a relationship with another man, Regardless of those types of
difficulties, the law requires a parent to be a parent.
This is true regardless of any "obstacles" put in place by the other parent. As
discussed at the hearing, Father had the option of, if nothing else, pursue his legal rights
as a parent through the court system, Father's explanation as to why he chose not do to
that did not focus on any action by Mother, but on Father's ongoing legal troubles and the
12
Circulated 02/20/2015 02:03 PM
unstable nature of his life at that time. This is not a "genuine effort" to maintain contact
with the children. Father's claim that any further attempts to contact the children, after
numerous failed attempts, would be the definition of insanity docs not hold true to this
Court. Passive acceptance has no place in the context of an affinnative duty.
The fact that Father is incarcerated is not itself a ground for tenninating his
parental rights. However, the affinnative parental duty applies even if a parent is
incarcerated. In re B"N.M" 856 A2d at 855 ("[A] parent's responsibilities are not tolled
during incarceration."). The Court must focus on "whether the parent utilized those
resources available while in prison to maintain a relationship with his child." In re
Adoption of Dale A, II, 683 A2d 297, 302 (Pa. Super. 1996). Moreover, "while the fact
that a parent is incarcerated may make it more difficult to parent in a traditional fashion,
the fact ofincarceration alone does not obviate the duty to exercise reasonable firmness
under the circumstances to maintain a secure parent/child bond." In Interest of AP .,692
A2d 240, 245 (pa. Super. 1997).
The Court finds that this burden was not met here. Father cited numerous reasons
for his failure to maintain communication with his children from prison. Father indicated
that he was unsure of Mother's current address or telephone number. Mother maintains
that none of that infonnation has changed. Father did not present any documentary
evidence to the Court showing any changes in address or phone number. Father stated
that he asked members of his family for Mother's phone number and asked Ms. Jean for
Mother'S phone number with no results. Father did not explain why he failed to confinn
Mother's address prior to his incarcemtion, when the parties were living separately.
Father testified that he had the means to purchase postage in jail, and the means to send
13
Circulated 02/20/2015 02:03 PM
letters from prison, but did not know where to send them. Even if the Court accepts al\
this as true, Father still had a duty to attempt to overcome the difficulties he faced. See,
.Q&, In re B.,N.M., 856 A.2d at 857 ("Father failed to act to the best of his ability to meet
his obligation despite his incarceration and the obstacles Mother placed before him.").
Father did not send any letters to Mother at her old address to be forwarded to any
new address. Father had the means to file something with this Court by mail, or even
send a Ietter to the Court, setting out the situation with the children, but he did not do so.
While the failure to seek court involvement is not in itself a reason to terminate a parent's
rights, it is certainly a relevant consideration when taken in tandem with al\ the
circumstances of this case. See In re Adoption ofL.J.B., 18 A.3d 1098, 1122 (Pa. 2011).
The case presented here is not one where one parent has presented diligent, consistent,
and resolute efforts to overcome any deliberate and devious obstacles put in place by the
custodial parent. In re J.W., 578 A.2d 952, 959 (pa. Super. 1990) ("[A]dequate parenting
requires action as well as Intent."). This is a case of one parent's passive acceptance of
the difficulties put before him; some of which may by the custodial parent, and some of
which are the products of the other parent's actions and overall situation. For all the
foregoing reasons, this Court finds that there is clear and convincing evidence to support
the termination of Father's parental rights under 8eOOon2511(a)(I).
5. Analysis Under Section 2511 (b) - Effect ofTermlllatioll on the Needs
and Welfare ofthe Children:
As stated above, once the Court has found that that termination of parental rights
is. warranted, the Court must then determine "the needs and welfare of the child under the
standard of best interests of the child." In re D.A.T., 91 A.3d 197,204 (Pa. 8uper. 2014)
(citation omitted). This inquiry involves consideration of"[i]ntangibles such as love,
14
Circulated 02/20/2015 02:03 PM
,
comfort, security, and stability are involved," as well as "the nature and status of Ule
parent-child bond." In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005). The Court
must consider the effect that terminating Father's parental rights will have on the needs
and welfare of the children. In re Adoption of Godzak, 719 A,2d 365, 368 (pa. Supel'.
1998). There is great importance to "the bond between a child and his or her natural
parent." In re Adoption of Godzak, 719 A,2d at 368 (citing In re B.D.M., 708 A,2d 88
(Pa. 1998). Regarding this consideration, the Superior Court has stated that:
It is universally agreed that fue bond of parental affection is unique and
irreplaceable. When parents act in accordance with the natural bonds of
parental affection, preservation of the parent-child bond is prima facie in
the best interest of the child, and the state has no justification to terminate
fuat bond. On the other hand, a court may properly terminate parental
bonds which exist In form but not In substance when preservation of the
parental bond would consign a child to an indefinite, unhappy, and
unstable future devoid of the irreducible minimum parental care to which
that child is entitled.
In re J.W., 578 A,2d 952, 958 (pa. Super. 1990) (citations omitted). Moreover, "[i)t is
important to keep in mind that the essential needs of the child and the responsibilities of
the parent must be considered as well as the rights of the parent." Id.
Father argues that the record is devoid of any evidence regarding the effect that
termination of his rights would have on the needs and welfare of the children. This Court
does not agree. The Court was presented with evidence that the children have no bond
whatsoever with Father. Stepfather has lived with Mother and the children since July of
2012. Stepfather testified that the chlldren began referring to him as "dad" around the
fallof2012. He stated that the children have never mentioned natural Father, and
testified that he is unsure that the children would even know who Father was. Stepfather
testified that he provides for the children, including daily physical and emotional needs.
The children embrace Stepfather and Mother as their family, along with their four month
IS
Circulated 02/20/2015 02:03 PM
old sibling, who is the natural daughter of Stepfather and Mother. The Court was
presented with credible evidence that the children currently have a stable and well
provided for life with Mother and Stepfather,pne filled with "love, comfgrt, sequrity, and
;
stability." In re C.M.8., 884 A.2d at 1287. The children's needs are being met on a daily~_ _ _ __
basis and they have an established family dynamic.
What is absent from the record is evidence of a bond between the children and
natural Father. The Pennsylvania Courts have held that "in cases where there is no
evidence of a bond between a parent and child, it is reasonable to infer that no bond
exists," and therefore "the extent ofthe bond-effect analysis necessarily depends on the
circumstances of the particular case." In re Adoption ofJ.M" 991 A,2d 321, 324 (Pa.
Super. 201O) (quoting In rO K.Z.S., 946 A,2d 753, 762--63 (Pa. Super. 2008». In this
:\ .. ,. ;, .' . ,p\lrlict!1ar, cas~1 tp.eS~urt ~~~,Jlres~lI\ed witr ~Yidpl1~Jbat there is no bond between the
children and Father. The children's father figure is their Stepfather, who has been
children's defacto parent for many years, and it is between Stepfather and the children
that the Court finds the existence ofa parental bond. ~ JUt" In re Adoption of I,M.,
991 A,2d at 324-25 (finding that matemal grandfather was "de facto parent," as he
performed Father's parental duties since mild's birth, including financial and emotional
support, and noting that maternal grandfather "desires to fill the void created by Father's
inaction."); In relT., 983 A,2d 771,777 (Pa. Super. 2009) ("[Tlhere is no record
evidence ofa bond between I.T. and Mother. A parent-child bond exists, between J.T. and'
her foster parents, who wish to adopt her."). For all the foregoing reasons, this Court
cannot find that the children' s needs or welfare would be harmed iil any way by
terminating natural Father's parental rights.
16
Circulated 02/20/2015 02:03 PM
b. Termination Pursuant to Section 2511(a)(2):
This Court will now discuss tennination of parental rights under subsection
2511 (a)(2), the second statutory ground cited by Mother. Under that section, the relevant
inquiry is into the "repeated and continued incapacity, abuse, neglect or refusal of the
parent has caused the child to be without essential parental care, control or subsistence
necessary for his physical or mental well-being," as well as the "conditions and causes of
the incapacity, abuse, neglect or refusal cannot or will not be remedied by the paren!."
In her brief, Mother draws attention to Father's incarceration. Mother argues that
15.111, ~:
"the fuct thai has been and will continue to serve a sentence of incarceration"
meets the definition of "incapacity" outlined in Subsection (a)(2). Mother argues that this
incapacity is one that cannot be remedied as Father will continue to be incarcerated until
he has served his sentence. Father argues thathis incarceration cannot be used as a
ground for termination of his parental rights, and states that his incarceration does not
constitute a period of "repeated and continued incapacity" as contemplated by the statute.
A review of the applicable case law reveals that, while incarceration cannot serve
as the sole ground for termination, it is certainly relevant to the question of incapacity
presented under subsection (a)(2), The Pennsylvania Supreme Court addressed this
precise issue in In re Adoption of S.P., 47 A,3d 817, 830 (pa. 2012) (discussing "the
relevance of incarceration in termination of parental rights decisions under §
2511(a)(2)."). There, the Supreme Court held as follows:
[W]e now definitively hold that incarceration, while not a litmus test for
termination, can be detenninative of the question of whether a parent is
incapable of providing "essential parental care, control or subsistence" and
the length of the remaining confinement can be considered as highly
17
Circulated 02/20/2015 02:03 PM
relevant to whether "the conditions and causes of the incapacity, abuse,
neglect or refusal cannot or will not be remedied by the parent," sufficient
to provide grounds for tennination pursuant to 23 Pa,C,S, § 2511(a)(2),
In reAdoption ors,p" 47 A,3d 817, 830 (pa, 2012),
The Supreme Court found a that a parent's incarceration could be a determinative
factor under the subsection (a)(2) analysis, depending on the specific facts and
circumstances that give rise to that parent's incapacity to provide his children with
"essential parental care, control or subsistence," If!., at 828, The Supreme Court drew on
a prior case addressing subsection (a)(2), in which the concurring opinion stated: "It is
beyond cavil ~at in many cases, including the one at bar, an incarcerated parent is
confined twenty-four hours a day, seven days a week; obviously resulting in his being
incapable of providing the essential parental care, control or subsistence necessary for a
child's physical and mental well-being," Id, (quoting In re R.I,S" 36 Ajd 567, 577-78
(pa, 2011) (Baer, J" concurring)), Thus, ilis clear that Father's current incarceration has
some relevancy in determining whether his parental rights should be terminated,
This Court has already discussed Father's lack of pro-active efforts to maintain a
relationship with his children before and-during his incarceration, As stated above, some
of the lack of communication is due to the circumstances of his incarceration, See
Section III(a)(3), supra, This Court cannot find however, that Father's incarceration is
the cause of the children's lack of "essential parental care, control, or subsistence," as
Father's inaction predates his period ofincarceration, The Court also notes that the
children's situation is different from the typical types of cases presented under a
- subsection (a)(2) inquiry, Prior cases addressing this issueusua\ly deal with children
who have been adjudicated dependent, and that dependency being largely due to the
parent's incarceration, See,~, In n) Adoption ofS,P" 47 AJd at 820 ("Father admitted
18
Circulated 02/20/2015 02:03 PM
that his incarceration resulted in Child's placement because his absence caused her to be
without essential parental care and control."). Such is not the case here. Father was
involved sporadically in the children's lives. The two children have been well provided
for by Mother and Stepfather, emotionally, physically, and financially, and appear to live
a well-adjusted family life.
Thus, the children enjoy a stable life, but that stability was not due to Father.
Under the statutory terms, the children have been without the "essential parental care,
control, or subsistence" of Father. Father does not have the ability to spend time with the
children and perform the regular duties of a parent. Father testified that he does have the
ability to make phone calls when telephones are available, and he can write letters when
he has the money for the postage. Father's financial situation injail is tenuous, and this
Court was presented with no evidence that he had any ability to financially provide for
the children or care for the children while he is in jail. It is clear that Father's current
incarceration has necessarily hindered his ability to be a parent. See,~, In re AD.,
2014PA Super 119 (pa. Super. Ct. June 9, 2014) (father was subject to a no contact
order, and thus ''by his own conduct was precluded from interacting with the children,"
and therefore "he was unable to perform his parental duties."). Thus, the "incapacity"
level would be met based on Father's inability to parent his children from his current
situation. The subsequent and more difficult question is "whether the parent can remedy
the incapacity, which depends to a significant degree on the length"of the parent's
sentence." In re Adoption ofS.P., 47 A3d at 829.
As 10 the time period of the incapacity, the Court will look at the length of
Father's sentence to be served. See In re Adoption of S.P .,47 A3d at 830 ("[T]he length
19
Circulated 02/20/2015 02:03 PM
of the remaining confinement can be considered as highly relevant to whether 'the
conditions and causes ofthe incapacity, abuse, neglect or refusal cannot or'will not be
remedied by the parent,"') (quoting 23 Pa, C,SA § 2511(a)(2»), In this case, Father pled
guilty to a second degree sexual offense on August 21, 2013 in the Circuit Court of
Prince George's County, Maryland, As of the date ofthis Court's involuntary
termination hearing, Father had been incarcerated since August of2013, At the hearing,
Father stated that he was given a sentence of twenty (20) years, all but four (4) years
suspended, This Court was not presented with any evidence to suggest that the hindrance
on Father's parental abilities will not continue until Father is released, or perhaps even
after that. In re Adoption ofS,P., 47 A3d at 831 ("[TJhe record supports the trial court's
findings regarding the uncertainty of Father's parole date and that, even upon parole,
Father would reside in a half~way house and would need to obtain housing, employment
and transportation in addition to parenting skills,"), The record does contain some
uncertainties, however, While presumably Father will serve a period of probation, the
length of that probation was not established in the record, Nor were any restrictive terms
of that probation, Mother alleges in her brief that, because Father was convicted of
sexually assaulting another male, "[wjhether he would be allowed contact with the
subject children upon his eventual release is an unanswered question in itself," This is a
question ·the Com"! does not have enough evidence to make a determination on, 1 While
the terms of Father's sentence mean he is only to serve four years, given the already
discussed evidence regarding Father's lack of contact and inability to perform as a parent,
this Court cannot find that the length of Father's sentence "is not so great as to foreclose
I In the interests of protecting Father's constitutional rights, the Court instructed the parties to refrain
from discussing the details of the offense for which Father was convicted, which included the age of
the victim and the specific actions involved,
20
Circulated 02/20/2015 02:03 PM
the possibility of the successful maiutenance ofthe parent-child relationship.'~ In re
RI,S" 36 A.3d 567, 574 (Pa, 2011), This Court finds the opposite to be true iu this case,
Father's incarceration has made it virtually impossible to provide for the children
and perform all the duties required ofa parent, and his incarceration will most certainly
continue to do so, In the circumstances of this case, the parent-child relationship is not
there to maintain, See,~, In re Adoption of S,P" 47 AJd 817, 830·31 (Pa, 2012)
("[T]rial courts must carefully review the individual circumstances for every child to
determine, inter alia, how a parent's incarceration will factor into an assessment ofthe
child's best iuterest."), The children have been provided for by Mother and Stepfather,
The Court was presented with credible testimony establishing that there is no emotional
bond between the children and Father, The children have prospered in their current
family situation, This Court has no hesitation in findiug that termination of Father's
parental rights. would -serve the best interests of the children, See,~, In re I.E,P" 87
.'
A.3d 340,344 (Pa, Super. 2014) (describing "needs and welfare" analysis under Section
2511(b) under best interests of the child framework)., Considering the "developmental,
physical, and emotional needs" of the children, it is clear that Father does not have the
ability to meet those needs, Those needs have been met by Mother and Stepfather,
Therefore, the Court finds that Mother has presented clear and convincing evidence to
establish grounds for termination ofparenta\ rights under subsection (a)(2), iu addition to
the grounds under subsection (a)(I) outlined above,
CONCLUSION
For all the foregoing reasons, this Court finds that grounds for involuntary
termination have been established under 23 Pa, C,S,A. § 2511, The Court was presented
21
Circulated 02/20/2015 02:03 PM
with clear and convincing evidence to support the tennination of Father's parental rights
pursuant to subsections (a)(I) and (a)(2).
22
.;4:2.. PC! s Circulated 02/20/2015 02:03 PM
f/W]. S; ,ao / l'
v
IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT
OF PENNSYLVANIA -- FRANKLIN COUNTY BRANCH
In Re Adoption of
ORPHANS' COURT DIVISION
No.7-ADOPT-2014
Honorable Shawn D. Meyers
OPINION
JIll ,v.
This Opinion addresses PetitionerlMother's, , petition to tenninate
$,
the natural rights of RespondentlFather,
FACTUAL AND PROCEDURAL HISTORY
:S.L. F.
The parties are natural parents of two minor children: born
September I, 2010, and ~ born September. 2011. Mother and
Father previously resided together with the children. They separated as a couple in May
4J/-·
of2011, but continued to reside together. Mother is cun'ently manied to &
. - . the children's stepfather. He has resided with the children since July of2012.
Father previously served in the military and was deployed twice. Father was first
deployed to Iraq in 2008. Father served in Afghanistan from May of2012 - May of
2013, which involved short periods of active service and training. In September of 20 II,
Father was arrested for sexual assault of another man in Maryland. Father entered a
guilty plea on July 10,2013.
2
Circulated 02/20/2015 02:03 PM
Mother filed a Petition for Involuntary Termination of Parental Rights on
February 24, 2014, seeking to tenninate Father's rights in anticipation of an adoption by
Mother's husband, the children's stepfather. This COUli set a hearing on May 9, 2014.
Upon receipt of pro se cOlTespondence from Father, indicating the desire to proceed with
counsel, the Court appointed counsel to represent him. Father's first two appointed
attomeys had conflict issues, and the Court subsequently appointed Kristin Nicklas as
Father's counsel. The Court continued the hearing to June 3, 2014 in order to ensure that
Father had adequate time to consult with his counsel.
The parties appeared on June 3,2014 for the involuntary tennination hearing.
The Court heard testimony from both sides, and subsequently set a briefing schedule for
the parties. Mother filed her brief in support and Father filed his brief in opposition.
This matter is now ready for decision.
DISCUSSION
I. Applicable Timeframe for the Court's Detennination:
This COUli will first address the relevant timeframe for its decision. In his brief,
Father raises an argument he previously raised before the COUli. At that hearing, counsel
for Mother first called Stepfather as a witness. Stepfather was asked several questions
about his past involvement with the children and Mother, at which point counsel for
Father objected. Counsel for Father argued that the questions reflected content that was
not included in the petition, and thus the witness was impelmissible testifying to facts not
previously pled. The Court sustained the objection in part, finding that if counsel for
Mother sought to develop certain facts and to suppOli celiain grounds for temlination,
those facts should have been properly pled in the petition. Counsel for Mother was
3
Circulated 02/20/2015 02:03 PM
instructed to move on fl:om questions regarding stepfather's own involvement with the
children, and focus on Stepfather's knowledge of Father and his involvement with his
children.
In his brief, Father argues that Mother's petition includes only one relevant fact
for the Court's consideration: the averment that Father "has had no contact with [Mother]
since April 2013 and is cUlTently serving a sentence in Maryland for sex offense(s)."
Father argues that Mother is precluded from offering evidence offacts that occUlTed prior
to April 2013 in SUppOit of any grounds for termination.
This COUlt agrees that any potential ground for termination must be sufficiently
alleged in the petition. As previously stated at the hearing, any facts regarding
Stepfather's prior relationship with the children that were not included in the petition
would not be relevant to this Court's detennination on Father's parental rights. It is well-
settled that "[t]he focus ofthe tennination proceeding is on the conduct of the parent and
whether his conduct justifies telmination of parental rights." In re B.,N.M., 856 A.2d
847,854-55 (Pa. Super. 2004). Notably, such conduct includes Father's actions during
the six month period preceding the tennination petition, but also encompasses the time
before that. In re B.,N.M., 856 A.2d at 855 ("Although it is the six months immediately
preceding the filing of the petition that is most critical to the analysis, the trial court must
consider the whole history of a given case and not mechanically apply the six-month
statutory provision."). The Court will now address the legal grounds for involuntary
termination and the evidence submitted by both parties.
4
Circulated 02/20/2015 02:03 PM
II. Applicable Standard - Involuntary Tennination of Parental Rights:
Section2511 of the Adoption Act govems termination of parental rights. The statute
requires this Court to engage in a bifurcated analysis to detennine if tennination is
warranted. In interpreting Section 2511, the Pennsylvania Courts have set out this
analysis as follows:
Initially, the focus is on the conduct of the parent. The party seeking
tennination must prove by clear and convincing evidence that the parent's
conduct satisfies the statutory grounds for tennination delineated in
Section 251 1(a). Only if the court determines that the parent's conduct
warrants tennination of his or her parental rights does the court engage in
the second pati of the analysis pursuant to Section 2511(b): detennination
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 concems the
nature and status of the emotional bond between parent and child, with
close attention paid to the effect on the child of pennanently severing any
such bond.
In re I.E.P., 87 A.3d 340, 344 (Pa. Super. 2014) (quoting In re L.M .. 923 A.2d 505, 511
(Pa. Super. 2007». Thus, the Court must first look to the grounds for involuntary
tennination, and then proceed into the analysis of the needs and welfare of the children.
The grounds for involuntary telmination are found in Section 2511 (a) of the Adoption
Act. In this case, Mother asselis the following grounds:
(I) 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 perfonn parental duties
(2) The repeated and continued incapacity, abuse, neglect or refusal of the
parent has caused the child to be without essential parental care,
control or subsistence necessary for his physical or mental well-being
and the conditions and causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied by the parent.
23 Pa. C.S.A. § 2511(a)(1), (2).
5
Circulated 02/20/2015 02:03 PM
The party seeking termination must establish, by clear and convincing evidence,
"that grounds existed for tenninating Father's parental rights." In re Z.S.W., 946 A.2d
726, 728-29 (Pa. Super. 2008). This means that Mother must present evidence that "is so
clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear
conviction, without hesitation, of the truth of the precise facts in issue." In re Z.S.W.,
946 A.2d at 728-29 (quoting In re J.D.W.M., 810 A.2d 688, 690 (Pa. Super. 2002)). The
COUlt must consider the totality of the situation, "examine the individual circumstances
of each case and consider all explanations offered by the parent facing tennination of his
or her parental rights," in order to determine if tennination is walTanted by the
circumstances. In re B.,N.M., 856 A.2d at 855. With this framework in mind, the Court
will now consider Mother's telTllination petition.
III. Analysis Under Section 2511 (a) - Evidence in Support ofTelminating
Father's Parental Rights:
a. Termination Pursuant to Section 2511(a)(1):
As stated above, the relevant inquiry under subsection (a)(l) is whether there has
been a "settled purpose of relinqnishing parental claim" to the minor children by Father,
or whether Father has "refused or failed to perfonn his parental duties." The
Penosylvania Supreme Court has explained "parental duties" as follows:
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,
canoot 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 affilTllative perfonnance. This affilTllative duty
encompasses more than a financial obligation; it requires continuing
interest in the child and a genuine effOit to maintain communication and
association with the child.
6
Circulated 02/20/2015 02:03 PM
In re Bums, 379 A.2d 535, 540 (Pa. 1977) (citations omitted). Thus, the courts place
upon a parent an affirmative duty. See, M, In re B"N.M., 856 A.2d at 855 ("Parental
duty requires that the parent act affinnatively with good faith interest and effOli, 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."). This COUli must detennine whether
Father has "failed or refused to perfonn parental duties ... in relation to the particular
circumstances of the case." In re Bums, 379 A.2d at 540.
1. Father's Efforts to COlltact the Childrell Durillg his Active Service:
Mother asserts that Father has not served in his parental role since May of2012.
Mother argues that Father has not provided financial support to the children, or any
parental support for the children, for several years. From May 2012 until March 2013,
during his period in Afghanistan, Mother avers that Father did not communicate with the
children in any way. Father did not attempt to communicate with the children on their
birthdays or holidays. Father did not send the children letters, cards, or emails.
According to Mother, the only contact Father had with the children was when he sent
them each a teddy bear on January 13, 2013. Mother did testifY on rebuttal however, that
she only recalls two times during the ten months that Father served in Afghanistan did he
utilize Skype to communicate with the children.
Father stated that on November 27, 2013, he mailed Mother a letter to read to the
children. Father used Mother's address in Maryland, where he believed she was residing.
According to Father, the letter was retumed to him marked "retum to sender." Father
then forwarded that letter to Mother's cousin, Marjorie Jean. At the hearing, Ms. Jean
testified to this, stating the letter was dated November 27, 2013, addressed to Mother at
7
Circulated 02/20/2015 02:03 PM
her address in Hagerstown, Maryland. Father wanted Ms. Jean to send the letter to
Mother, but she testified that she did not wish to do that as she was not getting along with
Mother at the time. Ms. Jean stated that the "return to sender" on the envelope was in
Mother's handwriting. When asked where the envelope was, Ms. Jean said that she
shredded the envelope but kept the letter.
Father also presented testimony Ji'om Deborah Cotes, Father's aunt. She testified
that she sent a package to Mother, containing Christmas gifts for the children, but Mother
did not open the package. According to Ms. Cotes, Father knew of the package but it was
not actually from him, it was from her.
2. Father's Efforts to Spelld Tillie with the Childrell Upon his Retlll'll:
In her brief, Mother cites three occasions where Father saw the children. Upon
Father's return from Afghanistan in March of2013, Mother and the children met him at
the airport. Mother states that the meeting was brief. It was at that time that Father
learned that Mother and the children no longer lived in their former marital home. Two
months later, in May of2013, Father visited with the children for approximately an hour
and a half. In June, Father and the children "crossed paths" while visiting a relative's
home. According to Mother, that was the extent of Father's efforts to parent or spend
time with the children.
Father argues that he attempted to see the children "numerous times, estimated to
be approximately twenty (20) times, from May 2013 until he was incarcerated in August
2013." Father does not provide any specific dates or context for that asseliion. Father
asserts that Mother prohibited contact between he and the children, except for two
instances where the parties went to dinner, and where the children spent time with Father
8
Circulated 02/20/2015 02:03 PM
at their home. Mother states that neither she nor her husband have acted in any way to
prevent Father fi'om exercising his parental rights.
In support of his argument that Mother erected obstacles, Father avers that
Mmjorie Jean wrote an email to Mother in May of2013, stating that it was not a good
idea for her to "keep the children away from their Father." Father also draws attention to
Mother's testimony that the children refer to her husband as "dad" and therefore it would
be confusing for them to be involved with their Father.
3. Father's Efforts to COlltact the Childrell Dllrillg his Illcarceratioll:
Father has been incarcerated in Maryland since August of2013. Father was
placed in county jail for approximately two months prior to his incarceration. Father
testified that while in county jail, he was unable to send any letters or make any phone
calls. Father claims that he pleaded with Mother to see the children prior to his
sentencing date in August, but she refused. Father avers that Ms. Jean overheard that
conversation. Mother states that Father has not attempted to contact the children while he
has been incarcerated.
On direct examination, Father first testified that it was his understanding that
because his cell phone was inactivated, that meant Mother's cell phone was also turned
off. He stated that he could not call the place of her employment because they do not
accept collect calls. Father testified that he asked Ms. Jean to get Mother's work address
but she declined to do so. Father did not send any letters to Mother to be fOlwarded to
her address. Father testified that he would ask Ms. Jean ifshe had heard fi'om the
children. Mother stated that she maintains the same work address and phone number she
9
Circulated 02/20/2015 02:03 PM
had when she and Father were together, and thus Father had the resources to contact
Mother about the children.
On cross-examination by Mother's counsel, Father was asked if, from May 2013
to August 2013, he had taken any steps to enforce his legal tights as a Father, i.e., going
through the cOUli system. Father testified in the negative. He indicated that it was not in
his nature to "bting it all into the court system like thaI." He also stated that "at that time,
I was too wrapped up in all kinds of legal stuff I didn't want to see any lawyers,"
presumably referring to the criminal action in Maryland. When asked what he was doing
duting this time, he stated that he was making preparations "for every possible outcome,"
which included looking for work and moving to Ms. Jean's home.
On cross-examination by the Guardian ad Litem, Father testified that he did have
the ability to make calls from his the facility in Jessup. There does not appear to be a
limit on how many calls he can make as an inmate, but there are a limited number of
phones to use. Father testified that he can send letters out but he must pay for postage.
His family sent him money to buy postage at the jail, ifhe knew the correct address.
On cross-examination by Mother's counsel, Father was asked about his lack of
communication ii-om the time he was arrested until the hearing date. Father indicated
that he did not have enough money to send letters to the children ptior to November of
2013. Father states in his btiefthat, because of his unsuccessful attempts at contacting
the children, he did not wish to send additional letters or make additional phone calls. He
states that Mother erected intentional bamers to his cOlmnunication which prevented
Father from reaching out to his children, and he ttied "over and over" to make contact
with the children with no success. Because he was not successful in those efforts, Father
10
Circulated 02/20/2015 02:03 PM
did not pursue additional effOits. For fmther explanation, Father cites the definition of
insanity attributed to Albert Eiustein ("doing the same thing over and over again
expecting different results"), and argues that for him to continue the same action
(attempting to contact his children) while expecting different results (from Mother)
would be insanity.
4. The Court's Findillgs:
This Court finds that the threshold under Section 2511(a)(1) has been met.
Regarding the time that Father served in Afghanistan, he argues that it is improper to
consider that period in support of tenninating his parental rights. This COUli is not using
themere fact that Father was deployed overseas for a period oftime as support of
tenninating his rights. A parent's deployment overseas is not in itself a suppotiing factor.
See, Sh&, In re Bowman, 666 A.2d 274, 279 (Pa. 1995) (recognizing that military service
and employment made father's "ability to perfonn his parental duties more difficult").
Being in active military service however, "do[ es] not relieve [the parent] of all parental
responsibility." Bowman, 666 A.2d at 279. That parent is required to affinnatively act to
"to maintain the parent-child relationship to the best of his or her ability, even in difficult
circumstances." In re B.,N.M., 856 A.2d at 855. The Court finds that Father failed to
live up to tlus affmnative duty. Mother testified as to Father's lack of cOimnination with
the children during this time. Father sent no letters to the children, but sent them each a
teddy bear near the end of his service time. Mother testified to only two instances during
Father's deployment that he cOimnunicated with the children via Skype. Father presented
testimony that he did send one letter to Mother, by way of her cousin, but it never got to
her. Even if this Couti accepts that as hue, sporadic attempts at communication do not
11
Circulated 02/20/2015 02:03 PM
satisfy the affirmative duty of a parent. Father's knowledge of his aunt's Christmas gifts
to the children also does not fulfill his obligation, as it was clear that the gift was not
actually from Father, but from his aunt.
As to Father's efforts upon his retum from Afghanistan up until the hearing date,
the Court finds the type of passive acceptance Father has displayed towards his
relationship with his children to be troubling, and in complete opposition to what the law
requires of a parent. "[T]he parental obligation is a positive duty which requires
affilmative performance." In re Bums, 379 A.2d 535, 540 (Pa. 1977). This is an
"affirmative duty," that requires "continuing interest in the child and a genuine effort to
maintain conununication and association with the child." Id. Father's sporadic
interaction with his children upon his retum from militaty service does not fulfill this
affinnative duty. This duty requires action by the parent.
Father cannot "yield to every problem" that presents itself, and must take steps to
maintain the relationship with his children, "to the best of his or her ability, even in
difficult circumstances." In re B.,N.M., 856 A.2d at 855. Ce11ainly upon his retum
Father was faced with difficult circumstances, and the C0U11 acknowledges as such.
Father retumed to find out that Mother and the children no longer resided in the home.
Mother had taken up a relationship with another man. Regardless of those types of
difficulties, the law requires a parent to be a parent.
This is hue regardless of any "obstacles" put in place by the other parent. As
discussed at the hearing, Father had the option of, if nothing else, pursue his legal rights
as a parent through the court system. Father's explanation as to why he chose not do to
that did not focus on any action by Mother, but on Father's ongoing legal troubles and the
12
Circulated 02/20/2015 02:03 PM
unstable nature of his life at that time. This is not a "genuine effort" to maintain contact
with the children. Father's claim that any further attempts to contact the children, after
numerous failed attempts, would be the definition of insanity does not hold hue to this
Court. Passive acceptance has no place in the context of an affinnative duty.
The fact that Father is incarcerated is not itself a ground for tenninating his
parental rights. However, the affinnative parental duty applies even if a parent is
incarcerated. In re B.,N.M., 856 A2d at 855 ("[A] parent's responsibilities are not tolled
during incarceration."). The Court must focus on "whether the parent utilized those
resources available while in prison to maintain a relationship with his child." In re
Adoption of Dale A., II, 683 A2d 297, 302 (pa. Super. 1996). Moreover, "while the fact
that a parent is incarcerated may make it more difficult to parent in a traditional fashion,
the fact of incarceration alone does not obviate the duty to exercise reasonable finnness
under the circumstances to maintain a secure parent/child bond." In Interest of AP., 692
A2d 240, 245 (Pa. Super. 1997).
The Court finds that this burden was not met here. Father cited numerous reasons
for his failure to maintain communication with his children from prison. Father indicated
that he was unsure of Mother's cun'ent address or telephone number. Mother maintains
that none of that infonnation has changed. Father did not present any documentary
evidence to the Court showing any changes in address or phone number. Father stated
that he asked members of his family for Mother's phone number and asked Ms. Jean for
Mother's phone number with no results. Father did not explain why he failed to confinn
Mother's address plior to his incarceration, when the parties were living separately.
Father testified that he had the means to purchase postage in jail, and the means to send
I3
Circulated 02/20/2015 02:03 PM
letters from prison, but did not know where to send them. Even if the Court accepts all
this as true, Father still had a duty to attempt to overcome the difficulties he faced. See,
~, In re B.,N.M., 856 A.2d at 857 ("Father failed to act to the best of/tis ability to meet
his obligation despite his incarceration and the obstacles Mother placed before him.").
Father did not send any letters to Mother at her old address to be fotwarded to any
new address. Father had the means to file something with this Court by mail, or even
send a letter to the Court, setting out the situation with the children, but he did not do so.
While the failure to seek court involvement is not in itself a reason to terminate a parent's
rights, it is cel1ainly a relevant consideration when taken in tandem with all the
circumstances of this case. See In re Adoption ofL.J.B., 18 A.3d 1098, 1122 (Pa. 2011).
The case presented here is not one where one parent has presented diligent, consistent,
and resolute effot1s to overcome any deliberate and devious obstacles put in place by the
custodial parent. In re J.W., 578 A.2d 952, 959 (Pa. Super. 1990) ("[A]dequate parenting
requires action as well as intent."). This is a case of one parent's passive acceptance of
the difficulties put before him; some of which may by the custodial parent, and some of
which are the products of the other parent's actions and overall situation. For all the
foregoing reasons, this Court finds that there is clear and convincing evidence to suppot1
the termination of Father's parental rights under Section 251 I (a)(1).
5. Allalysis Ullder Sectioll 2511 (b) - Effect of Termillatioll 011 the Needs
alld Welfare of the Childrell:
As stated above, once the Court has found that that termination of parental rights
is warranted, the Court must then detennine "the needs and welfare of the child under the
standard of best interests of the child." In re D.A.T., 91 A.3d 197,204 (Pa. Super. 2014)
(citation omitted). This inquiry involves consideration of "[i]ntangibles such as love,
14
Circulated 02/20/2015 02:03 PM
comfort, security, and stability are involved," as well as "the nature and status of the
parent-child bond." In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005). The Court
must consider the effect that tenninating Father's parental rights will have on the needs
and welfare of the children. In re Adoption of Godzak, 719 A.2d 365, 368 (Pa. Super.
1998). There is great impollance to "the bond between a child and his or her natural
parent." In re Adoption of Godzak, 719 A.2d at 368 (citing In re B.D.M., 708 A.2d 88
(Pa. 1998). Regarding this consideration, the Superior Court has stated that:
It is universally agreed that the bond of parental affection is unique and
itTeplaceable. When parents act in accordance with the natural bonds of
parental affection, preservation of the parent-child bond is prima facie in
the best interest of the child, and the state has no justification to tenninate
that bond .. On the other hand, a cOUlt may properly tenninate parental
bonds which exist in form but not in substance when preservation of the
parental bond would consign a child to an indefinite, unhappy, and
unstable future devoid of the irreducible minimum parental care to which
that child is entitled.
In re J.W., 578 A.2d 952, 958 (Pa. Super. 1990) (citations omitted). Moreover, "[ilt is
important to keep in mind that the essential needs of the child and the responsibilities of
the parent must be considered as well as the rights of the parent." Id.
Father argues that the record is devoid of any evidence regarding the effect that
tennination of his rights would have on the needs and welfare of the children. This Court
does not agree. The COUlt was presented with evidence that the children have no bond
whatsoever with Father. Stepfather has lived with Mother and the children since July of
2012. Stepfather testified that the children began refelTing to him as "dad" around the
fall of2012. He stated that the children have never mentioned natural Father, and
testified that he is unsure that the children would even know who Father was. Stepfather
testified that he provides for the children, itlcluding daily physical and emotional needs.
The children embrace Stepfather and Mother as their family, along with their four month
15
Circulated 02/20/2015 02:03 PM
old sibling, who is the natural daughter of Stepfather and Mother. The Court was
presented with credible evidence that the children cun'ently have a stable and well
provided for life with Mother and Stepfather, one filled with "love, comfort, security, and
stability." In re C.M.S., 884 A.2d at 1287. The children's needs are being met on a daily
basis and they have an established family dynamic.
What is absent from the record is evidence of a bond between the children and
natural Father. The Pennsylvania Courts have held that "in cases where there is no
evidence of a bond between a parent and child, it is reasonable to infer that no bond
exists," and therefore "the extent of the bond-effect analysis necessarily depends on the
circumstances ofthe particular case." In re Adoption of J.M., 991 A.2d 321, 324 (Pa.
Super. 2010) (quoting In re K.Z.S .. 946 A.2d 753, 762-63 (Pa. Super. 2008». In this
particular case, the Court was presented with evidence that there is no bond between the
children and Father. The children's father figure is their Stepfather, who has been
children's de facto parent for many years, and it is between Stepfather and the children
that the Court finds the existence of a parental bond. See,~, In re Adoption of J.M.,
991 A.2d at 324-25 (finding that maternal grandfather was "de facto parent," as he
perfonned Father's parental duties since child's birth, including financial and emotional
support, and noting that maternal grandfather "desires to fiII the void created by Father's
inaction."); In re J.T., 983 A.2d 771, 777 (Pa. Super. 2009) ("[T)here is no record
evidence of a bond between J.T. and Mother. A parent-child bond exists between J.T. and
her foster parents, who wish to adopt her."). For all the foregoing reasons, this COUIt
cannot find that the children's needs or welfare would be harmed in any way by
terminating natural Father's parental rights.
16
Circulated 02/20/2015 02:03 PM
b. Termination Pursuant to Section 2511(a)(2):
This Court will now discuss termination of parental rights under subsection
251 I (a)(2), the second statutory ground cited by Mother. Under that section, the relevant
inquiry is into the "repeated and continued incapacity, abuse, neglect or refusal of the
parent has caused the child to be without essential parental care, control or subsistence
necessary for his physical or mental well-being," as well as the "conditions and causes of
the incapacity, abuse, neglect or refusal carulOt or will not be remedied by the parent."
In her brief, Mother draws attention to Father's incarceration. Mother argues that
~~ r!]. 2'j
"the fact that • •1i. has been and will continue to serve a sentence of incarceration"
meets the defInition of "incapacity" outlined in Subsection (a)(2). Mother argues that this
incapacity is one that cannot be remedied as Father will continue to be incarcerated until
he has served his sentence. Father argues that his incarceration Calmot be used as a
ground for tennination of his parental rights, and states that his incarceration does not
constitute a period of "repeated and continued incapacity" as contemplated by the statute.
A review of the applicable case law reveals that, while incarceration cannot serve
as the sole ground for termination, it is celiainly relevant to the question of incapacity
presented under subsection (a)(2). The Pennsylvania Supreme COUli addressed this
precise issue in In re Adoption ofS.P., 47 A.3d 817, 830 (Pa. 2012) (discussing "the
relevance of incarceration in termination of parental rights decisions under §
2511(a)(2)."). There, the Supreme Court held as follows:
[W]e now defInitively hold that incarceration, while not a litmus test for
tennination, can be detenninative of the question of whether a parent is
incapable of providing "essential parental care, control or subsistence" and
the length of the remaining confInement can be considered as highly
17
Circulated 02/20/2015 02:03 PM
relevant to whether "the conditions and causes of the incapacity, abuse,
neglect or refusal carIDot or will not be remedied by the parent," sufficient
to provide grounds for tennination pursuant to 23 Pa.C.S. § 251 I (a)(2).
In re Adoption ofS.P., 47 A.3d 817, 830 (Pa. 2012).
The Supreme COUlt found a that a parent's incarceration could be a detenninative
factor under the subsection (a)(2) analysis, depending on the specific facts and
circumstances that give rise to that parent's incapacity to provide his children with
"essential parental care, control or subsistence." Id. at 828. The Supreme Court drew on
a prior case addressing subsection (a)(2), in which the concurring opinion stated: "It is
beyond cavil that in many cases, including the one at bar, an incarcerated parentis
confined twenty-four hours a day, seven days a week; obviously resulting in his being
incapable of providing the essential parental care, control or subsistence necessary for a
child's physical and mental well-being." Id. (quoting In re R.I.S., 36 A.3d 567, 577-78
(Pa. 2011) (Baer, J., concurring)). Thus, it is clear that Father's CUl1'ent incarceration has
some relevancy in detennining whether his parental rights should be tenninated.
This Court has already discussed Father's lack of pro-active efforts to maintain a
relationship with his children before and during his incarceration. As stated above, some
of the lack of connnunication is due to the circumstances of his incarceration. See
Section III(a)(3), supra. This Court carIDot find however, that Father's incarceration is
the cause of the children's lack of "essential parental care, control, or subsistence," as
Father's inaction predates his period of incarceration. The Court also notes that the
children's situation is different from the typical types of cases presented under a
subsection (a)(2) inquiry. Prior cases addressing this issue usually deal with children
who have been adjudicated dependent, and that dependency being largely due to the
parent's incarceration. See, l<&, In re Adoption of S.P., 47 A.3d at 820 ("Father admitted
18
Circulated 02/20/2015 02:03 PM
that his incarceration resulted in Child's placement because his absence caused her to be
without essential parental care and controL"). Such is not the case here. Father was
involved sporadically in the children's lives. The two children have been well provided
for by Mother and Stepfather, emotionally, physically, and financially, and appear to live
a well-adjusted family life.
Thus, the children enjoy a stable life, but that stability was not due to Father.
Under the statutory tenus, the children have been without the "essential parental care,
control, or subsistence" of Father. Father does not have the ability to spend time with the
children and perfonu the regular duties of a parent. Father testified that he does have the
ability to make phone calls when telephones are available, and he can write letters when
he has the money for the postage. Father's financial situation in jail is tenuous, and this
Court was presented with no evidence that he had any ability to fmancially provide for
the children or care for the children while he is injaiL It is clear that Father's CU11'ent
incarceration has necessarily hindered his ability to be a parent. See, Q,g" In re AD.,
2014 PA Super 119 (Pa. Super. Ct. June 9,2014) (father was subject to a no contact
order, and thus "by his own conduct was precluded from interacting with the children,"
and therefore "he was unable to perfonu his parental duties."). Thus, the "incapacity"
level would be met based on Father's inability to parent his children from his CU11'ent
situation. The subsequent and more difficult question is "whether the parent can remedy
the incapacity, which depends to a significant degree on the length of the parent's
sentence." In re Adoption of S.P., 47 A3d at 829.
As to the time period of the incapacity, the Court will look at the length of
Father's sentence to be served. See In re Adoption of S.P., 47 A3d at 830 ("[T]he length
19
Circulated 02/20/2015 02:03 PM
of the remaining confinement can be considered as highly relevant to whether 'the
conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be
remedied by the parent."') (quoting 23 Pa. C.S.A. § 251 I (a)(2». In this case, Father pled
guilty to a second degree sexual offense on August 21, 2013 in the Circuit COUli of
Prince George's County, Maryland. As of the date of this Court's involuntary
tennination hearing, Father had been incarcerated since August of2013. At the hearing,
Father stated that he wa's given a sentence of twenty (20) years, all but four (4) years
suspended. This Court was not presented with any evidence to suggest that the hindrance
on Father's parental abilities will not continue until Father is released, or perhaps even
after that. In re Adoption ofS.P., 47 A.3d at 831 ("[T]he record supports the trial cOUli's
findings regarding the unceliainty of Father's parole date and that, even upon parole,
Father would reside in a half-way house and would need to obtain housing, employment
and transpOliation in addition to parenting skills."). The record does contain some
uncertainties, however. While presumably Father will serve a period of probation, the
length ofihat probation was not established in the record. Nor were any restrictive tenns
of that probation. Mother alleges in her brief that, because Father was convicted of
sexually assaulting another male, "[w]hether he would be allowed contact with the
subject children upon his eventual release is an unanswered question in itself." This is a
question the Court does not have enough evidence to make a detennination on. I While
the telms of Father's sentence mean he is only to selve four years, given the already
discussed evidence regarding Father's lack of contact and inability to perform as a parent,
this Court cannot find that the length of Father's sentence "is not so great as to foreclose
I In the interests of protecting Father's constitutional rights, the Court instlUcted the parties to refrain
from discussing the details of the offense for which Father was convicted, which included the age of
the victim and the specific actions involved.
20
Circulated 02/20/2015 02:03 PM
the possibility of the successful maintenance of the parent-child relationship." In re
R.I.S., 36 A.3d 567, 574 (Pa. 2011). This Court finds the opposite to be true in this case.
Father's incarceration has made it viliually impossible to provide for the children
and perform all the duties required of a parent, and his incarceration will most celiainly
continue to do so. In the circumstances ofthis case, the parent-child relationship is not
there to maintain. See, M, In re Adoption ofS.P., 47 A.3d 817, 830-31 (Pa. 2012)
("[TJrial courts must carefully review the individual circumstances for evelY child to
detennine, inter alia, how a parent's incarceration will factor into an assessment of the
child's best interest."). The children have been provided for by Mother and Stepfather.
The Court was presented with credible testimony establishing that there is no emotional
bond between the children and Father. The children have prospered in their CUlTent
family situation. This Court has no hesitation in finding that termination of Father's
parental rights would serve the best interests of the children. See, M, In re I.E.P ., 87
A.3d 340, 344 (Pa. Super. 2014) (describing "needs and welfare" analysis under Section
251 1(b) under best interests ofthe child framework). Considering the "developmental,
physical, and emotional needs" ofthe children, it is clear that Father does not have the
ability to meet those needs. Those needs have been met by Mother and Stepfather.
Therefore, the Court finds that Mother has presented clear and convincing evidence to
establish grounds for termination of parental rights under subsection (a)(2), in addition to
the grounds under subsection (a)(1) outlined above.
CONCLUSION
For all the foregoing reasons, this Court finds that grounds for involuntary
telmination have been established under 23 Pa. C.S.A. § 2511. The COUli was presented
21
Circulated 02/20/2015 02:03 PM
with clear and convincing evidence to support the termination of Father's parental rights
pursuant to subsections (a)(J) and (a)(2).
22
,I Circulated 02/20/2015 02:03 PM
IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT
OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH
In Re: Adoption of Orphans' Court
G. X. E,
No. 6.ADOPT-2014
Judge: Shawn D. Meyers
OPINION
TIle trial court has received a Notice of Appeal and Concise Statement of Errors
Complained of on Appeal filed in the above-captioned action. This opinion and statement by the
Court is offered within the time provisions required by and for a Children's Fast Tmck Appeal.
The Court notes it does not have the benefit of the trial transcript in issuing its opinion, but does
not believe that such a transcript is necessary for this Court to provide responses to the issues
raised by Father as part of his appeal.
Father has raised seven (7) issues on appeal. This Court believes that the Order of Court
of August 5, 2014, to which an opinion n~mbering 22 pages in length already provides adequate
explanation to many of the issues raised by Father in his Statement of Matters Complained of on
Appeal. Specifically, the following issues raised by Father have already been addressed, and this
Circulated 02/20/2015 02:03 PM
trial court urges the Appellate Court to accept the findings of fact of the trial court and the
rationale set forth in the opinion entered on August 5, 2014.
Issue #1 - The first issue raised by Father is whether or not the tdal court's decision to
terminate Father'S parental rights is not supported by clear and convincing evidence and
constitutes an abuse of discretion for the following reasons:
(a) Father alleges there is insufficient evidence to determine the Father's conduct
continuing for a period of at least six months inunediately preceding the filing of the
petition either evidenced a settled purpose of relinquishing parental claim to the child,
or failed to perform parental duties.
This issue is specifically answered and addressed in the Court's analysis on pages 5
through 14 of the opinion dated August 5, 2014.
Issue #2 - In the second issue, Father alleges there was insufficient evidence to
determine a repealed and continued incapacity, abuse, neglect, or refusal of Father has caused the
child to be without essential parental care, control, or subsistence necessary for his physical or
mental well·being, and the conditions and causes of the incapacity, abuse, neglect, or refusal
cannot or will not be remedied by Father.
The Court has specifically answered this issue in pages 17 through 22 of its previously
issued opinion dated August 5, 2014.
Issue #3 - The third issue raised by Father is that the trial court failed to address the
required analysis under Section 2511 (b) in the Decree. The Court directs the Appellate Court to
the trial court order and opinion of August 5, 2014, in which the Court recited it had held a
hearing on Petitioner's Petition for Involuntary Termination of Parental Rights, and that it found
2
Circulated 02/20/2015 02:03 PM
grounds for involuntary termination of parental rights which was established by clear and
convincing evidence. Furthermore, the Court directs the Appellate Court,IQ pages II through 14
of the opinion which recites findings of the Court, which this Court believes are clearly
supported by the facts set forth in the transcript when filed by the stenographer. The trial court
proceeded to analyze the case under Section 2511 (b), which is contained within its opinion on
pages 14 through 16. As is clearly outlined in the order of August 5, 2014, the Court directed
that the Petitioner submit an appropriate decree for execution by the Court. This Court submits
that the decree ultimately submitted by the Petitioner and containing the conclusions generally
references Section 2501 of the Adoption Code. The Court's specific findings and opinion of
August 5, 2014 specifically address the Section 2511(b) criteria. To the extent that there is an
omission in the Final Decree as to 251 I (b) fmdings, they are remedied by the Court's prior
findings and statements in the August 5,2014 opinion and order. To the extent that the trial
court maybe required to issue an amended decree, it is urged that the Appellate Court order that
an amended decree be permitted to be entered, but that it would be admitted with prejudice so
that there would be no further appeal as the issues were substantively addressed by the trial court
in its opinion and order of August 5, 2014.
Issue #4 - Did the trial court err by not giving primary consideration to the
developmental, physical, and emotional needs and welfare of the child in tenninating Father's
rights?
Again, tlIis Court directs the Appellate Court to its opinion and order of August 5, 2014.
The Court directs the Appellate Court to pages 14 through 16, which enumerate the Court's
fmdings which this Court asserts is supported by clear and convincing evidence in the record as
3
Circulated 02/20/2015 02:03 PM
to step-father's involvement, along with natural mother in the raising of the children, which
combine with a lack of any record of Father's involvement in his children's lives in the six
months preceding the flIing of the petition, that this Court did consider the development of
physical and emotional needs and welfare of the children before deciding to tel'!l1inate Father's
rights.
Issue #5 - Did the trial court err in findirtg that legal grounds exist for the involuntary
termination of the parental rights of Terence Tobler? To Father's knowledge, Terence Tobler is
not a party or witness to the instant matter.
Per the order entered August 5, 2014, the trial court directed trial counsel to submit a
typed decree for execution by the Court. This Court asserts that Petitioner included incorrect
names in the Final Decree that the trial court did not notice. This is a scrivener's error that
should in no way impact the Court's decision of August 5, 2014. In fact, the Court clearly
outlined who Father was in its opinion and order of August 5, 2014. To the extent that the
Petitioner's counsel submitted a decree that incorrectly identified a party, this Court asserts that
such error should not be a reason to set aside the Final Decree. Rather, the trial court should be
granted the opportunity to issue an amended decree clarifying the order, but that that amended
decree would not entitle Father to additional right of review or appeal provided the Appellate
Court agrees with the substantive analysis of the trial court raised by Father.
Issue #6 - Did the trial court err in finding that Mother is single. Mother is married and
was married and was married at the time of hearing?
The Court points the Appellate Court to its opinion, page 2, Factual and Procedural
/I,ll·
History, in which the Court clearly finds that Mother is currently married tn 1 & , the
4
Circulated 02/20/2015 02:03 PM
children's step-father. To the extent the decree submitted by Petitioner's counsel to the Court for
signature referenced that Mother was single, that is a factual misstatement attributed to
Petitioner's counsel. To the extent the trial court failed to correct that error before signing the
decree, the Court asks for permission from the Appellate Court to issue an amended decree, but
upon issuance of such amended decree, it would not enlarge the time for appeal of this issue or
review, so long as the substantive issues are being reviewed by the Appellate Court as part of the
Fast Track Appeal.
Issue #7 -Father asserts that the trial court erred in using and considering excluded
evidence, specifically events prior to April, 2013 in its determination to terminate Father's
parental rights.
This Court believes a review of the record will reveal that the Court did limit certain
testimony by Petitioner that might have attempted to enlarge the amount of time included or
·1
~1
outlined or described in the petition for involuntary termination of parental rights. However, that
being said, this Court considers the involvement prior to April, 2013 of Mother with step·father
to be incidental. The trial court conducted a specific review of the six months prior to the filing
;L
1;-:"';
of petition, which revealed that Mother was involved'in a committed relationship with her
~~~ husband, the children's step·father, and that he was the one who was supplying the parental
u~_
guidance and support to the children. This Court believes that the record is replete with
-;;;t:3
information showing the lack of involvement of Father in the six months preceding the petition
and the active involvement of step· father, and that to the extent this Court may have relied upon
any information prior to April, 2013, that this Court finds that to be an incidental or harmless
error as there was more than overwhelming and clear and convincing evidence of the lackof
5
Circulated 02/20/2015 02:03 PM
· ,
Father's involvement during the six months prior to the filing of petition, and the active
involvement of step-father during that time.
6
leo 1
Circulated 02/20/2015 02:03 PM
dJ
(Jet. II /)Olt!
/
IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT
OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH
In Re: Adoption of Orphans' Court
S. L.E.
No.7-ADOPT-2014
Judge: Shawn D. Meyers
OPINION
The trial court has received a Notice of Appeal and Concise Statement orBrrors
Complained of on Appeal filed in the above-captioned action. This opinion and statement by the
Court is offered within the time provisions required by and for a Children's Fast Track Appeal.
The Court notes it does not have the benefit ofthe trial transcript in issuing its opinion, but does
not believe that such a transcript is necessary for this Court to provide responses to the issues
raised by Father as part of his appeal.
Father has raised seven (7) issues on appeal. This Court believes that the Order of Court
of August 5, 2014, to which an opinion numbering 22 pages in length already provides adequate .
explanation to many ofthe issues raised by Father in his Statement of Malters Complained of on
Appeal. Specifically, the following issues raised by Father have already been addressed, and this
Circulated 02/20/2015 02:03 PM
trial court urges the Appellate Court to accept the findings of fact of the trial court and the
rationale set forth in the opinion entered on August 5,2014.
Issue #1 • The first issue raised by Father is whether or not the trial court's decision to
terminate Father's parental rights is not supported by clear and convincing evidence and
constitutes an abuse of discretion for the following reasons:
(a) Father alleges there is insufficient evidence to determine the Father's conduct
continuing for a period of at least six months immediately preceding the filing of the
petition either evidenced a settled purpose of relinquishing parental claim to the child,
or failed to perform parental duties.
This issue is specifically answered and addressed in the Court's analysis on pages 5
through 14 of the opinion dated August 5, 2014.
Issue #2 - In the second Issue, Father alleges there was insufficient evidence to
determine a repeated and continued incapacity, abuse, neglect, or refusal of Father has caused the
child to be without essential parental care, control, or subsistence necessary for his physical or
mental well·being, and the conditions and causes of the incapacity, abuse, neglect, or refusal
cannot Or will not be remedied by Father.
The Court has specifically answered this issue in pages 17 through 22 of its previously
issued opinion dated August 5, 2014.
Issue #3 - The third issue raised by Father is that the trial court failed to address the
required analysis under Section 2511(b) in the Decree. The Court directs the Appellate Court to
the trial court order and opinion of August 5, 2014, in which the Court recited it had held a
hearing on Petitioner's Petition for Involuntary Termination of Parental Rights, and that it found
2
Circulated 02/20/2015 02:03 PM
grounds for involuntary termination of parental rights which was established by clear and
convincing evidence. Furthermore, the Court directs the Appellate Court to pages 11 through 14
of the opinion which recites findings of the Court, which this Court believes are clearly
supported by the facts set forth in the transcript when filed by the stenographer. The trial court
proceeded to analyze the case under Section 2511(b), which is contained within its opinion on
pages 14 through 16. As is clearly outlined in the order of August 5, 2014, the Court directed
that the Petitioner submit an appropriate decree for execution by the Court. This Court submits
that the decree ultimately submitted by the Petitioner and containing the conclusions generally
references Section 2501 of the Adoption Code. The Court's specific findings and opinion of
August 5, 2014 specifically address the Section 2511(b) criteria. To the extent that there is an
omission in.theFinal Decree as to 251 I(b) findings, they are remedied by the Court's prior
findings and statements in the August 5, 2014 opinion and order. To the extent that the trial
court may be required to issue an amended decree, it is urged that the Appellate Court order that
an amended decree be permitted to be entered, but that it would be admitted with prejudice so
that there would be no further appeal as the issues were substantively addressed by the trial court
in its opinion and order of August 5, 2014 ..
Issue #4 - Did the trial court err by not giving primary consideration to the
developmental, physical, and emotional needs and welfare of the child in terminating Father's
rights?
Again, this Court directs the Appellate Court to its opinion and order of August 5,2014.
The Court directs the Appellate Court to pages 14 through 16, which enumerate the Court's
fmdings which this Court asserts is supported by clear and convincing evidence in the record as
3
Circulated 02/20/2015 02:03 PM
to step-father's involvement, along with natural mother in the raising of the children, which
combine with a lack of any record of Father's involvement in his children's lives in the six
months preceding the filing of the petition, that this Court did consider the development of
physical and emotional needs and welfare of the children before deciding to terminate Father's
rights.
Issue #5 - Did the trial court err in fmding that legal grounds exist for the involuntary
termination of the parental rights of Terence Tobler? To Father's knowledge, Terence Tobler is
not a party or witness to the instant matter.
Per the order entered August 5, 2014, the trial court directed trial counsel to submit a
typed decree for execution by the Court. This Court asserts that Petitioner included incorrect
names in the Final Decree that the trial court did not notice. This is a scrivener's error that
should in no way impact the Court's decision of August 5, 2014. In fact, the Court clearly
outlined who Father was in its opinion and order of August 5, 2014. To the extent that the
Petitioner's counsel submitted a decree that incorrectly identified a party, this Court asserts that
such error should not be a reason to set aside the Final Decree. Rather, the trial court should be
granted the opportunity to issue an amended decree clarifying the order, but that that amended
decree would not entitle Father to additional right of review or appeal provided the Appellate
Court agrees with the substantive analysis of the trial court raised by Father.
Issue #6- Did the trial court err in fmding that Mother is single. Mother is married and
was married and was married at the time of hearing?
The Court points the Appellate Court to its opinion, page 2, Factual and Procedural
II-df·
History, in which the Court clearly finds that Mother is currently married the
4
Circulated 02/20/2015 02:03 PM
children's step-father. To the extent the decree submitted by Petitioner's counsel to the Court for
signature referenced that Mother was single, that is a factual misstatement attributed to
Petitioner's counsel. To the extent the trial court failed to correct that error before signing the
decree, the Court asks for permission from the Appellate Court to issue an amended decree, but
upon issuance of such amended decree, it would not enlarge the time for appeal of this issue or
review, so long as the substantive issues are being reviewed by the Appellate Court as part of the
Fast Track Appeal.
Issue #7 -Father asserts that the trial court erred in using and conSidering excluded
evidence, specifically events prior to April, 2013 in its determination to terminate Father's
parental rights.
This Court believes a review of the record will reveal that the Court did limit certain
testimony by Petitioner that might have attempted to enlarge the amount of time included or
outlined or described in the petition for involuntary termination of parental rights. However, that
being said, this Court considers the involvement prior to April, 2013 of Mother with step-father
to be incidental. The trial court conducted a specific review of the six months prior to the filing
of petition, which revealed that Mother was involved ina committed relationship with her
husband, the children's step-father, and that he was the one who was supplying the parental
guidance and support to the children. This Court believes that the record is replete with
information showing the lack of involvement of Father in the six months preceding the petition
and the active involvement of step-father, and that to the extent this Court may have relied upon
any information prior to April, 2013, that this Court finds that to be an incidental or harmless
error as there was more than overwhelming and clear and convincing evidence ofthe lack of
5
Circulated 02/20/2015 02:03 PM
Father's involvement during the six months prior to the filing of petition, and the active
involvement of step-father during that time.
6
In Re: Adoption of G.X.E.
Combined Opinion