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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: R.L.W., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF R.L.M., FATHER,
Appellant No. 583 MDA 2015
Appeal from the Decree March 6, 2015
In the Court of Common Pleas of Luzerne County
Civil Division at No(s): A-8247
BEFORE: BOWES, JENKINS, AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED AUGUST 25, 2015
R.L.M. (“Father”) appeals from the decree entered on March 6, 2015,
wherein the trial court granted the petition of M.N.M. (“Mother”) to
involuntarily terminate his parental rights to their then-seven-year-old
daughter, R.L.W. We affirm.
During July 2007, R.L.W. was born in Mecklenburg County, Virginia.
Mother and Father are both from Pennsylvania originally and the couple
resided in Pennsylvania prior to R.L.W.’s birth. After Mother discovered that
she was pregnant with R.L.W., she moved to her parents’ (“Maternal
Grandparents”) home in Bracey, Virginia. Father followed Mother to Virginia
and resided with her at Maternal Grandparents’ home for the first five
*
Retired Senior Judge assigned to the Superior Court.
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months of R.L.W.’s life. Father’s relationship with Mother soon soured and
he moved from the Maternal Grandparents’ residence when his daughter was
approximately five months old. He remained in Virginia for an additional
month before returning to Pennsylvania during early 2008.
Prior to leaving Virginia, Father agreed that he would visit with R.L.W.
at least once per month. However, he has not had any contact with his
daughter since he left Virginia when she was six months old. Indeed,
Father’s total effort to preserve a relationship with R.L.W. consisted of a
single text that he sent to Mother during 2009, asking without any advanced
warning, that she drop off the then-two-and-one-half–year-old child at his
hotel room in Virginia. Father failed to send R.L.W. gifts, correspondence, or
financial support. He claimed to have mailed a gift on one occasion during
2012, but it was returned undeliverable. Father never instituted a custody
action or made any other concerted efforts to visit R.L.W. While he now
complains that he could not locate Mother after she moved from Bracey and
changed her telephone number, Father concedes that he failed to
communicate with Maternal Grandparents, whose contact information
remained unchanged.
During 2011, Mother petitioned a Virginia court to have R.L.W.’s name
changed to match Mother’s maiden name. Father was served notice of the
petition, but he neglected to appear for the scheduled hearing or object to
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the petition. The court granted the unopposed petition, and the Virginia
Department of Health updated the child’s birth certificate.
Meanwhile, following Father’s departure, Mother remained in Bracey
for approximately three years before moving to Richmond, Virginia, briefly,
and then moved to Luzerne County, Pennsylvania with her current husband,
J.L.M. Mother and R.L.W. have resided with J.L.M. since December 2011.
The couple married on May 5, 2012. R.L.W shares a close parent-child bond
with J.L.M., whom she identifies as her birth father.
On August 28, 2014, Mother filed a petition to terminate Father’s
parental rights. The petition identified J.L.M. as the prospective adoptive
parent who would assume Father’s legal role as a parent if the petition were
to be granted. During the ensuing evidentiary hearing, Father conceded that
he had not interacted with his daughter in any manner since she was six
months old. However, he asserted that Mother, J.L.M., and Maternal
Grandparents erected a series of obstacles to block his efforts to maintain
communication with her. The trial court made a credibility determination
against Father and in favor of Mother and her witnesses. Essentially, the
court found that, even if Mother and her family thwarted Father’s initial
attempts to maintain a relationship with R.L.W., he did not make a
concerted effort to overcome those obstacles. The trial court reasoned, “The
efforts made by Father, if any, were in 2008-2009. Subsequent to those
years, Father’s efforts were practically non-existent. Father did not continue
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to exert himself to take and maintain a place of importance in the child’s
life . . . Father essentially failed to perform his parental duties.” Trial Court
Opinion, 4/27/15, at 10.
On March 5, 2015, the trial court entered a decree terminating
Father’s parental rights pursuant to § 2511(a)(1) and (b). Father filed a
timely appeal and a concomitant Rule 1925(b) statement asserting six
redundant issues that he reiterates on appeal as follows:
A. Did the Honorable Jennifer L. Rogers abuse her discretion and
commit errors of law as follows: in finding that the Appellant has
refused or failed to perform his parental duties; in finding that
the entry of a Decree terminating the parental rights of the
Appellant would be in the best interests of the minor child,
R.L.W.; and in finding that the entry of a Decree terminating the
parental rights of the Appellant would have a positive effect on
the welfare of the minor child, R.L.W.?
B. Was there insufficient evidentiary support for the Honorable
Jennifer L. Rogers to find as follows: in finding that the Appellant
has refused or failed to perform his parental duties; in finding
that the entry of a Decree terminating the parental rights of the
Appellant would be in the best interests of the minor child,
R.L.W.; and in finding that the entry of a Decree terminating the
parental rights of the Appellant would have a positive effect on
the welfare of the minor child, R.L.W.?
Father’s brief at 4.
We review the trial court’s order to grant or deny a petition to
involuntarily terminate parental rights for an abuse of discretion. In re
C.W.U., Jr., 33 A.3d 1, 4 (Pa.Super. 2011). “We are limited to determining
whether the decision of the trial court is supported by competent evidence.”
In re R.L.T.M., 860 A.2d 190, 191 (Pa.Super. 2004) (quoting In re C.S.,
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761 A.2d 1197, 1199 (Pa.Super. 2000)). However, “[w]e must employ a
broad, comprehensive review of the record in order to determine whether
the trial court's decision is supported by competent evidence.” In re
C.W.U., Jr., supra at 4. As the ultimate trier of fact, the trial court is
empowered to make all determinations of credibility, resolve conflicts in the
evidence, and believe all, part, or none of the evidence presented. In re
A.S., 11 A.3d 473, 477 (Pa.Super. 2010). “If competent evidence supports
the trial court's findings, we will affirm even if the record could also support
the opposite result.” Id.
As the party petitioning for termination of parental rights, Mother
“must prove the statutory criteria for that termination by at least clear and
convincing evidence.” In re T.R., 465 A.2d 642, 644 (Pa. 1983). Clear and
convincing evidence is defined as “testimony that is so clear, direct, weighty,
and convincing as to enable the trier of fact to come to a clear conviction,
without hesitancy, of the truth of the precise facts in issue.” Matter of
Sylvester, 555 A.2d 1202, 1203–04 (Pa. 1989).
Requests to involuntarily terminate a biological parent’s parental rights
are governed by 23 Pa.C.S. § 2511, which provides in pertinent part as
follows:
(a) General rule.--The rights of a parent in regard to a child
may be terminated after a petition filed on any of the following
grounds:
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(1) The parent by conduct continuing for a period of at
least six months immediately preceding the filing of the
petition either has evidenced a settled purpose of
relinquishing parental claim to a child or has refused or
failed to perform parental duties.
....
(b) Other considerations.--The court in terminating the rights
of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child. The rights of a parent shall not be terminated solely on
the basis of environmental factors such as inadequate housing,
furnishings, income, clothing and medical care if found to be
beyond the control of the parent. With respect to any petition
filed pursuant to subsection (a)(1), (6) or (8), the court shall not
consider any efforts by the parent to remedy the conditions
described therein which are first initiated subsequent to the
giving of notice of the filing of the petition.
23 Pa.C.S. § 2511.
The test for terminating parental rights consists of two parts. In In re
L.M., 923 A.2d 505, 511 (Pa.Super. 2007), we explained:
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing
evidence that the parent's conduct satisfies the statutory
grounds for termination delineated in Section 2511(a). Only if
the court determines that the parent's conduct warrants
termination of his or her parental rights does the court engage in
the second part of the analysis pursuant to Section 2511(b):
determination of the needs and welfare of the child under the
standard of best interests of the child. One major aspect of the
needs and welfare analysis concerns the nature and status of the
emotional bond between parent and child, with close attention
paid to the effect on the child of permanently severing any such
bond.
Herein, the certified record supports the trial court’s determination
that Mother established the statutory grounds to terminate Father’s parental
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rights pursuant to 23 Pa.C.S. § 2511(a)(1) and (b). As it relates to
§2511(a)(1), the pertinent inquiry for our review follows:
To satisfy Section 2511(a)(1), the moving party must produce
clear and convincing evidence of conduct sustained for at least
the six months prior to the filing of the termination petition,
which reveals a settled intent to relinquish parental claim to a
child or a refusal or failure to perform parental duties. . . .
Section 2511 does not require that the parent demonstrate both
a settled purpose of relinquishing parental claim to a child and
refusal or failure to perform parental duties. Accordingly,
parental rights may be terminated pursuant to Section
2511(a)(1) if the parent either demonstrates a settled purpose
of relinquishing parental claim to a child or fails to perform
parental duties.
In re D.J.S., 737 A.2d 283, 285 (Pa.Super. 1999) (quoting Matter of
Adoption of Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)) (internal
citations omitted). Although the six months immediately preceding the filing
of the petition are the most critical to the analysis, the trial court must
consider the whole history of a given case and not mechanically apply the
six-month statutory provision. In re B.,N.M., 856 A.2d 847 (Pa.Super.
2004). Additionally, to the extent that the trial court based its decision to
terminate parental rights pursuant to subsection (a)(1), “the court shall not
consider any efforts by the parent to remedy the conditions described
therein which are first initiated subsequent to the giving of notice of the
filing of the petition.” In In re C.M.S., 832 A.2d 457, 462 (Pa.Super. 2003),
we explained, “A parent is required to exert a sincere and genuine effort to
maintain a parent-child relationship; the parent must use all available
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resources to preserve the parental relationship and must exercise
‘reasonable firmness’ in resisting obstacles placed in the path of maintaining
the parent-child relationship.”
Once the evidence establishes a failure to perform parental duties or a
settled purpose of relinquishing parental rights, the court must then engage
in three additional lines of inquiry: (1) the parent's explanation for his or her
conduct; (2) the post-abandonment contact between parent and child; and
(3) consideration of the effect of termination of parental rights on the child
pursuant to Section 2511(b). In re Z.S.W., 946 A.2d 726, 730 (Pa.Super.
2008).
Instantly, Father’s arguments focus on the alleged impediments that
Mother used to thwart his efforts to maintain a relationship with R.L.W.
Father asserts that, as early as 2009, Mother adopted the position that she
would not permit him to be involved in their child’s life. He also notes that
Mother moved from Virginia to Pennsylvania without informing him of her
new address or telephone number. Finally, Father challenges Mother’s
decision to forgo informing R.L.W. of his existence or revealing to R.L.W.
that he was her birth parent.
After a thorough review of the parties’ briefs, pertinent law, and the
certified record, we conclude that the Honorable Jennifer L. Rogers cogently
and accurately addressed Father’s arguments in her well-reasoned opinion
entered on April 27, 2015. Therefore, we affirm on the basis of that opinion.
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Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2015
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INRE: IN THE COURT OF COMMON PLEAS
OF LUZERNE COUNTY.
R.L.W.
ORPHAN'S COURT DMSION
Adoption Nos: 8247
583 MDA2015
MEMORANDUM ISSUED PURSUANT TO PA. R.A.;e. 1925 {a)
I. PROCEDURAL HISTORY
Petitioner Megan N. Matthews (Mother) is the natural mother of the child,
R.L.W., and Petitioner, John L. Matthews, is Mother's husband and step-father of the
child. On August 28, 2014, Mother and Mr. Matthews filed aPetition for Inv.oluntary
Termination of Parental Rights (Petition) addressing Ryan Lee McCrum, (Father) the
child's natural father. A bearing was held on February 4, 2015, and on March 5, 2015,
the Court entered a decree terminating the parental rights of Father. Particularly,
Father's parental rights were terminated pursuant to 23 Pa.C.S.A. § 2511(a)(1). In
entering the decree, the Court gave primary considerationto the developmental,
physical, and emotional needs and welfare of the child pursuant to 23 Pa.C.S.A. §
2511(b).
Father filed a Notice of Appeal to the.Superior Court on March 30, 2015. Father's
Statement of Matters Complained of on Appeal, states that the Trial Court abused its
discretion and committed errors of law as follows:
(1) In finding that the Respondent bas refused or failed to perform his
parental duties;
(2) In finding that the entry of a Decree terminating the parental rights of the
Respondent would be in the best interests of the minor child, R.L.W.
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(3) In finding that the entry of a Decreeterminating the parental rights of the
Respondent would have a positive effect on the minor child, R.L.W.
In addition, Father avers that there was insufficient evidence to support the
findings in (1}·(3} in the above paragraphs.
II, FINDINGS OF FACT
The minor child, R.L.W. was born on July 17, 2007. R.L.W.is currently seven (7)
years old. The appeal involves the proposed termination of Father's parental rights.
It is unrebutted that the Father has not seen R.L.W.since the child was six (6)
months old. The child has been residing with Mother and the maternal grandparents
since birth until 2011 and with Mother and the step-father, John L. Matthews from
Decernber of zo n untilthepresent. N.T. 2/4/2015at 6,.95, 169.
In meeting their requisite burden of proof by clear and convincing evidence
regarding the termination of Father's parental rights, Mother and Mr. Mathews testified
on their own behalf, in addition to the maternal grandmother, Linda Lewis testifying on
their behalf. Father testified on his own behalf.
III. CONCLUSIONS OF LAW
After consideration of the credible evidence as summarized above and more
detailed below, the Court concludes:
(1) Petitioners have shown by clear and convincing evidence that the
parental rights of the Father to the minor child, R.L.W: should be
terminated pursuant to 23 Pa. C.S.A. Section 25n(a)(1).
(2) Petitioners have shown by clear and convincing evidence that the
termination of the parental rights of Father, to his minor child, R.L.W.,
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best serves the needs and welfare of the child pursuant to 23 Pa. C.S.A.
Section 2511(b).
IV. DISCUSSION; GROUNDS FORTERMINATION
The General rule under Pa.RAP. 1925(a)(1) entitled "Opinion in Support of
Order" states:
"Except as otherwise prescribed by this rule, upon receipt of the notice of appeal,
the judge who entered the order giving rise to the notice of appeal, if the reasons for
the order do not already appear of record, shall forthwith file of record at least a
brief opinion of the reasons for the order, or for the rulings or other errors
complained of, or shall specify in writing the place in the record where such
reasons may be found." (emphasis added)
The statute permitting involuntary termination of parental rights in
Pennsylvania, 23 Pa. C.S.A. Section 2511, sets forth the certain irreducible minimum
requirements of care that parents must provide to their children. Termination of
parental rights is an issue of constitutional dimensions because of the fundamental right
of an individual to raise his or her own child. Therefore, in proceedings terminating
parental rights, the Petitioner must prove by clear and convincing evidence that the
statutory criteria have been met. Santosky v. Kramer, 455 U.S. 745 (1982), In Re:
T.R., 502 Pa. 165, 465 A.2d 642 (1983). However, as the Pennsylvania Supreme Court
has stated "a parent's basic constitutional right to custody and rearing of his or her child
is converted upon the failure to fulfill his or her parental duties to the child's right to
have proper parenting in fulfillment of his or her potential in a permanent, healthy, safe
environment." In Re: J .A.S., Jr., 2003 Pa. Super. 112, (citing In the interest of
Lillie, 719 A.2d 327 (Pa. Super 1998))
A court may terminate parental rights under Section 2511(a)(1) when:
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The parent by conduct continuing for a period of at least six mouths immediately
preceding the filing of the Petition has either evidenced a settled purpose of
relinquishing parental clairri to a child OR has refused or failed to perform parental
duties. (emphasis added)
Parental duties are multifaceted. The Pennsylvania Superior Court has addressed
the issue in In re Shives, 363 Pa. Super. 225, 525 A.2d. 801, 802 (1987) (citing In re
Burns, 474 Pa. 615, 379 A.2d.535 (1977)):
There is no simple or easy definition of parental duties. Parental duty is best
understood in relation to the needs of a child ... These needs, physical and
emotional, cannot be met by a merely passive interest in the development of the
child ... the pa.rental obligation is a positive duty which requires affirmative
performance. '
This affirmative duty encompasses more than a financial obligation; it requires
continuing interest in the child and a genuine effort to maintain communication
and association with the child. ·
· Because a child needs more than a benefactor, parental duty requires that a
parent 'exert himself to take and maintain a place of importance in the child's
life/
Id.
A parent must demonstrate a continuing interest in the child and make a genuine
effort to maintain communication and association with the child .. In re Adoption of
McCray, 460 Pa. 210, 331 A.2d 652 (1975). Appellate courts have set forth a very strict
standard for measuring a parent's performance of parental duties. A parent must exert
himself to take and maintain a place of importance in a child's life and a continuing duty
to love, protect and support his child and to maintain communication and association
with the child even after separation. He must pursue a course of conduct consistently
aimed at maintaining the pa.rental relationship. In.re-Adoption of M.J.H·., 501 A.2d
648 (Pa. Super. 1985); In re V.E. 611-A. ad 1267 (Pa. Super. 1992); and Adoption Qf
S.H., 383 A.2d. 529 (Pa. 1978).
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Mother testified that Father has not seen the child since the child was six ( 6)
months old. Mother also testified that R.W. is seven (7) years old and her date of birth
is July 17, 2007. N.T. 2/4/15. Mother stated that in 2007, sheand Father resided with
R.L.W. and the maternal grandparents in Bracey, Virginia for a period of five (5) months
after the child's birth. Id. at 5-6. Mother further testified that when Father resided with
· the maternal grandparents, he did not help in taking care of the baby. Id. at 6. Mother
stated that her parents offered Father a job and provided food and shelter for Father;
however, Father did not appreciate herparents' generosity. Id. at 36. ·
Mother then testified that five (5) months after the child's birth, Father moved
out of her parents' residence and remained in Virginia for one additional month