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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF H.D.V., : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
:
APPEAL OF: T.M.R., MOTHER, : No. 720 MDA 2015
:
Appellant :
Appeal from the Order Entered March 23, 2015,
in the Court of Common Pleas of Cumberland County
Orphans’ Court Division at No. 67 ADOPT 2014
BEFORE: FORD ELLIOTT, P.J.E., WECHT AND PLATT,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 05, 2015
T.M.R. (“Mother”) appeals from the order granting the petition filed by
T.A.H., her great aunt (“Aunt”), which sought to involuntarily terminate
Mother’s parental rights to her 14-year-old daughter, H.D.V. (“Child”),
pursuant to Section 2511(a)(1), (2) and (b) of the Adoption Act,
23 Pa.C.S.A. § 2511(a)(1), (2) and (b). We affirm.
The relevant facts and procedural history of this case are as follows.
Child has lived with Aunt since 2004. (Notes of testimony, 11/14/14 at 6.)
A custody order was entered on November 18, 2004, establishing primary
physical custody with Aunt. (Id.) Mother and C.M.V. (“Father”)1 agreed to
this order; the order did not provide a set schedule of visitation and/or
* Senior Judge assigned to the Superior Court.
1
Father has filed a separate appeal at No. 778 MDA 2015 from the trial
court’s order terminating his parental rights.
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partial custody for the parents. Mother and Father never married; however,
they were in a 12-year relationship and are the parents of two other
children, ages 7 and 8, who reside with Mother. (Notes of testimony,
3/12/15 at 32-33.) Mother has maintained some form of contact with Child;
such as, texting, and seeing her at family dinners and holidays.
After ending her relationship with Father, Mother married T.R. (Notes
of testimony, 11/14/14 at 44-45.) At the time of the November 14, 2014
hearing in this matter, Mother, T.R., and her other two minor children were
homeless and living in a shelter called Carlisle CARES. (Id. at 44.) Mother
testified she has two jobs. She is employed by Med Staffers; she goes into
homes to provide home health care. (Id. at 79.) She has been employed in
this capacity for a little over a year. (Id.) Mother has had a second job for
two months. (Id.) Mother stated she is employed through EMS and cleans
at Amazon.2 (Id.)
According to Aunt, Mother has never provided financial support or
taken an active role in Child’s life. (Id. at 11, 13.) Aunt pays for Child’s
private school tuition as well as health insurance. (Id.) Aunt takes Child to
doctors’ appointments. (Id.) Even though Aunt has taken on the role of
Mother for Child, Aunt has asked Mother to become more involved in Child’s
life, but Mother has chosen not to. During the summer of 2014, Aunt
applied for a passport for Child. During that process, Aunt had to contact
2
No details were provided regarding EMS or Amazon.
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Mother and Father and ask for their cooperation. The parents ultimately
complied. However, after Aunt realized she had to “go through hoops” to
get the passport, she decided “it was time” that she adopted Child. (Id. at
22.)
Aunt filed petitions to involuntarily terminate Mother and Father’s
parental rights on August 7, 2014. Hearings were held on November 14,
2014, and March 12, 2015. The trial court entered an opinion and order
dated March 23, 2015, terminating the parents’ rights. Mother filed a timely
notice of appeal along with a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The trial court filed a
Rule 1925(a) opinion on May 27, 2015.
On appeal, Mother raises the following questions for our review:
1. Was the trial court’s decision to terminate the
parental rights of Mother due to failure to
perform parental duties under
section 2511(a)(1) supported by sufficient
evidence where, Mother took actions to
maintain contact with the child, and perform
parental duties, and her attempts to maintain
contact and perform her duties were denied by
the Petitioner?
2. Did the trial court make the necessary
determination that the termination of parental
rights would serve the best interests of the
child, taking into primary consideration the
developmental, physical and emotional needs
and welfare of the child?
3. Was the trial court’s decision to terminate the
parental rights of Mother supported by clear
and convincing evidence where there was no
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consideration of child’s developmental, physical
and emotional needs and welfare, the parents
did not cause the child to be without essential
parental care, control or subsistence, and the
incapacity of Mother to remedy the situation
was caused by environmental factors beyond
her control?
Mother’s brief at 4.
We will address Mother’s issues together as they are interrelated.
Basically, Mother asserts the trial court’s decision to terminate her parental
rights under Section 2511(a)(1) and (b) was not supported by sufficient
evidence. We review Mother’s appeal in accordance with the following
standard:
[A]ppellate courts must apply an abuse of discretion
standard when considering a trial court’s
determination of a petition for termination of
parental rights. As in dependency cases, our
standard of review requires an appellate court to
accept the findings of fact and credibility
determinations of the trial court if they are supported
by the record. In re: R.J.T., 608 Pa. 9, 9 A.3d
1179, 1190 (2010). If the factual findings are
supported, appellate courts review to determine if
the trial court made an error of law or abused its
discretion. Id.[] As has been often stated, an abuse
of discretion does not result merely because the
reviewing court might have reached a different
conclusion. Id.[] Instead, a decision may be
reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will. Id.
As [the Pennsylvania Supreme Court]
discussed in R.J.T., there are clear reasons for
applying an abuse of discretion standard of review in
these cases. We observed that, unlike trial courts,
appellate courts are not equipped to make the
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fact-specific determinations on a cold record, where
the trial judges are observing the parties during the
relevant hearing and often presiding over numerous
other hearings regarding the child and parents.
[Id.] Therefore, even where the facts could support
an opposite result, as is often the case in
dependency and termination cases, an appellate
court must resist the urge to second guess the trial
court and impose its own credibility determinations
and judgment; instead we must defer to the trial
judges so long as the factual findings are supported
by the record and the court’s legal conclusions are
not the result of an error of law or an abuse of
discretion.
In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012) (some citations
omitted).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa.Super. 2009). “The
standard of clear and convincing evidence is defined as testimony that is so
clear, direct, weighty and convincing as to enable the trier of fact to come to
a clear conviction, without hesitance, of the truth of the precise facts in
issue.” Id. (citation and quotation marks omitted).
Here, the trial court terminated Mother’s parental rights pursuant to
Section 2511(a)(1) and (b). We will focus on those subsections.
Section 2511 provides, in relevant part, as follows:
§ 2511. Grounds for involuntary termination
(a) General rule.--The rights of a parent in
regard to a child may be terminated after a
petition filed on any of the following grounds:
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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.A. § 2511.
We have explained this court’s review of a challenge to the sufficiency
of the evidence to support the involuntary termination of a parent’s rights
pursuant to Section 2511(a)(1) as follows:
To satisfy the requirements of
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.
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....
Once the evidence establishes a failure to perform
parental duties or a settled purpose of relinquishing
parental rights, the court must engage in three lines
of inquiry: (1) the parent’s explanation for his or her
conduct; (2) the post-abandonment contact between
parent and child; and (3) consideration of the effect
of termination of parental rights on the child
pursuant to Section 2511(b).
In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (citations omitted).
Under Section 2511(b), we must inquire whether the termination of
Mother’s parental rights would best serve the developmental, physical, and
emotional needs and welfare of Child. See In re C.M.S., 884 A.2d 1284,
1286-1287 (Pa.Super. 2005), appeal denied, sub nom. C.M.S. v.
D.E.H., Jr., 897 A.2d 1183 (Pa. 2006); see also In re Z.P., 994 A.2d 1108,
1121 (Pa.Super. 2010) (stating that “the court must take into account
whether a bond exists between child and parent, and whether termination
would destroy an existing, necessary and beneficial relationship.”).
“Intangibles such as love, comfort, security, and stability are involved in the
inquiry into the needs and welfare of the child.” In re C.M.S., 884 A.2d at
1287 (citation omitted). We must also discern the nature and status of the
parent-child bond, with utmost attention to the effect on the child of
permanently severing that bond. Id.
The focus in terminating parental rights under Section 2511(a) is on
the parent, but it is on the child pursuant to Section 2511(b). In re
Adoption of C.L.G., 956 A.2d 999, 1008 (Pa.Super. 2008) (en banc). “In
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cases where there is no evidence of any bond between the parent and child,
it is reasonable to infer that no bond exists. The extent of any bond
analysis, therefore, necessarily depends on the circumstances of the
particular case.” In re K.Z.S., 946 A.2d 753, 762-763 (Pa.Super. 2008).
Instantly, regarding the considerations set forth in Section 2511(a)(1),
the trial court found that while the parents may not have evidenced a
“settled purpose” of relinquishing their claim, it is “manifest” that Mother
and Father failed to perform parental duties for longer than the six months
prior to the filing of the petition. (Trial court opinion, 3/23/15 at 2.) The
trial court stated as follows:
There is no dispute that [Aunt] has cared for
[Child] for at least the past eleven years. Nor, is
there any question that the child desires to be
adopted by [Aunt]. The initial custody arrangement
was pursuant to an agreement between the parties,
and neither parent has ever taken formal action to
assume a greater role in their daughter’s life. In
fact, they have not only acceded to the order, they
have abdicated all responsibility. The fact that
[Aunt] is a relative and that she has clearly been
better able to care for [Child] does not alleviate their
obligation to perform basic parental duties.
Id. at 1.
Mother contends that while her efforts to maintain contact with Child
“were not Herculean,” she argues her personal situation should be taken into
account. (Mother’s brief at 10.) It was undisputed that Mother has
struggled throughout her adult life. Mother lost her home two years ago and
was still living in a shelter. (Id. at 69.) Mother admitted she had credit
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problems. (Id.) Mother also has had problems maintaining an automobile.
(Id. at 14, 67.) Mother’s financial plight along with Father’s physical
condition3 were documented and may have prevented them from providing a
home for Child. However, these conditions do not excuse their utter failure
to perform any parental duties or show Child even the most basic parental
love and emotional support. Other than attending family gatherings on the
holidays and the occasional Christmas play at Child’s school, Mother has
done nothing to show any type of parental involvement in Child’s life.
We believe the following exchange between Aunt’s counsel and Mother
is telling:
Q. How much of a priority have you made it to
have a strong relationship with [Child] and be
involved in her life?
[Mother:] I make it a point to text her a couple of
times each month. I make it a point to -- I
might not make it a point to call, but she’s flat
out told me that she prefers to text.
Notes of testimony, 11/14/14 at 70.
This court has emphasized that a parent does not perform his or her
parental duties by displaying a “merely passive interest in the development
of the child.” In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal
denied, 872 A.2d 1200 (Pa. 2005). We have explained:
[T]his court has held that the parental obligation is a
positive duty which requires affirmative
performance.
3
Father has spina bifida and is confined to a wheelchair.
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This affirmative duty encompasses more than
a financial obligation; it requires continuing interest
in the child and a genuine effort to maintain
communication and association with the child.
Because a child needs more than a benefactor,
parental duty requires that a parent exert himself to
take and maintain a place of importance in the
child’s life.
Parental duty requires that the parent act
affirmatively with good faith interest and effort, and
not yield to every problem, in order to maintain the
parent-child relationship to the best of his or her
ability, even in difficult circumstances. A parent
must utilize all available resources to preserve the
parental relationship, and must exercise reasonable
firmness in resisting obstacles placed in the path of
maintaining the parent-child relationship. Parental
rights are not preserved by waiting for a more
suitable or convenient time to perform one’s parental
responsibilities while others provide the child with
. . . her physical and emotional needs.
Id. (internal citations omitted).
Mother attempts to blame Aunt for not facilitating more contact
between her and Child. (Mother’s brief at 10.) Initially, we note Mother
failed to seek legal help to secure visitation or a partial custody schedule if
that is what she desired. At no time over the course of the last ten years did
Mother seek assistance from the court system.
The record shows Aunt facilitated the parents’ involvement in Child’s
life by accommodating Father’s disability with her handicap-accessible
vehicle, welcoming Mother and Child’s two siblings into her home for meals
and housing, and providing financial assistance to Mother throughout
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Mother’s economic setbacks. (Notes of testimony, 11/14/14 at 19-20, 62;
3/12/15 at 65.) Evidently, Mother was content with this arrangement until
Aunt filed the petition for termination of parental rights.
Our review of the record supports the trial court’s determination that
Mother has failed to perform parental duties for the past 11 years and has
abdicated her responsibility to act as a parent to Child. In determining that
Aunt had sustained her burden under Section 2511(a)(1), we discern no
error of law or abuse of discretion by the trial court.
Next, we turn our attention to Section 2511(b) to determine if the trial
court properly found that termination was in the best interest of Child. With
respect to Section 2511(b), this court has explained the requisite analysis as
follows:
Subsection 2511(b) focuses on whether
termination of parental rights would best serve the
developmental, physical, and emotional needs and
welfare of the child. In In re C.M.S., 884 A.2d
1284, 1287 (Pa.Super.2005), this Court stated,
“Intangibles such as love, comfort, security, and
stability are involved in the inquiry into the needs
and welfare of the child.” In addition, we instructed
that the trial court must also discern the nature and
status of the parent-child bond, with utmost
attention to the effect on the child of permanently
severing that bond. Id. However, in cases where
there is no evidence of a bond between a parent and
child, it is reasonable to infer that no bond exists.
In re K.Z.S., 946 A.2d 753, 762-63 (Pa.Super.
2008). Accordingly, the extent of the bond-effect
analysis necessarily depends on the circumstances of
the particular case. Id. at 763.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa.Super. 2010).
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When Mother was asked to describe her bond with Child, she replied,
“I realize it could be better, but I do enjoy speaking with her. [Child] is very
-- she’s a very intelligent young lady.” (Notes of testimony, 11/14/14 at
76.)
In its analysis of Section 2511(b), the trial court explained:
Although the words “best interests of the child”
were not found in our brief opinion and order, let
there be no doubt that we found the termination to
serve just that purpose. Indeed, to force a 14 year
old to remain legally tethered against her strongest
desires to parents with whom she shares only a
biological connection would be a disservice to her
and to the law. [Child]’s sole parental bond is with
[Aunt], her great aunt and the petitioner.
The fact that [Aunt] has no one to step in to
care for the child should [Aunt] be incapacitated, as
argued by parents, misses the inescapably sad point
of this case -- [Child] is already a de facto orphan
with respect to her biological parents and neither of
them are capable of ever stepping into any breach
that might occur. Frankly, we doubt [Child] would
want them to and are more confident in her abilities
to meet her needs. We will not cower in the murky
shadow of this red herring. Clearly, the best
interests of [Child] are served by this termination
and the subsequent formal adoption by the only
source of care and support she has ever known.
Trial court opinion, 5/27/15 at 2-3.
Here, our review of the record indicates there is competent evidence to
support the trial court’s decision that termination of Mother’s parental rights
best serves Child’s developmental, physical, and emotional needs and
welfare. Mother has failed to put herself in a position to develop a parental
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bond with Child. While Mother seeks credit for “putting her child first” and
“selflessly ensur[ing] her child was safe and stable” by allowing Aunt to have
custody of Child, the trial court saw that differently. Simply stated, Mother
allowed Aunt to raise her child while taking no part in Child’s upbringing.
Seeing Child a few times a year at family dinners and texting Child once or
twice a month evinces Mother’s abdication of a parental role in Child’s life.
Moreover, the trial court found the Child is bonded with Aunt and
wants to be adopted by her. As such, we find that it was appropriate for the
trial court to determine that the termination of Mother’s parental rights
would not have a detrimental effect on Child and would be in Child’s best
interest. In consideration of these circumstances and our careful review of
the record, we conclude that the trial court did not abuse its discretion or
commit an error of law in finding competent evidence to support the
termination of Mother’s parental rights to Child under Section 2511(b).
Accordingly, for the reasons stated above, we affirm the trial court’s
order involuntarily terminating Mother’s parental rights to Child pursuant to
23 Pa.C.S.A. § 2511(a)(1) and (b).
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/5/2015
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