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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: D.I.T., A MINOR AND S.P.T., A IN THE SUPERIOR COURT OF
MINOR PENNSYLVANIA
APPEAL OF: T.D.T., JR., FATHER
No. 1341 MDA 2015
Appeal from the Decree July 15, 2015
In the Court of Common Pleas of York County
Orphans' Court at No(s): 2015-0069
2015-0070
BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MUNDY, J.: FILED MARCH 02, 2016
Appellant, T.D.T., Jr. (Father), appeals from the July 15, 2015 decrees
involuntarily terminating his parental rights to his minor sons, D.I.T. and
S.P.T., (collectively, the Children).1 After careful review, we affirm.
This appeal arises from the petitions for involuntary termination of
parental rights filed by R.L.W. (Mother), and her husband, D.M.W.
(Stepfather), on May 22, 2015. Mother and Father are former spouses, and
both of the Children were born during their marriage. See Petitions for
Involuntary Termination of Parental Rights, 5/22/2015, at 3. By 2009,
Mother and Father’s relationship had become strained, and the parents were
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1
D.I.T. was born in November 2007, and S.P.T. was born in August 2009.
*Former Justice specially assigned to the Superior Court.
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engaging in periods of “on and off separation.” N.T., 7/14/2015, at 21. In
December 2009, Father was charged with two counts of endangering the
welfare of a child, after he was found to be severely intoxicated while caring
for the Children. Id. at 6-7. Father pled guilty to these charges in 2010,
and was sentenced to three years of probation. Id. at 7, 48. Father
continued to spend time at Mother’s residence until October 2010, when he
was charged with sexually assaulting Mother. Id. at 7-8. As a result, Father
entered a guilty plea to indecent assault. Id. at 8-9, 48. In addition,
Mother obtained a protection from abuse (PFA) order against Father. Id. at
8. In November 2010, Father was charged with violating the PFA order by
contacting Mother. Id. at 8-9. As a result of these events, Father was
incarcerated until August 2011. Id. at 9.
During his incarceration, Father filed a pro se custody complaint. Id.
at 9, 12, 43. At the conclusion of the parents’ custody proceeding, by order
dated January 26, 2012, Mother was awarded sole legal and physical
custody of the Children.2 Id. at 12. As discussed in greater detail infra,
Father has not visited with the Children since November 2010, and the
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2
During the custody proceedings, Father was evaluated by psychologist
Laurie S. Pittman, Ph.D. See Mother and Stepfather’s Petition to Adopt,
7/6/15, at Exhibit 2. Dr. Pittman recommended that Father not have any
contact with the Children until he is able to document six consecutive
months of sobriety, and that Father should not have unsupervised contact
with the Children until he completes two years of consistent psychotherapy.
Id. at 10 (unpaginated).
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parents have not participated in any subsequent custody proceedings. Id.
at 15.
A termination hearing was held on July 14, 2015, during which the
orphans’ court heard the testimony of Mother; Stepfather; Father; and the
Children’s paternal grandmother, M.D. (Paternal Grandmother). The
orphans’ court also interviewed the Children. On July 15, 2015, the orphans’
court entered its decrees, involuntarily terminating Father’s parental rights
to the Children. Father timely filed a notice of appeal on August 5, 2015,
along with a concise statement of errors complained of on appeal pursuant
to Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i).3
On appeal, Father raises the following issues for our review.
1. Whether the [orphans’ court] erred in finding that
[Father] evidenced a settled purpose of relinquishing
parental rights and failed or refused to perform
parental duties towards the Children for a period in
excess of six months preceding the petition[?]
2. Whether the [orphans’] court erred in failing to
consider Father’s abilities and willingness to remedy
any findings of past failures to perform parental
duties[?]
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3
We note that it was improper for Father to file a single notice of appeal
from both of the termination decrees. See Pa.R.A.P. 341, Note (“Where,
however, one or more orders resolves issues arising on more than one
docket or relating to more than one judgment, separate notices of appeal
must be filed.”). However, we decline to quash Father’s appeal, as we
discern no prejudice stemming from Father’s procedural misstep. See, e.g.,
id. at 902 (stating, “[f]ailure of an appellant to take any step other than the
timely filing of a notice of appeal does not affect the validity of the
appeal[]”).
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3. Whether the [orphans’] court’s finding that
[Father] made no true effort to exercise his parental
rights is against the weight of the evidence as
[Father’s] explanations must be considered in the
determination to terminate rights[?]
4. Whether the [orphans’] court erred in finding that
the best interest of the Children would be served by
terminating [Father’s] parental rights[?]
Father’s Brief at 4 (unnecessary capitalization omitted).
We consider Father’s claims, mindful of our well-settled standard of
review.
The standard of review in termination of parental
rights cases requires appellate courts to accept the
findings of fact and credibility determinations of the
trial court if they are supported by the record. If the
factual findings are supported, appellate courts
review to determine if the trial court made an error
of law or abused its discretion. A decision may be
reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will. The trial court’s
decision, however, should not be reversed merely
because the record would support a different result.
We have previously emphasized our deference to
trial courts that often have first-hand observations of
the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated
analysis.
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Initially, the focus is on the conduct of the parent.
The party seeking termination must prove by clear
and convincing evidence that the parent’s conduct
satisfies the statutory grounds for termination
delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants
termination of his or her parental rights does the
court engage in the second part of the analysis
pursuant to Section 2511(b): determination of the
needs and welfare of the child under the standard of
best interests of the child. One major aspect of the
needs and welfare analysis concerns the nature and
status of the emotional bond between parent and
child, with close attention paid to the effect on the
child of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
In this case, the orphans’ court terminated Father’s parental rights
pursuant to Sections 2511(a)(1) and (b), which provide 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:
(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
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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(a)(1), (b).
We first address whether the orphans’ court abused its discretion by
terminating Father’s parental rights pursuant to Section 2511(a)(1). To
meet the requirements of this section, “the moving party must produce clear
and convincing evidence of conduct, sustained for at least the six months
prior to the filing of the termination petition, which reveals a settled intent to
relinquish parental claim to a child or a refusal or failure to perform parental
duties.” In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008), citing In re
Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super. 2006). The orphans’
court must then consider “the parent’s explanation for his or her conduct”
and “the post-abandonment contact between parent and child” before
moving on to analyze Section 2511(b). Id., quoting In re Adoption of
Charles E.D.M., 708 A.2d 88, 92 (Pa. 1998).
This Court has explained 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), quoting In re C.M.S., 832 A.2d 457, 462
(Pa. Super. 2003), appeal denied, 859 A.2d 767 (Pa. 2004). Rather,
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“[p]arental 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.” Id. (citation omitted). Incarceration does not relieve a
parent of the obligation to perform parental duties. An incarcerated parent
must “utilize available resources to continue a relationship” with his or her
child. In re Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012), citing In re
Adoption of McCray, 331 A.2d 652 (Pa. 1975). Further, “[w]e review the
orphans’ court’s decision for abuse of discretion or error of law, and we must
defer to the orphans’ court’s findings of fact if the record supports them. As
we have already noted, termination of parental rights is appropriate only
where clear and convincing evidence supports termination under § 2511(a).”
In re S.S.W., 125 A.3d 413, 416 (Pa. Super. 2015) (internal citation
omitted).
In his first three issues, Father asserts the orphans’ court erred in
terminating his parental rights pursuant to Section 2511(a)(1). Specifically,
Father argues that Mother created obstacles which prevented him from
contacting the Children. Father’s Brief at 15. Father contends, inter alia,
that Mother did not respond to Father’s attempts at communication, that
Mother denied his requests to see the Children, that Father feared that
Mother would file another PFA against him if he persisted in trying to contact
her, and that Father lacked recent contact information for Mother. Id. at 10,
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15-16. According to Father, he attempted to maintain a relationship with
the Children by staying in contact with their maternal grandfather, who
provided Father with updates on the Children’s lives, and who provided the
Children with gifts and financial support from Father. Id. at 15-16. Finally,
Father insists that he has been attempting to “get his life together” before
initiating a second custody action. Id. at 16-17.4
Here, the orphans’ court provided the following reasoning as its basis
for terminating Father’s parental rights.
Father apparently maintained a relationship with
Maternal Grandfather and [the orphans’ court] is
confident that had he wanted to reach out and obtain
visitation or file for visitation, he certainly could have
done that. Father was not incarcerated in 2013 and
2014 and he could have certainly filed for visitation
of the children again; he previously filed for custody
pro se while incarcerated and was familiar with the
process. Of course Father would still need to comply
with the six months of sobriety recommended by Dr.
Pittman in the previous custody action.
Father would also need to comply with the
Section 5329 threat of harm evaluation as stated in
Judge Ness’ custody order. Father presented no
satisfactory explanation … as to why he couldn’t
have six months of sobriety in the last two and a half
years and clearly that’s an important factor when
attempting to be a parent. Father has also failed to
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4
In his third issue Father concedes, “he admittedly failed in seeking or
establishing physical custody of the Children, his failure to do so was based
on a flawed understanding that he had to get his own life together … Father
recognized that the Children were being properly cared for in []Mother’s
home and custody at the time.” Father’s Brief at 20.
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undergo a threat of harm evaluation as previously
ordered without any explanation. …
Father also failed to perform parental duties
when he did not maintain sobriety in the last two and
a half years. … Father testified that he has only
inquired about the children in the last six months
and has last seen the children about four years ago.
Father’s explanation for the lack of contact was the
difficulty of reaching Mother via her cellphone and
her insisting to have visits supervised by a
professional. However, later testimony revealed that
Father at one point knew Mother’s cellphone number
and that his uncle was able to contact Mother
without any issue in regards to his grandfather’s
estate. Mother also testified that her number is
listed in the White Pages. Father presented no
evidence as to why he did not complete the Section
5329 evaluation so that supervised visits could be
arranged as stated in the previous custody order.
….
Father’s actions in the past couple of years indicate
that he has continued to struggle with substance
abuse issues and is still attempting to get his life
together. ….
…. Father had the ability to demonstrate his
parenting skills in 2013 and 2014 when he was not
incarcerated and he failed to do so. In addition,
Father’s continuing struggle with substance abuse
greatly inhibits his ability to parent and his failure to
undergo the Section 5329 threat of harm evaluation
prevents him from seeking supervised visitation[.]
Judge Ness’ custody order explicitly stated that the
children would not be kept from Father so long as he
maintains sobriety and complies with the required
evaluations. In fact, supervised visitation with the
children was previously suggested by Dr. Pittman so
long as Father could document six months of
continuous abstinence from controlled substances.
Father has simply failed to comply with any of the
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recommendations and presented no evidence to
excuse his [non]compliance.
…. Father has not shown any serious attempts to
parent the children aside from inquiring about them
in the past two years. [] Father had a recent
incident involving both alcohol and controlled
substances that involved a period of incarceration
and no documented progress that he has remained
drug-free for at least six months in any recent years.
Orphans’ Court Opinion, 9/18/2015, at 12-15.
After a thorough review of the record in this matter, we conclude that
the orphans’ court’s findings are supported by the record. Therefore, the
orphans’ court did not abuse its discretion by involuntarily terminating
Father’s parental rights to the Children. During the termination hearing,
Mother testified that Father has had no direct contact with the Children since
November 2010. N.T., 7/14/2015, at 15. Father has not requested contact
with the Children since the parents’ custody proceeding, which concluded in
January of 2012. Id. at 12-15. Father’s last direct contact with Mother was
a letter that he sent to her in 2012 or 2013 after the PFA order expired. Id.
at 30, 32. Mother conceded that she moved to a new address in April 2013,
but Mother’s current address is “listed in the white pages.” Id. at 26, 31.
Mother’s phone number has remained the same. Id. at 26.
Mother acknowledged that Father has kept in touch with the Children’s
maternal grandfather, but she was not aware of Father asking the maternal
grandfather to see the Children. Id. at 25. Mother stated that Father sent
one or two birthday cards to the Children through their maternal grandfather
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in 2012 or 2013. Id. at 15. Father sent gifts along with the birthday cards,
and there also was “a monetary gift in Easter of 2014.” Id. at 16. Father
sent an approximately eighty dollar birthday gift for D.I.T. in October 2014.
Id. Mother noted that Father has never paid child support. Id. at 16-17.
Mother initiated a support action while Father was incarcerated in 2011, but
later withdrew her request for support in July of 2013. Id. at 16-17.
Father testified that he sent twenty dollars per week to Mother and the
Children after he was incarcerated. Id. 41-42. According to Father, this
lasted “for a good five or six months.” Id. at 49. Father stated that he
stopped sending money because “I went to complete … a drug and alcohol
program.” Id. Father was incarcerated again from December 1, 2011, until
December 25, 2012, due to a probation violation. Id. at 42, 48, 58. Father
explained that he violated his probation because he found his “sex offender
class” too disturbing and refused to attend. Id. at 42. Father also admitted
to having failed a drug screen. Id. at 48.
Concerning his lack of recent communication with the Children, Father
testified that he has contacted the Children’s maternal grandfather. Id. at
45, 54. Father claimed that he did not contact Mother to arrange supervised
visits with the Children after the PFA order expired because Mother “would
never agree on … who would supervise the visitation. She wanted me to pay
out-of-pocket to go through a third party … and I didn’t have the finances at
that point.” Id. at 52. Father also stated that he did not know where
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Mother was living, and that Mother’s phone number has changed. Id. at 45-
46. When asked what efforts he has made to locate Mother’s address,
Father replied, “in the last six months every time I ran -- wrote her or tried
to call, she has never responded. Quite frankly, I didn’t see that [sic] the
purpose.” Id. at 54. Father admitted that the last time he tried to call
Mother was “a couple months” after he was released from incarceration,
although Father failed to specify which period of incarceration he was
referring to. Id. at 55. Father did not attempt to call Mother in the past six
months. Id.
Father further testified that he has not filed any additional custody
actions because he did not think he was “ready.” Id. at 53. Father
explained that he wanted to go back to school, have a place of his own, own
a car, and have a stable job, so that he has “a better leg to stand on” when
he presents his case to the court. Id. at 53-54. Father insisted that he has
been “trying to get [his] life together,” and that he has made efforts to
maintain his sobriety. Id. at 44, 55. Father stated that he attended
parenting classes and voluntarily participated in a counseling class called the
“Freedom Program” while incarcerated. Id. at 44-45. Father also reported
that he attended intensive outpatient treatment. Id. at 50. According to
Father, he plans on seeing a psychiatrist and a counselor as part of
additional drug and alcohol treatment. Id. at 52.
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Despite these efforts, Father admitted that he recently was arrested
due to a drug and alcohol related incident. Id. at 46-47. Father was
incarcerated from April 30, 2015 until May 15, 2015. Id. at 58. Father
insisted that this was an “isolated incident,” which resulted from the fact
that he was caring for his sick father and grandmother. Id. at 46-47.
Father stated that he has been sober for three months. Id. at 47.
Paternal Grandmother testified that Mother ended all contact between
the Children and Father’s extended family soon after S.P.T’s birth, when the
charges were filed against Father. Id. at 59. Paternal Grandmother recalled
that Father asked her to purchase Christmas gifts for the Children after he
was incarcerated, and Paternal Grandmother complied. Id. at 60. However,
Mother informed Paternal Grandmother that she could not deliver the
presents in person, and instructed Paternal Grandmother to drop the
presents off at the home of the Children’s maternal grandfather. Id.
Paternal Grandmother indicated that she lost track of Mother and the
Children after they moved in August 2011, and that she has not seen the
Children in about four years. Id. Paternal Grandmother stated that Father
has “tried very hard” to keep in touch with the Children, and that he
contacted the Children’s maternal grandfather “constantly” while
incarcerated. Id. at 61.
Herein, the record is replete with instances of Father’s inability to
maintain sobriety, to the detriment of the Children and any relationship with
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them. It is also concerning that the initial incident, involved Father’s
substance abuse and the danger he posed to the Children. Accordingly,
despite evidence of some effort on Father’s part, the record confirms that
Father has refused or failed to perform parental duties for a period of at
least six months prior to filing of the termination petitions on May 22, 2015.
Crucially, Father continues to be plagued by substance abuse issues, as
evidenced by his recent arrest. Therefore, no relief is due.
We next consider whether the orphans’ court abused its discretion by
terminating Father’s parental rights pursuant to Section 2511(b). We have
discussed our analysis under Section 2511(b) 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 63.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
Here, the orphans’ court found that there is no significant bond
between Father and the Children, due to their lack of recent contact.
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Orphans’ Court Opinion, 9/18/2015, at 16. As a result, terminating Father’s
parental rights would have a minimal impact on the Children. Id. The court
also found that the Children are bonded with Stepfather, and that it would
be in the best interests of the Children to be adopted by Stepfather. Id. at
16-17.
Father argues that terminating his parental rights would not be in the
best interests of the Children, because Mother failed to permit or encourage
the Children to have a relationship with him. Father’s Brief at 22. Father
also contends that terminating his parental rights will prevent the Children
from having a relationship with Father’s extended family. Id. at 23.
According to Father, preserving his parental rights will have no impact on
the relationship between Mother, Stepfather, and the Children, but Father’s
relationship with the Children will be “forever altered” if his parental rights
are terminated. Id. Father insists that he is “ready, willing, and able to be
a father to the Children….” Id.
We again conclude that the orphans’ court did not abuse its discretion.
As previously noted, the Children have not seen Father since November
2010. Mother testified that she met Stepfather in March 2011, and that they
have resided together with the Children since August 2011. N.T.,
7/14/2015, at 17-18. Mother stated that Stepfather cares for the Children in
every way that a parent would, and that the Children treat Stepfather “for all
practical purposes as their father. They refer to him as daddy.” Id. at 18.
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The Children look up to Stepfather and respect him, and Stepfather’s
extended family has accepted the Children and “treat them like their own.” 5
Id. Concerning the Children’s knowledge of Father, Mother stated that she
provides the Children with birthday cards sent by Father. Id. at 28. Mother
explained, “they do know about [Father] that he was their dad and they
know … they have seen pictures of themselves with him when they were
babies. But they don’t ask a whole lot of questions.” Id. Additionally,
Alexis Sipe, Esquire, guardian ad litem for the Children, testified at the
hearing that “it appears that the boys are very well settled and adjusted with
the environment with [Mother and Stepfather] that they know and I feel
from what I have seen that this would be good for them.” Id. at 67. Thus,
we conclude the record supports the orphans’ court finding that it would best
serve the Children’s needs and welfare to terminate Father’s parental rights.
Based on the foregoing, we conclude that the orphans’ court did not
abuse its discretion by involuntarily terminating Father’s parental rights to
the Children. Accordingly, we affirm the orphans’ court’s July 15, 2015
decrees involuntarily terminating Father’s parental rights pursuant to 23
Pa.C.S.A. § 2511(a)(1) and (b).
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5
Stepfather agreed that he has a good relationship with the Children, and
wants to adopt them. N.T., 7/14/2015, at 34-36.
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Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/2/2016
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