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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: B.G.M., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: T.M. No. 1477 MDA 2015
Appeal from the Order entered August 5, 2015
in the Court of Common Pleas of Lackawanna County
Orphans’ Court at No(s): A-9-2015
BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, J. FILED APRIL 04, 2016
T.M. (“Father”) appeals from the Order entered on August 5, 2015, in
the Court of Common Pleas of Lackawanna County, which involuntarily
terminated his parental rights to his minor daughter, B.G.M. (“Child”), born
in April 2013. We affirm.
The court summarized the relevant facts and procedural history as
follows. Child was born in Lackawanna County to Father and D.S.
(“Mother”).1 Following Child’s birth, Child’s maternal aunt, (“Maternal Aunt”),
and Child’s biological maternal uncle, (“Maternal Uncle”), maintained primary
physical custody of Child since April 20, 2013. Father maintained partial
*Former Justice specially assigned to the Superior Court.
1
Mother voluntarily relinquished her rights to Child.
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physical custody of Child during the first year of Child’s life, until April 17,
2014, at which time his visits were suspended by the court.
The petition to terminate Father’s parental rights was filed by Maternal
Aunt and Maternal Uncle on January 23, 2015. Father requested the
appointment of counsel by the court to assist him in the termination
proceedings. The court appointed counsel. A guardian ad litem had already
been assigned to Child at an earlier proceeding.
The court held a hearing on July 2, 2015. During the hearing, the
court heard the testimony of Katrina Roughsedge, a special needs instructor
for Early Intervention through the United Cerebral Palsy of Northeastern
Pennsylvania; Jeane Decker, an outpatient therapist through Aaron Center;
Corinne Thiel, the Guardian ad litem; Maternal Aunt; Maternal Uncle; and
Father. Following the hearing, the court entered an Order granting Maternal
Aunt’s and Maternal Uncle’s petition for the involuntary termination of
Father’s parental rights. Father timely appealed.
Father raises three issues on appeal.
1. Did the trial [c]ourt err in concluding that petitioners
established, by clear and convincing evidence, the
elements required to involuntarily terminate respondent’s
parental rights, as the evidence presented by petitioners
clearly and convincingly does not establish the required
elements for involuntarily termination pursuant to 23 Pa.
C.S.A. § 2511(a)(1)?
2. Did the trial [c]ourt err in failing to consider, and to
give significant weight to, the likelihood of severe
detriment to the minor child if minor child were not re-
integrated with her natural father, biological two brothers
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and one sister as the testimony presented by respondent
at trial clearly suggests?
3. Did the trial court err in based on [sic] that the decision
is not supported by its own findings of fact, by the facts of
record, or by Pennsylvania law such that the trial [c]ourt
did not find, for example, that respondent has custody of
minor child’s three older biological siblings?
Father’s Brief at 4.
We review the appeal from the termination of parental rights 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 (Pa. 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.; R.I.S., 36
A.3d 567, 572 (Pa. 2011) (plurality opinion)]. As has been often
stated, an abuse of discretion does not result merely because
the reviewing court might have reached a different conclusion.
Id.; see also Samuel Bassett v. Kia Motors America, Inc.,
34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 838 A.2d 630,
634 (Pa. 2003). 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 we 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 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. R.J.T., 9 A.3d at 1190.
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
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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 Atencio, [539 Pa. 161, 165,]
650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).
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. See In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, we have explained that
[t]he 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. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
This court may affirm the court’s decision regarding the termination of
parental rights with regard to any one subsection of section 2511(a). See In
re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Here, the court
terminated Father’s parental rights under section 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.
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***
(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(a)(1), (b).
We have explained this Court’s review of a challenge to the sufficiency
of the evidence supporting 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.
***
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).
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[T]o be legally significant, the [post-abandonment] contact must
be steady and consistent over a period of time, contribute to the
psychological health of the child, and must demonstrate a
serious intent on the part of the parent to recultivate a parent-
child relationship and must also demonstrate a willingness and
capacity to undertake the parental role. The parent wishing to
reestablish his parental responsibilities bears the burden of proof
on this question.
In re Z.P., 994 A.2d 1108, 1119 (Pa. Super. 2010) (citation omitted). See
also In re Adoption of C.L.G., 956 A.2d 999, 1006 (Pa. Super 2008) (en
banc).
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, as or joins the two portions of the statute.
See In re Adoption of Charles E.D.M., 708 A.2d 88, 91 (Pa. 1998).
Further, regarding the definition of “parental duties,”
[t]here 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.
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
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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.
In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citation omitted).
Father testified as to how he had loved, sheltered, and cared for Child.
However, other testimony showed that he had not cared for Child for any
duration of time, except for the month that Mother had resided with the
Maternal Aunt and Maternal Uncle.
Father’s testimony illustrated the inconsistent, sporadic visits that he
had with Child. Father saw Child for occasional, brief visits in 2013 and in
the very early part of 2014. Father has not seen Child since April 2014. See
N.T., 7/2/15, at 8, 63, 103-104, 117-199, 122-124. Father’s reasons for not
parenting, supporting, or visiting Child were transportation problems, money
and employment issues, and the child care responsibilities for his other
children, some of whom reside with him. Father also has a criminal record of
numerous offenses. See id., at Exhibit P-6.
At the hearing, Father maintained that, if he were given custody of
Child, he would be able to meet his parenting responsibilities. See id., at
122-124. However, the guardian ad litem testified that Father has been and
continues to be non-compliant with his obligations to the court and to Child.
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See id., at 25-30. In addition, the Maternal Aunt and Maternal Uncle
testified that Father has been largely absent for most of Child’s life. They
have maintained physical custody of Child since she was just two weeks old
and have exclusively carried out all parental roles and responsibilities for
Child since that time. See N.T., 7/2/2015, at 121-122. At the hearing,
Father did not dispute that he had not seen Child for more than one year
and acknowledged that he had not been in contact with the Maternal Aunt
and Maternal Uncle to inquire about Child’s well-being for more than a year
prior to the filing of the involuntarily termination petition.
The court found that Father’s own actions and inactions are indicative
of his long-standing refusal to perform parental duties for Child, which
evidenced a settled purpose of relinquishing his parental claim to Child. See
N.T., 7/2/2015, at 122-124. We agree and find that competent evidence
amply supports the involuntary termination of Father’s parental rights to
Child pursuant to § 2511(a)(1).
Next, we consider section 2511(b).
[I]f the grounds for termination under subsection (a) are
met, a court “shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child.” 23 Pa.C.S. § 2511(b). The emotional needs and welfare
of the child have been properly interpreted to include
“[i]ntangibles such as love, comfort, security, and stability.” In
re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M.,
[620 A.2d 481, 485 (Pa. 1993)], this Court held that the
determination of the child’s “needs and welfare” requires
consideration of the emotional bonds between the parent and
child. The “utmost attention” should be paid to discerning the
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effect on the child of permanently severing the parental bond.
In re K.M., 53 A.3d at 791.
In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).
Child has no bond with Father. The involuntary termination of Father’s
parental rights will have no effect on Child. The court found that the
involuntary termination of Father’s parental rights would best meet the
needs of Child and permit the Child to achieve the stability that she
deserves.
The court also had before it competent evidence to support a finding
that Child has a strong emotional bond with her foster parents, with whom
she has been living for the last two years and who take care of all of her
needs. At the hearing, Ms. Decker, a social worker, opined that Child is
attached to Maternal Aunt and Maternal Uncle, and there is a natural bond
between them. She also opined that Child is well adjusted with Maternal
Aunt and Maternal Uncle, and is well cared for and loved by them. Thus, the
court found that there is no evidence that Child would be adversely affected
if her relationship with Father were severed.
The competent evidence in the record shows that Father failed to
“exhibit [the] bilateral relationship which emanates from the parent[’s]
willingness to learn appropriate parenting . . . .” In re K.K.R.S., 958 A.2d
529, 534 (Pa. Super. 2008) (citation omitted). Father did not put himself in
a position to assume daily parenting responsibilities so that could develop a
real bond with Child. See In re J.L.C., 837 A.2d 1247, 1249 (Pa. Super.
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2003). In addition, it is by Father’s own actions or inactions that have
resulted in Child being kept from her biological siblings and the
establishment of bonding relationships.
A parent’s own feelings of love and affection for a child, alone, will not
preclude termination of parental rights. See In re Z.P., 994 A.2d 1108,
1121 (Pa. Super. 2010). A child’s life “simply cannot be put on hold in the
hope that [a parent] will summon the ability to handle the responsibilities of
parenting.” Id. at 1125.
We find that there was competent evidence to support the court’s
decision that involuntary termination of Father’s parental rights best serves
Child’s developmental, physical, and emotional needs and welfare. Thus, we
discern no abuse of discretion or error of law on the part of the court
pursuant to section 2511(b).
Accordingly, we affirm the court’s order terminating Father’s parental
rights to Child pursuant to section 2511(a)(1) and (b).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/4/2016
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