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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
In Re: Adoption of: L.T.D., a Minor IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appeal of: T.D., Mother No. 1552 MDA 2015
Appeal from the Order entered August 10, 2015
in the Court of Common Pleas of Northumberland County
Orphans’ Court Division, at No(s): 4 of 2015
In Re: Adoption of: J.S.D., a Minor IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appeal of: T.D., Mother No. 1554 MDA 2015
Appeal from the Order entered August 10, 2015
in the Court of Common Pleas of Northumberland County
Orphans’ Court Division, at No(s): 5 of 2015
BEFORE: PANELLA, J., STABILE, J., and JENKINS, J.
MEMORANDUM BY PANELLA, J FILED APRIL 26, 2016
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T.D. (“Mother”) appeals from the orders entered on August 10, 2015,
in the Court of Common Pleas of Northumberland County, which
involuntarily terminated her parental rights to her minor son, J.S.D., born in
December 2012 and to her minor daughter, L.T.D., born in November 2013
(“Children”). We affirm.
The trial court summarized the relevant facts and procedural history as
follows. Prior the initial placement of either child, Mother had an extensive
history with Children & Youth Services (“CYS”) dating from 2010 and
culminating in the involuntary termination of her parental rights of two older
children in August 2012.
J.S.D. was initially placed into foster care on December 20, 2012,
following a referral from the medical staff on the day he was born and
issuance of a verbal order by the court. At the time, the parents’ home was
deemed inappropriate. J.S.D. was adjudicated dependent on March 18,
2013. A finding of aggravated circumstances was also made with respect to
both parents due to the prior involuntary terminations of parental rights.
Following reports of initial progress, J.S.D. was returned to the physical
custody of his parents on May 8, 2014, with CYS retaining legal custody.
L.T.D. was born in November 2013, and was not placed into foster
care, due to the progress on the part of the parents. However, the situation
quickly deteriorated and seven weeks after the physical custody of J.S.D.
was returned to the parents, foster placement of both Children was
necessary.
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A CYS caseworker observed bruising on J.S.D.’s body within a week
after he was returned to the parents’ physical custody. The parents claimed
that J.S.D. was pinching himself, but several of the bruises were in locations
inconsistent with self-inflicted injury. Shortly thereafter, CYS received a
General Protective Services (“GPS”) referral. Investigation of the referral
revealed that J.S.D. was covered with bruises on both his face and his body.
Based on the parents’ inability to assure the safety of the Children in
the home, the Children were placed in foster care on July 3, 2014. L.T.D.
was adjudicated dependent on September 17, 2014, and an order finding
aggravated circumstances as to both parents was entered on September 18,
2014. Both Children have remained in the physical and legal custody of CYS
from July 3, 2014 until the present.
On September 17, 2014, the parents were ordered by the court to:
obtain and maintain appropriate housing; obtain and maintain financial
stability; attend anger management, behavioral health services, resource
work, and family center classes (parenting classes); and submit to drug
testing. In addition, the parents were given periods of supervised visitation
weekly.
CYS filed a petition for involuntary termination of parental rights of
Mother for both Children on February 2, 2015. The trial court held hearings
on April 29, 2015, May 5, 2015, and August 5, 2015. Following the hearings,
on August 10, 2015, the trial court entered orders granting CYS’s petition for
the involuntary termination of Mother’s parental rights.
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Mother timely appealed. This Court, sua sponte, consolidated the
appeals.
Mother raises the following issue on appeal:
Is the decision of the Orphans’ Court to terminate Mother’s
parental rights under 23 Pa.C.S.A. § 2511(a)(1), 23 Pa.C.S.A. §
2511(a)(2), 23 Pa.C.S.A. § 2511(a)(5), and 23 Pa.C.S.A. §
2511(b) supported by competent credible evidence, in the best
interests of the children or justified by necessity?
Mother’s Brief at 3.
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. If the factual
findings are supported, appellate courts review to determine if
the trial court made an error of law or abused its discretion. As
has been often stated, an abuse of discretion does not result
merely because the reviewing court might have reached a
different conclusion. Instead, a decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will.
[T]here 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. 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
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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, 826-27 (Pa. 2012) (internal 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. 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. (citation omitted).
This court may affirm the trial 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 trial court terminated Mother’s parental rights under,
among other subsections, 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
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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(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 the word 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,” this Court has
stated 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.
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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.
In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations omitted).
After a review of the certified record and the briefs of the parties, we
conclude that the trial court did not abuse its discretion by involuntarily
terminating Mother’s parental rights to the Children, and affirm the orders of
the trial court based on the concise and well-written opinion by the
Honorable Anthony J. Rosini.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/2016
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Circulated 04/07/2016 02:49 PM