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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.E.M., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: E.M., FATHER
No. 3655 EDA 2015
Appeal from the Decree entered November 23, 2015,
in the Court of Common Pleas of Philadelphia County,
Family Court, at No(s):
CP-51-AP-0000412-2015,
CP-51-DP-0002141-2013
BEFORE: BOWES, MUNDY, and PLATT*, JJ.
MEMORANDUM BY BOWES, J.: FILED MAY 19, 2016
E.M. (“Father”), appeals the November 23, 2015 decree involuntarily
terminating his parental rights to his son, M.M., born during February 2013.1
We affirm.
The trial court set forth the following factual and procedural history of
this case, in part:
This family was known to DHS [the Philadelphia Department of
Human Services] long before [M.M.] became involved in
dependency proceedings. When [M.M.] was born[,]. . . [Mother]
was a minor under DHS supervision with her aunt. At a
September 17, 2013, hearing the [c]ourt ordered that Mother be
* Retired Senior Judge assigned to the Superior Court.
1
By separate decree dated November 23, 2015, the trial court voluntarily
terminated the parental rights of L.A. (“Mother”).
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placed in an appropriate mother-baby setting with DHS. . . .
Immediately after the hearing[,] Mother absconded and her
whereabouts were unknown until September 23, 2013. On that
date[,] she contacted DHS and asked to be [returned to
place[ment]. . . . On October 24, 2013, DHS filed a petition to
remove [M.M.] from Mother’s care. At a November 4, 2013 . . .
hearing [M.M.] was adjudicated dependent and committed to
DHS based on the present inability of Mother to provide
appropriate care. . . . From [M.M.]’s birth until Mother left
[M.M.] in the care of DHS, Father [had scant] contact with
[M.M.]. He only saw [M.M.] from time to time, when Mother
brought [M.M.] around. Father’s last visit with [M.M.] was at
[his] first birthday. He never initiated any contact with [M.M.].
Mother confirmed Father’s [identity] in April 2015.
Father was incarcerated in the Curran Fromhold Correctional
Facility (“CFCF”) from October 10, 2014, when he was convicted
of drug possession with a firearm. Father had prior arrests for
gun and drug charges. He was sentenced to two and a half
years imprisonment, with five years of probation upon release.
Father is serving his sentence in a state facility in Camp Hill,
Pennsylvania.
Trial Court Opinion, 1/15/16, at 1–2 (citations to record omitted).
On June 26, 2015, DHS filed a petition for the involuntary termination
of Father’s parental rights and a petition for goal change to adoption. A
hearing was held on October 5, 2015, when DHS presented Father’s
testimony by telephone from prison, and Crystal Zuggi, the Community
Umbrella Agency (“CUA”) case manager. These same witnesses testified at
a November 23, 2015 hearing.
By decree dated November 23, 2015, the trial court involuntarily
terminated Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2),
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(5), (8), and (b).2 In addition, by permanency review order dated
November 23, 2015, the trial court changed M.M.’s placement goal to
adoption. Father timely filed a notice of appeal and a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). 3
The trial court filed its Rule 1925(a) opinion on January 15, 2016.
On appeal, Father raises the following issues for our review:
1. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of [F]ather . . . pursuant to 23
Pa.C.S. [§] 2511(a)(1) where [F]ather presented evidence that
he was not [informed] until recently that he was the potential
father and only received the paternity tests results several
weeks before the termination hearing and therefore was not
2
The trial court explained that the involuntary termination petition did not
include § 2511(a)(8) as a ground for termination. Trial Court Opinion,
1/15/16, at 1. Therefore, on December 9, 2015, following Father’s notice of
appeal, the trial court amended the decree by removing § 2511(a)(8) as a
basis for the termination of Father’s parental rights. A trial court may
modify an order to correct a clerical error that is clear in the record even
though it no longer retains jurisdiction. See Stockton v. Stockton, 698
A.2d 1334, 1337 n.3 (Pa.Super. 1997). Moreover, to the extent that the
trial court relinquished its jurisdiction to amend the decree following Father’s
notice of appeal to this Court, the court’s mistaken reference to §
2511(a)(8) is harmless insofar as DHS need only establish one of the
statutory grounds for termination under § 2511(a) and the record supports
the court’s finding that the agency satisfied its burden of proof under
§2511(a) (1). Thus, no relief is due.
3
While Father purported to file an appeal from the goal change order, he
failed to present any challenges to it in his Rule 1925(b) statement or his
brief. Thus, we do not address that claim herein. See Pa.R.A.P.
1926(b)(4)(vii) (Issues not included in the Statement and/or not raised in
accordance with the provisions of paragraph (b)(4) are waived); In re
W.H., 25 A.3d 330, 339 n.3 (Pa.Super. 2011) (“Where an appellate brief
fails to provide any discussion of a claim with citation to relevant authority
or fails to develop the issue in any other meaningful fashion capable of
review, that claim is waived.”).
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provided with an opportunity to perform his parental duties for
his child[?]
2. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of [F]ather . . . pursuant to 23
Pa.C.S.[] [§] 2511(a)(2) where [F]ather presented evidence that
he will remedy his situation by meeting his goal of contact with
his son and will be released from prison in the near future and
until he is released his sister is able to care for his child and has
the present capacity to care for his child in his home with his
current wife[?]
3. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of [F]ather . . . pursuant to 23
Pa.C.S. [§] 2511(a)(5) where evidence was provided to establish
that the child . . . was not in [F]ather’s care when he was
originally placed by DHS, and furthermore, evidence was
presented to show that [F]ather is capable of caring for his
child[?]
4. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of [F]ather . . . pursuant to 23
Pa.C.S. [§] 2511(a)(8) where evidence was presented to show
that Father is capable of caring for his child even though he was
never provided with reasonable efforts for reunification with his
son[?]
5. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of [F]ather . . . pursuant to 23
Pa.C.S. [§] 2511(b) where evidence was presented that
established the child . . . never had a chance for a close bond
with his father and also has never been allowed to have a very
close relationship with his paternal aunt[?] Both [F]ather and
paternal aunt have never been given a chance to establish this
bond.
Father’s brief at 7.
We consider Father’s issues 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
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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 § 2511 of the Adoption
Act, 23 Pa.C.S. §§ 2101-2938, which requires a bifurcated analysis.
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). The
burden is upon the petitioner to prove by clear and convincing evidence that
the asserted statutory grounds for seeking the termination of parental rights
are valid. In re R.N.J., 985 A.2d 273, 276 (Pa.Super. 2009).
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This Court need only agree with any one subsection of § 2511(a),
along with § 2511(b), in order to affirm the termination of parental rights.
In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc). We conclude
that the trial court in this case properly terminated Father’s parental rights
pursuant to § 2511(a)(1) and (b), which provide 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:
(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(a)(1), (b).
We have explained,
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
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parental duties. In re Adoption of R.J.S., 901 A.2d 502, 510
(Pa.Super. 2006). In addition,
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 [s]ection 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 Adoption of Charles E.D.M., 550 Pa. 595, 708 A.2d 88,
91 (Pa. 1998).
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).
Id. at 92 (citation omitted).
In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008).
Parental duty is defined 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).
With respect to the termination of parental rights of incarcerated
persons under § 2511(a)(1), in In re Adoption of S.P., 47 A.3d 817 (Pa.
2012), our Supreme Court discussed In re Adoption of McCray, 331 A.2d
652 (Pa. 1975), as follows:
Applying in McCray the provision for termination of parental
rights based upon abandonment, now codified as § 2511(a)(1),
we noted that a parent “has an affirmative duty to love, protect
and support his child and to make an effort to maintain
communication and association with that child.” Id. at 655. We
observed that the father’s incarceration made his performance of
this duty “more difficult.” Id.
S.P., 47 A.3d at 828. The S.P. Court continued:
[A] parent’s absence and/or failure to support due to
incarceration is not conclusive on the issue of
abandonment. Nevertheless, we are not willing to
completely toll a parent’s responsibilities during his or her
incarceration. Rather, we must inquire whether the
parent has utilized those resources at his or her
command while in prison in continuing a close
relationship with the child. Where the parent does not
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exercise reasonable firmness in declining to yield to
obstacles, his other rights may be forfeited.
[McCray,] at 655 (footnotes and internal quotation marks
omitted).
S.P., supra (emphasis added).
Instantly, Father argues that his conduct does not warrant the
termination of his parental rights under § 2511(a)(1) because he “only very
recently learned the results of paternity test.” Father’s brief at 15. In
addition, Father asserts that his only established Family Service Plan (“FSP”)
goal was to maintain contact with his son, “which he had no control over.”
Id. Further, Father asserts that he was not provided an attorney until June
of 2015. We reject Father’s claims.
To the extent that Father implies he had no obligation to perform his
parental duties until he received his paternity test results, we disagree.
Crystal Zuggi, the CUA case manager, testified she became involved with
this family in April of 2015, and Mother first named Father as M.M.’s
biological father during a court hearing that same month. N.T., 10/5/15, at
2; N.T., 11/23/15, at 8. Ms. Zuggi testified she spoke to Father on May 1,
2015, at which time he requested a paternity test. N.T., 11/23/15, at 9-10.
She testified she informed Father of the results of the paternity test on
September 24, 2015. N.T., 10/5/15, at 30.
In Z.S.W., supra, this Court rejected the rationale of the trial court in
denying the involuntary termination petition under § 2511(a)(1) because the
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father “was only required to attempt the level of parenting consistent with
his and the agency’s knowledge of parentage.” Z.S.W., 946 A.2d at 731
(internal quotations omitted). We explained, “[t]he crux of the trial court’s
statement is that [the father] was not required to perform any parental
duties until he received the results of the paternity test. To adopt the trial
court’s rationale would relieve all fathers of their parental duties until their
parentage was confirmed by a paternity test.” Id. As such, we reversed the
order and remanded the case.
Presently, the record demonstrates that Father was aware of his
possible paternity of M.M. before his incarceration in October of 2014. N.T.,
11/23/15, at 23. Father testified that he attended M.M.’s first birthday party
during 2014, while his son was in mother/baby placement with Mother. Id.
at 16. Father explained that when he argued with Mother, she would
attempt to provoke him by stating that M.M. was not his child. Id.
Chastened by the rebuke, Father described feeling that “[he would] still be
there for the child [but] at the same time in your heart you still want to get
[a] DNA test, that’s all I wanted.” Id. at 17. On cross-examination by the
Child Advocate, Father testified that he knew M.M. was in placement prior to
his incarceration, but he still did not seek visitation. N.T., 10/5/15, at 18-
19. He proffered no justification for neglecting to request visitation. Indeed,
upon inquiry on why he did not call DHS and ask for visitation, Father
responded, “I didn’t — I just didn’t.” Id. at 19. Likewise, Father conceded
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that his interactions with his son were minimal. He explained, “[I saw M.M.]
a couple times when [Mother] brung [sic] him around. . . .” Id. at 18.
As it relates with Father’s lack of compliance with his goals under the
Family Service Plan (“FSP”), Ms. Zuggi testified that, in April 2015, she sent
FSP objectives to Father that included “to make outreach to [M.M.], to have
a relationship with [M.M.].” N.T., 10/5/15, at 34. Ms. Zuggi suggested that
Father accomplish this objective through telephone contact with M.M. or by
writing letters to his son. Id. at 35. Ms. Zuggi rated Father’s compliance
with his FSP objectives as “none.” Id. Indeed, she noted that, since April of
2015, Father failed to provided her with any cards to give to M.M. Id. at 26.
Further, Ms. Zuggi observed that, although she provided his prison counselor
with her contact information in April of 2015, Father never initiated contact
with her. Id. at 24–25. Finally, she highlighted that Father did not request
pictures of M.M. until September 24, 2015, the date that she informed
Father of the paternity test results. Id. at 30, 33.
Based on the foregoing evidence, we discern no abuse of discretion by
the trial court in terminating Father’s parental rights pursuant to §
2511(a)(1). At best, Father displayed, “a merely passive interest in the
development of” M.M. throughout his life despite the knowledge that M.M.
may be his son. In re B.,N.M., supra. Father shirked all of his parental
duties prior to his incarceration. He did not have any contact with M.M. or
Mother while the two remained in DHS’ mother/baby foster care, ostensibly
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to avoid condemnation for having impregnated fifteen-year-old Mother while
he was approximately twenty-three. Thereafter, Father only saw his son on
the few occasions that Mother initiated contact, and he has not had any
contact with the child since February 2014.
Even after Ms. Zuggi contacted Father in prison during May 2015,
Father showed little, if any, interest in M.M. He did not initiate further
contact with Ms. Zuggi, and he did not utilize resources while in prison to
demonstrate interest in M.M. The sum total of Father’s attentiveness to his
son is that, upon the confirmation of paternity during September of 2015,
Father requested photographs of the child. As such, the record
demonstrates that Father disregarded the needs of his son and failed to
perform his parental duties both before and during his incarceration, which is
far in excess of the requisite six-month statutory period. Thus, the trial
court did not err in finding that DHS established by clear and convincing
evidence the statutory grounds to terminate Father’s parental rights
pursuant § 2511(a)(1).
In his final issue, Father argues the trial court abused its discretion in
terminating his parental rights pursuant to § 2511(b) because M.M. “has
never been provided the opportunity to develop a bond with [him]”, or “to
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develop a relationship with his stepmother, siblings and paternal aunt.”4
Father’s brief at 18. We disagree.
With respect to § 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 63.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa.Super. 2010).
Our Supreme Court stated that, “[c]ommon sense dictates that courts
considering termination must also consider whether the children are in a
pre-adoptive home and whether they have a bond with their foster parents.”
In re T.S.M., 71 A.3d 251, 268 (Pa. 2013). Moreover, the Court directed
that, in weighing the bond considerations pursuant to § 2511(b), “courts
must keep the ticking clock of childhood ever in mind.” Id. at 269. The
T.S.M. Court observed that, “[c]hildren are young for a scant number of
4
Father testified that he married on October 2, 2014, and that he has four
daughters from prior relationships, who reside in South Carolina. N.T.,
11/23/15, at 21-22. Further, Father testified that he has a sister, with
whom he would like M.M. to reside. N.T., 10/5/15, at 21-22.
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years, and we have an obligation to see to their healthy development
quickly. When courts fail . . . the result, all too often, is catastrophically
maladjusted children.” Id.
In this case, there is no evidence that a bond exists between M.M. and
Father. Indeed, Ms. Zuggi testified that M.M. is not able to identify anyone
as his father. N.T., 10/5/15, at 27. She stated that M.M. has resided with
the same foster mother since he was “a few months old,” and that M.M.
shares a bond with her. Id. at 27-28. Further, Ms. Zuggi observed that
M.M. has resided in the same pre-adoptive home for approximately two
years. Id. Finally, she opined that, if M.M. was removed from his current
placement, he would suffer harm. Id. at 28. Based on the evidence in the
certified record, we reject Father’s argument with respect to § 2511(b).
Father’s failure to perform his parental duties during M.M.’s lifetime impeded
the development of any bond between him and his son. Accordingly, we
affirm the decree terminating Father’s parental rights pursuant to 23 Pa.C.S.
§ 2511(a)(1) and (b).
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/19/2016
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