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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: B.M., MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: R.M., NATURAL FATHER No. 2131 MDA 2015
Appeal from the Decree entered November 23, 2015,
in the Court of Common Pleas of Luzerne County, Orphans’
Court, at No: A-8354
IN THE INTEREST OF: R.M., MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: R.M., NATURAL FATHER No. 2132 MDA 2015
Appeal from the Decree entered November 23, 2015,
in the Court of Common Pleas of Luzerne County, Orphans’
Court, at No: A-8356
IN THE INTEREST OF: M.M., MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: R.M., NATURAL FATHER No. 2133 MDA 2015
Appeal from the Decree entered November 23, 2015,
in the Court of Common Pleas of Luzerne County, Orphans’
Court, at No: A-8355
BEFORE: PANELLA, STABILE, and JENKINS, JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 20, 2016
R.M. (“Father”) appeals from the decrees entered November 23, 2015,
in the Court of Common Pleas of Luzerne County, which involuntarily
terminated his parental rights to his minor daughters, M.M., born in July of
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2009, R.M., born in January of 2012, and B.M., born in November of 2013
(collectively, “the Children”).1 After careful review, we affirm.
The Children were placed in foster care on September 17, 2014, after
Luzerne County Children and Youth Services (“CYS”) received a referral
indicating that Father and Mother were residing with the Children in a hotel
room, and engaging in drug use. N.T., 11/19/15, at 22-23, 36. In addition,
the referral indicated that the conditions in the hotel room were unfit for the
Children, and that the Children were not being attended to appropriately.
Id. When a CYS caseworker arrived at the hotel room with police
assistance, Father and the Children fled through a window and hid in the
woods, where they were later discovered. Id. at 23, 36. The Children were
subsequently interviewed, and confirmed that there had been drug use in
the hotel room. Id. at 37.
On September 25, 2015, CYS filed petitions to terminate Father’s
parental rights to the Children involuntarily. A termination hearing was held
on November 19, 2015, during which the orphans’ court heard the testimony
of CYS caseworker, Cathy Stamets, and Father. Following the hearing, on
November 23, 2015, the court entered its decrees terminating Father’s
parental rights. Father timely filed notices of appeal on December 8, 2015,
along with concise statements of errors complained of on appeal.
1
The Children’s mother, N.H. (“Mother”), relinquished her parental rights
voluntarily. Mother has not filed a brief in connection with this appeal, nor
has she filed her own separate appeal.
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Father now raises the following issue for our review. “Whether the
[orphans’] court erred in finding that [CYS] met its burden to prove the
elements of termination with respect to 23 Pa. C.S.A. §§ 2511(a)(1) and
2511(b), through clear and convincing evidence?” Father’s brief at 3
(unnecessary capitalization omitted).2
We consider Father’s claim 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).
2
While Father purports to challenge the termination of his parental rights
pursuant to Section 2511(b), Father makes no effort to discuss Section
2511(b) in the argument section of his brief. Thus, Father has waived any
challenge to Section 2511(b), and we address Section 2511(a)(1) only. See
In re Adoption of R.K.Y., 72 A.3d 669, 679 n.4 (Pa. Super. 2013), appeal
denied, 76 A.3d 540 (Pa. 2013) (declining to address Section 2511(b) where
the appellant did not make an argument concerning that section); In re
W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011), appeal denied, 24 A.3d 364
(Pa. 2011) (quoting In re A.C., 991 A.2d 884, 897 (Pa. Super. 2010))
(“‘[W]here 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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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.
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.
(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
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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).
To meet 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.” 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 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,
“[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).
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Instantly, the orphans’ court found that Father has not attended a visit
or had any other contact with the Children since March 6, 2015. Orphans’
Court Opinion, 1/16/2016, at 2. The court emphasized that Father failed to
send the Children gifts, cards, or letters, and that Father failed to make any
other efforts to communicate with the Children indirectly. Id. at 5. The
court concluded that Father did not present a reasonable explanation for this
lack of contact during the termination hearing. Id. at 7.
Father argues that he has been unable to visit with the Children
because he moved to Wilkes-Barre, and because CYS has been unwilling to
move his visits from the Hazelton office of CYS to the Wilkes-Barre office of
CYS. Father’s brief at 8. Father insists that he does not own a vehicle, and
that it “defies logic” that he should be required to visit the Children in
Hazelton when he lives in Wilkes-Barre. Id. at 8-9. Father offers no
explanation for his failure to send the Children gifts, cards, or letters.
After a thorough review of the record in this matter, we conclude that
the orphans’ court did not abuse its discretion. During the termination
hearing, CYS caseworker, Cathy Stamets, testified that Father was offered
visits with the Children once per week at the Hazelton office of CYS. N.T.,
11/19/2015, at 24. Father last attended a visit with the Children on March
6, 2015. Id. at 25, 38. Ms. Stamets explained that a van went to pick up
Father at his residence on the days that he was offered visits, and that, after
March 6, 2015, the van driver discovered that Father was no longer living at
his previous home. Id. at 24-25, 38. CYS did not know where Father had
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moved, and Father’s whereabouts remained unknown until approximately
September or October of 2015, when Father’s brother informed CYS that
Father was working at a local restaurant. Id. at 38-40. Ms. Stamets was
not aware of Father making any attempts to contact CYS during the time
that his whereabouts were unknown. Id. at 40.
Ms. Stamets further testified that Father did not have any indirect
contact with the Children during the six months prior to the filing of the
termination petitions on September 25, 2015. Father did not provide
financial support for the Children, did not send gifts to the Children, and did
not send the Children cards or letters. Id. at 25-26. Father did not contact
CYS and inquire as to the well-being of the Children, nor did he attend any
medical or educational appointments. Id. at 26-27.
Father testified that he contacted CYS after leaving his previous
residence, and asked that his visits with the Children be moved to the CYS
office in Wilkes-Barre. Id. at 46-47, 54-55. However, according to Father,
CYS did not permit his visits to be moved. Id. Father claimed that he
continued to call CYS and leave messages, but no one called him back. Id.
at 48. Father stated that he does not have transportation, and that he
would not have missed any visits if the visits were moved to Wilkes-Barre.
Id. at 49-50. Father acknowledged that he did not send any letters to the
Children, but he insisted that CYS did not inform him that he could send
letters. Id. at 58.
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Thus, 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 September 25, 2015. While Father testified that he
contacted CYS after leaving his prior residence, the orphans’ court was free
to reject Father’s testimony, and to accept the testimony of Ms. Stamets
that Father did not make contact with CYS, and that CYS did not know where
he was. Moreover, Father did not testify that he made any other efforts at
contacting the Children during the relevant six months.3 Father failed to
display even a passive interest in the Children, and he is not entitled to
relief.
Accordingly, because we conclude that the orphans’ court did not
abuse its discretion by terminating Father’s parental rights involuntarily, we
affirm the decrees of the orphans’ court.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/20/2016
3
At best, Father testified that he went to the school of one of the Children to
“watch her Halloween thing.” See N.T., 11/19/2015, at 49, 56. This event
presumably would have occurred in late October, and was therefore well
outside of the critical six-month period.
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