J-S31014-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: D.T.P., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: A.T.E., III, FATHER :
:
:
:
:
: No. 64 WDA 2017
Appeal from the Decree entered December 9, 2016
In the Court of Common Pleas of Butler County
Orphans’ Court at No(s): O.A. No 9
BEFORE: PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, J. FILED MAY 15, 2017
A.T.E., III. (“Father”) appeals from the decree entered on December 9,
2016, granting the petition filed by D.P. (“Mother”) and involuntarily
terminating his parental rights to his male child, D.T.P., born in May 2009,
(“Child”), pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1) and (b),
so that Child may be adopted by her current husband, E.C., (“Stepfather”).
We affirm.
On February 22, 2016, Mother filed the petition seeking to
involuntarily terminate Father’s parental rights to Child. On September 28,
2016, the trial court held a hearing on the petition. At the hearing, Mother
presented the testimony of Father, as on cross-examination, and Stepfather,
and then testified on her own behalf.
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On December 9, 2016, the trial court entered its findings of fact and
termination decree setting forth the following facts that it found credible
from the evidence.
The clear and convincing evidence shows that while Father
desired visitation with Child, he did not perform any parental
duties. Father had minimal contact with Child from his date of
birth, [in May 2009], until Father’s incarceration May 14, 2010.
During this time[,] Father did pay child support. Over the next
three years[,] Father sent a handful of letters to Child while
incarcerated. After his release from prison in December, 2013,
[…], Father contacted Mother on several occasions requesting
visits with Child which Mother denied, [and] Mother informed
Father that she would only consider visits if mandated through
the [c]ourts. Father testified that he made a knowing decision
not to proceed through the judicial system because he believed
that process was not in Child’s best interest.
In December 2015, Father purchased and provided to
Child Christmas gifts. However, Father did not provide any other
financial support for Child after his release from incarceration.
The evidence showed that Mother did not acquiesce to
Father’s request for visits. The evidence also reveals that Mother
did not want Father to have a relationship with Child.
Mother refused to give Father her address. However, the
issue before the [c]ourt is whether Father performed parental
duties, and he did not. While Mother did not agree to introduce
Father back into Child’s life, she did not create such an
impediment that prevented Father from performing parental
duties. In fact, Father’s testimony was clear that he knew he
could use the judicial system to gain parenting time, but made a
specific decision not to do so. He could have[,] after
incarceration[,] continued to send letters, cards, gifts, or
financial support to Child. Simply put, Father accepted Mother’s
unwillingness to provide visitation with Child and took no other
affirmative steps to perform parental duties except occasionally
making additional request[s] to Mother.
The court[,] finding that Mother proved by clear and
convincing evidence §2511(a)(1), the [c]ourt considers [sic] 23
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Pa.C.S.A. §2511(b). Child had minimal contact with Father for
the first year of his life. The last contact between Child and
Father was July 2010. Until shortly before the hearing, Child was
unaware that Mother’s current husband was not his Natural
Father. The clear and convincing evidence is that there is no
bond between Child and Father. Child has a strong positive bond
with Mother’s husband[,] who desires to adopt Child. Child has
other [step]-siblings who are either biologically related to
Mother’s husband or are being adopted by him.
There is no evidence that Child would be emotionally
harmed by the termination of Father’s parental rights. Primary
consideration was given to the developmental, physical and
emotional needs and welfare of Child. The court finds that it
would best serve the needs and welfare of the [c]hild to
terminate the parental rights of Father so that he could be
adopted by Mother’s husband[,] who is the only father figure
Child has known.
Orphans’ Court Findings of Fact, 12/9/16, at 1-2 (unnumbered).
Father timely appealed.
On appeal, Father raises two issues:
1. Did the [trial court] commit an error of law in determining
that Mother . . . proved by clear and convincing evidence that
Father’s parental rights should be terminated pursuant to 23
Pa.C.S.A. § 2511(a)(1)?
2. Did the [trial court] commit an error of law in determining
that the Natural Father . . . failed to perform parental duties
pursuant to 23 Pa.C.S.A. § 2511(a)(1)?
Father’s Brief, at 5.1
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1
In his brief, Father contends that the trial court abused its discretion or
erred as a matter of law in concluding that the evidence was sufficient to
support the involuntary termination of his parental rights under §
2511(a)(1). He does not raise the termination of his parental rights under
subsection (b) in either his concise statement or the statement of questions
(Footnote Continued Next Page)
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In reviewing an appeal from an order terminating parental rights, we
adhere to 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
record and the court’s legal conclusions are not the result of an
error of law or an abuse of discretion.
_______________________
(Footnote Continued)
involved section of his brief. Thus, he has waived any challenge to the
termination under subsection (b). See Krebs v. United Refining Company
of Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (holding that an
appellant waives issues that are not raised in both his concise statement of
errors complained of on appeal and the statement of questions involved in
his brief on appeal).
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In re Adoption of S.P., 47 A.3d 817, 826-827 (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).2
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)).
In his brief, Father contends that the court abused its discretion or
erred as a matter of law in concluding that the evidence was sufficient to
support the involuntary termination of his parental rights under § 2511(a)(1)
and (b).
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, as noted, the court terminated Father’s parental rights under §
2511(a)(1) and (b), which provides as follows:
§ 2511. Grounds for involuntary termination
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2
Thus, the burden to support the petition is not on both the petitioner and
the guardian ad litem, as alleged by Father.
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(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.A. § 2511(a)(1), (b).
With respect to subsection 2511(a)(1), our Supreme Court has held
that
[o]nce 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 Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1988) (citation
omitted).
Further, this Court has stated that
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the trial court must consider the whole history of a given case
and not mechanically apply the six-month statutory provision.
The court must examine the individual circumstances of each
case and consider all explanations offered by the parent facing
termination of his or her parental rights, to determine if the
evidence, in light of the totality of the circumstances, clearly
warrants the involuntary termination.
In re B.,N.M., 856 A.2d 847, 854-855 (Pa. Super. 2004) (citations
omitted).
Father argues that the record established that the Mother failed to
sufficiently demonstrate that his conduct over the six months immediately
preceding the filing of the petition demonstrated that he had a settled
purpose of relinquishing his parental claim and failed to perform his parental
duties. See Father’s Brief, at 8. Additionally, Father asserts that he put forth
reasonable and significant efforts to find and contact the Child, considering
all of the circumstances surrounding this case, and that Mother’s refusal to
allow him to see Child was a barrier to his ability to parent. See id.
In support of his argument, Father relies on Adoption of S.H., 383
A.2d 529 (Pa. 1978), and Lookabill v. Moreland, 485 A.2d 1204, 1206 (Pa.
Super. 1984), in urging that the court failed to consider the circumstances of
this case. Specifically, Father contends that he was incarcerated, and he
utilized all of the resources available to him to attempt to establish a
connection with Child. At the same time, Mother was engaging in ongoing
efforts to evade Father and prevent a relationship between him and Child.
Father alleges that Mother utilized his incarceration to further these efforts
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by changing her address and telephone number without telling him.
Moreover, Father contends that the record also clearly established that
Mother actively sought to prevent and obstruct his relationship with Child,
and that, by terminating Father’s parental rights, the trial court rewarded
Mother’s misconduct. Father claims that, considering the totality of the
circumstances and the bad faith conduct of Mother, the trial court should
have excused his lack of success in contacting Child. See Father’s Brief, at
8-11.
Father testified that he was convicted and incarcerated for dealing in
illegal drugs. See N.T., 9/28/16, at 11. He was incarcerated in July 2010,
was released to a half-way house in October 2013, and was released on
parole at the time of the hearing on September 28, 2016. See id., at 7-9.
Father was drug tested on a weekly basis as of the time of the hearing. See
id., at 11.
Obviously, incarceration makes performance of the duty to protect,
support, and maintain communication with a child much more difficult. Our
Supreme Court has instructed that
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 exercise reasonable firmness in declining to
yield to obstacles, his other rights may be forfeited.
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47 A.3d at 828 (quoting In re: Adoption of McCray, 331 A.2d 652, 655
(Pa. 1975)). “[I]ncarceration neither compels nor precludes termination of
parental rights.” Id. (quoting In re Z.P., 994 A.2d 1108, 1120 (Pa. Super.
2010)).
With the above standards of review in mind, we have thoroughly
reviewed the record, the parties’ briefs, and the applicable law. We find that
the trial court ably and methodically considered the evidence presented at
trial, and addressed Father’s issues.
After a careful review of the record in this matter, we find the record
supports the trial court’s factual findings, and the court’s legal conclusions
are not the result of an error of law or an abuse of discretion. This Court
finds that the trial court’s determinations are supported by competent
evidence.3 Accordingly, we affirm the trial court’s decree on the basis of the
discussion in the trial court’s findings of fact, set forth verbatim above, see
ante, at 2-3, entered on December 9, 2016. See Trial Court Findings of
Fact, 12/9/16, at 1-2.
Decree affirmed.
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3
Although Father has waived any argument regarding subsection (b), had
he preserved the issue, we would have found it lacked merit. There was
sufficient evidence to allow the trial court to make a determination of Child’s
needs and welfare and as to the existence of a bond between Father and
Child that, when severed, would have no detrimental impact on Child.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/15/2017
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In Re: D.T.P., a Minor, Appeal of: A.T.E.
Combined Opinion