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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: H.A.Y., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF S.R.Y., FATHER :
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:
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: No. 572 EDA 2017
Appeal from the Decree Entered January 26, 2017
In the Court of Common Pleas of Montgomery County
Orphans’ Court at No(s): 2016-A0188
IN THE INTEREST OF: S.R.Y., JR., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
APPEAL OF S.R.Y., FATHER :
:
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: No. 574 EDA 2017
Appeal from the Decree Entered January 26, 2017
In the Court of Common Pleas of Montgomery County
Orphans’ Court at No(s): 2016-A0189
BEFORE: PANELLA, J., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, J. FILED JUNE 08, 2017
S.R.Y. (“Father”) appeals the decrees entered on January 26, 2017,
that granted the petitions filed by Kelly Weidner, of Haven Adoptions,
seeking to involuntarily terminate Father’s parental rights to his twin
children, S.R.Y., Jr., a male, and H.A.Y., a female, (collectively, the
“Children”) with G.E.E.B. (“Mother”), pursuant to the Adoption Act, 23
Pa.C.S.A. § 2511(a)(1), (6), and (b), so that R.J.S. (“Adoptive Father”) and
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D.S. (“Adoptive Mother”) (collectively, “Adoptive Parents”) may adopt the
Children. We affirm.1
Mother executed consents to adoption on October 21, 2016. Towards
the end of that month, Adoptive Parents, who live in Utah, had the Children
residing in their home for at least a week until Father objected to the
adoption set up by Mother. The Children were then returned to
Pennsylvania, where Haven Adoptions placed them in temporary foster care
while the adoption proceedings took place. On November 17, 2016, Kelly
Weidner, of Haven Adoptions, filed petitions seeking to involuntarily
terminate the parental rights of Father to the Children and petitions to
confirm consent to adoptions executed by Mother.
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1
The trial court did not file an opinion in this matter. Rather, in a document
captioned “Pa.R.A.P 1925(a) Opinion,” the court adopted its reasoning stated
on the record at the conclusion of the hearing on the termination petition
between pages 124 and 142 as its opinion. See Pa.R.A.P. 1925(a) Opinion.
See also N.T., Termination Hearing, 1/25/17, at 124-142. The transcript
attached to the Pa.R.A.P. opinion, such that it is, is missing page 142, but
that page is included in the record as part of the transcript.
The court’s discussion is devoid of any citations to the record and
supporting case law. The failure to draft a proper Rule 1925(a) opinion,
containing case law and citation to the record, is simply unacceptable. We,
however, decline to remand to the trial court for the preparation of an
opinion as that would delay the resolution of this Children’s Fast Track
appeal. We strongly caution the trial court against proceeding by adopting
on-record discussions as its Rule 1925(a) opinion in the future.
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The trial court held an evidentiary hearing on December 1, 2016. At
the hearing, the trial court granted the petitions to confirm Mother’s consent
to adoption, involuntarily terminating her parental rights.2 The trial court
continued the hearing to January 2017, so that Father could obtain counsel
prior to the court hearing the petitions to involuntarily terminate his parental
rights.
On January 25, 2017, Kelly Weidner, on behalf of Haven Adoptions,
filed amended termination petitions for the Children. The trial court held an
evidentiary hearing with regard to the petitions to terminate Father’s
parental rights. At the hearing, Adoptive Parents first presented the
testimony of Mother. See N.T., Termination Hearing, 1/25/17, at 4. Mother
testified that Father had been at the hospital for the birth of the Children,
but had not provided any money or gifts for the Children, and had refused
her requests for money for the Children. See id., at 6-7, 13. She noted
Father had once provided disposable diapers and a box of baby wipes a
couple of weeks after the Children were born, and that he had only seen
them five or fewer times. See id., at 6, 13, 17. Mother stated that she had
been unable to contact Father for several months, because he had her phone
number blocked on his phone. See id., at 7.
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2
Mother has not filed an appeal from the orders confirming her consent to
the adoption and involuntarily terminating her parental rights to the
Children.
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After Father opposed the adoption, the Children were returned to
Mother’s home from Adoptive Parents’ home in November 2016 for a week
or two. See id., at 18. During the period when the Children were returned to
Mother, she had driven them to Father, at his request—and he had seen
them through the car window on a street in Norristown. See id., at 14-15,
17, 19-20.
At the time of the hearing, the Children were placed in a foster home
through Haven Adoptions. See id., at 8. Mother testified that Father is a
danger to the Children, and has a criminal past. See id., at 9. Mother
testified that she has a five-year-old daughter, S.B, with Father who resides
with her. See id., at 11-12.
Adoptive Father then testified on his own behalf. See id., at 21.
Adoptive Father testified that he and Adoptive Mother have three other
adopted children. See id., at 12. Adoptive Parents had met the Children and
immediately fallen in love with them and wished to adopt them. See id., at
21-23.
Haven Adoptions, on behalf of Adoptive Parents, then presented the
testimony of Kayla Mazzotta, a caseworker employed with Haven Adoptions.
See id., at 24-25. She believed that Adoptive Parents would be good
parents and that the Children would bond with them. See id., at 25-26. She
clarified that Haven Adoptions became involved as a provider of temporary
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foster care for the Children and was not acting as an adoption agency. See
id., at 30.
Father then presented the testimony of Mother’s brother, A.B. See id.,
at 33. He saw Father at the hospital on the day the Children were born. See
id., at 34. A.B. also testified that Father had come to the home where he
resides with his mother, the Children’s grandmother, on several weekends in
June and July 2016, and a bag with diapers and onesies was on the floor at
most times. See id., at 37-38. A.B. was unsure whether Father provided
Mother with any money for the Children. See id., at 38. A.B. testified that
he had seen Father at the birthday party for A.B.’s son in late September
2016. See id., at 39-40. A.B. had seen Mother and the Children at the
party, as well, but he was unsure whether Father brought anything for the
Children. See id., at 40. Between the end of July and the beginning of
November, Father did not contact A.B. to assist him in getting to see the
Children. See id., at 42.
Next, Father presented the testimony of A.C., the mother of Mother’s
niece. See id., at 43. A.C. saw Father at the hospital when the Children
were born. See id., at 44. A.C. saw Father at the birthday party for A.B.’s
son on the last weekend of September 2016. See id., at 44-45. A.C. also
stated that she had seen Father leaving the residence of Mother on four
occasions on weekends prior to the party, after the birth of the Children.
See id., at 45. She observed a bag with diapers, and A.B. told her that there
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were wipes and onesies in the bag, but she did not know whether Father had
brought them for the Children. See id. A.C. testified that Father held the
Children at the party. See id., at 46-47.
Father then testified on his own behalf. See id., at 48. Father testified
that he moved to Norristown in September or October 2016, and that he had
previously resided in New Jersey after his release from incarceration in
2014. See id., at 48-50. Father resides with his sixteen-month-old son and
his girlfriend. See id., at 50. Father also has two older female children, ages
thirteen and nine, who reside with their mother. See id., at 51-52. Father
stated that he has custody of the older two children on weekends, by
agreement of their mother, and not by order of court, and that he pays the
mother of those children $550 a month in child support through a court
order. See id., at 51. Father stated that he would see his five-year-old
daughter with mother, S.B., every other weekend until September or
October 2016, when Mother found out about his girlfriend, and then Mother
would not let him see S.B. See id., at 52. Father testified that he saw S.B.
one time around Christmas 2016, when he went to Mother’s home to discuss
the adoption of the Children. See id., at 52-53. Father stated that Mother
told him that the Children were at the home of a relative. See id. Father
stated that he does not provide any set amount of support to Mother for
S.B., but provides for S.B. on an “as needed” basis. Id., at 53.
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Father testified that he was present for the birth of the Children. See
id., at 53-54. Father stated that he saw the twins more than five times, that
he had seen them on every weekend in June, and that he had mostly seen
them on weekends, when Mother would come to his house in Norristown,
which was being renovated. See id., at 55-59. Father stated that he had
begun working on Saturdays in November 2016. See id., at 58. Prior to his
current employment, Father was fired from his previous job, and was
between jobs. See id., at 57-58. Father stated that the Children had seen
his older children when they were at his home on weekends and at the
homes of his sisters. See id., at 58-59. Father had the trial court admit an
exhibit purporting when he had visited the Children since their birth. See
id., at 59-60; Exhibit F-1. He stated that the visits during the week might
not be 100% accurate, but the visits on the weekends were accurate, and
that the document was 98% accurate. See id. Father had the trial court
admit as an exhibit a group of pictures he had taken of the Children. See
id., at 62-63; Exhibit F-2.
Father testified that he was unaware that Mother was placing the
Children for adoption until he was asked to give his consent. See id., at 60-
61. He also testified that he had provided the Children with supplies
including two boxes of diapers a month, as well as onesies, and that he had
given Mother money for the Children, in the amount of $40 or $50, on
several occasions. See id., at 64. Father stated that Mother would bring the
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Children to his Norristown home and stay for the weekend on every weekend
that he did not have his older two children after their birth until Mother
placed them for adoption. See id., at 64-65. Father testified that he and
Mother took the Children outlet shopping in the summer 2016, and he
purchased some clothing for the Children that Mother subsequently
destroyed as not good enough for the Children. See id., at 66-67. Father
testified that he filed a petition for full custody of the Children on the day
prior to the hearing, January 24, 2017. See id., at 67. Father testified that
he and Mother’s family believe that Mother is placing the Children for
adoption to get back at him. See id., at 68. Father stated that he deserves a
chance to raise them and they deserve a chance to live with him, and not
with some strangers in Utah. See id., at 68.
On cross-examination by counsel for the Children, Father testified that
he paid Mother $150 to $200 a month for support of the Children, in addition
to providing two boxes of diapers and onesies. See id., at 76-77. Father
conceded that the Children cannot survive on $175 a month. See id., at 77.
Father stated that he had gone with S.R.Y., Jr., to Children’s Hospital of
Philadelphia for an acid reflux issue in late September 2016. See id., at 79.
When questioned on cross-examination by counsel for Haven
Adoptions about Exhibit F-1, reflecting that he visited the Children on
October 22, 23, and 30, Father stated that he probably got the dates wrong.
See id., at 70. Father stated that he did not know that Mother was placing
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the Children for adoption when he went to her home after Christmas in
December 2016, and the Children were not present. See id., at 79-80.
Counsel for Haven Adoptions then questioned Adoptive Father on re-
direct examination. Adoptive Father testified that the Children had been with
him and Adoptive Mother on October 21, 22, 23, 29, and 30 of 2016,
contrary to the representation in Father’s Exhibit F-1 and testimony that
they were with Father on those dates. See id., at 93. Mother testified on re-
direct examination that the dates represented on Father’s Exhibit F-1 were
incorrect, and that Father had not seen the Children as many times as
Father indicated, but only five times in total. See id., at 95-96. Mother
stated that Father went with her and bought one box of diapers and one box
of wipes, at her insistence. See id., at 96. She testified that Father never
purchased any clothing for the Children, nor did he provide any money. See
id.
On cross-examination by counsel for the Children, Mother testified that
she could not afford to raise the Children, and that her financial situation
was a factor in her decision to place the Children for adoption. See id., at
97-98. Mother testified that she had discussed her financial situation with
Father and had requested monetary assistance from him, both before and
after the birth of the Children, and that Father had told her that he was not
working. See id. She was unaware that Father was working until she saw
him in his work vest at the termination hearing. See id., at 98. Mother is
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aware that Father provides support for his other children. See id. In their
conversation in December 2016 around Christmas, Father did not offer to
provide support for the Children. See id. Mother stated that father’s Exhibit
F-2 was incorrect because the Children were with Adoptive Parents during
the last weekend of October 2016. See id., at 99-100.
Mother stated that Father never told her that he and his girlfriend were
willing to raise the Children, as he has never admitted to her that he even
has a girlfriend. See id., at 100-101. Mother explained that her five-year-old
child with Father, S.B., is deaf and has implants to help her hearing, and
Father has refused to provide any support for the child. See id., at 101.
Mother’s friend, R., and her husband have helped Mother in raising and
financially supporting S.B. See id., at 101-102. Father comes to birthday
parties for S.B. without bringing any gift for the child, while Mother is
working two jobs to provide for the child financially. See id., at 102. Mother
is afraid that Father poses a danger to the Children and herself because his
criminal past involved gun violence and a shooting that resulted in the death
of an individual. See id., at 103-107.
Based on the testimony and the documentary evidence admitted at the
hearing, the trial court entered decrees granting the termination petitions.
Father timely filed notices of appeal and concise statements pursuant to
Pa.R.A.P. 1925(a)(2)(i). This Court, acting sua sponte, consolidated the
appeals on March 2, 2017.
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On appeal, Father raises two issues:
1. The [t]rial [c]ourt erred in finding clear and convincing
evidence existed to terminate Birth Father’s parental rights
under 23 Pa.C.S. Section 2511(a)(1).
2. The [t]rial [c]ourt erred in finding clear and convincing
evidence existed to terminate Birth Father’s parental rights
under 23 Pa.C.S. Section 2511(a)(6).
Father’s Brief, at 4.3
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.
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3
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)
and (6). He does not raise the termination of his parental rights under §
2511(b) in either his concise statement or the Statement of Questions
Involved portion of his brief. Thus, he has waived any challenge to the
termination under section 2511(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). See also In re M.Z.T.M.W., ___ A.3d ___,
___, n.3, 2017 WL 2153892, *3, n.3 (Pa. Super., filed May 17, 2017).
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[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.
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).
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 trial court’s decision regarding the
termination of parental rights with regard to any one subsection of §
2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc).
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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)
and (6). We need only address subsection (a)(1).
§ 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.
With respect to subsection (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
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.
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In re B.,N.M., 856 A.2d 847, 854-855 (Pa. Super. 2004) (citations
omitted).
With regard to § 2511(a)(1), Father asserts that he has not evidenced
a settled purpose of relinquishing his parental rights, nor has he failed
and/or refused to perform his parental duties. Given the trial court’s
credibility findings, which are supported by the record, we disagree.
The conflicting testimony is set forth in detail above. The trial court
found Father’s testimony that he had visited with the Children on most
weekends since their birth at the end of May 2016 until their placement in
foster care in November of 2016, and that he had provided support for the
Children lacked any credibility. See N.T., Termination Hearing, 1/25/17, at
128-130, 133, 138-139. The trial court found no evidence that Father
interacted with the Children as a parent with an obligation to care for them,
feed them, change their diapers, or provide for them financially. See id., at
134, 138-139. Accordingly, the trial court found that, during the six-month
period preceding the filing of the petition, July 17, 2016 through November
17, 2016, Father failed to perform his parental duties. See N.T., Termination
Hearing, 1/25/17, at 125-126.
The trial court’s credibility determinations are supported by competent
evidence in the record. The petitioner proved by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
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rights are valid. We agree with the trial court that termination of Father’s
parental rights under §2511(a)(1) was warranted.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/8/2017
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