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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: O.D., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: T.M.D., MOTHER : No. 1905 MDA 2017
Appeal from the Decree, October 31, 2017,
in the Court of Common Pleas of Berks County
Orphans’ Court Division at No. 85603
BEFORE: LAZARUS, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 20, 2018
T.M.D. (“Mother”) appeals from the October 31, 2017 decree granting
the petition of N.A.D (“Father”) and A.D. (“Stepmother”) (collectively,
“Petitioners”) to involuntarily terminate Mother’s parental rights to minor
female child, O.D. (“Child”), pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2),
(5), and (b). After careful review, we affirm.
Child was born in January 2008 to Mother and Father. Mother and
Father were subsequently married on August 6, 2010, but separated shortly
thereafter, on December 3, 2010. At the time of their separation, Mother
and Father shared legal and physical custody of Child. Mother and Father
were ultimately divorced on May 3, 2012. Petitioners, in turn, met in 2011
and have been married since October 17, 2014. Petitioners and Child have
resided together as a family unit since 2014. (Notes of testimony, 10/31/17
at 7-8, 11, 35-36.)
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On August 1, 2013, Father was granted sole physical and legal custody
of Child. (See Emergency Custody Order, 8/1/13.) The trial court
summarized the underlying facts and procedural history, as gleaned from
the termination hearing, as follows:
Custody [of Child] was split 50/50 [between Mother
and Father], but that changed in May 2013.
[Petitioners] attempted to pick up Child upon
returning from a trip in May 2013, but they were
unable to reach Mother. They found her and Child at
a motel with a man. Mother appeared to Father to
be under the influence of drugs or alcohol. During
her interaction with Father, Mother had her eyes
closed and leaned against a car just to be able to
stand. Father took Child and called the police.
Father also filed an emergency custody petition,
which ultimately led to an Order of August 1, 2013
granting Father sole legal and physical custody of
Child. This Order remains in effect.
After entry of the custody order, Mother’s only
contact with Child consisted of sporadic telephone
calls, which Father arranged. Around Christmas time
in 2013, Mother left a scooter for Child. In 2014,
Father saw Mother at a bank. He offered Mother an
opportunity to call Child on Sundays and if done
consistently perhaps contact could progress. Calls
were not consistent, and, when they did occur, Child
became reserved and quiet and often displayed
uncertainty, doubt, and confusion. Father stopped
allowing telephonic contact upon Child’s request.
Mother has not spoken to Child in 2 – 2½ years.
Last year, Father took Child to counseling six times
for emotional issues regarding Mother. Child
requested that the counseling stop.
In response to his counsel’s questioning, Father
testified that Mother has had no involvement with
Child since January 2017 – no support has been
paid, no cards have been sent, no telephone calls,
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and no requests for a visit. In that time Father
received three text messages from Mother – one in
January to wish Child a happy birthday, one in
February for Valentine’s Day, and one around March
to congratulate him on his buying a house. The
February and March texts also asked Father to tell
Child that she loves her.
At all times since the entry of the [August 1,] 2013
custody order, Mother has had Father’s telephone
number, and she has known where Father’s parents
reside. In 2013, Child told Mother which school she
was attending. Father also takes Child to see
various members of Mother’s family monthly.
In addition to Child, Mother has two other children.
She has a five-year-old son that she has been seeing
the past few months for an hour or two on
Wednesdays. The visits are supervised. Prior to
these last few months, Mother had not seen this
child since he was eight months old. Mother
acknowledged that this child does not know her and
reintegration into her life is necessary. She indicated
that she could not do reintegration with both children
at the same time and that she has been making life
changes three months at a time. Mother also has an
infant son with her current boyfriend.
Mother claimed she contacted a legal aid agency in
2014 regarding Child. At the time, her income was
too great to qualify for aid. She went back
six months later. The agency assisted Mother with
getting some custody relief with regard to her son,
but allegedly the agency was concerned about
proceeding with an action regarding Child because
Mother did not have a current address for Father.
On October 16, 2017, only two weeks prior to the
rescheduled hearing in this matter held on
October 31, 2017 (the hearing was originally
scheduled for September 27, 2017), Mother finally
filed a petition to modify the 2013 custody order.
Trial court opinion, 12/5/17 at 3-5.
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On July 21, 2017, Petitioners filed a petition to involuntarily terminate
Mother’s parental rights to Child, pursuant to Sections 2511(a)(1), (2), (5),
and (b). Stepmother simultaneously filed a petition for adoption of Child,
with the consent of Father. On September 26, 2017, the trial court
appointed Melissa Krishock, Esq. (“Attorney Krishock”), as guardian
ad litem (“GAL”) for Child. A termination hearing was scheduled for
September 27, 2017, but was subsequently continued. On October 30,
2017, Attorney Krishock filed a comprehensive, 13-page GAL report,
recommending that it was in the best interest of Child to have Mother’s
parental rights terminated. On October 31, 2017, the trial court conducted a
termination hearing; all the parties were present for said hearing and were
represented by counsel. Following the hearing, the trial court entered a
decree involuntarily terminating Mother’s parental rights to Child, pursuant
to Sections 2511(a)(1), (2), (5), and (b). On November 30, 2017, Mother
filed a timely notice of appeal to this court. That same day, Mother filed a
concise statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b). On December 5, 2017, the trial court filed its
Pa.R.A.P. 1925(a) opinion.
Mother raises the following issues for our review:
1. Did the [trial] court err by terminating
[Mother’s] parental rights because [Petitioners]
did not establish by clear and convincing
evidence that [Mother’s] parental rights should
be terminated?
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2. Did the [trial] court err by terminating
[Mother’s] parental rights because the
evidence presented by [Petitioners] was
insufficient to support the [trial] court’s
decision?
3. Did the [trial] court err by terminating
[Mother’s] parental rights because the [trial]
court failed to continue the hearing until the
custody action pending in another court could
be heard?
4. Did the [trial] court err by terminating
[Mother’s] parental rights because it denied
[Mother’s] request that [Child] be evaluated by
a professional with regard to the bond between
Mother and Child?
Mother’s brief at 5-6 (capitalization omitted).
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
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 internal quotation
marks omitted). “The trial court is free to believe all, part, or none of the
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evidence presented and is likewise free to make all credibility determinations
and resolve conflicts in the evidence.” In re M.G., 855 A.2d 68, 73-74
(Pa.Super. 2004) (citation omitted). “[I]f competent evidence supports the
trial court’s findings, we will affirm even if the record could also support the
opposite result.” In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa.Super.
2003) (citation omitted).
The 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 of the grounds for termination followed by the needs and welfare of
the child.
Our case law has made clear that under
Section 2511, the court must engage in a bifurcated
process prior to terminating parental rights. 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). We
have defined “clear and convincing evidence” as that which is so “clear,
direct, weighty and convincing as to enable the trier of fact to come to a
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clear conviction, without hesitance, of the truth of the precise facts in issue.”
In re C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc) (citation and
quotation marks omitted).
In this case, the trial court terminated Mother’s parental rights
pursuant to Sections 2511(a)(1), (2), (5), 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 relinquishing
parental claim to a child or has
refused or failed to perform
parental duties.
(2) The repeated and continued
incapacity, abuse, neglect or
refusal of the parent has caused
the child to be without essential
parental care, control or
subsistence necessary for his
physical or mental well-being and
the conditions and causes of the
incapacity, abuse, neglect or
refusal cannot or will not be
remedied by the parent.
....
(5) The child has been removed from
the care of the parent by the court
or under a voluntary agreement
with an agency for a period of at
least six months, the conditions
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which led to the removal or
placement of the child continue to
exist, the parent cannot or will not
remedy those conditions within a
reasonable period of time, the
services or assistance reasonably
available to the parent are not
likely to remedy the conditions
which led to the removal or
placement of the child within a
reasonable period of time and
termination of the parental rights
would best serve the needs and
welfare of the child.
....
(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), (2), (5), and (b). We need only agree with the
trial court as to any one subsection of Section 2511(a), in addition to
Section 2511(b), to affirm an order terminating parental rights. In re M.M.,
106 A.3d 114, 117 (Pa.Super. 2014).
Instantly, we analyze the trial court’s decision to terminate under
Section 2511(a)(1) and (b). To meet the requirements of
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Subsection 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) (citation
omitted; emphasis added). The trial 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 Subsection 2511(b).
Id. (citations omitted).
Upon review, we find that there was clear and convincing evidence to
support the trial court’s termination of Mother’s parental rights to Child,
pursuant to Section 2511(a)(1). The record establishes that Mother has
demonstrated a settled purpose of relinquishing parental claim to Child and
has performed virtually none of her parental duties for over four years.
Specifically, the evidence established that Mother has had no physical
contact with Child since August 1, 2013, when Father was awarded sole legal
and physical custody of Child. (Notes of testimony, 10/31/17 at 15.) Father
testified that Mother has not contacted him to inquire as to whether she
could visit Child since January 2017. (Id. at 16-17.) Mother, in turn,
acknowledged that she has not seen Child since 2013, but alleged this was
because “she was going through a hard time,” which included substance
abuse issues, and placed blame on Father for failing to update his address or
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answer the phone. (Id. at 38-39, 46, 49.) The record further reflects that
Mother failed make any attempt to have her custody arrangements modified
until two weeks before the rescheduled October 31, 2017 termination
hearing, despite the fact she became aware of Father’s new mailing address
in March 2017. (Id. at 42, 48.)
Additionally, Mother acknowledged that she has Father’s telephone
number and was aware of the fact that Father frequently takes Child to visit
Mother’s family members, but has only spoken with Child on the telephone
sporadically since August 2013. (Id. at 39, 47, 51.) Father testified that
Mother has not made a single phone call to speak with Child since January
2017, but did send three text messages referencing Child in early 2017.
(Id. at 15-16.) Mother, in turn, acknowledged that the last time she spoke
to Child on the telephone was 2½ years ago. (Id. at 16, 39-40, 47.)
Mother also testified that at one point she sent cards to Child at least once a
month for “probably six months to a year,” and that she had sent a card to
Father’s parents’ house a few months ago. (Id. at 45.) Father, however,
testified that Mother did not send any cards or gifts to Child in the
six months preceding the filing of the termination petition. (Id. at 15).
Notably, Mother acknowledged at the termination hearing that she has
not performed any of her parental duties with respect to Child for 6 months
prior to the filing of Petitioner’s termination petition, but avers that her
struggles in 2013 have “made [her] a stronger person and . . . taught [her]
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that [she] could survive anything.” (Id. at 44, 49.) Mother contends that
she is now ready to integrate into Child’s life, starting with supervised visits
1 or 2 hours per week, so that she can “get to know the beautiful person
[Child] is.” (Id. at 43.) As the trial court noted, however, Mother’s attempt
“to obtain contact with Child is simply too little, too late.” (Trial court
opinion, 12/5/17 at 6.)
Based on the foregoing, we agree with the trial court that there exists
clear and convincing evidence of record to establish that Mother’s conduct
“reveals a settled intent to relinquish [her] parental claim to [Child] or a
refusal or failure to perform parental duties,” sufficient to support the
termination of her parental rights pursuant to Section 2511(a)(1). See
In re Z.S.W., 946 A.2d at 730.
Next, we consider whether termination was proper under
Section 2511(b). With regard to Section 2511(b), our supreme court has
stated as follows:
[I]f the grounds for termination under subsection (a)
are met, a court “shall give primary consideration to
the developmental, physical and emotional needs
and welfare of the child.” 23 Pa.C.S.[A.] § 2511(b).
The emotional needs and welfare of the child have
been properly interpreted to include [i]ntangibles
such as love, comfort, security, and stability. . . .
[T]his Court held that the determination of the
child’s “needs and welfare” requires consideration of
the emotional bonds between the parent and child.
The “utmost attention” should be paid to discerning
the effect on the child of permanently severing the
parental bond. However, as discussed below,
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evaluation of a child’s bonds is not always an easy
task.
In re T.S.M., 71 A.3d at 267 (internal case citations omitted).
In concluding that the termination of Mother’s parental rights best
served the needs and welfare of Child, the trial court emphasized that it was
clearly in Child’s best interest to move forward with her adoption by
Petitioners, given that “[they] provide all of the Child’s care.” (Trial court
opinion, 12/5/17 at 6.) The trial court properly reasoned as follows:
Stepmother is Child’s primary caregiver – she packs
Child’s lunch, takes her to school, communicates
with teachers, arranges after-school care, takes
Child shopping and to get their nails done, teaches
Child about puberty, and administers discipline as
necessary. Stepmother loves Child and described
herself as Child’s rock. Child has directly expressed
a desire for Stepmother to adopt her.
Stepmother has been involved in Child’s life since
Spring 2011. Father, Stepmother, and Child have
acted as a family unit since 2014. Father and
Stepmother were married on October 1[7], 2014.
Eighteen months ago the family unit grew by one –
Child got a baby brother.
Id. The record clearly supports these conclusions. (See notes of testimony,
10/31/17 at 9-10, 31-33.)
Additionally, Attorney Krishock, the GAL for Child, opined that the
testimony she heard at the termination hearing did not change her
recommendation that it was in the best interest of Child to have Mother’s
parental rights terminated:
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No, Your Honor, what I heard today does not
change any of the opinions in my [October 30, 2017]
report. What I heard today that bolsters, I believe,
my opinion that [Mother] at least knew of [F]ather’s
address she just testified in March of this past year.
She did -- she did nothing at that time to attempt to
change her custodial status in regard to [Child].
I also heard a lot of he didn’t, I want, he
didn’t, I want. It was blame and all about her and as
this Court is aware, and I told this to [Mother] when
we met in my office, that sometimes being a parent
means that you look at what’s right for your child,
not necessarily what you want or what you think is
best or putting blame on somebody else.
So after meeting with the family I would not
change my opinion. I think that termination would
be appropriate and the adoption would be
appropriate. As [Child] gets older if she believes
that she would like to have contact with [Mother]
and she becomes an adult that is obviously her
choice. But right now I think it is in her best interest
to have [Mother’s] rights terminated and this
adoption move forward.
Notes of testimony, 10/31/17 at 53-54.
We further agree with the trial court that Mother’s request that Child
be evaluated by a professional to analyze the bond between her and Mother
is unwarranted, especially in light of the fact that “the lack of contact
between Mother and Child has resulted in the dissolution of any bond that
might have ever existed.” (Trial court opinion, 12/5/17 at 6; see also
Mother’s brief at 21-22.) This court has continually recognized that
“Section 2511(b) does not require a formal bonding evaluation.” In re Z.P.,
994 A.2d 1108, 1121 (Pa.Super. 2010) (citations omitted). “[I]n cases
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where there is no evidence of a bond between a parent and child,” as is the
case here, “it is reasonable to infer that no bond exists.” In re Adoption
of J.M., 991 A.2d 321, 324 (Pa.Super. 2010) (citations omitted). In
reaching this conclusion, we emphasize that “[a] child’s life, happiness and
vitality simply cannot be put on hold until the parent finds it convenient to
perform parental duties.” In the Matter of the Adoption of A.M.B., 812
A.2d 659, 675 (Pa.Super. 2002). Our standard of review requires us to
accept the trial court’s findings of fact and credibility determinations where,
as here, they are supported by the record. See In re T.S.M., 71 A.3d at
267. Accordingly, we decline to reweigh the evidence and reassess witness
credibility, as Mother repeatedly asserts that we should do.
Based on the foregoing, we conclude that the trial court did not abuse
its discretion by involuntarily terminating Mother’s parental rights to Child
pursuant to Section 2511(a)(1) and (b). Accordingly, we affirm the
October 31, 2017 decree of the trial court.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/20/2018
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