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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.L.A., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: LUZERNE COUNTY :
CHILDREN & YOUTH SERVICES :
:
:
: No. 734 MDA 2019
Appeal from the Decree Entered April 2, 2019
In the Court of Common Pleas of Luzerne County Orphans' Court at
No(s): A-8640
BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 04, 2019
Appellant, Luzerne County Children and Youth Services (“CYS”), appeals
from the April 2, 2019 Decree that denied CYS’ Petition to Involuntarily
Terminate the Parental Rights of K.O. (“Mother”). Upon careful review, we
affirm.
The relevant factual and procedural history is as follows. Mother is the
biological parent of K.A. (“Child”), who was born in January 2017. Child was
born at 31 weeks gestation, addicted to cocaine and heroin, and experienced
multiple health issues. On March 20, 2017, CYS obtained emergency custody
of Child and placed Child in foster care. At that time, the court appointed
Louis Mattioli, Esq. (“Attorney Mattioli”), to represent Mother. Mother visited
with Child three times in April 2017, and then temporarily ceased visitation
with Child and communication with CYS while she “was dealing with [her] drug
addiction.” N.T. Hearing, 12/11/18, at 48. Mother was incarcerated from
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October 3, 2017, until November 17, 2017. During that time, on October 27,
2017, the trial court granted Attorney Mattioli’s Motion to Withdraw as Counsel
because he had not been able to contact Mother. On November 20, 2017,
three days after her release from incarceration, Mother telephoned her CYS
caseworker, Krista Dean, to request visitation with Child. Ms. Dean returned
Mother’s phone call on December 1, 2017, wherein she left Mother a voice
message. On the same day, Mother returned the telephone call and spoke
with Ms. Dean. Mother informed Ms. Dean that she was complying with
services, and inquired about what steps she needed to take to begin visitation;
Ms. Dean advised Mother that she needed to consult with her supervisor prior
to setting up visitation. On December 11, 2017, Ms. Dean contacted Mother
and left a voice message. During this time, Mother physically went to the CYS
office three times in an attempt to make contact with Ms. Dean. Mother left
messages with the receptionist, tried to use the lobby phone to contact Ms.
Dean, and left paperwork with the receptionist to show that she was
participating in a life skills class, a drug and alcohol program, and counseling
services. On January 2, 2018, Mother called Ms. Dean and left a voice
message.
On January 4, 2018, before CYS had scheduled Mother’s requested
visitation with Child, CYS filed a Petition to Involuntarily Terminate Mother’s
Parental Rights (“Petition”). CYS filed the Petition pursuant to Section
2511(a)(1) of the Adoption Act, asserting that for the six months immediately
preceding the filing of the Petition Mother has either “evidenced a settled
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purpose of relinquishing parental claim to a child or has refused or failed to
perform parental duties.” 23 Pa.C.S. § 2511(a)(1).1 On the same day, the
trial court re-appointed Attorney Mattioli to represent Mother during the
termination proceedings.
On December 11, 2018, and January 9, 2019, the trial court held a
hearing on CYS’ Petition. CYS presented testimony from Ms. Dean, CYS
caseworker, who testified, inter alia, that Mother had not visited with Child in
the six months preceding CYS’ filing of the Petition. Mother testified on her
own behalf and explained the efforts she made from November 2017 to
January 2018 to set up visitation with Child.
On April 2, 2019, the trial court issued a Decree denying CYS’ Petition
and finding that CYS did not present clear and convincing evidence to
involuntarily terminate Mother’s parental rights pursuant to Section
2511(a)(1). Order, 6/2/19, at 1 (unpaginated). The trial court considered,
inter alia, “the explanations given by Mother as to her lack of contact with
[C]hild in light of the totality of the circumstances [and] the barriers in place
which precluded Mother from having contact with [Child,] specifically the
caseworker’s delay in responding to Mother’s repeated requests to see
[C]hild.” Id. at 2 (unpaginated).
CYS timely appealed. Both CYS and the trial court complied with
Pa.R.A.P. 1925.
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1 Visitation between Mother and Child resumed in April 2018.
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CYS raises the following issues for our review:
1. Did the trial court commit an error of law or otherwise abuse
its discretion when it denied [CYS’] Petition to terminate the
natural parents’ rights finding the Appellant failed to meet its
standard of clear and convincing evidence?
2. Did the trial court commit an error of law or otherwise abuse
its discretion by concluding [CYS] constructed a barrier[,]
which prevented [M]other from visiting with [C]hild without
applying a reasonable firmness standard?
3. Did the trial court commit an error of law or otherwise abuse
its discretion when it determined that [M]other’s lack of a court
appointed counsel, due to his withdrawal, contributed to her
lack of contact with [C]hild prior to the filing of the termination
of parental rights Petition?
CYS’ Br. at 3 (numbers added and some capitalization omitted).
When we review a trial court’s decision to grant or deny a petition to
involuntary terminate parental rights, we must accept the findings of fact and
credibility determinations of the trial court if the record supports them. In re
T.S.M., 71 A.3d 251, 267 (Pa. 2013). “If the factual findings are supported,
appellate courts review to determine if the trial court made an error of law or
abused its discretion.” Id. (citation omitted). “Absent an abuse of discretion,
an error of law, or insufficient evidentiary support for the trial court's decision,
the decree must stand.” In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009)
(citation omitted). We may not reverse merely because the record could
support a different result. In re T.S.M., 71 A.3d at 267. We give great
deference to the trial courts “that often have first-hand observations of the
parties spanning multiple hearings.” Id. Moreover, “[t]he trial court is free
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to believe all, part, or none of the 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).
Section 2511 of the Adoption Act, 23 Pa.C.S. § 2511, governs
termination of parental rights, and requires a bifurcated analysis. “Initially,
the focus is on the conduct of the parent.” In re Adoption of A.C., 162 A.3d
1123, 1128 (Pa. Super. 2017) (citation omitted). “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).” Id. (citation omitted). Provided that the court determines the
parent’s conduct warrants termination of his or her parental rights, the court
then engages 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.” Id. (citation omitted).
In its first issue, CYS avers that the trial court abused its discretion when
it determined that CYS did not present clear and convincing evidence to
involuntarily terminate Mother’s parental rights. CYS’ Br. at 13. CYS argues
that after Mother’s “seven-month hiatus” from contact with CYS or Child, the
trial court incorrectly placed more weight on Mother’s “sudden involvement”
and requests for visitation that “were not immediately addressed.” Id. at 14.
Section 2511(a)(1) provides that the trial court may terminate parental
rights if the Petitioner establishes that “the parent by conduct continuing for
a period of at least six months immediately preceding the filing of the petition
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either has evidenced a settled purpose of relinquishing parental claim to a
child or has refused or failed to perform parental duties.” 23 Pa.C.S. §
2511(a)(1). The focus of involuntary termination proceedings is on the
conduct of the parent and whether that conduct justifies a termination of
parental rights. In re B.L.L., 787 A.2d 1007, 1013 (Pa. Super. 2001).
Although the statute focuses on an analysis of the six months immediately
preceding the filing of the petition, the court must consider the whole history
of a given case and may consider a parent’s inaction before the six-month
statutory provision. In re K.Z.S., 946 A.2d 753, 758 (Pa. Super. 2008).
Additionally, “[t]he court must examine the individual circumstances of each
case and consider all explanations offered by the parent facing termination of
his parental rights, to determine if the evidence, in light of the totality of the
circumstances, clearly warrants the involuntary termination.” Id. (citations
omitted).
This Court has repeatedly defined “parental duties” in general as the
affirmative obligation to provide consistently for the physical and emotional
needs of a child:
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 . . . requires continuing interest in the
child and a genuine effort to maintain communication and
association with the child. Because a child needs more than
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a benefactor, parental duty requires that a parent exert
himself to take and maintain a place of importance in the
child’s life.
In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations and internal
paragraph breaks omitted).
Moreover, “[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). “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.” Id. (citation omitted). And most importantly,
“[p]arental 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 his or her physical and emotional needs.” Id. (citation omitted).
Our review of the record reveals that the trial court did not abuse its
discretion when it concluded that CYS failed to present clear and convincing
evidence to terminate Mother’s parental rights under Section 2511(a)(1). The
trial court looked at the totality of the circumstances, based on the evidence
presented by CYS, and concluded that CYS’ delay in returning phone calls and
setting up visitation, rather than Mother’s alleged drug addiction, was the
obstacle to Mother performing her parental duties during the six months
immediately preceding the filing of the Petition. In its Rule 1925(a) Opinion,
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the trial court highlighted the fact that CYS failed to present any evidence that
Mother was using illegal drugs during the six-month period immediately
preceding the filing of the Petition. See Trial Ct. Op., 6/27/19, at 10. Further,
the trial court found Mother’s testimony to be credible that in the six months
preceding the filing of the Petition, Mother spent one month incarcerated and
then spent the last two months trying to get in contact with her CYS
caseworker and set up visitations. The trial court placed great weight on
Mother’s explanations that she made numerous phone calls to her caseworker,
physically appeared three times at the CYS office, and provided CYS with
paperwork to show her compliance with services over a two-month period with
delayed responses from CYS. The trial court also considered the fact that CYS
failed to schedule visitation until after it filed the Petition.
The trial court opined:
But for Ms. Dean’s delay in contacting Mother, Mother could have
had more contact with her son prior to the filing of the Petition [].
This [c]ourt finds that Ms. Dean’s inaction was the barrier that
hindered Mother from having visits with her son prior to filing of
[CYS]’ Petition. [CYS] alleges that Mother’s barrier was her drug
addiction. However there was no evidence presented by [CYS]
that Mother was using illegal substances six (6) months prior to
the filing of the Petition []. . . . This [c]ourt finds that Mother’s
actions six (6) months prior to the termination of Mother’s
parental rights, discussed above, certainly do not demonstrate
Mother evidencing a settled purpose of relinquishing her parental
rights or Mother refusing to perform her parental rights.
Based upon Mother’s testimony and that of the caseworker, Ms.
Dean, this [c]ourt finds that Mother did explain why she had not
[had] contact with her son during the six months prior to filing the
Petition []. Mother tried calling Ms. Dean many times and
appeared at the [CYS] office three times in an attempt to speak
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to Ms. Dean. Ms. Dean did not return Mother’s telephone calls
until ten to eleven days after Mother’s initial attempt[s] to
schedule a visit[,] which hindered Mother’s ability to visit with her
son. Conveniently, visits were scheduled after the filing of the
Petition [].
Id. at 9-10. The record supports the trial court’s findings. We decline to
reweigh the evidence or interfere with the trial court’s credibility
determinations.
Since the only evidence CYS presented to establish that Mother had
demonstrated “a settled purpose of relinquishing a parental claim to a child”
was Mother’s failure to visit or contact Child, and CYS prevented Mother from
doing so, we find no abuse of discretion in the trial court’s denial of CYS’
Petition.
CYS next avers that the trial court abused its discretion in denying CYS’
Petition because Mother failed to exercise “reasonable firmness” in “resisting
obstacles placed in the path of maintaining the parent-child relationship.”
CYS’ Br. at 17 quoting B., N.M., 856 A.2d at 855. CYS argues that Mother
failed to contact CYS while she was incarcerated, her testimony regarding her
efforts to contact CYS in November 2017 through January 2018 were
uncorroborated, and there was no testimony about Mother inquiring about
Child’s well-being or attempts to send gifts or cards. Id. at 19.
As discussed above, the trial court found Mother’s testimony credible
that, upon release from incarceration, she contacted CYS several times to
request visitation with Child by placing numerous telephone calls to her
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caseworker, physically appearing at the CYS office three times, and providing
the CYS receptionist with paperwork to show her compliance with services. In
turn, the trial court made a finding that the CYS caseworker did not have a
reasonable explanation for waiting ten to eleven days to return each of
Mother’s telephone calls. Trial Ct. Op. at 7. Based on these findings, which
are supported in the record, the trial court found that CYS failed to provide
clear and convincing evidence to terminate Mother’s parental rights pursuant
to Section 2511(a)(1). Once again, this Court declines to reweigh the
evidence or interfere with the trial court’s credibility determinations.
Accordingly, we find no abuse of discretion.
CYS cites B., N.M., supra, in support of an argument that Mother did
not exercise reasonable firmness to overcome obstacles and perform parental
duties while incarcerated. CYS Br. at 18. This case is easily distinguished
and, thus, CYS’ arguments are unavailing.
In B., N.M., a mother and her new husband filed a termination petition
against father, who was incarcerated for the duration of the ten-year-old
child’s life and had sporadic contact with the child. See B., N.M., 856 A.2d
at 850-854. The trial court denied the petition, concluding that mother had
created obstacles to the father having contact with Child. Id. at 857. This
Court reversed, holding that a parent “must act affirmatively to maintain his
relationship with his child, even in difficult circumstances.” Id. at 856 (citation
omitted).
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Instantly, Mother was not incarcerated for the duration of Child’s life,
but rather for one month. While there was no evidence that Mother attempted
to contact CYS during her incarceration, there was evidence that she did so
numerous times and in numerous ways upon her release from incarceration.
The trial court chose to place greater weight on Mother’s efforts to maintain
contact with Child after her release and, as stated above, we decline to
reweigh the evidence on behalf of the trial court.
In CYS’ third issue, CYS avers that the trial court abused its discretion
when it made a finding that Mother’s lack of court appointed counsel
contributed to her not having contact with Child when there was no testimony
that Mother knew her counsel withdrew or that Mother attempted to contact
her counsel. CYS’ Brief at 20-21. Essentially, CYS argues that the trial court’s
finding is not supported in the record. This argument lacks merit.
Our review of the record reveals that the trial court issued an October
27, 2017 Order granting Attorney Mattioli’s Motion to Withdraw as Counsel
and a January 4, 2018 Order reappointing Attorney Mattioli to represent
Mother. The trial court made a finding that, upon her release from
incarceration, Mother did not have the assistance of counsel during the two
months that she attempted to contact CYS for visitation. See Trial Ct. Op. at
12-13. The trial court considered this fact when looking at the totality of the
circumstances and evaluating the obstacles in place that precluded Mother
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from having contact with Child. See id. As the record supports the trial
court’s findings, we find no abuse of discretion.2
In sum, the record supports the trial court’s findings and we find no
abuse of discretion in the trial court’s denial of CYS’ Petition.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/04/2019
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2 CYS does not argue or provide authority to support an argument that
Mother’s lack of representation by counsel leading up to the filing of the
Petition was an incorrect factor for the trial court to consider when deciding
CYS’ Petition. We, therefore, decline to address this issue. In re R.D., 44
A.3d 657, 674 (Pa. Super. 2012) (concluding that issue is waived for lack of
discussion or citation to relevant authority and explaining that this Court “will
not act as counsel and will not develop arguments on behalf of an appellant.”)
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