J-A03002-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: P.H.J.P., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: G.P., FATHER :
:
:
:
:
: No. 1492 MDA 2019
Appeal from the Decree Entered August 15, 2019
In the Court of Common Pleas of York County Orphans' Court at No(s):
2019-0088
*****
IN RE: P.J.P., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: G.P., FATHER :
:
:
:
:
: No. 1493 MDA 2019
Appeal from the Decree Entered August 15, 2019
In the Court of Common Pleas of York County Orphans' Court at No(s):
2019-0090
BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 18, 2020
J-A03002-20
G.P. (Father) appeals1 from the trial court’s orders2 involuntarily
terminating his parental rights to his two minor children, P.H.J.P. (born
5/2008) and P.J.P. (born 5/2010) (collectively, Children) and transferring
custody of Children to K.O. (Mother). Father argues on appeal that Mother
used “obstructionist” tactics to thwart his efforts to perform his parental duties
and, therefore, his parental rights to Children should not have been
terminated. After careful review, we affirm.
Mother and Father were married in September 2006; they divorced in
September 2016. Father has not financially supported Children since his
separation from Mother in 2009. Father had a son with another woman during
his separation from Mother. In September 2011, Father was convicted of
endangering the welfare of children, simple assault, aggravated assault and
various other charges and sentenced to 11½ to 23 months in prison. The
charges arose after Father was alleged to have abused his other biological
child (not with Mother). Father filed for custody of Children when he was
briefly released from jail in February 2012. Father was rearrested and
recommitted to jail shortly after filing for custody and, as a result, did not
____________________________________________
1On November 19, 2019, our Court sua sponte consolidated the appeals at
Nos. 1492 and 1493 MDA 2019, as both appeals involve the same appellant
and similar issues. See Pa.R.A.P. 513.
2We note that by filing two separate notices of appeal with one docket number
on each notice, Father has complied with the dictates of Commonwealth v.
Walker, 185 A.3d 969 (Pa. 2018), which held that “where a single order
resolves issues arising on more than one docket, separate notices of appeal
must be filed for each of those cases.” See also Pa.R.A.P. 341(a).
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attend the custody hearing held in April 2012. Mother was ultimately granted
full custody of Children. Father was released from jail in August 2015. Father
filed petitions to modify custody in 2016 and 2017, seeking partial physical
custody of Children during holidays. Father moved to Virginia in April 2018,
a three-and-a-half hour drive from Children; he was still living in Virginia at
the time of the termination hearing.
Mother successfully petitioned for two protection from abuse (PFA)
orders against Father; the final orders were entered in August 2015 and
October 2018.3 The second order, which was still in effect at the time of the
termination hearing, permitted Father to have limited contact with Children
through counsel to ascertain their health and welfare. Moreover, the order
specified that once Father underwent a risk of harm evaluation 4 pursuant to
23 Pa.C.S. § 5328 , and was determined not to pose a risk of harm to Children,
he may contact counsel “to make . . . arrangements with regards to custody.”
____________________________________________
3The court’s August 2015 PFA order expired in three years, in August 2018.
The court denied Mother’s request to extend the order. The October 2018 PFA
order expired in one year, in October 2019.
4 See 23 Pa.C.S. § 5328 (factors to consider when awarding custody).
Specifically, when ordering any form of custody, the court shall determine the
best interest of the child by considering, in part, the following: the present
and past abuse committed by a party or member of the party’s household;
whether there is a continued risk of harm to the child or an abused party;
which party can better provide adequate physical safeguards and supervision
of the child; and any information relating to consideration of child abuse and
involvement with protective services. See id. at § 5328(a)(2), (2.1).
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PFA Order, 10/1/18, at ¶5. At the time of the termination hearing, Father still
had not obtained a risk of harm evaluation that was acceptable to the court.
On June 4, 2019,5 Mother6 petitioned to terminate Father’s parental
rights to Children under 23 Pa.C.S. §§ 2511(a)(1), (b) of the Adoption Act.7
On August 14, 2019, the trial court held a termination hearing where Mother
and Father testified.8 The court, without counsels’ objection, took judicial
____________________________________________
5 Mother and Father’s custody trial was held on June 7, 2019. On June 21
2019, the court entered a custody order stating that it was “unable to find
that Father does not pose a risk of harm to the Children and[,] therefore[,]
finds that Father should not be permitted any unsupervised contact with the
Children.” Opinion and Order, 6/24/19, at 2. Accordingly, the court awarded
Mother sole legal and primary physical custody of Children. Father was
permitted access to Children’s medical, dental, religious and school records,
see 23 Pa.C.S. § 5336(a), and granted supervised physical custody with
Children. All communications between Father and Children were ordered to
go through or be supervised by a counselor. The trial court’s opinion and
order reiterated that Father has failed to obtain a threat of harm evaluation
since March 2012. As per the order, Father will not gain unsupervised
visitation until he obtains the evaluation.
6 Pursuant to section 2512(a)(1),”[a] petition to terminate parental rights with
respect to a child under the age of 18 years may be filed by . . . [e]ither parent
when termination is sought with respect to the other parent.” When a parent
petitions for the involuntary termination of the other natural parent’s parental
rights under section 2512(a), that petitioning parent must include in his or her
petition “an aver[ment] that an adoption is presently contemplated [or] that
a person with a present intention to adopt exits.” 23 Pa.C.S. § 2512(b).
Accordingly, on the same date that Mother filed her petition to terminate,
Mother and Stepfather filed a petition to adopt Children under 23 Pa.C.S. §
2701.
7 23 Pa.C.S. §§ 2101-2938.
8 Guardian ad litem Kelly McNaney, Esquire, represented Children at the
termination hearing as there was no conflict between their legal and best
interests. See In Re: T.S., E.S., 192 A.3d 1080, 1092 (Pa. 2018) (“[D]uring
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notice of Father’s temporary and permanent PFA orders, self-reporting risk of
harm evaluations, and the trial court’s June 21, 2019 opinion and order as it
related to the parties’ custody proceedings. At the hearing, Mother testified
that she had been granted sole legal and physical custody of Children in 2012,
that Father has not provided any financial support for Children since the
parties’ separation in 2009, that Father has had almost no contact with
children since 2009,9 that Children do not have a relationship or bond with
Father, that Children have a bond with Stepfather whom they call “Dad,” and
that termination of his parental rights would be in Children’s best interests.
At the hearing, Father testified that he wrote Children letters from jail
every month from 2012-2015, but that all but two of them were “return[ed]
to sender.” N.T. Termination Hearing, 8/14/19, at 65. He also testified that
he did nothing to support Children since the parties’ separation because when
he came out of jail he “didn’t have a job, [had] a record, [was] wait[ing] for
the PFA to [end], and Mother “was hiding with [his] kids.” Id. at 75-76. At
the time of the hearing, Father was working as a music producer and trying
to release his own album. Id. at 78. Finally, Father testified that his goal is
____________________________________________
contested termination-of-parental-rights proceedings, where there is no
conflict between a child’s legal and best interests, an attorney-guardian ad
litem representing the child’s best interests can also represent the child’s legal
interests.”); see also N.T. Termination Hearing, 8/14/19, at 88, 91.
9 Mother testified that Father sent her two letters for Children while he was
incarcerated. N.T. Termination Hearing, 8/14/19, at 22.
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to “be able to raise [his] children . . . to become good model citizens in th[is]
society . . . [so] that they can contribute to the society[] so they’re not a
burden to any taxpayer.” Id. at 70.
Following the hearing, the court granted Mother’s termination petition
on the basis of sections 2511(a)(1)10 and (b), specifically finding that:
[Father] had not evidenced a settled purpose by virtue of his
continued attempts to seek custody despite his failure to comply
with multiple directives of the [c]ourt. We found that [Father] has
refused or failed to perform parental duties, which [Father]
admitted in his testimony. To the extent that [Father] believes
[Mother’s] conduct obstructed his efforts – and as noted in the
record – [Mother] filed a [PFA] order to protect her children and
received a one[-]year order after a hearing at which [Father]
appeared self-represented.
Trial Court Pa.R.A.P. 1925(a) Opinion, 9/24/19, at 3-4. Father filed pro se
notices of appeal from the termination orders as well as a pro se Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal.11
____________________________________________
10 A parent’s rights “in regard to a child may be terminated after a petition”
proves, by clear and convincing evidence that “[t]he 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.” 23
Pa.C.S.A. § 2511(a)(1) (emphasis added). Here, Mother’s attorney conceded
that he would be pursuing termination under the latter portion of section
2511(a)(1), that Father has “failed to perform parental duties.” N.T.
Termination Petition, 8/14/19, at 28.
11 On September 12, 2019, Father’s counsel of record, Farley G. Holt, Esquire,
filed a praecipe for withdrawal of appearance/praecipe to enter appearance
pro se. On that same date, Father petitioned for court-appointed counsel and
for in forma pauperis (IFP) status and filed his notice of appeal and Rule
1925(b) concise statement of errors complained of on appeal pro se. On
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On appeal, Father presents the following issue for our consideration:
Whether the trial court erred by finding clear and convincing
evidence that [Father] refused or failed to perform parental duties
in the six months preceding the termination petition in disregard
[of] clear evidence that[:] (i) Mother engaged in obstructive
behavior designed to prevent [Father] from performing such
duties; (ii) performing such duties would have required [Father]
to violate the terms of a Protection from Abuse Order acquired by
Mother that extended to the Children and covered the entirety of
the relevant six-month period; and (iii) [Father] filed for custody
of the Children and completed a risk of harm evaluation in
connection therewith during the relevant six-month period,
thereby taking the only action he was legally permitted to take
with respect to the Children during the time in question?
Appellant’s Brief, at 3.
We first note that Father’s self-reporting evaluation and February 2019
evaluation by Luis Rivera, Ph.D., do not comply with the court’s directive that
he undergo an evaluation that takes into account information from Mother in
order to determine, to a reasonable degree of medical certainty, whether
Father is believed to be a threat to Children. Father contends that Mother
employed “obstructionist” tactics to prevent him from finding Children, even
necessitating him to hire a private investigator to track her and Children down.
While Mother undoubtedly made it difficult for Father to locate her and
Children when he was not in prison, her actions were based on her justified
fear of Father as a result of his past abusive behavior. Moreover, as the court
____________________________________________
September 20, 2019, the court granted Father IFP status and appointed
current appellate counsel, Erik Spurlin, Esquire, to represent Father “for the
purpose of assisting in the Appeal.” Order Appointing Counsel, 9/24/19.
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noted, Father was afforded the opportunity to communicate with counsel to
inquire about the health and welfare of Children while the PFA was in place,
but made no efforts to do so. He has had limited contact with Children since
he separated from Mother and, when he did have contact, Father was unable
to interact with them appropriately. In fact, Father’s conduct caused Children
to fear him. The court concluded no bond exists between Father and Children.
Finally, the trial court did not find Father credible. See N.T. Termination
Hearing, 8/14/19, at 96.
After reviewing the notes of testimony from the termination hearing, the
remainder of the certified record, relevant case law and the parties’ briefs, we
rely upon the Honorable Andrea Marceca Strong’s trial court opinion dated
September 24, 2019, and her on-the-record decision from the termination
proceedings to affirm the order terminating Father’s parental rights to
Children. See Termination Hearing, 8/14/19, at 97-99 (where Father failed
to pay financial support, had not made recent efforts to contact children since
his release from jail three years prior, had not complied with terms of PFA
order in order to regain unsupervised visitation and custody of Children,
exhibited alarming behavior frightening Children, never contacted counsel to
ascertain health and welfare of Children while PFA order in effect, failed to
send Children any letters, gifts or monetary support, and put his own desires
over that of best interest of his Children, clear and convincing evidence exists
to terminate parental rights under section 2511(a)(1)); see also In re D.J.S.,
737 A.2d 283, 287 (Pa. Super. 1999) (It is well-settled that “[p]arental rights
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may not be preserved by waiting for some more suitable financial
circumstance or convenient time for the performance of parental duties and
responsibilities.”) (citation omitted). We instruct the parties to attach a copy
of Judge Strong’s opinion in the event of further proceedings in the matter.
Order affirmed.12
Judge Dubow joins this Memorandum.
Judge Stabile concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/18/2020
____________________________________________
12 Although not raised on appeal, because termination is a two-part process,
we also find that clear and convincing evidence existed to prove termination
under section 2511(b) as it was in the best interest of Children and furthered
their needs and welfare. See N.T. Termination Hearing, 8/14/19, at 100-102.
See also In re C.P., 901 A.2d 516, 520 (Pa. Super. 2006) (party seeking
termination of parental rights bears burden of proving by clear and convincing
evidence that at least one of eight grounds for termination under 23 Pa.C.S.
§ 2511(a) exists and that termination promotes emotional needs and welfare
of child set forth in 23 Pa.C.S. § 2511(b)) (emphasis added).
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OPINION PURSUANT TO
PENNSYLVANIA RULE OF APPELLATE PROCEDURE 192S(a)
AND NOW, this 24th day of September, 2019, the Court is in receipt
of the Notice of Appeal and Concise Statement of Matters Complained of on
Appeal filed by G p (hereinafter "Appellant"). Pursuant to
::If
Pennsylvania Rule of Appellate Procedure 1925(1), the Court docs hereby
adopt its Opinion dictated on the record on August 14, 2019 as the place
where the reasons for the decision are found and supplements as follows:
Initially, the Court notes that it is difficult to discern from the form of
Appellant's offered Statement of Errors. what legal errors he is alleging on
Appeal.
A concise statement of errors complained of on appeal must be
specific enough for the trial court to identify and address the.
issues the appellant wishes to raise on appeal." Commonwealth v.
Reeves, 907 A.2d 1 � 2 (Pa. Super. 2006) (quoting Lineberger v.
Wyeth, 894 A.2d 141, I 48 (Pa. Super. 2006)). Pennsylvania Ruic
of Appellate Procedure 1925 provides that a Rule l 925(b)
statement "shall concisely identify each ruling or error that the
J
appe11ant intends to challenge with sufficient detail to identify all
pertinent issues for the judge." Pa.R.A.P. I 925(b)(4)(ii). "Issues
not included in the Statement and/or not raised in accordance
with the provisions of this paragraph (b)(4) arc waived."
Pa.R.A.P. 1925(b)(4)(vii). See also Commonwealth v. Lopata,
754 A.2d 685, 689 (Pa. Super. 2000) (stating that "[a] claim
which has not been raised before the trial court cannot be raised
for the first time on appeal").
S.S. v. T. J., 212 A.3d J 026, (Pa.Super. 2019). Similar to the circumstances in
S.S. v. T. J., Appellant provides a rambling statement of his interpretation of
facts of record and additional statements which are not of record, together
with his own conclusions, without clear identification of any legal errors. To
the extent that we are able to discern identifiable issues, and in the event that
the Superior Court does not find waiver. the Court responds as follows:
Appellant statements 1 and 2 appear to assert that the Court did not
consider whether terminating his parental rights was in the best interests of
the children. The transcript or the proceedings speaks for itself. The Court
explicitly considered the best interests of the children, including
representations to the Court from court-appointed legal counsel for the
children, that the children have no relationship with Appellant, do not wish to
2
have a relationship with Appellant, and arc fearful of Appellant.1 As required
in 23 Pa.C.S.A. § 2511 (b ), once grounds were met under §2511 (a)( J ), the
Court gave primary consideration to the emotional needs of the children and
found that the children would not be harmed by terminating parental rights of
father since they look at stepfather as their father.
Appellant's statements in numbers 3, 4, and 5 do not state a discernable
legal issue for appeal. To the extent that it appears that Appellant is denying
that he evidenced a settled purpose of relinquishing claim to the Children
under 23 Pa.C.S.A. § 2511 (a)( 1 )t the Court notes that we explicitly found that
Appel lant had not evidenced a settled purpose by virtue of his continued
attempts to seek custody despite his failure to comply with multiple directives
of the Court. We found that Appellant has refused or failed to perform
parental duties, which Appellant admitted in his testimony. To the extent that
Appellant believes that Appellec's conduct obstructed his efforts-and as
noted in the record-Appellec tiled for a protection from abuse order to
protect her children and received a one year order after a hearing at which
I We note that the children did not testify or speak to the Court at the tcnnination hearing. The
children did speak to the Court as par1 of a custody trial; however. no party moved to include that
testimony as part of the record for the termination hearing. As such, the Court may only consider
the evidence presented in this underlying action.
3
Appellant appeared self-represented. The statements made in paragraph 5 of
Appellant's Statement are not of record and were, therefore, not considered.
Appellant's statements in number 6 appear to suggest that the Court
improperly considered environmental factors under 23 Pa.C.S.A. § 25 l l(b) in
addition to asserting claims not of record.2 The Court did not find that
Appellant was incapable of providing support to the children, instead, the
Court found that Appellant failed to perform parental duties. While parental
duties include an obligation to pay support, "[tjhis affirmative duty
encompasses more than a financial obligation; it requires continuing interest
in the chi Id and a genuine effort to maintain communication and association
with the child." In re C.MS., 832 A.2d 457, 462 (Pa.Super.2003).
Appellant has not demonstrated a continuing interest in the children or
made any genuine effort to maintain contact with them. Appellant has made
minimal effort to "maintain a place of importance in the child's life." Id.
(citing In re Burns, 379 A.2d 535 (Pa.1977)). AppelJant has failed to exert
himself to maintain communication with the Children-he wrote letters while
? Appellant's eommcmary in his Statement regarding his ability to work is inconsistent with his
testimony at the termination hearing. Appellant presented testimony thal he had been driving II cab
prior to moving lo Virginia and is currently self-employed and working as a music producer.
4
he was incarcerated, but stopped when he was released. The Protection from
Abuse Order entered October 1, 2018 alJows Appellant to contact Appellee's
counsel lo ascertain the health and welfare of the children, but he did not
make efforts to do so.
This Court considered Appellant's failure to provide financial support,
despite his available resources, and that Appellant made no effort to support
his children at any time after he and Appellee were separated in 2012-either
during or after his periods of incarceration. We note that, although
incarceration is not a ground to terminate parental rights, it also does not
exclude a parent's failure to "take affirmative steps to support a parent-child
relationship. In re Adoption of K.J., 936 A.2d 1128 (Pa.Supcr.2007), 1133
(citing In re D.J.S., 737 A.2d 283 (Pa.Super.1999)). The remainder of
Appellant's commentary is not of record and appears to be an effort by
Appellant to improperly supplement his hearing testimony with
unsubstantiated al legations.
Jt is unclear what legal issue Appellant's statements in number 7
attempt to address. The Court notes that we took judicial notice of several
orders in the protection from abuse and custody actions during the termination
5
hearing as permitted by the Rules of Evidence; however, no party provided
certified copies of the Orders to be included in the record.3 Appellant asserts
that he was unable to contact the children when he was released from prison
in 2016 due to a protection from abuse order. The Court notes that the
protection from abuse order expired on April 19, 2015 and that, despite
discussion of the expiration date on the record at the termination hearing,
Appel1ant continues to claim that the protection from abuse order prevented
him from contacting the children.
An additional protection from abuse order entered on October 1, 2018
named AppelJee and the children as protected parties for one year, directing
that Appellant obtain a threat of harm evaluation, while allowing Appellant to
contact counsel to ascertain the health and welfare of the children. Appe11ant
did not make efforts to contact Appellee's counsel regarding the children after
� Pennsylvania Rules of Evidence No. 20 I (b)(:!) permits courts to take judicial notice of facts that
may be "determined from sources whose accuracy cannot reasonably be questioned". This includes
official court records. See t!.J?. Grt1·ma111ow11 Cab Co. 1•. Phil<1d1!fpl,i" Ptll'ki11g Authority, 27 A.Jd
280, 283 n.8 (Pa. Commw. 2011 ). The Court took judiciel notice of the following Orders:
• Order Directing Plaintiff to Undergo Evaluation dated April 2, 2012 (as referenced in the
Order for Custody dated June 21, 2019)
• Protection from Abuse Order dated April 19, 2012 and expired April 19, 2015
• Order for Custody dated April 30, :?012
• l'rotcction from Abuse Order dated October I, 2018 naming Appellec and the children as
protected parties
• Order dated November I. 2018 declines to enter an award of custody due to threat of harm
(as referenced in the Order for Custody dated June 21.2019)
• Order for Custody dated J une 21, 2019.
6
entry of that order. Appellant was instructed again in the Order of November
l t 2018 that the court was declining to enter an award of custody until such
time as Appellant obtained a threat of harm evaluation . .i Appellant has failed
to obtain a valid threat of harm evaluation that complies with the directives of
the Court.
Appellant's statement in number 8 docs not state a discernable legal
issue; however, the events Appellant describes occurred after he received
notice of the filing of the petition to terminate his parental rights on June 7t
2019. Pursuant to 23 Pa.C.S.A. § 251 l(b), the Court cannot consider efforts
made by the parent initiated after the filing of the petition to terminate
parental rights has been given. We additionally note that the requirement to
obtain a threat of harm evaluation, which was not self-reporting and included
interviews with the mothers of Appellant's children. has been in existence
since April 2, 2012. Appellant has failed to comply with that directive despite
repeated contact with the Court. In the June 21, 2019 custody order, the
5
� Court took judicial notice of the Order dated November J, 2018 which indicates, on page I. that
Appellant was to obtain a threat of harm evaluation and on page 2 that Appellant poses a threat of
harm.
$ After the entry of the Order in April 2. 2012 directing Appellant to obtain a new evaluation and
the Order of Custody dated April 30, 20 J 2, Appellant filed an appeal on June 26, 2012 which was
quashed as untimely. Since that time. Appellant filed three additional petitions for custody in 2016,
7
Court specifically found that it was in the best interest of the children that "all
of [Appellant's] contact with the Children must be supervised in a therapeutic
setting due to the continued threat of harm to the Children by [Appellant] as
well as a complete lack of a relationship between [Appellant] and the
Children. "<1
In making the determination to terminate Appellant's parental rights,
the Court considered the fact that for over six years Appellant did not address
his threat of harm to the children. We also considered Appellant's inability to
appropriately interact with children when he has had contact with them. When
afforded the opportunity to communicate with counsel for the purposes of
ascertaining the health and welfare of the children after the protection from
abuse order was entered on October l, 20 I 81 Appellant made no efforts to do
so. Appellant has no relationship and therefore no bond with the children. The
children's court-appointed legal counsel indicated that Appellant's conduct
has caused the children to be afraid of Appellant and desire to have no contact
with him.
In conclusion, this Court considered the credible evidence and
2018 and 2019 without resolving the need for a valid threat of harm evaluation.
6
Custody Order dated June:? I. :?O 19. page 3.
8
testimony presented at the hearmg on the petition, as well as the evidence of
record, and properly applied such to the factors at 23 Pa.C.S.A. §2511 in
determining that the termination of Appellant's parental rights was proper.
The Court's decision in terminating the parental rights of Appellant was
sufficiently supported by clear, convincing, and credible evidence presented
of record. The trial court's decision should be affirmed.
OGE
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