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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF A.M.P., JR., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: A.M.P., SR., FATHER : No. 846 EDA 2020
Appeal from the Decree Entered February 13, 2020
In the Court of Common Pleas of Montgomery County
Orphans’ Court at No(s): No. 2019-A0077
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED AUGUST 26, 2020
Appellant, A.M.P., Sr. (“Father”), appeals from the decree entered in the
Montgomery County Court of Common Pleas, Orphans’ Court Division,
granting the petition of the prospective adoptive parents, E.A.C. and J.A.C.
(“Appellees”), for involuntary termination of Father’s parental rights to his
minor child, A.M.P., Jr. (“Child”).1 We affirm.
The relevant facts and procedural history of this case are as follows.
Child was born in January 2016. At the time, Mother was seventeen years
old. Father was incarcerated in March 2016, and Mother could not care for
Child on her own. M.R. (“Maternal Grandmother”) subsequently assumed care
of Child.
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* Retired Senior Judge assigned to the Superior Court.
1 B.L.P. (“Mother”) voluntarily relinquished her parental rights and consented
to adoption. On February 13, 2020, the court entered a final decree
confirming Mother’s consent to relinquishment of her parental rights. Mother
is not a party to the current appeal.
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Thereafter, Mother determined that Appellees should care for Child:
Custody proceedings in this matter began on March 18,
2016, when the child was only two months old, at which
time [Appellees] filed an emergency petition for custody….
In it, they stated that [Mother,] who was 17 years old when
the child was born, could not take care of him, wanted to
put him up for adoption, and entrusted him to [Appellees].
Notice of the emergency petition for custody was given to
both [Mother] and [Father,] who was incarcerated at the
time the petition was filed. The emergency petition for
custody was scheduled for a custody conciliation meeting on
April 4, 2016. [Mother] did not appear and [Father]
participated by telephone. Thereafter, the [court] issued an
order dated April 5, 2016, granting legal and physical
custody to [Appellees], giving [Mother] 60 days to file an
application to revisit the petition, and giving [Father] 60
days following his release from prison, to file an application
to revisit the order. If neither filed an application, the
emergency custody order would become a final order.
Neither [Mother] nor [Father] filed an application to revisit
the custody order. [Father] was released from prison on
March 7, 2018, and therefore the custody order became a
final order on May 6, 2018.
When the child was over three years old, [Father] filed a
petition to modify the custody order on May 3, 2019, nearly
a year and two months following his release from prison. In
response to this filing, [Appellees] filed a motion to stay in
the family division which was granted by the [court]….
(Trial Court Opinion, filed February 13, 2020, at 1-2) (internal citations
omitted).
On May 8, 2019, Appellees filed a petition for adoption and a petition
for involuntary termination of Father’s parental rights. The court conducted
termination hearings on September 27, 2019 and November 13, 2019. On
February 13, 2020, the court entered a final decree involuntarily terminating
Father’s parental rights. The court determined Father failed to provide
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financial support or maintain contact with Child while in prison and after his
release. Further, Appellees cared for Child throughout his life, and Father did
not have a bond with Child. On March 5, 2020, Father timely filed a notice of
appeal and concise statement of errors complained of on appeal.
Father raises one issue for our review:
Whether the trial court abused its discretion in granting
petition to terminate parental rights of Father pursuant to
23 Pa.C.S.A. § 2511(a)(1), by finding that there was a
failure or refusal of Father to perform parental duties.
(Father’s Brief at 11).
Appellate review in termination of parental rights cases implicates the
following principles:
In cases involving termination of parental rights: “our
standard of review is limited to determining whether the
order of the trial court is supported by competent evidence,
and whether the trial court gave adequate consideration to
the effect of such a decree on the welfare of the child.”
In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972
A.2d 5, 8 (Pa.Super. 2009)).
Absent an abuse of discretion, an error of law, or
insufficient evidentiary support for the trial court’s
decision, the decree must stand. … We must employ
a broad, comprehensive review of the record in order
to determine whether the trial court’s decision is
supported by competent evidence.
In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en
banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004)
(internal citations omitted).
Furthermore, we note that the trial court, as the finder
of fact, is the sole determiner of the credibility of
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witnesses and all conflicts in testimony are to be
resolved by [the] finder of fact. The burden of proof
is on the party seeking termination to establish by
clear and convincing evidence the existence of
grounds for doing so.
In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.
2002) (internal citations and quotation marks omitted). The
standard of clear and convincing evidence means testimony
that is so clear, direct, weighty, and convincing as to enable
the trier of fact to come to a clear conviction, without
hesitation, of the truth of the precise facts in issue. In re
J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We may
uphold a termination decision if any proper basis exists for
the result reached. In re C.S., 761 A.2d 1197, 1201
(Pa.Super. 2000) (en banc). If the court’s findings are
supported by competent evidence, we must affirm the
court’s decision, even if the record could support an opposite
result. In re R.L.T.M., 860 A.2d 190, 191[-92] (Pa.Super.
2004).
In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d
1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d 1165
(2008)).
Appellees filed a petition for the involuntary termination of Father’s
parental rights on the following grounds:
§ 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.
* * *
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(b) Other considerations.―The court in terminating
the rights of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare
of the child. The rights of a parent shall not be terminated
solely on the basis of environmental factors such as
inadequate housing, furnishings, income, clothing and
medical care if found to be beyond the control of the parent.
With respect to any petition filed pursuant to subsection
(a)(1), (6) or (8), the court shall not consider any efforts by
the parent to remedy the conditions described therein which
are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S.A. § 2511(a)(1), (b). “Parental rights may be involuntarily
terminated where any one subsection of Section 2511(a) is satisfied, along
with consideration of the subsection 2511(b) provisions.” In re Z.P., supra
at 1117.
On appeal, Father alleges he tried to see Child during the six months
prior to the filing of the termination petition, but Appellees prevented him from
visiting. Father insists Appellees’ actions obstructed his exercise of parental
rights. Further, Father argues he has continually demonstrated an interest in
parenting, despite the obstacles created by Appellees. Father relies on this
Court’s decision in Adoption of M.S., 664 A.2d 1370 (Pa.Super. 1995), for
the proposition that we will reverse a termination decree where a parent has
attempted to overcome obstacles to the exercise of their parental rights.
Father insists his case is factually analogous to Adoption of M.S., noting his
attempts to contact Child prove his intent to serve as a parent. Father
concludes the court abused its discretion in terminating his parental rights
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pursuant to Section 2511(a)(1). We disagree.
“A court may terminate parental rights under subsection 2511(a)(1)
when the parent demonstrates a settled purpose to relinquish parental claim
to a child or fails to perform parental duties for at least six months prior to
the filing of the termination petition.” In re I.J., supra at 10.
Once 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 Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations
omitted). Regarding the six-month period prior to filing the termination
petition:
[T]he trial court must consider the whole history of a given
case and not mechanically apply the six-month statutory
provision. The court must examine the individual
circumstances of each case and consider all explanations
offered by the parent facing termination of his or her
parental rights, to determine if the evidence, in light of the
totality of the circumstances, clearly warrants the
involuntary termination.
In re B., N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.
718, 872 A.2d 1200 (2005) (internal citations omitted).
Additionally,
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
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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.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).
Under Section 2511(b), the court must consider whether termination
will meet the child’s needs and welfare. In re C.P., 901 A.2d 516, 520
(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability
are involved when inquiring about the needs and welfare of the child. The
court must also discern the nature and status of the parent-child bond, paying
close attention to the effect on the child of permanently severing the bond.”
Id. (internal citations omitted). “In this context, the court must take into
account whether a bond exists between child and parent, and whether
termination would destroy an existing, necessary and beneficial relationship.”
In re Z.P., supra at 1121.
Instantly, the court heard from several witnesses about Father’s
conduct. Mother testified that Father did not provide any assistance with
Child, and Maternal Grandmother “did everything.” (N.T. Hearing, 9/27/19,
at 127). On one occasion, Father put Child “outside in the middle of the
wintertime in his car seat and told [Mother] to take him and [Father] went in
the house and closed the door.” (Id. at 99). Father also abused Mother,
which ultimately led to his arrest. (Id. at 106-11). After Mother relinquished
custody, Father did not contact Mother to ask about Child. (Id. at 114).
Maternal Grandmother corroborated Mother’s testimony. Maternal
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Grandmother confirmed that Father left Child in a car seat, in the middle of
the street, after a visit. (Id. at 162-63). Father called Maternal Grandmother
from prison and asked about Mother, but not about Child. (Id. at 165). Father
did not contact Maternal Grandmother to give gifts or money to Child, but he
did ask her to testify “on his behalf” at the termination hearing. (Id. at 156,
170-71).
Appellee J.A.C. testified that she received five letters from Father while
he was incarcerated. (Id. at 310). One letter mentioned the possibility of
Appellees bringing Child to visit Father at the prison, but Father did not follow
up on this idea. (Id.) Although J.A.C. received phone calls from Father
inquiring about Child generally, she also received calls where Father requested
money without ever asking about Child. (Id. at 263). Father did not offer to
provide financial support, and Father did not send birthday or holiday gifts and
cards to Child. (Id. at 257, 272-78).
Upon his release from prison in March 2018, Father showed up
unannounced at Appellees’ home and wanted to see Child. (Id. at 264).
Instead of consenting to the unannounced visit, J.A.C. arranged a scheduled
visit for later that week. (Id. at 265). However, Father canceled the visit at
the last minute. (Id. at 266). A few months later, J.A.C. received text
messages from Father that she perceived as threatening. (Id. at 268).
Consequently, J.A.C. stopped answering Father’s texts and calls, and he
ceased his attempts at communication. (Id. at 269-70).
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Father testified that he had primary custody of Child until the time of
his arrest. (See N.T. Hearing, 11/13/19, at 94). Father denied abusing
Mother or leaving Child unattended. (Id. at 83-84). Father claimed that he
sent over twenty-five letters to Child from prison. (Id. at 96). Father also
insisted that he sent several consent forms to Appellees to facilitate a visit at
the prison, but Appellees refused to execute the forms. (Id. at 97). Father
admitted he went to Appellees’ home, but this occurred only after J.A.C.
refused to respond to other forms of communication. (Id. at 101). Father
also reiterated his wish to parent: “I’ve always been a part of my child’s life,
and I’ve done everything to provide for him as I possibly have been able to
do. I’m the only one that has done so.” (Id. at 119).
On this record, the trial court correctly determined that Father refused
to perform his parental rights for a period of at least six months prior to the
filing of the termination petition. See In re I.J., supra. Father has not seen
Child since March 2016, except for a brief moment when he appeared at
Appellees’ home. (See N.T. Hearing, 11/13/19, at 264). Further, the court
credited the testimony from Appellees’ witnesses, which outlined Father’s
disinterest in parenting. The court did not credit Father’s exaggerated claims
of involvement in Child’s life, and it is not our role to reweigh this
determination. See In re Z.P., supra. Under the totality of these
circumstances, the evidence warranted involuntary termination under Section
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2511(a)(1).2 See In re B., N.M, supra.
The record also supports the court’s conclusions regarding Section
2511(b). Kate Adams, an expert in the performance of home studies and
post-placement supervisory visits, testified that Child has bonded with
Appellees. (See N.T. Hearing, 9/27/19, at 230-31). Ms. Adams reported
Child was comfortable with Appellees, and Appellees attended to Child’s
needs. (Id. at 209-10). Ms. Adams indicated Appellees “love [Child] as if he
is their biological son,” and it would be detrimental to Child to remove him
from Appellees’ home. (Id. at 210, 231). In contrast, Father conceded “[i]t’s
highly unlikely” that he shares a bond with Child. (N.T. Hearing, 11/13/19, at
265).
Here, terminating Father’s parental rights would not destroy an existing,
necessary, and beneficial relationship for Child. See In re Z.P., supra.
Based upon the foregoing, the record supports the court’s conclusion
regarding termination of Father’s parental rights under Sections 2511(a)(1)
and (b). Id. Consequently, we affirm the decree terminating Father’s
parental rights to Child.
Decree affirmed.
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2 Although Father compares Appellees’ behavior to the conduct at issue in
Adoption of M.S., that case is distinguishable. There, despite the foster
parents’ obstructive behavior, the mother sent gifts to the child through the
mail. See Adoption of M.S., supra at 1373. This Court determined the gifts
evidenced the mother’s continued interest in parenting despite obstacles
placed in her way. See id. Here, Father displayed no comparable behavior.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/26/2020
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