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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF M.M.M : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
:
APPEAL OF: M.A.M., FATHER : No. 886 WDA 2020
Appeal from the Order Entered July 27, 2020
In the Court of Common Pleas of Westmoreland County Orphans’ Court
at No(s): 91 of 2019
BEFORE: BOWES, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY McCAFFERY, J.: FILED JANUARY 14, 2021
M.A.M. (Father) appeals from the order entered in the Westmoreland
County Court of Common Pleas, Orphans’ Court, granting the petition of
A.M.K. (Mother) and her husband, T.K. (Stepfather) to involuntarily terminate
Father’s parental rights to M.M.M. (Child), born in August 2008. Father argues
the orphans’ court erred in: (1) permitting evidence of his criminal record; (2)
reasoning he should have filed a custody action and could have discovered
Mother and Child’s address; (3) allowing the guardian ad litem to examine
him “argumentatively;” (4) allowing Child’s attorney to read statements into
the record; and (5) concluding termination was proper under 23 Pa.C.S. §
2511(a)(1) and (2) and (b). After careful review, we affirm.
The factual and procedural history of this case is essentially undisputed.
Child was born as the result of Father and Mother’s relationship. By the time
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* Retired Senior Judge assigned to the Superior Court.
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of Child’s birth, however, the relationship had ended. N.T., 7/16/20, at 13-
14. For the first five years of Child’s life, Mother arranged for Father to visit
Child. Id. at 13-17. In “[t]he first couple of years,” Father saw Child
approximately once a week, but by the time she was three years old, Father
had visits approximately “once every couple of weeks.” Id. at 15. Mother
was present for all of these visits. Id. at 15-16. Father attributed the decline
of these visits to Mother’s resistance, while Mother attributed it to Father’s
disinterest. Id. at 14-17, 77-78. Mother ended all contact between Father
and Child, after a December 2013 criminal incident resulting in Father’s arrest
and conviction.1 Id. at 16-23. Father has had no contact with Child since
2013, and Child expresses little recollection of Father. Id. at 46, 51, 60.
Meanwhile, Mother began a relationship Stepfather in 2014. See N.T.
at 31. We note that at this time, Child was approximately six years old.
Mother and Stepfather married in 2016, and Stepfather has served as the
primary father figure in Child’s life. Id. at 33-34, 57. Child does not ask
about Father and views herself as a part of Stepfather’s family, even using
Stepfather’s last name on paperwork and school apparel instead of her own.
Id. at 31, 50-51, 55, 58.
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1Father was convicted of unlawful restraint, 18 Pa.C.S. § 2902(a)(1), in 2014.
Mother’s Exh. 1.
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On September 6, 2019, Mother and Stepfather filed a petition requesting
involuntary termination of Father’s parental rights, so that Stepfather could
adopt Child. The orphans’ court conducted a hearing on July 16, 2020, at
which Mother, Stepfather, and Father testified.
Much of the hearing focused on Mother’s decision to end Child’s contact
with Father three years earlier, in 2013, and on the obstacles Father allegedly
faced to resuming contact. Mother testified she made her decision due to
Father’s criminal charges and introduced, over his objection, copies of Father’s
criminal records. N.T. at 17-27. In addition to the 2014 conviction of unlawful
restraint, Father was also convicted: (1) in 2014 of simple assault, unlawful
restraint, and related offenses for a domestic violence incident involving his
girlfriend; and (2) in 2015 for possession of a controlled substance and
possession with intent to deliver a controlled substance. Mother’s Exhs. 1-3.
Mother was also concerned Father was engaged in drug use. N.T. at 22, 37,
42-43, 56-57. However, she explained she did not intend to end Child’s
relationship with Father permanently, and instead she anticipated Father
would one day reenter Child’s life. Id. at 22-27 (“[Father] was going to come
out . . . get his life together . . . and then whenever that’s all done, then I will
hear from him again. I just quit initiating — I didn’t want my daughter being
around that.”).
Nonetheless, Mother testified Father did not contact her or Child until an
unexpected phone call in 2018. N.T. at 28-30. She explained her phone
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number had remained the same since 2009. Id. at 27-28. After the phone
call, Mother and Father exchanged several text messages. Id. at 35. Mother
acknowledged she was resistant to communicating with Father at that time,
because she did not know whether “he had gone to rehab” nor “what’s going
on at that point.” Id. at 37. As a result, she blocked Father on her phone.
Id. at 38. Whereas Father alleged he sent Mother additional text messages,
Mother testified she did not receive them because she had blocked his
telephone number. Id. at 37-38. In August of 2019, Mother received a text
message from Father, wishing Child a happy birthday. Id. at 39. She
discovered that her previous phone block had expired, and thus she blocked
Father again. Id. at 39-41. Mother indicated that Father never filed for
custody or took any other action to make contact with Child.2 Id. at 38, 44-
45, 51.
In contrast, Father testified to the following: he attempted to contact
Mother and request visits with Child “countless times,” and had been sending
Mother text messages for Child on holidays and birthdays since 2014. N.T. at
80, 89, 97. Father went to Child’s maternal grandmother’s home “many
times,” but no one answered the door, and he was only able to speak to the
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2 However, Mother also testified about an incident, in which an unknown
juvenile contacted Child over social media, claimed to be living with Father,
and stated that Father loved Child and would be coming to her chorus concert.
N.T. at 51-55. The incident was very upsetting to Child. Id.
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maternal grandmother one time when she happened to be outside. Id. at 84,
103-05. Father claimed he searched for “four or five” years before calling
Mother on the phone in 2018. Id. at 84, 93. He reported he sent Mother
occasional text messages after the phone call but received no response. Id.
at 86-89. Nonetheless, Father conceded he did not take any other action to
make contact with Child, such as filing for custody. Id. at 90-111.
Relevant to Father’s issues on appeal, we note Child’s guardian ad litem
cross-examined Father on, inter alia, the issue of Child’s best interests. N.T.
at 107-112. Additionally, Father has another daughter, who was seven years
old at the time of the termination hearing, for whom he has a custody
agreement “through the court.” Id. at 97.
Child did not appear at the hearing, but her attorney, Judith Ciszek,
Esquire, stated she visited Child, Mother, and Stepfather at their home in
November of 2019. N.T. at 114. According to the GAL, Child told GAL: she
remembered Father, whom she called by his first name, from visits “when she
was small;” Child did not remember Father’s face; she had no feelings for
Father; Stepfather has been with Child “since she was very small” and “has
always been there for her, but [Father] wasn’t;” and Child “wants it to be
official that [Stepfather] is her father.” Id. at 115-17. Father did not object
to any of the statements by Child’s attorney. See id. at 120.
Child’s guardian ad litem (GAL), Diane Murphy, also advised the
orphans’ court of the following: she met Child and Mother in June of 2020,
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and spoke with Child individually. N.T. at 120. Child “spoke very lovingly of
her stepfather,” but with respect to Father, stated, “I really don’t know him at
all. I don’t know anything about him. I don’t know that I would recognize
him anywhere.” Id. at 121. The GAL stated there was no “parental/child
bonding” between Father and Child, and instead, Child has a bond with
Stepfather. Id. The GAL additionally stated Child understood “the adoption
process” and “is very desirous of being adopted by her stepfather.” Id. Father
likewise raised no objection to the GAL’s statements. See id. at 123.
Following the hearing, the orphans’ court entered the underlying decree
on July 27, 2020, terminating Father’s parental rights involuntarily. Father
timely filed a notice of appeal, along with a concise statement of errors
complained of on appeal, on August 24, 2020.
Father raises eight claims for our review:
I. Did the [orphans’] court abuse its discretion by allowing
[Mother] to introduce the criminal record of [Father] where
[Father] objected to their introduction on the grounds that they
were not relevant?
II. Did the [orphans’] court err by including in its reasoning
behind the termination of [Father’s] parental rights that a custody
action should have been filed by [Father]?
III. Did the [orphans’] court err by including [in its] reasoning
behind the termination of [Father’s] parental rights that it was
feasible for [Father] to locate the address of [Mother] and the
minor child?
IV. Did the [orphans’] court abuse its discretion by allowing
the guardian ad litem to examine [Father] argumentatively when
[Father] objected to such question on the grounds that it was in
contradiction of Pennsylvania’s Rules of Evidence?
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V. Did the [orphans’] court abuse its discretion by allowing
the attorney for the child to read statements into the record when
the declarant was not present?
VI. Did the [orphans’] court err in coming to its conclusion
that [Father], for a period of at least six months immediately
preceding the filing of the petition to involuntarily terminate
[Father’s] parental rights, had evidenced a settled purpose of
relinquishing his parental claim to the minor child when [Mother]
thwarted [Father’s] attempt at contact?
VII. Did the [orphans’] court err in coming to its conclusion
that [Father] demonstrated repeated and continued incapacity,
abuse, neglect, or refusal that caused the minor child to be
without essential parental care, control, or subsistence necessary
for her physical or mental wellbeing and the conditions and causes
of the incapacity, abuse, neglect or refusal cannot or would not be
remedied by [Father] when all attempt at contact with the minor
child was thwarted by [Mother]?
VIII. Did the [orphans’] court err in coming to its conclusion
that it would be in the best interests of the minor child to
involuntarily terminate the rights of [Father]?
Father’s Brief at 15-17.
Our standard of review in involuntarily termination matters 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 omitted).
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Section 2511 of the Adoption Act governs involuntary termination of
parental rights. See 23 Pa.C.S. § 2511. It requires a bifurcated analysis:
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).
In the matter at bar, the orphans’ court terminated Father’s parental
rights pursuant to subsections 2511(a)(1), (2), and (b). We need only agree
with the court as to any one subsection of Section 2511(a), in addition to
Section 2511(b), to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super.
2004) (en banc). Here, we analyze the court’s decision to terminate pursuant
to Sections 2511(a)(1) and (b), which provide as follows:
(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. § 2511(a)(1), (b).
To satisfy the requirements of Section 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).
The orphans’ court must then consider the parent’s explanation for their
abandonment of the child, in addition to any post-abandonment contact. Id.
This Court has emphasized that a parent does not perform parental duties by
displaying “a merely passive interest in the development of [a] child.” In re
B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citation omitted). Rather,
[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. 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. Parental
rights are not preserved by waiting for a more suitable or
convenient time to perform one’s parental responsibilities while
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others provide the child with his or her physical and emotional
needs. . . .
Id. (citations omitted).
We first consider Father’s first, fourth, and fifth issues, all of which
involve evidentiary challenges.3 In his first claim, Father contends the
orphans’ court committed an abuse of discretion by admitting irrelevant
evidence of his criminal history. Father’s Brief at 25-30. He relies on
Pennsylvania Rule of Evidence 401, which provides that evidence is relevant
if “it has any tendency to make a fact more or less probable than it would be
without the evidence; and . . . the fact is of consequence in determining the
action.” See Pa.R.E. 401(a)-(b). Father argues that his criminal conduct
occurred in 2013, years before the instant termination proceedings began,
and was of no consequence to determining whether the requirements of
Section 2511(a)(1) and (2) were satisfied. Father’s Brief at 27-28. He also
directs our attention to Rule 403, which permits a court to exclude relevant
evidence if the danger of unfair prejudice or confusing the issues outweighs
its probative value. See Pa.R.E. 403. Father asserts the evidence of his
criminal history prejudiced him and confused the issues by causing the court
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3 These evidentiary challenges are preserved for appeal, as Father raised
objections at the termination hearing. See Pa.R.E. 103(a)(1)(A)-(B) (“A party
may claim error in a ruling to admit . . . evidence only [if] a party, on the
record . . . makes a timely objection . . . and (2) states the specific ground,
unless it was apparent from the context.”); Thompson v. Thompson, 963
A.2d 474, 477 (Pa. Super. 2008) (failure to object to admission of testimony
waives any challenge on appeal).
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to focus on his character, rather than his attempts to contact and parent Child.
Father’s Brief at 28-29. Finally, Father contends that where Mother introduced
this evidence for its relevance to Section 2511(b), it was not permissible for
her to introduce evidence regarding Section 2511(b) without first establishing
grounds for termination pursuant to Section 2511(a). Id. at 29-30.
We note “the decision of whether to admit or exclude evidence is within
the sound discretion of the orphans’ court. A reviewing court will not disturb
these rulings absent an abuse of discretion. Discretion is abused if, inter alia,
the orphans’ court overrides or misapplies the law.” In re A.J.R.-H., 188
A.3d 1157, 1166-67 (Pa. 2018) (citations omitted).
The orphans’ court addressed the admission of Father’s criminal history
in its opinion as follows, in relevant part:
The criminal record was admitted in the context of the history
of [Father’s] personal life, and as one of the precipitating factors
that led to his absence for several years from the Child’s life. In
the Child’s early years, Mother was the one who initiated contact
between the Child and [F]ather. Mother did so in an attempt to
encourage Father to recognize the joys of fatherhood. In 2011,
Father and Child’s contact became less frequent because Mother’s
efforts at maintaining the relationship faded. At the end of 2013
and in the beginning of 2014, when Father was arrested and
eventually pled guilty to a felony as a result of illegal drug activity,
Mother ceased contacting him altogether. From 2013 through
2017, Father did not reach out to Mother or the Child, even though
Mother had the same telephone number since 2009.
We agree that a parent’s criminal conduct is not in and of
itself a factor in considering whether a parent has performed
parental duties or maintained contact with a child. However, in
this case, Father’s difficulties with the criminal justice system
explained why Mother stopped taking the initiative to contact him
and attempting to include him in the Child’s life. To that extent
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and for that purpose, evidence of Father’s criminal record was
relevant in this case and properly admissible.
Orphans’ Ct. Op., 9/9/20, at 2.
We agree with the analysis of the orphans’ court. Initially, while Father
is correct that a court must analyze Section 2511(a) first, before considering
Section 2511(b), this principle does not prevent a court from hearing evidence
relevant to both subsections at the same time. Father directs our attention to
no legal authority, and we are aware of none, that supports such a proposition.
Additionally, Father is mistaken that Mother sought to introduce this evidence
for its relevance to Section 2511(b) only. As the court observed, Mother cited
Father’s criminal history while explaining her relationship with Father, Father’s
relationship with Child, and the eventual decline of both relationships. See
N.T. at 13-17. When Father objected to the presentation of his criminal history
on the basis of relevance, Mother responded that the testimony was relevant
to establish her reasons for ending contact between Father and Child, to
address whether Father lacked parental capacity, and to show that adoption
would serve Child’s best interests. Id. at 17-19. The first and second of these
suggested purposes relate primarily to Sections 2511(a)(1) and (2), rather
than Section 2511(b).
Moreover, it was within the orphans’ court discretion to conclude
evidence of Father’s criminal history was relevant and admissible. See In re
A.J.R.-H., 188 A.3d at 1166-67. While it is true Father’s criminal activity
occurred years before the termination proceedings began, the evidence
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explained why Mother ended Father’s visits with Child, which assisted the
court in understanding the reasons for Father’s lack of contact, and the
obstacles that may have prevented him from resuming that contact, both of
which are important considerations pursuant to our case law regarding Section
2511(a)(1). See, e.g., B., N.M., 856 A.2d at 855-56 (“Where a non-custodial
parent is facing termination of his or her parental rights, the court must
consider the non-custodial parent’s explanation, if any, for the apparent
neglect, including situations in which a custodial parent has deliberately
created obstacles[.]”). Thus, Father’s first claim is meritless.
We next consider Father’s fourth claim — that the orphans’ court abused
its discretion by permitting Child’s GAL to cross-examine him
“argumentatively.” Father’s Brief at 36-38. He directs our attention to the
following exchange, regarding whether adoption by Stepfather would be in
Child’s best interests:
[GAL:] Do you want what’s in the best interest of [Child]?
[Father:] Of course.
Q. Okay. And you are sitting in court today saying being
adopted into the family she’s been with for many years is not in
her best interest?
A. I know financially it would be probably in her best interest,
but I am talking about the love that I have for my child.
Q. So it’s about you and your love for a child that you didn’t
actively try to see for many, many years? [sic]
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A. No, nothing is about me. It’s all about her. It’s just, you
know — I don’t really understand what you are trying to say. You
are trying to say I’m being selfish or . . .
Q. What I am trying to say is a father, a biological father, and,
as you say, you are professing great love for her, would move
heaven and hell to see her —
[Father’s counsel]: Objection. Is that a question?
[GAL]: It is. I’m getting there.
Q. — you have not done that, have you?
A. I think I have done everything I could. I just think that
she was very hard to find.
N.T. at 110-11.
According to Father, this questioning ran afoul of Pennsylvania Rule of
Evidence 611(a), which directs that a “court should exercise reasonable
control over the mode . . . of examining witnesses” so as to make the process
“effective for determining the truth,” and “protect witnesses from harassment
or undue embarrassment.” See Pa.R.E. 611(a)(1), (3). Father complains the
GAL spoke to him in a narrative, rather than query, form, in order to place her
own opinions on the record and to embarrass him. Father’s Brief at 37. He
contends this examination prejudiced him because it caused a “deviation from
the fact-finding process and obscured the [orphans’] court[’]s process in
determining the truth of whether” the requirements of the Adoption Act had
been met. Id. at 37-38.
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While the orphans’ court did not rule on Father’s mid-examination
objection,4 we find no abuse of discretion in the court’s allowing the
examination to continue. See N.T. at 110-11. Father’s counsel requested
clarification as to what Child’s GAL was asking Father, and the GAL responded,
“I’m getting there. . . . [Y]ou have not done that, [i.e., “move heaven and
hell to see [Child,] have you?” Id. After reviewing the entire examination in
context, we conclude there was no abuse of discretion or violation of Rule 611.
See Pa.R.E. 611(a); In re A.J.R.-H., 188 A.3d at 1166-67.
Father’s fifth claim is that the orphans’ court abused its discretion by
permitting Child’s counsel to read statements, which Child allegedly made,
into evidence without proper authentication. Father’s Brief at 38-39. We
conclude this issue is waived, as Father raised no objection at the hearing.
See Pa.R.E. 103(a)(1)(A)-(B); Thompson, 963 A.2d at 477.
However, even if Father had not waived this claim, we would conclude
it is meritless. This Court has explained that legal counsel may indicate a
child’s preferred outcome as part of a termination proceeding, and that the
child’s statements in that context are admissible to establish their mental
state. In re B.J.Z., 207 A.3d 914, 917-20 (Pa. Super. 2019); see also In re
Adoption of K.M.G., ___ A.3d ___, 2020 WL 6580616 at *12-13 (Pa. Nov.
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4Father’s issue is preserved for our review. See Pa.R.E. 103(a)(1)(A)-(B);
Thompson, 963 A.2d at 477.
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10, 2020) (“recogniz[ing] that it may be a best practice for a child’s legal
counsel to divulge the child’s preferences,” but choosing to “leave the decision
of whether to place the child’s preference on the record to the child’s counsel
based upon counsel’s legal determinations in representing his client, as well
as the orphans’ court”). Here, Child’s counsel was not simply reading Child’s
statements into evidence, as Father contends. Counsel was presenting Child’s
wishes by describing her discussion with Child. See N.T. at 114-20 (Child’s
counsel recounting Child’s statements and concluding, “I found the child to be
very cogent, had a great ability to express her thoughts, and her thoughts
were [that] she wants to be adopted. [Stepfather] has been her father, and
he’s always been there for her, and she wants to be sure that it’s official.”).
We further note Child was eleven years old at the time of the hearing
and would be turning twelve the following month. The GAL pointed out that
after Child turned twelve, she would have to consent to being adopted, and
Child “wholeheartedly agreed to that.” N.T. at 121. See 23 Pa.C.S. §
2711(a)(1) (“[C]onsent to an adoption shall be required of . . . [t]he adoptee,
if over 12 years of age.”). As a result, it was not error for the orphans’ court
to consider Child’s wishes. This Court has emphasized the importance of
ensuring an older child consents to a proposed adoption prior to terminating
parental rights. See In the Interest of D.G., ___ A.3d ___, 2020 WL
6790746 at *7 (Pa. Super. filed Nov. 19, 2020) (explaining that the child’s
legal counsel provided deficient representation where, among other things, he
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did not argue that the child’s consent was essential to effectuate an adoption).
Accordingly, Father’s fifth claim fails.
We now consider Father’s second, third, and sixth claims, in which he
challenges the orphans’ court’s decision to terminate his parental rights. In
Father’s second claim, he contends the court erred by concluding his failure
to file for custody of Child was a sufficient reason to terminate. Father’s Brief
at 31-34. His related third claim is that the court erred in finding it was
feasible for him to locate Mother’s address so that he could file for custody.
Id. at 35-36. In both of these claims, Father places particular emphasis on
In re Adoption of C.M.W., 603 A.2d 622 (Pa. Super. 1992) (“C.M.W.”), in
which this Court observed that when a parent makes reasonable efforts to
overcome the obstacles preventing them from performing parental duties, “a
mere showing that [the] parent could conceivably have pursued legal action
more promptly cannot justify termination of parental rights.” See C.M.W.,
603 A.2d at 625.
The orphans’ court explained its decision as follows, in relevant part:
[Father] argues that the Court erred in noting [he] never filed a
Complaint for Custody, asserting that such action is not
mandatory in order for a parent to demonstrate support,
performance of parental duties or contact with the [c]hild.
It was not and is not this Court’s opinion that the filing of a
Complaint for Custody was mandatory. However, the fact that
[Father], a college-educated man, had some previous experience
with the legal process required to seek custodial time with his
Child, yet never availed himself of that process — coupled with
the fact he had not acknowledged her birthday or holidays with
cards or gifts for years, and never paid anything in the form of
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support, although he shared custody [of] his other daughter — led
to an inference that he did not desire to assume parental duties
or responsibilities for [Child]. His passivity and inaction speak
volumes.
[Father] argues that the Court erred in concluding that it was
feasible for [him] to locate Mother’s mailing address in order to
file a custody action relating to the Child.
This Court did not reach its conclusion based upon a finding
that it was feasible for [Father] to locate the Child in order to file
a custody action. This Court’s conclusion was based upon the fact
that [Father] was familiar with the legal process relating to
custody because he has a custody agreement with the mother of
his other child, and [Father’s] stated excuse for failing to act in
this case was because he believed he lacked the financial
resources to do so. Although the custody courts are a public
service available to all parents, without regard to economic
circumstances, [Father] never availed himself of the process,
again leading to an inference that he did not desire to assume
parental duties or responsibilities.
Father maintains he was unable to locate Mother, yet he knew
where Mother’s mother resided; Mother resided close by in
western Pennsylvania the entire time; and presumably Father
could have conducted a search through the internet or an
investigator to locate her, if he sincerely desired to do so.
Finally, when Mother and her husband filed the within
“Petition for Termination of Parental Rights” in September 2019,
Father would have been made aware of Mother’s address. He still
chose to do nothing. In other words, although Father expresses
love for his daughter and a desire to be her father, for several
years, he did not act to achieve that result.
Orphans’ Ct. Op. at 2-4.
Father mischaracterizes the reasoning of the orphans’ court. The court
did not state that Father’s failure to file a custody action was sufficient by itself
to terminate his parental rights. Instead, the court found his inaction or non-
participation in the court custody system was one relevant factor. We do not
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disturb the court’s conclusion that Father did not make reasonable efforts to
overcome the obstacles preventing him from maintaining a relationship with
Child as he contends, despite Father’s insistence at the hearing that “all I
thought about was my daughter.” See N.T. at 97. Similarly, the court was
free to determine the credibility of Father’s testimony that that he was unable
to locate Mother for “four or five” years, despite knowing where Child’s
maternal grandmother lived, and despite living in the same general area as
Mother, casts doubt on his assertion that he was actually looking. See id. at
84; see also In re T.S.M., 71 A.3d at 267.
Father’s sixth and final claim5 is that the orphans’ court erred in
terminating his parental rights under subsection 2511(a) because the court
failed to acknowledge Mother thwarted his attempts to contact Child. Father’s
Brief at 39-41. Father once again directs our attention to his termination
hearing testimony, that his lack of contact with Child was due to his inability
to locate Mother and her resistance to allowing his relationship with Child to
resume.6 Id. at 40-41.
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5Father combines the sixth, seventh, and eighth claims listed in his statement
of questions involved into a single claim in the argument section of his brief.
But see Pa.R.A.P. 2119(a) (“The argument shall be divided into as many parts
as there are questions to be argued[.]”).
6 While Father’s statement of questions involved articulates a subsection
2511(b) challenge to the orphans’ court finding that termination of parental
rights would be in Child’s best interests, he does not develop any such
argument in his brief. We note that even if Father had not abandoned this
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Father’s claim merits no relief. As indicated above, the orphans’ court
found Mother and Stepfather produced clear and convincing evidence in
support of their petition pursuant to Section 2511(a)(1): Father evidenced a
settled purpose of relinquishing his parental claim, or refused or failed to
perform his parental duties, for the six months immediately preceding the
filing of the petition on September 6, 2019. The record supports the court’s
finding. While Father began making a minimal effort to resume his
relationship with Child in 2018, by calling Mother on the phone and sending
her occasional text messages thereafter, we have explained that courts must
not apply the six-month period in Section 2511(a)(1) mechanically, but must
consider the whole history of a given case. See B., N.M., 856 A.2d at 855.
In this case, Father undertook no action to contact Child for years, until his
phone call in 2018. When Mother was resistant to allowing Father to reenter
Child’s life, and created an obstacle by blocking him on her phone, Father did
not nothing to overcome the obstacle. Instead, he simply continued sending
text messages that he knew, or should have known, would not reach Mother.
See id. (“Parental duty requires that the parent . . . not yield to every problem
. . . . A parent must . . . exercise reasonable firmness in resisting obstacles
placed in the path of maintaining the parent-child relationship.”) We further
note Father only sent six text messages during the relevant six month period,
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claim, the record includes evidence that Child has no relationship with Father
and that Child views Stepfather as her primary father figure.
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from March 6 to September 6, 2019. See Mother’s Exh. A. Thus, the court
did not abuse its discretion by terminating his parental rights pursuant to
Section 2511(a)(1).
As we conclude that none of Father’s claims merits relief, we affirm the
July 27, 2020, order involuntarily terminating his parental rights to Child.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/14/2021
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