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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: N.L.T., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
:
APPEAL OF: J.T., FATHER : No. 23 EDA 2020
Appeal from the Decree Entered November 18, 2019
In the Court of Common Pleas of Montgomery County Domestic Relations
at No(s): No. 2019-A0075
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: Filed: September 1, 2020
J.T. (Father) takes this counseled appeal from the decree entered in the
Montgomery County Court of Common Pleas (orphans’ court), granting the
petition of K.K.T. (Mother)1 to involuntarily terminate Father’s parental rights
to their minor, female child, N.L.T. (Child), born in July 2010.2 We affirm.
____________________________________________
1The termination petition was jointly filed by Mother and her husband, D.J.T.
(Stepfather).
2 The orphans’ court appointed Sharon Lynn Jones-Hofer, Esquire, as legal
interests counsel/guardian ad litem (“GAL”) for Child. The GAL indicated she
met with Child, who was nine years old, prior to the termination hearing. N.T.,
11/18/19, at 5. The orphans’ court credited the GAL’s statement that there
is no conflict between Child’s best interest and her legal interest. Id. at 68.
See In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) (plurality). See
also In re T.S., 192 A.3d 1080, 1087 (Pa. 2018) (trial court did not err in
allowing children’s GAL to act as their sole representative during termination
proceeding because, at two and three years old, they were incapable of
expressing their preferred outcome); In re Adoption of K.M.G., 219 A.3d
662, 669 (Pa. Super. 2019) (en banc) (this Court has authority to raise sua
sponte issue of whether trial court appointed any counsel for the child, and
not authority to delve into quality of the representation), limited appeal
granted, 362 WAL 2019 (Pa. Dec. 9, 2019).
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The relevant factual and procedural history are as follows. Mother and
Father did not marry but lived together for approximately three years after
Child’s birth. N.T., 11/18/19, at 9-10. In 2014, Mother and Father ended
their relationship. Father has a history of heroin use and drug addiction. Id.
at 11, 15, 23, 41. In 2016, Father was involved in an automobile accident
while Child was a passenger in the car. Id. at 11, 15. According to Mother,
Father was under the influence of drugs at the time of the accident. Id. at
15. Subsequently, Mother was granted sole physical and legal custody of
Child. Id. at 11. For a period of time, Mother permitted Father to visit Child
at the paternal grandparents’ home. Id. at 30. In December of 2016, at
Father’s last visit with Child, W.J.T. (Paternal Grandfather) ejected Father from
the home because Father was under the influence of drugs and had drug
paraphernalia. Id. at 31, 42. Father has not had contact with Child since that
time. Id. at 11. Father made child support payments approximately every
three months but was not current with his payments at the time of the
November 18, 2019, termination hearing. Id. at 15.
In 2013, Mother began a relationship Stepfather and they married in
2018. N.T. at 9. Mother and Child have maintained a close relationship with
paternal grandparents. Id. at 12.
On May 7, 2019, Mother filed a petition to involuntarily terminate
Father’s parental rights to Child. On the same day, Mother and Stepfather
also filed a petition for Stepfather to adopt Child. On November 18, 2019, the
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orphans’ court conducted an evidentiary hearing on the termination petition.
At the beginning of the hearing, Father’s counsel stated that he spoke to
Father on the telephone and that Father indicated he was “about a half an
hour away. . . and he is worried he is going to run out of gas and doesn’t have
any money in his wallet or a debit or credit card[.]” N.T. at 3.
Mother testified, and presented the testimony of Stepfather and Paternal
Grandfather. Following Mother’s case-in-chief, the orphans’ court took a five-
minute recess so that Father’s counsel could check Father’s whereabouts. N.T.
at 52. Father’s counsel then reported that he telephoned Father, but got his
voicemail. Id. at 53. Father did not appear at the hearing and his counsel
did not present any evidence on his behalf.
At the conclusion of the hearing, the orphans’ court delivered its findings
of fact and conclusions of law on the record. On that same date, the court
entered a decree involuntarily terminating Father’s parental rights to Child
pursuant to 23 Pa.C.S. § 2511(a)(1) and (b). Thereafter, on December 19,
2019, 31 days after the entry of the decree, Father filed a counseled notice of
appeal and a Pa.R.A.P. 1925(a)(2) concise statement of errors complained of
on appeal.
On February 21, 2020, this Court issued a per curiam rule on Father to
show cause, within 10 days, why this appeal should not be quashed as
untimely filed. On March 5th, Father’s counsel filed an untimely response,
which averred the following: (1) “[i]n Montgomery County, court-appointed
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counsel for birth parents in termination-of-parental [right] cases do not have
permission to access the electronic Orphans’ Court dockets;” (2) “[a]t 7:59
p.m. on December 18, 2019, the last day in which to file an appeal in this
case,” counsel emailed the notice of appeal and Rule 1925(a)(2) statement to
an orphans’ court employee, whom had previously “accepted . . . appeal
documents” from counsel; (2) at the same time, counsel sent these
documents via facsimile to the orphans’ court; (3) counsel also “served” the
documents on the orphans’ court by first-class mail, and has a receipt stamped
December 18, 2019, at 8:38 p.m.; (4) that same evening, counsel “received
an automatically-generated email” that the orphans’ court employee, to whom
he had earlier emailed, “no longer worked there;” (4) the next morning,
counsel called the orphans’ court, and was ultimately informed his
transmissions “would be accepted and the appeal would be filed.” Father’s
Answer to Order, 3/5/20, at 1-3. Counsel further averred he “underst[ood]
that the appeal would be filed as of” December 18, 2019, but the court “dated
this appeal on the following date of December 19[th].” Id. at 3-4. Finally,
we note, counsel attached to his response: his initial email to the orphans’
court employee, a time-stamped notice of his facsimile transmission to the
orphans’ court, and a time-stamped post-office receipt.
On March 10, 2020, this Court discharged the rule to show cause but
advised the parties “the issues may be revisited by” the merits panel. Order,
3/10/20.
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Father now raises the following issues for our review:
1. Was Father’s appeal timely filed?
2. Was the trial court’s decision to grant the subject Petition for
Involuntary Termination of Parental Rights supported by
competent evidence?
Father’s Brief at 4.
In his first issue, Father avers “he acted timely to perfect this appeal on
December 18, 2019.” Father’s Brief at 8. In support, he relies on the
statements presented in his response to this Court’s rule to show cause.
Under the particular circumstances presented, we decline to quash this appeal
for an untimely notice of appeal.
We note:
[T]his Court can raise jurisdictional issues sua sponte. An
appellant must file a notice of appeal “within 30 days after the
entry of the order from which the appeal is taken.” Pa.R.A.P.
903(a). This Court “may not enlarge the time for filing a notice of
appeal. . . .” Pa.R.A.P. 105(b). Absent a breakdown in the
operations of the court, “[t]ime limitations on the taking of
appeals are strictly construed and cannot be extended as a matter
of grace.”
Commonwealth v. Valentine, 928 A.2d 346, 349 (Pa. Super. 2007) (some
citations omitted). “The question of timeliness of an appeal is jurisdictional in
nature. Failure to file a timely notice of appeal divests this Court of
jurisdiction.” In re J.M.P., 863 A.2d 17, 19 (Pa. Super. 2004). “The 30-day
period must be construed strictly. This Court has no jurisdiction to excuse a
failure to file a timely notice.” In re Greist, 636 A.2d 193, 195 (Pa. Super.
1994). An appellant may seek to file an appeal nunc pro tunc, which the trial
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court may grant “when a delay in filing [an appeal] is caused by extraordinary
circumstances involving fraud or some breakdown in the court’s operation
though a default of its officers.” In re Adoption of W.R., 823 A.2d 1013,
1015 (Pa. Super. 2003) (citation omitted).
In the present case, Father had thirty days from November 18, 2019 —
or until December 18, 2019 — to file a timely notice of appeal. See Pa.R.A.P.
903(a). However, as stated above, Father’s notice of appeal was not filed
until December 19th, one day later. We note that although counsel
acknowledged he could not file the documents electronically, he sent the email
and facsimile at 7:59 and 8:00 p.m., after normal business hours.
Additionally, counsel did not seek to file the notice of nunc pro tunc.
Nevertheless, in light of counsel’s averments, with supporting exhibits, we
conclude there was a breakdown in the orphans’ court operations that excuses
the one-day delay in filing. Accordingly, we decline to quash this appeal for
an untimely notice of appeal.
In his second issue, Father contends the orphans’ court erred in
conducting the hearing in his absence, where he had communicated to his
counsel that he was en route but had little fuel in his vehicle. Father avers
the court could have continued the hearing, but instead “improperly prioritized
its judicial docket over [his] fundamental parental right.” Father’s Brief at 10.
Father reasons he would have provided “testimony [that] is exactly the kind
of critical evidence that a trial court must consider when” considering the
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termination of parental rights. Id. at 10-11. We note Father does not provide
any explanation of his anticipated testimony. Nevertheless, he concludes “the
trial court did not acquire sufficiently competent evidence to support its”
termination decree. Id. at 9. We disagree.
We first consider Father’s challenge to the orphans’ court’s conducting
the hearing in his absence.
[The admission or exclusion of evidence is] within the sound
discretion of the trial court, and we may reverse only upon a
showing of abuse of discretion or error of law. An abuse of
discretion may not be found merely because an appellate court
might have reached a different conclusion, but requires a result of
manifest unreasonableness, or partiality, prejudice, bias, or ill-
will, or such lack of support so as to be clearly erroneous. In
addition, [t]o constitute reversible error, an evidentiary ruling
must not only be erroneous, but also harmful or prejudicial to the
complaining party.
Jacobs v. Chatwani, 922 A.2d 950, 960 (Pa. Super. 2007) (citation omitted).
Moreover, “[p]rocedural due process requires, at its core, ‘adequate
notice, opportunity to be heard, and the chance to defend oneself before a fair
and impartial tribunal having jurisdiction over the case.’” Garr v. Peters, 773
A.2d 183, 191 (Pa. Super. 2001) (citations omitted). “Due process is flexible
and calls for such procedural protections as the situation demands.” In re
Adoption of Dale A., 683 A.2d 297, 300 (Pa. Super. 1996) (citation omitted).
Here, the orphans’ court noted the termination hearing had “been
scheduled for several months” and Father had notice of the hearing:
I know he got notice because I heard . . . very credible
testimony[ ] about text messages that [F]ather gave to several
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parties in this matter regarding his attendance at the hearing
today.
N.T. at 3, 74. The court advised Father’s counsel that once Father arrived,
“he is welcome to join us in this matter.” Id. at 3-4.
As stated above, the explanation provide by Father for his absence was
a lack of fuel. Where Father had months’ notice of the hearing date, we
conclude the orphans’ court did not abuse its discretion in proceeding in his
absence. Furthermore, we emphasize that although Father now claims he
would have provided testimony critical to the court’s decision, he does not
offer any explanation for what that testimony would have been. See Father’s
Brief at 9-11. Father also does not dispute any of the court’s findings.
Accordingly, we discern no abuse of discretion by the orphans’ court in
conducting the hearing in his absence. We now consider the court’s
termination decree.
We note the relevant standard of review:
In reviewing an order involving termination of parental rights, our
scope of review is broad, and all the evidence as well as the
hearing court’s factual and legal determinations will be
considered. The standard of review is limited to determining
whether the decree of the lower court is supported by competent
evidence and whether it gave adequate consideration to the effect
of such a decree on the welfare of the child.
* * *
We are bound by the findings of the trial court[,] which have
adequate support in the record so long as the findings do not
evidence capricious disregard for competent and credible
evidence. The trial court is free to believe all, part, or none of the
evidence presented, and is likewise free to make all credibility
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determinations and resolve conflicts in the evidence. Though we
are not bound by the trial court’s inferences and deductions, we
may reject its conclusions only if they involve errors of law or are
clearly unreasonable in light of the trial court’s sustainable
findings.
In re M.G., 855 A.2d 68, 73–74 (Pa. Super. 2004) (citations omitted).
This Court has explained:
Termination of parental rights is controlled by statute. See 23
Pa.C.S.A. § 2511[. U]nder Section 2511, the court must engage
in a bifurcated process prior to terminating parental rights.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing evidence
that the parent’s conduct satisfies the statutory grounds for
termination delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants termination of his
or her parental rights does the court engage in the second part of
the analysis pursuant to Section 2511(b): determination of the
needs and welfare of the child under the standard of best interests
of the child. One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between
parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (some citations omitted).
A parent is “required to make diligent efforts toward the reasonably
prompt assumption of full parental responsibilities. In re A.L.D. 797 A.2d
326, 337 (Pa. Super. 2002).
“[A] parent’s basic constitutional right to the custody and rearing
of [their] child is converted, upon the failure to fulfill [their]
parental duties, to the child’s right to have proper parenting and
fulfillment of [their] potential in a permanent, healthy, safe
environment. A parent cannot protect his parental rights by
merely stating that he does not wish to have his rights terminated.
In re B.N.M., 856 A.2d 847, 856 (Pa. Super. 2004) (citations omitted).
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The court cannot and will not subordinate indefinitely a child’s
need for permanence and stability to a parent’s claims of progress
and hope for the future. Indeed, we work under statutory and
case law that contemplates only a short period of time . . . in which
to complete the process of either reunification or adoption for a
child who has been placed in foster care.
In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super. 2006) (citations
omitted).
In the present case, the orphans’ court terminated Father’s parental
rights pursuant to Section 2511(a)(1) and (b), which provide:
(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.
* * *
(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) . . . 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.
See 23 Pa.C.S. § 2511(a)(1), (b).
A petitioner seeking termination of parental rights under Section
2511(a)(1) must demonstrate through clear and convincing evidence that, for
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a period of at least six months prior to the filing of the petition, the parent’s
conduct demonstrated a settled purpose to relinquish parental rights or the
parent refused or failed to perform parental duties. In Re Adoption of
M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003). With respect to Section
2511(a)(1), our Supreme Court has held:
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 Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1988). Further,
the 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) (citations omitted).
Here, the orphans’ court discussed, at the termination hearing, its
decision to terminate Father’s parental rights pursuant to Section 2511(a)(1):
[T]he evidence that I have heard today just doesn’t show me
[Father’s] interest or . . . commitment to have a place of material
importance in this child’s life.
* * *
This Court received no credible evidence documenting or
demonstrating [F]ather’s attempt to contact [C]hild. Other than
through child support payments[,] there was no contact, no
birthday presents, no holiday presents, no cards, no calls, no
visits, nothing. Just an absence.
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This Court is also struck by the testimony of [P]aternal
[G]randfather and how important this matter is to him today, the
fact that he made a lengthy drive, the fact that he came the night
before just so he could be here.
* * *
Now, I also heard discussion about what this child wants and
it sounds like this is a very lucky little girl in that she has very
positive role models in her life. She has got the love and support
of her paternal grandparents. She has the love and support of
[Mother] and [S]tepfather in this matter.
In this case[,] the Court hereby determines that [Mother] has
established by clear and convincing evidence that [F]ather has
failed to perform his parental duties other than the payment of
court ordered child support, and tha[t] even that was sporadic and
when enforced, for a period of more than six months prior to the
filing of the petition for termination of parental rights. It is clear
that a parent who has no interaction with the child other than the
payment of financial support, who has no visits, sends no cards,
letters, photographs or gifts, and provides no emotional support
for the child has failed to parent. In this case this failure has
endured for approximately three years, well in excess of the six
months prior to the filing of this petition.
* * *
. . . I note again [that Father] is not here . . . to explain the
conduct or the reason for his absence. I have heard what could
possibly be termed an incapacity of substance abuse [sic] or drug
abuse[;] however, I heard [Paternal Grandfather] talk about
[F]ather’s failed attempts to remedy that incapacity, and this
Court finds no valid explanation for the conduct of [F]ather’s
absence in this child’s life for nearly the last three years.
By the same token, there has been no evidence presented
regarding any post-abandonment contact between [Father] and
the child in that three-year period.
N.T. at 72-76.
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After careful review, we conclude that competent, clear and convincing
evidence in the record supports the decision of the orphans’ court. See In re
L.M., 923 A.2d at 511. The evidence established that, aside from sporadic
child support payments, Father has failed to perform his parental duties since
December of 2016 — two years and five months prior to Mother’s termination
petition filing. We again emphasize Father does not dispute any of the court’s
findings, and does not explain what testimony he would have provided at the
hearing. Accordingly, we do not disturb the court’s findings under Subsection
2511(a)(1).
With respect to Subsection 2511(b), we note:
Section 2511(b) “focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child.” As this Court has
explained, “Section 2511(b) does not explicitly require a bonding
analysis and the term ‘bond’ is not defined in the Adoption Act.
Case law, however, provides that analysis of the emotional bond,
if any, between parent and child is a factor to be considered” as
part of our analysis. “While a parent’s emotional bond with his or
her child is a major aspect of the [S]ection 2511(b) best-interest
analysis, it is nonetheless only one of many factors to be
considered by the court when determining what is in the best
interest of the child.”
[I]n addition to a bond examination, the trial court can
equally emphasize the safety needs of the child, and
should also consider the intangibles, such as the love,
comfort, security, and stability the child might have with
the foster parent. Additionally, this Court stated that the
trial court should consider the importance of continuity
of relationships and whether any existing parent-child
bond can be severed without detrimental effects on the
child.
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In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (citation
omitted).
The orphans’ court explained its decision to terminate Father’s rights
pursuant to Subsection 2511(b) as follows:
[I]n this case the testimony clearly established that [F]ather has
not maintained contact nor sought opportunities to develop or
maintain a relationship with this child. And this Court finds that
there is no parental bond between the child and [F]ather. [F]ather
has not provided a home, has not met the child’s needs, has not
visited the child, and has not developed and maintained a parent-
child relationship.
By contrast, the testimony of [M]other, [S]tepfather, and of
[P]aternal [G]randfather all demonstrate convincingly that the
[S]tepfather has worked diligently and painstakingly to become
an important parental figure in this child’s life, that he is involved
in her daily life and in building a loving home. Together with
[Mother, S]tepfather provides for the child’s physical and
emotional needs and well-being and is a steady, supportive,
nurturing and constant presence in her life.
I conclude that the emotional needs and welfare of this child
can best be met by termination of the parental rights of [F]ather,
and that the child will not suffer a detriment as a result of
terminating [F]ather’s parental rights.
In this case I find that there is no parental bond between
[F]ather and the child. Moreover, I find that the testimony clearly
and convincingly demonstrated a bond between [S]tepfather and
this child. . . .
In addition, I find that the termination of [F]ather’s parental
rights will best serve the needs and welfare of this child and will
not irreparably harm the child.
N.T. at 78-79.
After reviewing the record, we conclude the evidence supports the
orphans’ court determinations. As discussed above, by the time of the
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November 2019 hearing, Child had not had any contact with Father for almost
three years. There was no evidence that Father and Child shared a parent-
child bond. Mother testified that Child did not feel safe with Father. N.T. at
21. Stepfather testified that Child saw Father at a previous hearing, was
terrified and upset, and cried. Id. at 35. Conversely, Mother testified that
Stepfather has known Child since she was three years old, Child calls him “her
dad,” and Stepfather is a “perfect father.” Id. at 12. Mother stated Stepfather
“goes to all the school events, piano lessons. He does everything. He is what
a father should be.” Id. Notably, Paternal Grandfather testified to Father’s
“longstanding” history of addiction, beginning when Father was 15 years old,3
and that Paternal Grandfather “[a]bsolutely” supports “the adoption.” Id. at
41, 43. We further note Mother has a good relationship with the paternal
grandparents, and that Child has visits with them. See id. at 12 (Mother
testifying that paternal grandparents “are great to us”). Contrary to Father’s
contention, the testimony of Mother, Stepfather, and Paternal Grandfather
was sufficient to support the court’s conclusions.
For the foregoing reasons, we affirm the orphans’ court’s decree
granting Mother’s petition to involuntarily terminate Father’s parental rights
to Child.
Decree affirmed.
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3 At the time of the termination hearing, Father was 30 years old.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/1/20
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