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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF K.A.V. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: C.D.T., NATURAL MOTHER No. 1358 WDA 2015
Appeal from the Order Entered August 13, 2015
In the Court of Common Pleas of Butler County
Orphans’ Court Division, at No(s): OA No. 13 of 2015
BEFORE: PANELLA, J., OLSON, J., and PLATT∗, J.
MEMORANDUM BY: PANELLA, J. FILED JUNE 24, 2016
C.D.T. (“Mother”) appeals from the order entered on August 13, 2015,
in the Court of Common Pleas of Allegheny County, which involuntarily
terminated her parental rights to her minor son, K.A.V. (“Child”), born in
January 2005. We affirm.
Father and Stepmother filed a petition for involuntary termination of
Mother’s parental rights on April 15, 2015. The trial court appointed Maura
Palumbi, Esquire, as counsel for Mother and Ronald Thomas, Esquire, as
Guardian ad litem to represent Child.
The trial court summarized the relevant facts and procedural history as
follows. Mother is the biological mother of Child. Father is the biological
∗
Retired Senior Judge specially assigned to the Superior Court.
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father of Child. Mother and Father have never been married, but lived
together when Child was born. They separated six months after Child’s birth
and Father moved out with Child and moved into his mother’s home. Father
moved due to concerns about Child’s safety because of drug use involving
maternal grandmother and maternal uncle. Paternal Grandmother watched
Child when Father was working, and she was not working. In addition,
Paternal Grandmother has continued to be the primary babysitter for Father
and his wife (“Stepmother”).
After Mother’s separation from Father, she saw Child sporadically, a
few days a week while Father was working, and paternal grandmother was
unavailable to watch him. Mother was also given overnight visits. However,
the overnight visits did not work out since Mother would call Father late at
night to pick up Child, as she was unable to get him to sleep.
In 2009, Father filed a pro se custody complaint in order to obtain an
award of primary physical custody. Father and Mother reached an agreement
at the conciliation conference on March 19, 2009, and entered into an order
the next day, giving Father primary physical custody of Child and giving
Mother partial physical custody every other weekend and every other
Wednesday night.
Mother did not appear for a custody review conference on September
18, 2009. Based upon the custody conciliator’s recommendation, an order
was entered on that date reaffirming primary physical custody with Father
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and partial physical custody with Mother every other weekend and additional
periods of partial custody, as agreed to by the parties.
Mother did not fully exercise the periods of partial custody given to her
under the order. She would just see Child a day here and a day there.
Whenever Mother did have Child, maternal grandmother, maternal uncle, or
another man with whom she was living, would care for Child while Mother
was out partying with friends.
Father encouraged Mother to see Child when he was younger and even
offered to allow Mother to have custody of Child during his primary custody
time. However, the frequency of Mother’s visits decreased over time.
Mother started coming around after she was absent for years. The last
activity that Mother participated in was when Child was in kindergarten.
Father filed a complaint for custody on May 30, 2012, requesting that
Mother’s periods of partial custody be supervised. Father still had concerns
for Child’s safety because of drug use by Mother and members of Mother’s
family. Both Father and Mother appeared for the custody conciliation
conference held on July 12, 2012. On July 16, 2012, the trial court entered
an order confirming primary physical custody with Father and providing
Mother with supervised visits once every week for a period of two hours to
coincide with visitation of Mother’s other Child, L. In August 2012, Mother
voluntarily relinquished her parental rights to L. At the last supervised visit,
Mother was told by Totin Family Services that when her visits with L.
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stopped, she would have to pay to have her visits with Child supervised by
Family Pathways.
Mother did not appear for the custody conciliation review on November
15, 2012. This resulted in a recommendation by the custody conciliator and
an order on November 16, 2012, suspending Mother’s custodial rights of
Child. The order also indicated that Mother could file the appropriate
pleading if she desired custody rights to Child. Mother has not seen, talked
to, or had any contact with Child since her last supervised visit in 2012.
Mother has also had no contact with Father since her custody rights with
Child were suspended. In addition, Mother did not call paternal grandmother
after her custody rights were suspended. Paternal grandmother has never
hung up on Mother or refused to take phone calls from Mother.
Moreover, Mother knew and socialized with Stepmother before
Stepmother knew Father. Mother did not telephone Stepmother about Child
at any time after Stepmother began to live with Father in April 2012.
Mother has not sent any cards, letters, or gifts to Child, nor has
Mother provided any financial support for Child other than a nominal amount
of money paid to Father when Child was a baby.
Mother has had a history of drug addiction that continued through the
date of the termination hearing. Mother was incarcerated in the Butler
County Prison on May 19, 2015 for using opiates and cocaine. Mother has
also been incarcerated numerous times on a variety of criminal charges
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including retail theft, forgery, and probation violations. Mother also suffers
from bipolar disorder, post-traumatic stress disorder, depression, anxiety,
and obsessive-compulsive disorder.
Mother has given birth to three other children, but has not maintained
parental rights to any of them. Mother’s parental rights were involuntarily
terminated to two of her children, while she voluntarily relinquished her
rights to another child. Mother primarily resides with her mother.
Stepmother is employed full-time. She began to date Father in
December 2011. They began to live together in April 2012, and were
married on May 4, 2013. Stepmother and Father have an infant daughter.
Father also has a fourteen-year-old son from a previous relationship who
resides with them.
Father testified that Child has no relationship with Mother, and Child
only speaks about Mother when Father brings her up. None of Mother’s
relatives see or attempt to keep in contact with Child.
However, Father testified that Child has a great relationship with
Stepmother. Father testified that Stepmother is the only mother that child
has known for the last seven years. Child loves Stepmother like a mother
and calls her “Mom.” Stepmother is the person who performs normal
parental duties for Child including providing emotional support, attending
school activities and parent-teacher conferences, helping him with his
homework, taking him to doctor appointments, and involving him in
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activities with her family. Stepmother desires to adopt Child. She notes that
she would not treat Child differently if Child’s adoption did not occur, but she
feels that Child would be upset if the adoption did not occur.
During closing arguments, counsel for Mother orally requested a
bonding assessment, which the trial court denied as untimely and
unnecessary. Following the hearing, the trial court orally granted the petition
terminating Mother’s parental rights from the bench. The trial court found
that clear and convincing evidence had been presented to terminate
Mother’s parental rights under Section 2511(a)(1) and (b), and indicated
that more specific findings of fact and analysis would follow.
The trial court issued its findings of fact, opinion, and order of court,
and decree terminating Mother’s parental rights on August 13, 2015. This
timely appeal followed.
We review the appeal from the termination of parental rights in
accordance with the following standard.
[A]ppellate courts must apply an abuse of discretion
standard when considering a trial court’s determination of a
petition for termination of parental rights. As in dependency
cases, our standard of review requires an appellate court 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. As
has been often stated, an abuse of discretion does not result
merely because the reviewing court might have reached a
different conclusion. Instead, a decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will.
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[T]here are clear reasons for applying an abuse of
discretion standard of review in these cases. We observed that,
unlike trial courts, appellate courts are not equipped to make the
fact-specific determinations on a cold record, where the trial
judges are observing the parties during the relevant hearing and
often presiding over numerous other hearings regarding the child
and parents. Therefore, even where the facts could support an
opposite result, as is often the case in dependency and
termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the
record and the court’s legal conclusions are not the result of an
error of law or an abuse of discretion.
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (citations
omitted).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. See In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, we have explained that
[t]he standard of clear and convincing evidence is defined as
testimony that is so clear, direct, weighty and convincing as to
enable the trier of fact to come to a clear conviction, without
hesitance, of the truth of the precise facts in issue.
Id. (citation and internal quotation marks omitted).
In this case, the trial court terminated Mother’s parental rights
pursuant to Sections 2511(a)(1), and (b), which provide as follows.
§ 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:
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(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), (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).
We have explained this Court’s review of a challenge to the sufficiency
of the evidence supporting the involuntary termination of a parent’s rights
pursuant to section 2511(a)(1) as follows.
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.
***
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
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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) (citations
omitted).
[T]o be legally significant, the [post-abandonment] contact
must be steady and consistent over a period of time,
contribute to the psychological health of the child, and
must demonstrate a serious intent on the part of the
parent to recultivate a parent-child relationship and must
also demonstrate a willingness and capacity to undertake
the parental role. The parent wishing to reestablish his
parental responsibilities bears the burden of proof on this
question.
In re Z.P., 994 A.2d 1108, 1119 (Pa. Super. 2010) (emphasis added)
(citation omitted). See also In re Adoption of C.L.G., 956 A.2d 999, 1006
(Pa. Super 2008) (en banc).
Our Supreme Court stated that Section 2511 does not require that the
parent demonstrate both a settled purpose of relinquishing parental claim to
a child and refusal or failure to perform parental duties, as the word or joins
the two portions of the statute. See In re Adoption of Charles E.D.M.,
708 A.2d 88, 91 (Pa. 1998).
Here, the trial court found clear and convincing evidence that Mother
has had no contact with Child for three years, which is in excess of the six
month requirement as set forth under 23 Pa.C.S.A. § 2511(a)(1). Mother’s
failure to send Child any letters, birthday cards, or any gifts is evidence of
Mother’s intent to relinquish her parental claim. The court also found that
Mother’s failure to have any form of contact or communication demonstrated
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Mother’s patent failure and refusal to perform her parental duties. The
record amply supports the trial court’s findings. Mother’s attempts to
overturn the trial court’s credibility findings are simply untenable.
Next, we review the termination of Mother’s parental rights under
section 2511(b). The focus in terminating parental rights under section
2511(a) is on the parent, but, under section 2511(b), the focus is on the
child. See In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008)
(en banc).
In reviewing the evidence in support of termination under section
2511(b), our Supreme Court stated as follows.
[I]f the grounds for termination under subsection (a) are
met, a court “shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child.” 23 Pa.C.S. § 2511(b). The emotional needs and welfare of
the child have been properly interpreted to include “[i]ntangibles
such as love, comfort, security, and stability.” In re K.M., 53
A.3d 781, 791 (Pa. Super. 2012). In In re E.M., [620 A.2d 481,
485 (Pa. 1993)], this Court held that the determination of the
child’s “needs and welfare” requires consideration of the
emotional bonds between the parent and child. The “utmost
attention” should be paid to discerning the effect on the child of
permanently severing the parental bond. In re K.M., 53 A.3d at
791.
In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).
With regard to section 2511(b), the evidence reveals that Child has no
bond with Mother, and, as a result, the termination of Mother’s parental
rights will have no immediate effect on the Child. The trial court found that
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the termination of Mother’s parental rights of Child will best meet the needs
of Child and permit the Child to achieve the stability that he deserves.
The trial court also had before it competent evidence to support a
finding that the Child has a strong emotional bond with Father and
Stepmother, with whom he has been living, and who have taken exclusive
care of all of his needs for the three years that Mother has not had contact
with Child. In fact, Stepmother is the person who performs normal parental
duties for Child including providing him emotional support, attending school
activities and parent-teacher conferences, helping him with homework, and
taking him to doctor’s appointments. Stepmother desires to adopt Child.
Thus, the trial court found that there is no evidence that Child would be
adversely affected if Child’s relationship with Mother were severed.
The competent evidence in the record shows Mother failed to “exhibit
[the] bilateral relationship which emanates from the parent[’s] willingness to
learn appropriate parenting . . . .” In re K.K.R.S., 958 A.2d 529, 534 (Pa.
Super. 2008). She did not put herself in a position to assume daily parenting
responsibilities so that she could develop a real bond with the Child. See In
re J.L.C., 837 A.2d 1247, 1249 (Pa. Super. 2003).
A parent’s own feelings of love and affection for a child, alone, will not
preclude termination of parental rights. See In re Z.P., 994 A.2d 1108,
1121 (Pa. Super. 2010). A child’s life “simply cannot be put on hold in the
hope that [a parent] will summon the ability to handle the responsibilities of
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parenting.” In Re Z.S.W., 946 A.2d 726, 732 (Pa. Super. 2008). Rather, a
parent’s basic constitutional right to the custody and rearing of her child is
converted, upon the failure to fulfill his or her parental duties, to the child’s
right to have proper parental care. See In re Z.P., 994 A.2d at 1120.
We find that there was competent evidence to support the trial court’s
decision that termination of Mother’s parental rights best serves Child’s
developmental, physical, and emotional needs and welfare. Thus, we discern
no abuse of discretion or error of law as to the trial court’s termination of
Mother’s parental rights pursuant to Section 2511(b).
Accordingly, we affirm the trial court’s order terminating Mother’s
parental rights to Child pursuant to Section 2511(a)(1) and (b).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/24/2016
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