J-S58016-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.T., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: J.T., FATHER
No. 638 MDA 2016
Appeal from the Order Entered March 15, 2016
In the Court of Common Pleas of Mifflin County
Orphans' Court at No(s): 28 OF 2015
IN THE INTEREST OF: E.T., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: J.T., FATHER
No. 639 MDA 2016
Appeal from the Order Entered March 15, 2016
In the Court of Common Pleas of Mifflin County
Orphans' Court at No(s): 29 OF 2015
BEFORE: GANTMAN, P.J., BOWES and PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED AUGUST 22, 2016
J.T. (“Father”) appeals from the March 15, 2016 orders granting the
petitions filed by D.S. (“Mother”) to involuntarily terminate his parental
rights to his sons, A.T. and E.T. We affirm.
* Retired Senior Judge assigned to the Superior Court.
J-S58016-16
Mother and Father married on February 29, 2012, and the family
remained intact until November 5, 2013. While A.T.’s June 2011 birth
preceded the marital union, E.T. was born of the marriage during July 2013.
Following the parties’ separation, Father sought employment in Texas for
approximately one month before returning to Pennsylvania during December
2013. Upon Father’s return, Mother secured a PFA order against him. While
the grounds for the PFA order are not readily apparent from the certified
record, it is undisputed that the two-year PFA expired in January 2016.
Additionally, the order permitted Father to contact Mother to exercise
physical custody of his sons or to discuss the children’s wellbeing.
During March 2014, the parties entered a custody agreement that
provided Father four hours of supervised partial physical custody on
Sundays. The parties retained their former neighbors and mutual friends,
David and Emily Hartzler, to supervise two of the custodial periods at the
Hartzler’s home in Lewistown, Pennsylvania. Father’s fifteen-year-old son
from a prior relationship was responsible for supervising the remaining
custodial periods at Father’s Mifflintown residence. Father exercised custody
under the agreement only four times, and his last contact with the children
occurred on Easter 2014.
Following the Easter visit, Father temporarily relocated to Florida, and
after a brief return to Pennsylvania that summer, he moved to
Massachusetts, where he presently resides with his current wife. During
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these periods, Father communicated with Mother by telephone, email, and
Facebook, but he neglected to request custody, speak with the children, or
send letters, cards, or gifts. Eventually, Mother began systematically
blocking Father’s telephone numbers, and she terminated contact with him
consistent with her interpretation of the PFA order.
As the PFA order permitted Father to communicate with Mother in
order to discuss the children, Mother’s reliance upon the order to support her
actions was misguided. Nevertheless, Father did not employ reasonable
efforts to circumvent the barriers that Mother erected to impede him from
contacting the children. Indeed, beyond reaching out to Mother by
telephone, email and social media, all of which she ignored, Father’s only
other endeavor was to contact Mother’s family and the Hartzlers to help him
locate her. These efforts were ineffective, and rather than contacting
Mother’s attorney or retaining a lawyer to help him exercise his custodial
rights, Father simply succumbed to Mother’s impediments. Indeed, in the
year preceding Mother’s petitions to terminate Father’s parental rights,
Father communicated with Mother on only three occasions: an email, a voice
mail, and a telephone call, and while he inquired about his sons’ welfare and
indicated that “it would be nice to” receive a phone call, he neglected to
request custody or ask to speak with the children. N.T., 2/8/16, at 10.
Mother remarried during May 2015. The children refer to Mother’s
husband, who is the proposed adoptive father, as “daddy,” and recognize
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him as their father. Id. at 15. Father acknowledges that the children are in
a “good place” with Mother and her husband. Id. at 60.
On October 27, 2015, Mother filed the underlying petitions for the
involuntary termination of Father’s parental rights to A.T. and E.T. pursuant
to 23 Pa.C.S. § 2511(a)(1) and (b). Following a hearing, the orphans’ court
terminated Father’s parental rights to the children. When the hearing
occurred, A.T. was four months from his fifth birthday and E.T. was
approximately two and one-half years old. Neither child had seen Father
since Easter 2014. This timely appeal ensued. Father complied with
Pa.R.A.P. 1925(a)(2)(i) by filing a concise statement of errors complained of
on appeal simultaneously with his notice of appeal.
Father raises two issues for our review:
1. Whether the trial court erred in failing to consider
uncontradicted evidence that Mother prevented Father from
maintaining a relationship with the children?
2. Whether the trial court erred in determining [that]
termination [of parental rights] was in the children’s best
interest when there was evidence that[,] with more regular
contact with Father and/or the engagements of family therapy,
the attachment/bonding issues testified to could positively
resolve itself within a reasonable time frame?
Father’s brief at 4.
We review the orphans’ court’s order to grant or deny a petition to
involuntarily terminate parental rights for an abuse of discretion. In re
C.W.U., Jr., 33 A.3d 1, 4 (Pa.Super. 2011). “We are limited to determining
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whether the decision of the trial court is supported by competent evidence.”
In re R.L.T.M., 860 A.2d 190, 191 (Pa.Super. 2004) (quoting In re C.S.,
761 A.2d 1197, 1199 (Pa.Super. 2000)). However, “[w]e 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
C.W.U., Jr., supra at 4. As the ultimate trier of fact, the trial court is
empowered to make all determinations of credibility, resolve conflicts in the
evidence, and believe all, part, or none of the evidence presented. In re
A.S., 11 A.3d 473, 477 (Pa.Super. 2010). “If competent evidence supports
the trial court's findings, we will affirm even if the record could also support
the opposite result.” Id.
The party petitioning for termination of parental rights “must prove the
statutory criteria for that termination by at least clear and convincing
evidence.” In re T.R., 465 A.2d 642, 644 (Pa. 1983). 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 hesitancy, of the truth of the precise facts in issue.” Matter of
Sylvester, 555 A.2d 1202, 1203–04 (Pa. 1989).
Requests to involuntarily terminate a biological parent’s parental rights
are governed by 23 Pa.C.S. § 2511, which provides in pertinent part as
follows:
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(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), (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.
The test for terminating parental rights consists of two parts. In In re
L.M., 923 A.2d 505, 511 (Pa.Super. 2007), we explained:
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.
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Herein, the certified record supports the orphans’ court’s
determination that Mother established the statutory grounds to terminate
Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1) and (b). As it
relates to §2511(a)(1), the pertinent inquiry for our review follows:
To satisfy 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. . . .
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. Accordingly,
parental rights may be terminated pursuant to Section
2511(a)(1) if the parent either demonstrates a settled purpose
of relinquishing parental claim to a child or fails to perform
parental duties.
In re D.J.S., 737 A.2d 283, 285 (Pa.Super. 1999) (quoting Matter of
Adoption of Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)) (internal
citations omitted).
In In re C.M.S., 832 A.2d 457, 462 (Pa.Super. 2003), we explained,
“A parent is required to exert a sincere and genuine effort to maintain a
parent-child relationship; the parent must use 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.” Moreover, once evidence establishes a parent’s failure to
perform parental duties, the trial court must consider, inter alia, the parent’s
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explanation for his conduct. Matter of Adoption of Charles E.D.M., II,
supra.
Father’s first argument concedes that Mother established the predicate
elements of § 2511(a)(1) insofar as she proved that, for at least six months
prior to the date she filed her petitions, Father failed to perform any of his
parental duties to A.T. and E.T. However, focusing upon the remaining
inquiry, Father complains that the orphans’ court failed to consider his
explanation for his parental inaction. Specifically, he maintains that Mother
erected barriers designed to impede his communication with his two sons.
Father asserts that he regularly attempted to contact Mother and
arrange visits with the children but that his attempts were futile. He
highlights Mother’s testimony that, pursuant to her interpretation of the PFA
order, she habitually withheld her address from him and blocked the
telephone numbers that she associated with him and his extended family
members. Furthermore, he contends that when he was able to circumvent
Mother’s obstructions and leave voicemail messages, send emails, and
attempt to contact her through Facebook, Mother still ignored his
communications. In addition, Father asserts that he contacted Mother’s
family and the Hartzlers to help him locate his children, but neither were
particularly helpful. Father testified that Mother’s family advised him that
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they did not want to get embroiled in the custody dispute and that the
Hartzlers informed him that they had lost contact with Mother.1 In sum,
Father maintains that his struggle to contact Mother and the children was
substantial, and he implies that, but for the impediments that Mother
erected, he would have had free and regular access to perform his parental
duties.
As it relates to the needs-and-welfare analysis pursuant to § 2511(b),
Father acknowledges the absence of any meaningful relationship with A.T.
and E.T. Indeed, he exercised four, four-hour custodial periods prior to
Easter 2014 and has not established contact with them since. However,
noting his love for the boys and his desire to reunite with them, Father
argues that, with regular contact and family therapy, he would be able to
fashion parental bonds with his sons. Hence, he concludes that terminating
his parental rights was not in the best interest of the children.
Father’s arguments are unpersuasive. Stated plainly, Father failed to
use all available resources or exercise reasonable firmness to overcome the
impediments to maintaining a relationship with A.T. and E.T. Father
neglected to contact an attorney to help him pursue his custody rights, and
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1
Father’s position disregards the inconvenient facts that Mr. Hartzler not
only testified that he never refused to facilitate Father’s physical custody of
the boys, but he also attested that Father had not contacted him within the
past year seeking to exercise his custody rights. See N.T., 2/8/16, 29-31.
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he failed to utilize known contacts in Mother’s family to send the children
gifts, cards, or financial assistance. Instead, he relied on Mother’s
elusiveness as an excuse for his continued inaction and his failure to perform
his parental duties. Also, while there is no parent-child bond between Father
and his sons, such a bond exists among Mother’s husband and the boys.
Thus, we do not disturb the orphans’ court’s conclusion that terminating
Father’s parental rights serves the boys’ developmental, physical and
emotional needs and welfare. Accordingly, we affirm the orders terminating
Father’s parental rights pursuant to § 2511(a)(1) and (b).
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2016
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In the Interest of: A.T., a Minor Appeal of: J.T.
Combined Opinion