J-S96014-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF A.M., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: J.S.M., NATURAL FATHER
No. 859 WDA 2016
Appeal from the Order May 16, 2016
In the Court of Common Pleas of Washington County
Orphans' Court at No(s): 63-16-0236
BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 9, 2017
J.S.M. (Father) appeals from the order entered on May 16, 2016,
involuntarily terminating his parental rights to his daughter, A.M. (Child),
born in May of 2013.1 For the reasons that follow, we affirm.
On appeal, Father’s brief provides the following questions for our
review:
I. Whether the trial court erred in terminating Father’s parental
rights where the Agency failed to prove by clear and convincing
evidence that Father evidenced a settled purpose of relinquishing
parental claims to the child and failed to prove that Father
refused or failed to perform parental duties[?]
II. Whether the trial court erred in terminating Natural Father’s
parental rights pursuant to Section 2511(b) when the record is
devoid of any testimony as to the Father’s bond with the minor
child or as to what effect the severing of any bond would have
on the minor child[?]
Father’s brief at 4.
____________________________________________
1
A.S.C. (Mother) agreed to a voluntary termination of her parental rights
and is not a party to this appeal.
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We review an order terminating parental rights in accordance with the
following standard:
When reviewing an appeal from a decree terminating
parental rights, we are limited to determining whether the
decision of the trial court is supported by competent evidence.
Absent an abuse of discretion, an error of law, or insufficient
evidentiary support for the trial court's decision, the decree
must stand. Where a trial court has granted a petition to
involuntarily terminate parental rights, this Court must accord
the hearing judge's decision the same deference that we would
give to a jury verdict. We must employ a broad, comprehensive
review of the record in order to determine whether the trial
court's decision is supported by competent evidence.
In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (quoting In re S.H., 879
A.2d 802, 805 (Pa. Super. 2005)). Moreover, we have explained that:
The 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. (quoting In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
The trial court is free to believe all, part, or none of the evidence presented
and is likewise free to make all credibility determinations and resolve
conflicts in the evidence. In re M.G., 855 A.2d 68, 73-74 (Pa. Super.
2004). If competent evidence supports the trial court’s findings, we will
affirm even if the record could also support the opposite result. In re
Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003).
We are guided further by the following: Termination of parental rights
is governed by Section 2511 of the Adoption Act, which requires a bifurcated
analysis.
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Our case law has made clear that under 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) (citing 23 Pa.C.S. § 2511,
other 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. R.N.J., 985 A.2d at 276.
With regard to Section 2511(b), we direct our analysis to the facts
relating to that section. This Court has explained that:
Subsection 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. In In re C.M.S., 884
A.2d 1284, 1287 (Pa. Super. 2005), this Court stated,
“Intangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of the child.”
In addition, we instructed that the trial court must also discern
the nature and status of the parent-child bond, with utmost
attention to the effect on the child of permanently severing that
bond. Id. However, in cases where there is no evidence of a
bond between a parent and child, it is reasonable to infer that no
bond exists. In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super.
2008). Accordingly, the extent of the bond-effect analysis
necessarily depends on the circumstances of the particular case.
Id. at 763.
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In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
We have reviewed the certified record, the briefs of the parties, the
applicable law, and the comprehensive opinion written pursuant to Pa.R.A.P.
1925(a) that was authored by the Honorable Katherine B. Emery of the
Court of Common Pleas of Washington County, and filed on August 1, 2016.
We conclude that Judge Emery’s well-reasoned decision correctly addresses
the issue raised by Father relating to Section 2511(a)(1), and rely on it for
our review of Father’s first issue.
However, for the reasons stated below, we address a limited portion of
Judge Emery’s decision with regard to Section 2511(b). In particular, we
recognize that Judge Emery’s opinion references the foster parents’
willingness to have Father maintain a relationship with Child. Specifically,
the trial court stated:
While the [c]ourt recognizes that, with [] Father, there is no
guarantee that foster parents will do so, they have already
agreed to an Act 101 Agreement[2] with [] Mother and her
____________________________________________
2
An Act 101 Agreement is based upon the language contained in 23 Pa.C.S.
§ 2731, which provides:
§ 2731. Purpose of subchapter
The purpose of this subchapter is to provide an option for
adoptive parents and birth relatives to enter into a voluntary
agreement for ongoing communication or contact that:
(1) is in the best interest of the child;
(Footnote Continued Next Page)
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voluntary relinquishment was done with that contingency. There
is no doubt with the [c]ourt that the foster parents will indeed
maintain contact. They pursued the Christmas visit, not []
Father, and have been very supportive of both parents. The
totality of the evidence established that no adverse effect will
occur if the parental bond is legally severed as the status quo
will continue and that there is only a minimal bond and the
termination best meets the needs and welfare of [] [C]hild.
Trial Court Rule 1925(a) Opinion (TCO), 8/1/16, at 11 (citation to the N.T.
omitted).
With reference to this portion of the trial court’s decision, Father
contends that the trial court “should not have considered the foster
parents[’] willingness to maintain contact between [] [F]ather and the minor
[C]hild, as there is nothing enforceable about such an agreement. Such a
consideration was an improper analysis of the totality of the circumstances
in this case.” Father’s brief at 14 (emphasis added). To support this
argument, Father relies on In re Adoption of G.L.L., 124 A.2d 344, 348
(Pa. Super. 2015) (stating that “[o]pen adoption is a purely voluntary
arrangement requiring the consent of the adoptive parents in order to enter
into an agreement with birth relatives for ongoing communication or contact
_______________________
(Footnote Continued)
(2) recognizes the parties’ interests and desires for ongoing
communication or contact;
(3) is appropriate given the role of the parties in the child’s life;
and
(4) is subject to approval by the courts.
23 Pa.C.S. § 2731.
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that is in the best interest of the child”); and In re K.H.B., 107 A.2d 175,
184 (Pa. Super. 2014) (explaining that open adoption agreement is optional
and not required by Section 2511; that the court erred in declining to grant
petition for involuntary termination because of paternal aunt’s refusal to
enter into voluntary agreement; and the court improperly conflated analysis
of termination of parental rights with adoption). Our review of these two
cases reveals that neither are exactly on point with the facts as found in the
instant matter.
Again, we conclude that in its opinion, the trial court sufficiently
discussed the evidence presented, specifically recognizing that no “close,
strong bond” exists between Father and Child and that the sole visit between
Father and Child in the ten months prior to the termination hearing occurred
at the behest of the foster parents. See TCO at 9-10. Therefore, we rely on
the court’s discussion in its opinion, relating to Section 2511(b), as the basis
for concluding that the needs and welfare of Child would best be met by
terminating Father’s parental rights.
Separately, we note that the trial court’s discussion quoted supra,
relating to an Act 101 agreement, is superfluous at this point in the process
as such an agreement for continuing contact “shall be filed with the court
that finalizes the adoption of the child.” 23 Pa.C.S. § 2735(a). Moreover,
acceptance of such an agreement by the court does not occur until after a
termination petition has been granted. Thus, we conclude that Father’s
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assertions with regard to the trial court’s consideration of an after-
termination contact agreement are of no moment. Sufficient support for the
trial court’s decision appears in the record and the court’s discussion of that
evidence addresses Father’s claims of error. Therefore, we also rely on
Judge Emery’s opinion for our review of Father’s second issue.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/9/2017
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Circulated 01/13/2017 09:11 AM
v .
Copies: CYS, Daniel Chunko, Esq.; Tamora Reese, Esq.; Erick Rigby, Esq.; G. Clayton Nestler,
Esq.
IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
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TRIAL OPINION PURSUANT TO PA. R.A.P. 1925(A)
This case came before the Court on a Petition for the Involuntary Termination of Parental
Rights filed by Washington County Children and Youth Social Services Agency (CYS) on
. :f.,s.m.·
February 23, 2016. The petition sought to terminate the rights of M I 1111
(hereinafter referred to as "Father") to AM. A hearing was held on May 3, 2016. Father was
present and represented by counsel; the child was represented by a Guardian ad Litem appointed
by the Court. Upon consideration of the facts elicited in the termination hearing, the Court found
that the Petitioner, CYS, proved by clear and convincing evidence that statutory grounds for the
involuntary termination of the rights of the Father exist pursuant to 23 Pa. C.S.A §2511 (a)(l)
and §251 l(b) and terminated the Father's parental rights on May 16, 2016. This timely appeal
ensued.
I. FACTS
. . fr, ~I but has chosen not to do so; rather, his
contact is limited to phone calls with the child. The child is only two years old and lacks the
ability to engage in any meaningful conversation . .The Father moved to Virginia because he
"figured out the truth about ... his wife." (T.T. p. 93) His child's needs were ignored. The Father
has not performed any parental functions in the six months prior to the filing of the petition.
While he provided Christmas and birthday presents, he provided no financial support, gifts at
other holidays, never provided a meal> clothing, guidance or nurturing. His move out of state
whi1e his small child remained in foster care in Pennsylvania was tantamount to abandonment
and evidenced a.settled purpose to relinquish his rights. Especially when his child is in foster
care, the Father has a duty to work towards the return of the child by cooperating with CYS to
obtain the services necessary for him to become capable of performing his parental duties and
responsibilities. In Re: G-P-R, 851 A.2d 967 (Pa. Super. 2004) The Father has not worked with
requisite speed to complete the services asked of him. The Father waited eleven months after the
child's placement to obtain a psychological evaluation. He waited six months to begin a drug
and alcohol treatment program. While he began a parenting program in June of 2015, four
months after the child's placement, he did not complete the program because he moved. He
signed up for a parenting program in Virginia, but it had not yet started as of the date of the
hearing. (T.T. p. 92) The Father never contacted CYS to keep the caseworker up to date as to
his services or progress. (T.T. pp. 24, 117) Keeping in contact with the caseworker is a critical
component of having a child returned to a parent's care. The Father never even requested that
the child be placed with him. Father has clearly not performed his parental duties and has
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evidenced a settled purpose of relinquishing his parental claim and has offered no reasonable
explanation for his failures.
B. The trial court erred in terminating Natural Father's parental rights pursuant to
Section 2511 (b) when the record is devoid of any testimony as to the Father' s
bond with the minor child or as to what effect the severing of any bond would
have on the minor child.
CYS must establish, by clear and convincing evidence, that termination of the Father's
rights best meets the needs and weJfare of the child. 23 Pa. C.S.A. §251 l(b). The Court must
examine the nature and strength of the parent-child bond and the effect of the severance of that
bond. In Re: C.M.S., 8.84 A.2d 1284 (Pa. Super. 2005) The testimony from the foster mother,
the Father and logical inferences from the facts in the case led the Court to its conclusion that
CYS met its burden.
The evidence shows that, while there is no doubt that Father loves his child, the Father
and child never had a close, strong bond. When the family was together, before the child's
placement, the Father has never been actively involved in her daily life and routine. Father
worked a lot and was away from home for extended periods as he was busy working in the gas
industry. When questioned about how much time he spent with his child, Father stated, «I've
lived in my home but worked out of state." (T. T. p. 111) The Virginia authorities found his
involvement with the child to be "minimal" and encouraged him to become more active in her
life. (T.T. p. 50) His response to that was to move to West Virginia, then Pennsylvania, so he
could continue to work in the gas industry.
Father never described any activities that he did with the child or any special routines.
When asked to describe his relationship with his child, he responded simply) "Good." (T.T. p.
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96) He responded to the Guardian ad Litem's questions that he was away a lot. (T.T. p. 111)
The Court logically concluded that the Father and child, at the time of the child's placement)
when the child was not yet two years old, did not have a close, strong bond but did have a normal
but distant relationship as Father and child.
After the child's placement, the Father maintained that relationship for approximately six
months, with the Father visiting twice a week for up to two hours per visit. The Father never
requested additional time with the child. (Exhibit 1) The Father then abruptly moved, not even
informing the caseworker of his intentions. He ha.s only seen that. child one time, for a few hours
in a McDonald's, in the ten months prior to the termination hearing. The Father has relied on
maintaining a relationship with his child through telephone calls. Due to the child's tender years,
the Court finds that to be not practical or possible. The foster mother's testimony was credible.
While she clearly loves the child and is desirous of adopting her, she has a positive relationship
with the Father and wants to maintain contact with him. She is exceptionally experienced
fostering over 35 children. (T.T. p. 74) She testified that the child recognizes the Father's voice
but doesn't engage in conversation with the Father but merely listens. (T.T. p. 79) She talks
with other family members on the phone much differently and in a more engaging manner. (T.T.
p. 79) The child never asks about her Father (T.T. p. 78) and is not sad or upset when the phone
. .
call ends or if he does not call. (T.T. p. 78) Those facts lead to the logical inference that any
bond between the Father and child is minimal. Any severance of a minimal bond would not
cause any adverse effect on a slightly less than three year old child. The child has a strong
attachment with her foster parents and looks to them for all her care and parental guidance. (T.T.
p.p. 35, 66)
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The fact that the foster parents are willing to maintain a relationship with the Father is
relevant as well. Their willingness will maintain the status quo. While the Court recognizes that,
with the Father, there is no guarantee that foster parents will do so) they have already agreed to an
Act 10 l Agreement with the Mother and her voluntary relinquishment was done with that
contingency. (T.T. p, 13) There is no doubt with the Court that the foster parents will indeed
maintain contact. They pursued the Christmas visit, not the Father, and have been very
supportive of both parents. The totality of the evidence established that no adverse effect will
occur if the parental bond is legally severed as the status quo will continue and that there is only
a minimal bond and the termination best meets the needs and welfare of the child.
V. CONCLUSION
The Court's Order of May 16, 2016 should be affirmed.
BY THE COURT:
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