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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: A.R., MINOR CHILD IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: L.T., BIRTH FATHER
No. 180 WDA 2017
Appeal from the Order Dated December 28, 2016
In the Court of Common Pleas of Washington County
Orphans' Court at No(s): 63-OC-2016-0379
BEFORE: BENDER, P.J.E., BOWES AND STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED JULY 31, 2017
L.T. (“Father”) appeals from the order involuntarily terminating his
parental rights to his daughter, A.R., pursuant to the Adoption Act, 23
Pa.C.S. § 2511(a)(1) and (b).1 We affirm.
The trial court summarized the pertinent facts as follows:
The Mother of the child is [T.Z. (“Mother”)]. The Mother
and Father were living together in . . . New Mexico when Mother
became pregnant. Sometime during her pregnancy she returned
to Pennsylvania where she had previously lived. Father testified
that Mother came to Pennsylvania to avoid being arrested for
outstanding warrants in New Mexico. The child was born on
October 6, 2014. Shortly thereafter, [Washington County Child
and Youth Services (“CYS”)] became involved with the Mother
and child. The child was adjudicated dependent and placed in
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1
Birth mother, T.B., voluntarily relinquished her parental rights on April 12,
2016.
* Retired Senior Judge assigned to the Superior Court.
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foster care on January 8, 2015. The Mother identified [L.T.] of
New Mexico as the Father. [CYS discovered Father in Clovis,
New Mexico during February of 2016].
The Father testified that he was in phone contact with the
Mother the first year of the child's life. He became incarcerated
on October 5, 2015. Thereafter, he had no contact with the
Mother or the child. He provided no financial support, nor sent
any written correspondence to the child. After he learned in
February of 2016 that the child was in foster care, Father has
called the CYS caseworker, Andrew Albright, a few times. Father
was provided the phone number of the foster parents. He has
never called the foster parents or the child. The Father was
released in June of 2016, but his release was for only thirty (30)
days, as he was rearrested for a parole violation. Father expects
to be released at his maximum, May 17, 2017.
Trial Court Opinion, 2/7/17, at 1-2 (citations to certified record omitted).
On April 1, 2016, CYS filed a petition to involuntarily terminate
Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1) and (b).
Counsel was appointed, and Father participated in the December 22, 2016
hearing via telephone. CYS presented the testimony of its caseworker,
Andrew Albright, the court appointed special advocate (“CASA”), Susan
Caffrey, and the pre-adoptive foster mother (“Foster Mother”), C.M. Father
testified on his own behalf.
As it relates to Father’s interactions with A.R., Mr. Albright testified
that Father has not had any contact with his daughter, even though CYS
reached out to Father and provided him Foster Mother’s contact information.
Father neglected to mail A.R. correspondence from prison or provide gifts or
financial support. Mr. Albright also stated that, while Father indicated that
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he intended to contest the termination of his parental rights, he
acknowledged his lack of appropriate housing and the ability to care for his
daughter. Essentially, Mr. Albright concluded that it was in A.R.’s best
interest to terminate Father’s parental rights and proceed with adoption.
Similarly, in relation to A.R.’s bond with her pre-adoptive foster family,
Ms. Caffrey testified that she was assigned to A.R. during February 2015 and
that she has observed the child at least once per month. Ms. Caffrey
described a loving relationship in which A.R. thrives and refers to her foster
parents as “mother” and “father.” She recommended that the orphans’
court terminate parental rights in order to facilitate the family’s adoption of
A.R.
Foster Mother’s testimony corroborated the evidence proffered by Mr.
Albright and Ms. Caffrey. She outlined Father’s failure to establish contact
with A.R. and described the mutual bond that A.R. shares with the family.
In sum, Foster Mother confirmed her desire to adopt A.R. and noted that she
and her husband completed the adoption profile and were ready to proceed
toward finalizing the adoption.
Following the evidentiary hearing, the orphans’ court entered the
above referenced order terminating Father’s parental rights. Father filed a
timely appeal and complied with Pa.R.A.P. 1925(a)(2)(i) by filing a
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statement of errors complained of on appeal concurrent with his notice of
appeal.2 He frames the issue on appeal as follows:
Did the trial court err 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?
Father’s brief at 7.
The pertinent scope and standard of review of an order terminating
parental rights is as follows:
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
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2
The Rule 1925(b) statement presented two questions:
1. Did the trial court err in terminating Appellant's parental
rights where the evidence was insufficient to sustain such a
finding?
2. Did the trial court err in conducting a § 2511(b) analysis
where there was insufficient evidence from which to conclude
that the father's bond should be severed?
While the orphans’ court complained that Father’s assertions were too
general, it addressed the claims nevertheless. We agree that Father’s first
issue is stated broadly; however, in light of the fact that CYS sought to
terminate parental rights under only one of the enumerated statutory
grounds, the issue was not too vague for review. Similarly, although Father
subsequently abandoned his second issue, it is clear that the claim assailing
the §2511(b) analysis was stated concisely. Thus, to the extent that the
orphans’ court found that either of the issues raised in the concise statement
were waived pursuant to Pa.R.A.P. 1925(b)(4), we reject that notion.
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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 M.M., 106 A.3d 114, 117 (Pa.Super. 2014) (quoting In re S.H., 879
A.2d 802, 805 (Pa.Super. 2005)). In termination cases, 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. In the
Interest of T.M.T., 64 A.3d 1119, 1124 (Pa.Super. 2013).
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." In re
R.N.J., 985 A.2d 273, 276. The trial court is free to make all
credibility determinations, and may believe all, part, or none of
the evidence presented. In re M.G., 855 A.2d 68, 73-74
(Pa.Super. 2004). If the findings of the trial court are supported
by competent evidence, 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).
Id.
Termination of parental rights is governed by 23 Pa.C.S. § 2511, which
provides in pertinent part 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.
Termination of parental rights requires a “bifurcated analysis” under §
2511(a) and (b). Adoption of C.J.P., 114 A.3d 1046, 1049 (Pa.Super.
2015). 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.
Id. at 1049-50 (quoting In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007)).
Herein, the trial court concluded that CYS met its burden to terminate
Father’s parental rights to A.R. pursuant to § 2511(a)(1), which “provide[s]
grounds for termination if the parent evidenced a settled purpose of
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relinquishing parental claim to a child, or has refused or failed to perform
parental duties for a period of at least six months.” In re Adoption of S.P.,
47 A.3d 817, 828 (Pa. 2012). The petitioning party must produce clear and
convincing evidence of conduct that fulfills either one of the two
requirements outlined in § 2511(a)(1), it does not have to establish both.
In re D.J.S., 737 A.2d 283, 285 (Pa.Super. 1999) (“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.”) While the statute targets the six months immediately
preceding the filing of the petition to terminate, the trial court must consider
the entire history of the case and not apply the six-month statutory period
mechanically. In re of K.Z.S., 946 A.2d 753, 758 (Pa.Super. 2008).
Our Supreme Court has noted that parental duty under § 2511(a)(1)
includes “an affirmative duty to love, protect and support” the child and “to
make an effort to maintain communication with that child.” In re Adoption
of S.P., supra at 828. When the parent’s fulfillment of those duties is made
more difficult by incarceration, “we must inquire whether the parent has
utilized those resources at his or her command while in prison in continuing
a close relationship with the child.” Id. Finally, our Supreme Court
explained,
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
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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).
Matter of Adoption of Charles E.D.M., II, 708 A.2d 88, 92 (Pa. 1998).
Father argues that he never evidenced a settled purpose to relinquish
his parental claim to his daughter or failed to perform parental duties. He
continues that his incarceration limited the resources that he could provide
A.R. and impaired his ability to contact her. In sum, Father insists that the
evidence sustains neither the orphans’ court’s finding that he abandoned
A.R. nor its conclusion that he failed to exercise reasonable firmness in
attempting to overcome the obstacle of his incarceration. We disagree.
In rejecting this claim, the trial court reasoned,
During the six months in question, Father performed no
parental duties. The Court recognizes that Father did not know
of the child's whereabouts . . . until February of 2016 . . . , but
[he] made no efforts to locate her. The Father's nephew is
married to Mother's sister. Father is familiar with Mother's
family[, but he] did not contact them to assist in locating
Mother. Father took no legal action to locate his daughter. He
was contacted in February of 2016 and told that A.R. was in
foster care. Even after learning this, Father did not call the
foster parents to inquire of A.R.'s well-being or send any cards,
photos or gifts to her through CYS. Although the Court finds
that . . . CYS . . . should have made a more thorough effort to
locate Father, their performance has little to do with an
examination of Father's conduct. Whether the child was with
Mother or in foster care, the Father made no effort to be a part
of her life. His conduct even after the filing of a termination
petition, which he was served in April of 2016, shows his
continued lack of effort. Father claims that he called the Agency
or caseworker numerous times but never received a return
phone call. The Court finds [the CYS] caseworker . . . credible
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that he did receive messages from Father a few times and he
spoke with Father. Father never wrote to the Agency
complaining o[r] demanding more contact. Communication with
or by an incarcerated person is usually best done by mail. When
Father was released from custody, he failed to contact either the
child or CYS. Father was appointed counsel on May 2, 2016 and
was provided contact information. Father has clearly not
performed any parental duty. Although incarcerated, Father
could have made efforts to be a part of the child's life and did
not do so. Examining his conduct and considering his
explanation establish that he failed to perform any parental
duties and evidenced a settled purpose of relinquishing his
parental rights.
Trial Court Opinion, 2/7/17, at 5-6.
For all of the following reasons, we find that the certified record
sustains the orphans’ court’s rationale. Our review of the record confirms
that Father failed to adduce any evidence to demonstrate that he exercised
any degree of firmness to overcome the obstacle of incarceration or to
support his stated excuses and justifications for his inaction. To the
contrary, the certified record confirms that CYS established by clear and
convincing evidence that Father failed to utilize available resources to
establish a parental relationship with his daughter or exercise reasonable
firmness to resist the obstacles attendant to his incarceration. No relief is
due.
Finally, while Father abandoned any issue with respect to § 2511(b),
we review the trial court’s needs and welfare analysis in an abundance of
caution. We note that no parental bond exists between Father and A.R.
Rather, as the orphans’ court accurately observed in its opinion, the
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meaningful parental bond in this case is among A.R. and her foster parents,
a pre-adoptive resource.
We highlight the court’s reasoning as follows:
The Father has never met the child nor has he ever talked with
her. The caseworker testified that no bond between Father and
daughter exists. While the Father undoubtedly loves the child
and feels a bond, the child could not experience any bond with
him. She has been in placement since shortly after her birth. She
has never met him, has never seen him and never has heard his
voice; Father has never sent her a picture of himself. Because no
bond exists, terminating the Father's rights and forever severing
any bond would have no detrimental effect. The child is capable
of bonding. She has no special needs. She is bonded with her
current foster parents, who are also an adoptive resource.
Trial Court Opinion, 2/7/17, at 6. As the certified record supports the
orphans’ court’s factual determinations, we do not disturb its conclusion that
terminating Father’s parental rights best satisfies A.R.’s developmental,
physical and emotional needs and welfare.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/2017
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