J-A03009-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN RE: ADOPTION OF: W.C.B. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: P.S.B., FATHER : : : : : : No. 999 WDA 2023
Appeal from the Order Entered August 1, 2023 In the Court of Common Pleas of Cambria County Orphans' Court at No(s): 2023-400-IVT
BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY BOWES, J.: FILED: March 14, 2024
P.S.B. (“Father”) appeals from the August 1, 2023 order granting the
petition filed by A.L.D. (“Mother”) and her husband E.R.D., Jr. (“Husband”),
which involuntarily terminated Father’s parental rights to his son, W.C.B., born
in December 2010, pursuant to 23 Pa.C.S. § 2511(a)(1) and (b).1 After
careful review, we affirm.
We glean the factual and procedural history of this matter from the
certified record. Mother and Father were together at the time of W.C.B.’s birth
and later married in 2012. See N.T., 6/7/23, at 8. Their relationship
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1 Mother also has an older daughter with another man who was eighteen years old at the time of the termination hearing in this case. Additionally, Husband has two pre-teen daughters from a previous relationship. Mother and Husband also have a son who was born in February 2023. Father also has an adult son who lives in his residence. None of these individuals testified in, or were otherwise directly implicated by, the case at bar. J-A03009-24
deteriorated over the ensuing years, however, and the couple separated in
2020. Id. at 9. In the immediate aftermath of their separation, Mother and
Father maintained an informal custody arrangement whereby Mother
exercised primary physical custody of W.C.B., while Father enjoyed regular
periods of partial physical custody. Id. at 10, 26-27, 46. Both parents resided
in Johnstown, Pennsylvania, approximately “two or three” miles from each
other. Id. at 61.
W.C.B. is an active youth athlete who competes in an interstate traveling
hockey league that includes regular events in Pennsylvania, Ohio, Michigan,
and New York. Id. at 7, 15, 43. Initially, Father was a regular spectator at
W.C.B.’s hockey games, including out-of-state matches. Id. at 41-44.
Mother and Father divorced in October 2021. Id. at 9. They
contemporaneously executed a stipulated custody agreement that largely
preserved the existing status quo, i.e., Mother maintained primary physical
custody of W.C.B. while Father exercised periodic periods of partial physical
custody based upon the “mutual agreement” of the parties. Id. at 18. The
agreement also provided for shared legal custody of W.C.B. Id. at 35.
In November 2021, Father was briefly hospitalized after demonstrating
suicidal ideations. Id. at 33-34. Post-divorce finances also quickly became a
source of conflict between the parties, with Father being detained by bench
warrants for non-payment of child support on at least three separate
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occasions. Id. at 42-43, 54-55. Disputes also arose concerning the costs
associated with W.C.B.’s hockey league. Id. at 60.
Contemporaneous with their separation, Mother met Husband, whom
she married in December 2021. Id. at 5-6. During the six months following
the marriage, Father’s relationship with Mother and W.C.B. rapidly
deteriorated. Father eventually ceased communicating with Mother altogether
and their last conversation occurred in June 2022. Id. at 11-12, 60-61. In
July 2022, Father had his last in-person interaction with W.C.B., when the
child attended a birthday party at Father’s home. Id. at 10. Father ceased
attending W.C.B.’s hockey games after October 2022. Id. at 43-44, 48.
W.C.B. also increasingly failed to respond to Father’s text messages and phone
calls. Id. at 13-14. Father and W.C.B. last communicated during a phone call
in January 2023. Id. at 50.
On March 29, 2023, Mother and Husband filed a joint petition seeking
to involuntarily terminate Father’s parental rights pursuant to § 2511(a)(1)
and (b). The orphans’ court held a termination hearing on June 7, 2023, at
which time W.C.B. was twelve years old. Therein, the orphans’ court heard
testimony from Mother, Husband, Father, and Father’s ex-girlfriend, Angelina
Darr. Although W.C.B. was not in attendance and did not testify, his court-
appointed counsel, Suzann Lehmier, Esquire, participated in the proceeding
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and reported to the orphans’ court that the child favored termination and
adoption by Husband.2 See N.T., 6/7/23, at 78-80.
On August 1, 2023, the orphans’ court filed an order involuntarily
terminating Father’s parental rights pursuant to § 2511(a)(1) and (b), which
also contained a summary of the court’s rationale. Father filed a timely notice
of appeal along with a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). Thereafter, the orphans’ court
filed a brief opinion pursuant to Rule 1925(a)(2)(ii), which referred to the
reasoning already set forth in its original order.
Father has raised the following issues for our consideration:
(1) Whether the trial court committed an error of law in terminating the parental rights of [Father] to W.C.B.?
(2) Whether the trial court abused its discretion in terminating the parental rights of [Father] to W.C.B.?
2 Attorney Lehmier served as W.C.B.’s “court-appointed counsel” in these proceedings pursuant to 23 Pa.C.S. § 2313(a). Scheduling Order, 3/30/23, at 1 (unpaginated). From the available record, it is unclear whether the orphans’ court intended for Attorney Lehmier to represent W.C.B.’s legal interests, best interests, or both. Nonetheless, Attorney Lehmier reported there was no conflict between W.C.B.’s best and legal interests, which the orphans’ court credited in rendering its determination. See Order, 8/1/23, at ¶ 7; N.T., 6/7/23, at 78. Accordingly, we observe no structural defect in the instant case. See Interest of K.N.L., 284 A.3d 121, 151 n.23 (Pa. 2022) (providing that appellate court must perform limited sua sponte review of termination of parental rights decisions to confirm orphans’ court’s appointment of legal counsel and express ruling regarding conflict between best and legal interests) (citing In re Adoption of K.M.G., 240 A.3d 1218, 1236 (Pa. 2020)).
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Father’s brief at 6.3
The basic parameters of our appellate review are well-established:
In cases concerning the involuntary termination of parental rights, appellate review is limited to a determination of whether the decree of the termination court is supported by competent evidence. When applying this standard, the appellate court must accept the orphans’ court’s findings of fact and credibility determinations if they are supported by the record. Where the orphans’ court’s factual findings are supported by the evidence, an appellate court may not disturb the orphans’ court’s ruling unless it has discerned an error of law or abuse of discretion.
An abuse of discretion does not result merely because the reviewing court might have reached a different conclusion or the facts could support an opposite result. Instead, an appellate court may reverse for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill- will. This standard of review reflects the deference we pay to trial courts, who often observe the parties first-hand across multiple hearings.
In considering a petition to terminate parental rights, the orphans’ court must balance the parent’s fundamental right to make decisions concerning the care, custody, and control of his or her child with the child’s essential needs for a parent’s care, protection, and support. Termination of parental rights has significant and permanent consequences for both the parent and child. As such, the law of this Commonwealth requires the moving party to establish the statutory grounds by clear and convincing evidence, which is evidence that is so clear, direct, weighty, and convincing as to enable a trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue.
Interest of M.E., 283 A.3d 820, 829-30 (Pa.Super. 2022) (cleaned up).
3 In this Court, Attorney Lehmier filed a brief advocating that we affirm the order involuntarily terminating Father’s parental rights.
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The involuntary termination of parental rights is governed by § 2511 of
the Adoption Act, which calls for a bifurcated analysis that first focuses upon
the “eleven enumerated grounds” of parental conduct that may warrant
termination. Id. at 830; see also 23 Pa.C.S. § 2511(a)(1)-(11). Termination
is proper when the moving party proves grounds for termination under any
subsection of § 2511(a), as well as § 2511(b). In re Adoption of T.B.B.,
835 A.2d 387, 395 (Pa.Super. 2003). Instantly, we consider § 2511(a)(1)
and (b), which provide 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.
....
(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(a)(1), (b).
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In order to establish sufficient grounds for termination pursuant to
§ 2511(a)(1) the petitioner must demonstrate by “competent, clear and
convincing evidence” that the parent against whom termination is sought has,
“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.” In re Adoption of C.M., 255 A.3d 343, 363-64 (Pa. 2021)
(cleaned up). While the Adoption Act does not define the term “parental
duties,”
our courts long have interpreted parental duties in relation to the needs of a child, such as love, protection, guidance[,] and support. Parental duties are carried out through affirmative actions that develop and maintain the parent-child relationship. The roster of such positive actions undoubtedly includes communication and association. The performance of parental duties requires that a parent exert himself to take and maintain a place of importance in the child’s life.
In re Adoption of L.A.K., 265 A.3d 580, 592 (Pa. 2021) (cleaned up).
Furthermore, “[f]ortitude is required, as a parent must act with ‘reasonable
firmness’ to overcome obstacles that stand in the way of preserving a parent-
child relationship and may not wait for a more suitable time to perform
parental responsibilities.” Id. at 592 (cleaned up).
In assessing § 2511(a)(1), trial courts should consider the entire history
of the case and avoid applying the statutory six-month requirement
mechanically. See C.M., 255 A.3d at 364. However, the General Assembly’s
emphasis on the six months immediately preceding the filing of the
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termination petition indicates this timeframe is the “most critical period for
evaluation” of a parent’s conduct. L.A.K., 265 A.3d at 592.
Our Supreme Court has long maintained that “the question of whether
a parent has failed or refused to perform parental duties must be analyzed in
relation to the particular circumstances of the case.” In re Burns, 379 A.2d
535, 540 (Pa. 1977). Thus, “even where the evidence clearly establishes a
parent has failed to perform affirmative parental duties for a period in excess
of six months. . ., the court must examine the individual circumstances and
any explanation offered by the parent to determine if that evidence, in light
of the totality of circumstances, clearly warrants permitting the involuntary
termination [of parental rights].” L.A.K., 265 A.3d at 593 (cleaned up). The
totality of the circumstances includes consideration of, inter alia: (1) the
parent’s explanation for his conduct; (2) the post-abandonment contact
between the parent and child, if any, including any efforts made by the parent
to reestablish contact with the child; and (3) the effect that termination of
parental rights would have on the child pursuant to Section 2511(b). Id. The
purpose of this approach is to “avoid a mechanical application of the law
regarding the termination of parental rights.” Id.
With these overarching legal principles in mind, we turn to Father’s
putative claims for relief. See Father’s brief at 10-22. Although framed as
separate legal questions, we discern that Father’s two lines of arguments
constitute a unitary challenge to the sufficiency of the orphans’ court’s findings
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pursuant to § 2511(a)(1). See Father’s brief at 14 (“From the record
developed on June 7, 2023, there can be no doubt of [Father’s] efforts to
maintain a place of importance in his child’s life . . . .”). Specifically, Father
argues that the orphans’ court ignored evidence indicating that he had
attempted to maintain contact with W.C.B. during the months immediately
preceding the filing of the termination petition. Id. at 10-20.
The orphans’ court did not credit Father’s arguments and concluded that
he had failed to follow through on visits and maintain reasonable contact with
W.C.B. beginning in July 2022. See Order, 8/1/23, at ¶ 5. Furthermore, the
court found that Father had failed to take any action when confronted with
W.C.B.’s refusal to respond to Father’s attempts at cellular communication.
Id. Accordingly, the orphans’ court found that termination was warranted
pursuant to § 2511(a)(1). Id. at ¶ 2. The certified record supports the
orphans’ court’s conclusion.
There is no dispute amongst the parties concerning the timeline of
events in this case. As detailed above, the testimony at the termination
hearing indicated that Father ceased having in-person contact with W.C.B. in
July 2022. See N.T., 6/7/23, at 10. The parties also agreed that Father
stopped attending W.C.B.’s sporting events in October 2022. Id. at 14, 43-
44, 48. Finally, there is no dispute that Father and W.C.B. last spoke in
January 2023, after which all communication between them ended. Id. at 20,
50. Accordingly, there is no reasonable dispute that during the critical six-
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month period immediately preceding the filing of the instant termination
petition, Father was meaningfully absent from W.C.B.’s life.
Father contended that his lack of contact with W.C.B. was entirely
caused by Mother allegedly blocking him on her phone to hinder his ability to
exercise custody and forbidding Father from attending W.C.B.’s hockey games
or approaching Mother’s home. Id. at 48-49, 52-54. Mother denied Father’s
allegations and averred that Father, himself, elected to directly contact W.C.B.
to schedule custody time. Id. at 11-12, 19. She averred without contradiction
that she had never denied Father visitation when he had directly contacted
her or W.C.B.4 Id. at 19. Moreover, Mother testified that it was long-standing
custom that Father would coordinate his visits directly with W.C.B. Id. at 29.
Our review also indicates that Father’s testimony on this point is
inconsistent and contradictory. Although Father asserts without corroboration
that Mother blocked his phone number and will not accept any
communications from him, he simultaneously claimed that he had not called
Mother’s phone number in “years” and, consequently, could not know whether
his number was blocked. Id. at 60-61. Furthermore, Father’s testimony
indicated that his increasing lack of contact with W.C.B. was at least partially
due to Father losing his cell phone for a period and failing to obtain a
4 On one occasion, Father apparently requested a visit with W.C.B. through a third party who contacted Mother on her cell phone. See N.T., 6/7/23, at 12- 13. Mother averred that she blocked that phone number summarily because it was unfamiliar. Id.
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replacement. He stated, “Well, until – when – until I lost my phone. I’d text
him or talk to him all the time.” Id. at 50-51. Additionally, Father also
testified that his lack of contact with W.C.B. was attributable to
“miscommunications” that occurred in “finalizing plans” due to Father electing
to contact W.C.B. and then failing to follow-up on that initial contact. In short,
he credited the miscommunications to “dealing with an [eleven or twelve] year
old [child].” Id. at 59.
From this testimony, we can reasonably deduce that Father faced
obstacles to maintaining his place in W.C.B.’s life, including his deteriorating
relationship and communication with Mother, his inability to follow through on
planning visitations with W.C.B., and even everyday annoyances like the loss
of a cell phone. Critically, however, the record is bereft of any indication that
Father has responded to these impediments to his relationship with his son
with the kind of “affirmative actions” and “reasonable firmness” that
Pennsylvania law mandates. See L.A.K., 265 A.3d at 592.
Aside from claiming to have sent “dozens” of text messages and phone
calls to W.C.B., Father has taken no actions in response to the ongoing lack
of contact between him and his son. See N.T., 6/7/23, at 54. Despite living
within just a few miles of W.C.B., Father admitted that, beyond periodic
telephone calls during the fall and winter of 2022, he has made no attempts
to contact W.C.B. in person since July of 2022, eight months before Mother
filed the petition to terminate Father’s parental rights. Id. at 60-62. Even
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assuming, arguendo, that Mother was engaged in an inappropriate attempt to
deny Father his custody rights, Father conceded in his testimony that he has
taken no actions to overcome those obstacles and exercise his rights. Id. at
52.
Finally, we observe that Father’s passivity is not merely confined to
matters regarding physical custody. Despite having equally shared legal
custody of W.C.B. with Mother, the testimony at the termination hearing
revealed that Father did not play an active role in decisions regarding W.C.B.’s
education or health. Id. at 30. On this point, Father conceded that he did
not seek any independent information from W.C.B.’s school concerning his
participation in sports or activities. Id. at 62-63.
Based upon the foregoing, we observe no abuse of discretion or error of
law in the orphans’ court’s findings pursuant to § 2511(a)(1). Specifically, the
record supports its conclusion that Father failed to perform parental duties
during the six months immediately preceding the filing of the petition by
Mother and Husband. Consequently, Father’s claims merit no relief.
We note that Father has failed to present any arguments concerning the
orphans’ court’s findings pursuant to § 2511(b) in his brief. See Father’s brief
at 10-22. Our case law provides that such an omission results in waiver of
any argument concerning the overlooked subsection of § 2511. See In re
M.Z.T.M.W., 161 A.3d 462, 465-66 (Pa.Super. 2017). However, out of an
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abundance of caution, we will briefly review the orphans’ court’s findings
pursuant to § 2511(b) and explain why there is no abuse of discretion.
Section 2511(b) requires that the court “give primary consideration to
the developmental, physical and emotional needs and welfare of the child.”
23 Pa.C.S. § 2511(b). Of note, we “should consider the matter from the child’s
perspective, placing [their] developmental, physical, and emotional needs and
welfare above concerns for the parent.” In the Interest of K.T., 296 A.3d
1085, 1105 (Pa. 2023). Moreover, this determination “should not be applied
mechanically,” but “must be made on a case-by-case basis,” wherein “the
court must determine each child’s specific needs.” Id. at 1106. Thus, there
is no “exhaustive list” of factors that must be considered. Id. at 1113 n.28.
While the particular facts of each case determine the factors to be considered,
our precedent indicates that relevant points of inquiry include “intangibles
such as love, comfort, security, and stability.” In re T.S.M., 71 A.3d 251,
267 (Pa. 2013).
Our Supreme Court has mandated, however, that an evaluation
pursuant to § 2511(b) should consider the child’s bond with his or her parent.
See In re E.M., 620 A.2d 481 (Pa. 1993). Specifically, we must render “a
determination of whether the bond is necessary and beneficial to the child[.]”
In the Interest of K.T., 296 A.3d at 1113. This evaluation involves
consideration of the effect of severing the child’s bond with their parent. Id.
at 1109. In termination matters, “severance of a necessary and beneficial
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relationship is the kind of loss that would predictably cause ‘extreme emotional
consequences’ or significant, irreparable harm.” Id. at 1109-10 (quoting
E.M., 620 A.2d at 484). Our Supreme Court has distinguished, however,
“extreme emotional consequences” from a mere “adverse impact” in the
termination context. Id. at 1111. Specifically, the High Court has cautioned
that Pennsylvania courts must not truncate their analysis and preclude
severance “based solely on evidence of an ‘adverse’ or ‘detrimental’ impact to
the child.” Id. at 1114.
Instantly, the orphans’ court determined that W.C.B. did not enjoy a
strong bond with his Father and that termination would not have an undue
detrimental effect upon the child. See Order, 8/1/23, at ¶¶ 3, 6. Conversely,
the orphans’ court found that W.C.B. shared a strong parental bond with his
putative adoptive father, Husband. Id. at ¶ 4. Finally, the orphans’ court
concluded that termination would best serve W.C.B.’s developmental, physical
and emotional needs, and welfare. Id. at ¶ 8. There is ample support for
these findings.
First we note that Father testified that he no longer has a meaningful
parental bond with W.C.B. See N.T., 6/7/23, at 61. Father’s testimony was
also corroborated by Attorney Lehmier, who reported on W.C.B.’s behalf that
his relationship with Father had “really deteriorated.” Id. at 79.
It is equally clear that W.C.B.’s true parental relationships lie with
Mother and Husband, who are identified as consistent sources of support and
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encouragement for W.C.B. Id. at 38. Husband, in particular, spoke highly
and warmly of W.C.B. during his testimony. Id. at 38 (“We get along greatly.
I admire the boy. Very [energetic] young man. Great potential. Does well in
school. Does well in sports. I want the best for him.”). Most tellingly, W.C.B.
reported through his legal counsel that he was in favor of termination of
Father’s parental rights in anticipation of adoption. Id. at 78. W.C.B.’s
preference is particularly relevant in this case because, as a twelve-year-old
child, his consent to the adoption is required pursuant to § 2711(a)(1).
For all of these reasons, the orphans’ court did not abuse its discretion
or commit legal error in concluding that the termination of Father’s parental
rights would not sever a beneficial and necessary parent-child relationship, or
cause W.C.B. undue harm. Accordingly, the certified record supports the
orphans’ court’s finding that termination would best serve W.C.B.’s
developmental, physical, and emotional needs and welfare. See 23 Pa.C.S. §
2511(b).
Order affirmed.
DATE: 03/14/2024
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