J-S19016-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN RE: ADOPTION OF: C.M.H., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: S.H., MOTHER, & M.S., : STEPFATHER : : : : No. 78 MDA 2024
Appeal from the Decree Entered January 3, 2024 In the Court of Common Pleas of Luzerne County Orphans’ Court at No(s): A-9521
BEFORE: DUBOW, J., BECK, J., and COLINS, J.*
MEMORANDUM BY BECK, J.: FILED: JULY 11, 2024
S.H. (“Mother”) and M.S. (“Stepfather”) (collectively “Appellants”)1
appeal from the decree entered by the Luzerne County Orphans’ Court
(“orphans’ court”) denying Appellants’ petition to terminate the parental rights
of natural father, A.M.D.L.R. (“Father”), to C.M.H. (“Child”), born February
2016. Appellants argue that clear and convincing evidence established
Father’s parental rights should have been terminated pursuant 23 Pa.C.S.
§ 2511(a)(1) and (b). Upon review, we affirm.
The record reflects that Mother and Father were never married and,
during their relationship, resided in Brooklyn, New York with Father’s uncle.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 We have amended the caption to reflect that both Mother and Stepfather jointly filed a notice of appeal. J-S19016-24
The parties separated when Child was nine months old. Father moved out of
his uncle’s home; Mother continued to live there. Father attempted to file
actions for custody and support in New York in 2017; however, he filed
incorrect legal documents, including a petition for paternity despite the fact
there was no dispute that he was Child’s father.2 Father also was unable to
locate Mother to effectuate service, as Mother had moved out of his uncle’s
home.
Father did not have contact with Child again until he was two years old.
In 2019, Mother moved to Luzerne County with Stepfather and Child.3 Mother
did not notify Father about the move. Subsequently, Mother informed Father
that she had been diagnosed with stage 4 multiform glioblastoma, and Father
spent time with Child on multiple occasions in 2020 while Mother received
medical care in New York City. Mother estimates that Father saw Child six
times in 2020. Thereafter, Mother sought financial support from Father for
Child’s care. For approximately one year, Father sent Mother $200 per month.
On two occasions, she returned the money. In 2022, Father continued to see
Child occasionally. In December 2022, Mother gave Father her Pennsylvania
2 The trial court noted that Father required the services of an interpreter as
he is not a native English speaker and further observed that his limited ability to understand English, combined with lack of counsel, could have contributed to his filing incorrect documents. Orphans’ Court Opinion, 2/21/2024, at 20- 21.
3 Appellants married in November 2022.
-2- J-S19016-24
address for the first time. In 2023, Father communicated via text messages
with Mother regarding Child and requested visits with Child or the ability to
FaceTime with Child. Father indicated Mother would make excuses as to why
he could not see Child. Father, however, called Child on his birthday in
February 2023.
On June 19, 2023, Appellants filed a petition for involuntary termination
of Father’s parental rights, alleging Father had no contact with Child for the
six months preceding the filing of the termination petition, failed to perform
any parental duties for Child, failed to request any form of physical contact
with Child—evidencing a settled purpose to relinquish his parental claim—and
only sporadically asked Appellants about Child.4 On July 24, 2023, Father filed
a custody complaint in Pennsylvania. The parties reached an agreement as
to Father’s complaint, giving Father periods of partial custody of Child one
time per week. Father comes from Brooklyn, New York to Luzerne County to
exercise custody.5
4 Appellants also indicated that Stepfather would adopt Child if Father’s parental rights were terminated. See Petition, 6/19/2023, at 2 (unnumbered); see also In re Adoption of M.R.D., 145 A.3d 1117, 1120 (Pa. 2016) (stating that a “petitioning parent must demonstrate that an adoption of the child is anticipated in order for the termination petition to be cognizable”).
5Father lives in Brooklyn with his girlfriend and two other children. N.T., 12/14/2023, at 36-37.
-3- J-S19016-24
In December 2023, the orphans’ court held several hearings on
Appellants’ termination petition, wherein Mother, Father, and Stepfather
testified.6 The orphans’ court ultimately denied the petition to involuntarily
terminate Father’s parental rights. The orphans’ court found that Appellants
did not establish by clear and convincing evidence that Father evidenced a
settled purpose of relinquishing his parental claim to Child. Appellants filed a
timely appeal and a concise statement of matters complained of on appeal
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).
Appellants raise the following questions for our review:
A. Whether the [orphans’] court erred in denying [] Appellants’ petition to terminate parental rights and/or abused its discretion with respect to [23 Pa.C.S. §] 2511(a)(1) of the Adoption Act?
B. Whether the [orphans’] court erred in denying [] Appellants’ petition to terminate parental rights and/or abused its discretion with respect to [23 Pa.C.S. §] 2511(a)(2) of the Adoption Act?
C. Whether the trial court erred in denying [] Appellants’ petition to terminate parental rights and/or abused its discretion with respect to [23 Pa.C.S. §] 2511(b) of the Adoption Act?
6 The orphans’ court appointed Attorney Masha Basco (“Attorney Basco”) as
counsel for Child. The orphans’ court noted that Attorney Basco stated that was no conflict of interest in her ability to represent both the best and legal interests of Child. N.T., 12/11/2023, at 4; see also In re Adoption of K.M.G., 240 A.3d 1218, 1235 (Pa. 2020) (stating that “where an orphans’ court has appointed a [guardian ad litem]/[c]ounsel to represent both the child’s best interests and legal interests, appellate courts should review sua sponte whether the orphans’ court made a determination that those interests did not conflict”).
-4- J-S19016-24
Appellants’ Brief at 3.
“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.” In re Adoption of
C.M., 255 A.3d 343, 358 (Pa. 2021).
The standard of review in termination of parental rights cases requires appellate courts 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. A decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. The trial court’s decision, however, should not be reversed merely because the record would support a different result. We have previously emphasized our deference to trial courts that often have first-hand observations of the parties spanning multiple hearings.
In re Adoption of B.G.S., 245 A.3d 700, 704 (Pa. Super. 2021) (citation
omitted).
Termination of parental rights is governed by 23 Pa.C.S. § 2511, which
requires a bifurcated analysis. C.M., 255 A.3d at 359. “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).” In re C.M.K., 203
A.3d 258, 261-62 (Pa. Super. 2019). If the orphans’ court determines the
petitioner established grounds for termination under section 2511(a) by clear
and convincing evidence, the court then must assess the petition under
subsection 2511(b), which focuses on the child’s needs and welfare. In re
-5- J-S19016-24
T.S.M., 71 A.3d 251, 267 (Pa. 2013). Clear and convincing evidence is
evidence 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.” In Int. of J.M., 166 A.3d 408, 423 (Pa. Super.
2017) (citation omitted).
Appellants initially sought to terminate Father’s parental rights to Child
pursuant to subsections (1) and (2). However, Appellants abandoned their
claim regarding subsection (2) and solely proceeded on subsection (1).
Orphans’ Court Opinion, 2/21/2024, at 18 (citing N.T., 12/28/2023, at 77).
Therefore, we will address Appellants’ claim regarding section 2511(a)(1).
Appellants argue that they established by clear and convincing evidence
that Father evidenced a settled purpose of relinquishing his claim to Child.
Appellants’ Brief at 28, 30. Appellants contend that Father never made himself
part of Child’s life or performed parental duties, highlighting that Father left
when Child was nine months old and did not have contact with Child again
until 2020; never attempted to come to Luzerne County after learning Mother
had moved; never served the incorrect legal documents filed in New York on
Mother; and only provided minimal child support starting in 2022, which was
well below the child support guidelines in Pennsylvania. Id. at 29-30, 32, 34;
see also id. at 30 (noting although Father unsuccessfully filed a custody
action in New York, he had no issues filing a custody petition in Pennsylvania
in 2023). Appellants further claim that in the six months prior to the
-6- J-S19016-24
termination filing, Father did not seek to have contact with Child, and only
sent a message in February 2023 to ask how Child was doing. Id. at 31.
Appellants assert that Mother has never refused Father from contacting Child
and would continue to allow Father to see Child even if his parental rights were
terminated. Id. at 33. Appellants also argue that Father failed to provide any
explanation for not seeking to obtain custody earlier, contending that, to the
contrary, Father filed a paternity action seeking to state he was not the father
of Child. Id. at 33-34. Appellants additionally emphasize the strong
relationship between Child and Stepfather. Id. at 34.
Section 2511(a)(1) provides that termination is proper if “[t]he 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.” 23 Pa.C.S. § 2511(a)(1); see also C.M., 255 A.3d at 363-
64. “‘Parental duties’ are not defined in the Adoption Act.” In re Adoption
of L.A.K., 265 A.3d 580, 592 (Pa. 2021). However,
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.
Id. (citations and quotation marks omitted).
-7- J-S19016-24
“When considering a request to terminate rights under [s]ection
2511(a)(1), a parent’s failure or refusal to perform parental duties must be
analyzed in relation to the particular circumstances of the case.” Id. (citation
and quotation marks omitted). “[T]he focus under [section] 2511(a)(1) is not
the degree of success a parent may have had in reaching the child, but
examines whether, under the circumstances, the parent has utilized all
available resources to preserve the parent-child relationship.” C.M., 255 A.3d
at 365.
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.
Id. at 364 (citation, brackets, and quotation marks omitted). Moreover, in
examining the totality of the circumstances, courts must consider a parent’s
post-abandonment contact, including a parent’s efforts to “recultivate a
parent-child relationship.” In re K.Z.S., 946 A.3d 753, 759 (Pa. Super. 2008)
(citation omitted). Further, courts may “consider the whole history of a given
case and not mechanically apply the six-month statutory provision, although
it is the six months immediately preceding the filing of the petition that is most
critical to the analysis.” C.M., 255 A.3d at 364 (citation, brackets, and
quotation marks omitted).
In considering a non-custodial parent’s explanation, courts must
determine “whether a parent has faced barriers that prevented the parent
-8- J-S19016-24
from maintaining the parent-child relationship.” L.A.K., 265 A.3d at 593.
“What constitutes a ‘barrier’ in the context of a [s]ection 2511(a)(1) analysis
is a finding within the discretion of the trial court, and what may constitute a
barrier necessarily will vary with the circumstances of each case.” Id.
“[O]bstructive behavior by the child’s custodian presents a barrier to the
parent’s ability to perform parental duties, which mitigates the parent’s failure
to maintain the parent-child relationship.” Id.; see also C.M., 255 A.3d at
365 (“[O]bstructive behavior on the part of the custodial parent aimed at
thwarting the other parent’s maintenance of a parental relationship will not be
tolerated, and certainly will not provide a sound basis for the involuntary
termination of parental rights.”) (citation omitted). “Fortitude 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.” L.A.K., 265 A.3d at
592.
With these tenets in mind, we review the evidence presented at the
hearings. Mother testified that she and Father were in a relationship until
Child was nine months old, at which time Father moved out of the residence
and she and Child lived with Father’s uncle for an additional year. N.T.,
12/11/2023, at 9-10, 29. Mother indicated Father did not maintain contact
with Child after moving out and that he seemed uninterested in maintaining
contact. Id. at 10, 30. Mother emphasized that she did not prohibit contact
-9- J-S19016-24
between Father and Child. Id. at 11, 31. Mother testified that Father did not
see Child again until he was two years old. Id. at 11-12. Mother stated that
she moved to Luzerne County in 2019 with Stepfather, but admitted that she
did not tell Father about the move. Id. at 16, 34-35. Mother did not know
when Father became aware that she and Child had moved, but could not
articulate a certain date that she gave Father her address in Luzerne County.
Id. at 22-23. Mother testified that after her cancer diagnosis, Father met with
Child on multiple occasions in 2020. Id. at 12-16, 31, 32. Mother indicated
that Father did not have any physical contact with Child from 2020 until the
filing of the termination petition. Id. at 8-9, 19; see also id. at 23 (noting
that Father did not attempt to contact Child by phone in the six months
preceding the filing of the termination petition). Mother testified that Father
had her telephone number and that he only contacted her on occasion,
including Child’s birthday. Id. at 19-20, 35-36, 42. Mother indicated,
however, she did not recall whether she responded to all of Father’s texts or
phone calls. Id. at 38. Mother testified that Father began paying $200 per
month in child support in 2022. Id. at 20-22, 34. Mother acknowledged that
Child has met Father’s other children—his half-siblings—and that she would
continue to permit Child to maintain his relationship with them. Id. at 48-49.
Mother sought to terminate Father’s parental rights because if something
happened to her as a result of her cancer diagnosis, she was concerned that
Father would attempt to take Child despite the lack of contact. Id. at 24-25.
- 10 - J-S19016-24
Stepfather testified that he has been in a relationship with Mother since
2018, and that he and Mother moved to Luzerne County with Child in 2019.
N.T., 12/14/2023, 4-5. Stepfather stated that Father did not know about the
move until 2020. Id. at 28-29. Stepfather acknowledged that Father reached
out to Mother by text messages to ask about visiting with Child, and
subsequently had visits with Child in 2020 and 2022. Id. at 6-10, 21-22.
Stepfather testified that Father began providing support in 2022. Id. at 22-
23. Stepfather stated that Father would send texts about Child to Mother.
Id. at 11. Stepfather emphasized that he considers Child his son and that he
has taken care of him since he was a baby. Id. at 14; see also id. at 16
(stating that he financially supports Child).
Father testified that when he initially moved out of his uncle’s residence
in 2017, he did not talk to Mother about Child. Id. at 40-41. Father indicated
that because he did not have contact with Mother, he initiated a case in New
York in 2017 in an attempt to pay child support to Mother. Id. at 41; see
also N.T., 12/28/2023, at 10-14, 35-36 (wherein Father explained that the
State of New York indicated he could not get custody or pay child support
without paternity being established, and that he did not seek to challenge his
paternity). Father testified, however, that he was unable to serve Mother
because he did not know where she lived. N.T., 12/14/2023, at 42; see also
N.T., 12/28/2023, at 9-10 (Father stating that he asked his uncle where
Mother lived, but could not find her address); id. at 16 (Father stating he
- 11 - J-S19016-24
could not find Mother and could not hire a private investigator because he did
not have money to pay for one). In 2018, Father refused Mother’s request
for her to have full custody of Child. N.T., 12/14/2023, at 42-43. Father
testified that he repeatedly asked Mother to see Child between April 2018 and
March 2019. Id. at 43. Father further stated that once he learned of Mother’s
cancer diagnosis, he offered to take care of Child. Id. at 44-45.
Father testified that he learned that Mother had moved to Luzerne
County in 2021, but that Mother did not provide her address to him until
December 2022. N.T., 12/28/2023, at 24; N.T., 12/14/2023, at 45. Upon
learning she left the state, Father sought to file another action in New York,
but he had been told that nothing could be done in New York because Mother
lived in Pennsylvania. N.T., 12/14/2023, at 46. Father stated that he wanted
to see Child, but Mother was never cooperative. Id.; see also N.T.,
12/28/2023, at 6 (Father stating he looked for Child for a long time and Mother
refused to give him access to Child). Father visited with Child in 2020, 2021,
and 2022. N.T., 12/28/2023, at 15-16. Father also testified that Child has a
positive relationship with his other children. N.T., 12/14/2023, at 54. Father
further confirmed that he sent monthly child support payments to Mother from
June 2022 until August 2023, but Mother sent the money back to Father two
- 12 - J-S19016-24
of the months. Id. at 48-52.7 Father indicated that he reached out to Mother
via text messages in the six months preceding the filing of the termination
petition in an attempt to see Child, but that she failed or refused to respond.
N.T., 12/28/2023, at 35, 37; N.T., 12/14/2023, at 48, 58, 66. Father
attempted to introduce texts from 2023, but acknowledged, on cross-
examination, that the texts introduced in the record were from 2020. N.T.,
12/28/2023, at 29-34. Father stated that Mother would come up with excuses
for him not to see Child. Id. at 25; N.T., 12/14/2023, at 66. Father testified
that he loves his son and does not believe it would be in Child’s best interests
to have his parental rights terminated. N.T., 12/28/2023, at 6-7.
The orphans’ court provided the following explanation for denying
Appellants’ petition to terminate Father’s parental rights:
Although Father did not present evidence of text messages that occurred six months prior to the filing date of the petition to terminate his parental rights, Father was precluded from seeing [C]hild in the past by Mother. Mother, not only relocated from New York without telling Father, Mother refused to provide her address to Father until December 2022 when she finally did so. As a result of Mother relocating without Father’s knowledge, Father was compelled to file an action in Pennsylvania since Mother was living with [C]hild in Pennsylvania in excess of three (3) years at the time he learned of her address and the whereabouts of [C]hild.
Therefore, despite Father’s lack of contact six months prior to the filing date of Mother’s petition to terminate his parental rights, Mother did not have clean hands throughout the history of ____________________________________________
7Although Father stated that he had evidence of payments made between September and December 2023, he did not introduce this evidence at the hearing. N.T., 12/14/2023, at 49.
- 13 - J-S19016-24
the case. Father made it clear that he was not able to file for custody and support in New York because he did not have Mother’s address despite his attempt to learn it from investigation. Mother could have left her address with Father’s uncle permitting Father to contact her regarding [Child]. Instead, Mother practically went into hiding, not notifying [F]ather where she was residing with [Child].
… Father stated that he reached out to the Mother several times [in the] six months prior to the filing date of the petition to terminate his parental rights, requesting to see [Child]. Father stated that when he filed an action in New York, he did not have counsel representing him. Father stated there was no hearing held by the court to address his petitions because he had to wait for Mother to file against him regarding support. Father stated that it was his understanding that he was not able to file on his own to pay her support because he was not legally married to Mother.
* * *
[The orphans’ court] finds Father’s explanation for his lack of contact with [C]hild to be credible and reasonable. [The orphans’ court] took into consideration the barriers which precluded Father from having contact with [Child], i.e., Mother’s relocation from the State of New York to the Commonwealth of Pennsylvania; Mother refusing to give her home address to Father[,] thereby controlling Father’s ability to contact [C]hild; and Father’s inability to file legal documents in New York in 2017 in attempt to have custody of [C]hild or financially support [C]hild.
[The orphans’ court] finds that [Appellants] did not present testimony or evidence that is clear, direct[,] and convincing so as to enable the [orphans’ court] to come to a clear conviction, without hesitance, of the truth of the facts in issue in order to satisfy meeting the standard of clear and convincing evidence.
In light of Father having a reasonable explanation for not having contact with [Child] at least six (6) months prior to the filing of the petition to terminate his parental rights, the [orphans’ court] need not address the post abandonment contact between parent and child or need not consider the effect of termination of parental rights on the child pursuant to [] 23 Pa.C.S.[] § 2511(b).
- 14 - J-S19016-24
Orphans’ Court Opinion, 2/21/2024, at 26-27, 28-29.
Based upon the orphans’ court’s credibility determinations, our review
of the record supports its conclusions. Despite Father’s prior absence in
Child’s life, Mother’s obstructive behavior, meant to thwart Father’s access to
Child, mitigates Father’s failure to maintain the parent-child relationship in the
context of a section 2511(a)(1) analysis. Indeed, Mother took affirmative
steps to block Father’s ability to see Child by moving to Pennsylvania without
informing Father, hindering his ability to ascertain her address until December
2022, and refusing to allow Father contact with Child without her approval.
Father exercised diligence in attempting to overcome this obstructive behavior
by repeatedly texting Mother to see and/or talk to Child, visiting Child when
Mother allowed, and providing child support in the year up to and following
the filing of the termination petition.
The record further reflects that Father attempted to gain custody of
Child in New York, but failed to properly file the action, ostensibly because of
the language barrier and lack of funds. See L.A.K., 265 A.3d at 594 (noting
that “[i]t is crystal clear, and of vital importance . . . that a parent’s legal
efforts to enforce custodial rights demonstrate affirmative performance of a
positive parental duty”) (citation omitted); C.M., 255 A.3d at 367 (noting that
“when undertaken in earnest to establish meaningful contact with a child who
is otherwise withheld from access by the custodial parent, a noncustodial
- 15 - J-S19016-24
parent’s legal attempts to enforce custodial rights will usually be highly
relevant evidence.”).8
In light of the foregoing, we find no abuse of discretion in the orphans’
court’s conclusion that Appellants failed to present clear and convincing
evidence that Father demonstrated a settled purpose of relinquishing his
parental claim to Child or has refused or failed to perform parental duties for
the six months immediately preceding the filing of the termination petition as
required by section 2511(a)(1).9 Accordingly, we conclude that the orphans’
court’s decree denying termination is supported by the competent evidence.
Decree affirmed.
8 We note that we cannot consider Father’s filing of a custody complaint in
Pennsylvania on July 24, 2023, as it occurred after the filing of the termination petition. See 23 Pa.C.S. § 2511(b) (“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.”); see also C.M., 255 A.3d at 368 (stating that this Court is “cognizant of the duplicity enfranchised when a custodial parent’s conduct both causes the need for legal intervention and faults the noncustodial parent for failing to take legal action more swiftly, and we are loath to require a parent’s prosecution of legal proceedings as a mechanism for preserving parental rights”).
9 Because Appellants failed to prove by clear and convincing evidence that Father’s parental rights should be terminated under section 2511(a), we need not discuss section 2511(b). C.L.G., 956 A.2d at 1004 (noting that “[o]nly after determining that the parent’s conduct warrants termination of his or her parental rights must the court engage in the second part of the analysis: determination of the needs and welfare of the child under the standard of best interests of the child”) (citation omitted).
- 16 - J-S19016-24
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 07/11/2024
- 17 -