In Re: Adoption of G.X.E.

• Court: Superior Court of Pennsylvania
• Decided: February 27, 2015
• Docket: 1537 MDA 2014
• Status: Unpublished

Opinion

J-S07001-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF G.X.E. IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: S.M.E., NATURAL FATHER No. 1537 MDA 2014

Appeal from the Decree Entered August 15, 2014 In the Court of Common Pleas of Franklin County Orphans' Court at No(s): 6 Adopt 2014

IN RE: ADOPTION OF S.L.E. IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: S.M.E., NATURAL FATHER No. 1557 MDA 2014

Appeal from the Decree Entered August 15, 2014 In the Court of Common Pleas of Franklin County Orphans' Court at No(s): 7 Adopt 2014

BEFORE: BENDER, P.J.E., OLSON, J.and OTT, J.

MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 27, 2015

S.M.E. (Father) appeals from the August 15, 2014 decrees that

involuntarily terminated his parental rights to S.L.E. (born in September of

2010) and G.X.E. (born in September of 2011) (Children) pursuant to 23

Pa.C.S. § 2511(a)(1), (2) and (b).1 We affirm.

M.D. (Mother) filed termination petitions in which she asserted inter

alia that A.A. (Stepfather), her present husband, wished to adopt the

Children. A hearing was held on June 3, 2014, after an attorney was

____________________________________________

1 Father’s appeals from the two decrees were consolidated sua sponte by order of this Court, dated October 7, 2014. J-S07001-15

appointed to represent Father. On August 5, 2014, the court issued two

identical opinions setting forth the factual and procedural background of the

case, its findings relating to the testimony presented, and its reasons for

determining that Father’s parental rights should be terminated. On August

15, 2014, the court issued two decrees terminating Father’s parental rights

to both Children. Father filed timely notices of appeal and concise

statements of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i). On October 1, 2014, the court issued two identical opinions

pursuant to Rule 1925(a)(2)(ii) in which it addressed the seven issues raised

by Father in his concise statements. Essentially, the court relied on its

August 5, 2014 opinions, citing to pages in those decision that addressed

Father’s issues. These appeals are now ripe for review.

In his brief, Father raises the following issues:

I. Did the trial court err in considering testimony excluded from evidence in its opinion and decree terminating Father’s rights?

II. Did the trial court err in terminating Father’s parental rights under 23 Pa.C.S.A. § 2511(a)(1) and § 2511(a)(2) when Father was incarcerated the entire six-months preceding filing of the Petition, utilized services and programs while incarcerated, attempted to contact the Children through Mother and Mother’s family, and whose sentence is not of such a length that his inability to presently care for the [C]hildren cannot be remedied in the near future?

III. Did the trial court err in determining there was sufficient evidence that termination of Father’s parental rights would best serve the developmental, physical, and emotional needs and welfare of the Children?

Father’s brief at 9.

-2- J-S07001-15

When considering an appeal from an order involuntarily terminating

parental rights, we are guided by the following:

In cases involving termination of parental rights, our scope of review is broad. All of the evidence, as well as the trial court's factual and legal determinations, are to be considered. However, our standard of review is limited to determining whether the order of the trial court is supported by competent evidence, and whether the trial court gave adequate consideration to the effect of such a decree on the welfare of the child. We have always been deferential to the trial court as the fact finder, as the determiner of the credibility of witnesses, and as the sole and final arbiter of all conflicts in the evidence. In re S.D.T., Jr., 934 A.2d 703, 705-06 (Pa. Super. 2007), appeal denied, 597 Pa. 68, 950 A.2d 270 (2008) (citations omitted). The burden of proof in a termination case is on the petitioning party, who must establish valid grounds for termination by clear and convincing evidence.

In re E.M.I., 57 A.3d 1278, 1284 (Pa. Super. 2012) (quoting In re J.L.C.,

837 A.2d 1247, 1251 (Pa. Super. 2003)).

We have reviewed the certified record, the briefs of the parties, the

applicable law, and the comprehensive opinions authored by the Honorable

Shawn D. Meyers of the 39th Judicial District—Franklin County Branch, issued

on August 5, 2014 and October 1, 2014. We conclude that Judge Meyers’

thorough, well-reasoned opinions properly dispose of the issues raised by

Father. Accordingly, we adopt Judge Meyers’ opinions as our own and affirm

the decrees appealed from on that basis. Additionally, as requested by the

trial court, we remand the cases to the trial court for the limited purpose of

correcting the decrees as outlined in Judge Meyers’ October 1, 2014

opinions.

-3- J-S07001-15

Decrees affirmed. Cases remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/27/2015

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•...

IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA •• En ANKLlN COUNTY BRANCllHr------------

In Re Adoption of , " ORPHANS' COURT DIVISION

No,6·ADOPT·2014

Honorable Shawn D, Meyers

OPINION irLD, This Opinion addresses PetitionerlMother·s,~• •_', petition to tenninate 6,('(1, i::;, the natural rights ofRespondentlFather,.s.III',;8:1111 5 _ _ _if. 711'iI!I'

FACTUAL AND PROCEDURAL mSTORY -:5 ,/.:, ?;', The parties are natural parents of two minor children: - - , .• •_IIIIIP" born &, X,r;, September. 2010, and_..._ ._ _IIII, born Septemher.201 I, Motherand

Father previously resided together with the children, They separated as a couple ill May 4,/1, of 201 I, but continued to reside together. Mother is currently roamed to . . .

: ' • the children's stepfather. He has resided with the children since July of2012,

Father previously served in the military and was deployed twice. Father was first

deployed to Iraq in 2008. Father served in Afghanistan from May of2012 . May of

2013, which involved short periods of active service and training. In September of2011,

Father was arrested for sexual assault of another man in Maryland. Father entered a

guilty plea on July 10,2013,

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Mother filed a Petition for Involuntary Tennination of Parental Rights on

February 24, 2014, seeking to tenninate Father's rights in anticipation of an adoption by

Mother's. husband, the children's stepfather. This COUIt set a hearing on May 9, 2014.

Upon receipt of pro se correspondence from Father, indicating the desire to proceed with

counsel, the Court appointed counsel to represent him. Father's first two appointed

attorneys had conflict issues, and the Court subsequently appointed Kristin Nicklas as

Father's counsel. The Court continued the hearing to June 3, 2014 in order to ensure that

Father had adequate time to consult with his counsel.

The parties appeared on June 3, 2014 for the involuntary termination hearing.

The Court heard testimony from both sides, and subsequently set a briefing schedule for

the parties. Mother filed her brief in support and Father filed his brief in opposition.

This matter is now ready for decision.

DISCUSSION

1. Applicable Timeftame for the Court's Detennination:

This Court will first address the relevant timeftarne for its decision. In his brief,

Father raises an argument he previously raised before the Court. At that hearing, counsel

for Mother first called Stepfather as a witness. Stepfather was asked several questions

about his past involvement with the children and Mother, at which point counsel for

Father objected. Counsel for Fatller argued that the questions reflected content that was

not included in the petition, and thus the witness was impelmissible testifying to facts not

previously pled. The Court sustained the objection in part, finding that if counsel for

Mother sought to develop certain fucts and to support certain grounds for tenmnation,

those fucts should have been properly pled in the petition. Counsel for Mother was

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instructed to move on from questions regarding stepfather's own involvement with the

children, and focus on Stepfather's knowledge of Father and his involvement with his

children.

In his brief, Father argues that Mother's petition includes only one relevant fact

for the Court's consideration: the avennent that Father "has had no contact with (Mother]

since April 2013 and is currently serving a sentence in Maryland for sex offense(s)."

Father argues that Mother is precluded from offering evidence of facts that occurred prior

to April 2013 in support of any grounds for termination.

Tllis Court agrees that any potential ground for tennination must be sufficiently

aIleged in the petition. As previously stated at the hearing, any facts regarding

Stepfather's prior relationship with the children that were not included in the petition

would not be relevant to this Court's determination on Father's parental rights. It is weIl-

settled .that "[t)he focus. .oflhe ternlination proceeding is on the conduct of the parent and

whether his conduct justifies termination of parental rights." In re B..N.M., 856 A.2d

847,854-55 (pa. Super. 2004). Notably, such conduct includes Father's actions during

the six month period preceding the tennination petition, but also encompasses the time

before that. In re B..N.M., 856 A.2d at 855 ("Although it is the six months immediately

preceding the filing oflhe petition that is most critical to the analysis, the trial COUlt must

consider the whole history of a given case and not mechanically apply the six-month

statutory provision."). The Court will now address the legal grounds for involuntary

tennination and the evidence submitted by both parties.

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II. Applicable Standard - Involuntary Tennination of Parental Rights:

Section 2511 of the Adoption Act governs tennination of parental rights. The statute

requires this Court to engage in a bifurcated analysis to determine if termination is

warranted. In interpreting Section 2511, the Pennsylvania Courts have set out this

analysis as follows:

Initially, the focus is on the conduct of the parent. The party seeking tennination must prove by clear and convincing evidence that the parent's conduct satisfies the statutory grounds for tennination delineated in Section 2511(a). Only if the court detennlnes that the parent's conduct warrants tennination of his or her parental rights does the court engage in the second part of the analysis pursuant to Section 2511(b): detennination 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 I.B.P" 87 A3d 340, 344 (Pa. Super. 2014) (quoting In re L.M" 923 A2d 505, 511

(pa. Super. 2007». Thus, the Court must first look to the grounds for involuntary

termination, and then proceed into the analysis of the needs and welfare of the children.

The grounds for involuntary tennination are found in Section 2511 (a) of the Adoption

Act. In this case, Mother asserts 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 perfonn parental duties

(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not he remedied by the parent.

23 Pa. C.S.A. § 2511(a)(I), (2).

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The party seeking termination must establish) by clear and convincing evidence,

"that grounds existed for terminating Father's parental rights." In re Z.S.W.) 946 A.2d

726) 728-29 (pa. Super. 2008). This means that Mother must present evidence that "is so

clear, direct, weighty) and convincing as to enable the trier of fact to come to a clear

conviction, without hesitation) of the truth of the precise facts in issue." In re Z.S.W.)

946 A.2d at 728-29 (quoting In re J.D.W.M., 810 A.2d 688,690 (pa. Super. 2002». The

Court must consider the totality of the situation, "examine the individual circumstances

of each case and consider all explanations offered by the parent facing termination of his

or her parental rights," in order to determine iftermination is warranted by the

circumstances. In re B.,N.M., 856 A.2d at 855. With this framework in mind, the Court

will now consider Mother's termination petition.

III. Analysis Under Section 2511(a) - Evidence In Support of Terminating Father's Parental Rights:

a. Termination Pursuant to Section 2511(8)(1): ..

As stated above) the relevant inquiry under subsection (a)(I) is whether there has

been a "settled purpose of relinquishing parental claim" to the minor children by Father)

or whether Father has "refused or failed to perform his parental duties." The

Pennsylvania Supreme Court has explained "parental duties" as follows:

There is no simple or easy definition of parental duties. Parental duty is best understood in relation to the needs of a child. A child needs love) protection, guidance, and support. These needs, physical and emotional) cannot be met by a merely passive interest in the development of the child. Thus, this Court has held that the parental obligation is a positive duty which requires affirmative performance. This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child.

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In re Bums, 379 A,2d 535, 540 (Pa. 1977) (citations omitted). Thus, the courts place

upon a parent an affirmative duty. See.~, In re B.,N.M., 856 A,2d at 855 ("Parental

duty requires that the parent act affirmatively with good faith interest and effort, and not

yield to every problem, in order to maintain the parent-child relationship to the best of his

or her ability, even in difficult circumstances."). This Court must determine whether

Father has ''failed or refused to perform parental duties ... in relation to the particular

circumstances ofthe case." In re Bums, 379 A.2d at 540.

I. Father's Efforts w Contact the Childretl During his Active Service:

Mother asserts that Father has not served in his parental role since May of 2012.

Mother argues that Father has not provided financial support to the children, or any

parental support for the children, for several years. From May 2012 until March 201~,

during his period in Afghanistan, Mother avers that Father did not communicate with the

. children in any way.. pather did not attempt to communicate with the children on their

birthdays or holidays. Father did not send the children letters, cards, or emails.

According to Mother, the ouly contact Father had with the children was when he sent

them each a teddy bear on January 13,2013. Mother did testify on rebuttal however, that

she only recalls two times during the ten months that Father served in Afghanistan did he

utilize Skype to communicate with the children.

Father stated that on November 27,2013, he mailed Mother a letter to read to the

children. Father used Mother's address in Maryland, where he believed she was residing.

According to Father, the letter was returned to him marked "return to sender." Father

then forwarded that letter to Mother's cousin, Marjorie Jean. At the hearing, Ms. Jean

testified to this, stating the letter was dated November 27, 2013, addressed to Mother at

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her address in Hagerstown, Maryland. Father wanted Ms. Jean to send the letter to

Mother, but she testified that she did not wish to do that as she was not getting along with

Mother at the time. Ms. Jean stated that the "return to sender" on the envelope was in

Mother's handwriting. When asked where the envelope was, Ms. Jean said that she

shredded the envelope but kept the letter.

Father also presented testimony fi'om Deborah Cotes, Father's aunt. She testified

that she sent a package to Mother, containing Christmas gifts for the children, but Mother

did not open the package. According to Ms. Cotes, Father knew of the package but it was

not actually from him, it was from her.

2. Father's Efforts to Spelld Time with the Childrell UpOII his Return:

In her brief, Mother cites three occasions where Father saw the children. Upon

Father's return from Afghanistan in March of2013, Mother and the children met him at

the airport. Mother states that the meeting was brief. It was at that time that Father

learned that Mother and the children no longer lived in their former marital home. Two

months later, in May of2013, Father visited with the children for approximately an hour

and a half. In June, Father and the children "crossed paths" while visiting a relative's

home. According to Mother,"that was the extent of Father's efforts to parent or spend

time with the children.

father argues that he attempted to see the children "numerous times, estimated to

be approximately twenty (20) times, from May 2013 until he was incarcerated in August

2013." Father does not provide any specific dates or context for that assertion. Father

asserts that Mother prohibited contact between he and the children, except for two

instances where the parties went to dinner, and where the children spent time with Father

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at their home. Mother states that neither she nor her husband have acted in any way to

prevent Father from exercising his parental rights.

In support of his argument that Mother erected obstacles, Father avers that

Marjorie Jean wrote an email to Mother in May of2013, stating that it was not a good

idea for her to "keep the children away from their Father." Father also draws attention to

Mother's testimony that the children refer to her husband as "dad" and therefore it would

be confusing for them to be involved with their Father.

3. Father's Efforts to Contact the Children During his Illcarceration:

. Father has been incarcerated in Maryland since August of2013. Father was

placed in county jail for approximately two months prior to his incarceration. Father

testified that while in county jail, he was unable to send any leiters or make any phone

calls. Father claims that he pleaded with Mother to see the children prior to his

sentencing date in August, but she refused. Father avers Ulat Ms. Jean overheard iliat

conversation, Mother states that Failier has not attempted to contact the children while he

has been incarcerated.

On direct examination, Father first testified that it was his understanding that

because his cell phone was inactivated, that meant Moilier's cell phone was also turned

off He stated iliat he could not call the place of her employment because iliey do not

accept collect calls. Father testified that he asked Ms, Jean to get Mother's work address

but she declined to do so. Father did not send any letters to Mother to be forwarded to

her address, Father testified that he would ask Ms. Jean ifshe had heard from ilie

children. Mother stated that she maintains the same work address and phone number she

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had when she and Father were together, and thus Father had the resources to contact

Mother about the children.

On cross-examination by Mother's counsel, Father was asked if, from May 2013

to August 2013, he had taken any steps to enforce his legal rights as a Father, i.e., going

through the court system. Father testified in the negative. He indicated that it was not in

liis nature to "bring it all into the court system like that." He also stated that "at that time,

I was too wrapped up in all kinds oflegal stuffI didn't want to see any lawyers,"

presumably referring to the criminal action in Maryland. When asked what he was doing

during this time, he stated that he was making preparations "for every possible outcome,"

which included looking for work and moving to Ms. Jean's home.

On cross-examination by the Guardiail ad Litem, Father testified that he did have

the ability to make calls from his the facility in Jessup. There does not appeal' to be a

limit on how many calls he can make as an inmate, but there are a limited number of

phones to use. Father testified that he can send letters out but he must pay for postage.

His family sent him money to buy postage at the jail, ifhe knew the correct address.

On cross-examination by Mother's counsel, Father was asked about his lack of

communication from the time he was arrested until the hearing date. Father indicated

that he did not have enough money to send letters to the children prior to November of

2013. Father states in his briefthat, because of his unsuccessful attempts at contacting

the children, he did not wish to send additional letters or make additional phone calls. He

states that Mother erected intentional baITiers to his communication which prevented

Father from reaching out to his children, and he tried "over and over" to make contact

with the children with no success. Because he was not successful in those efforts, Father

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did not pursue additional efforts. For further explanation, Father cites the definition of

insanity attributed to Albert Einstein ("doing the same thing over and over again

expecting different results"), and argues that for him to continue the same action

(attempting to contact his children) while expecting different results (from Mother)

would be insanity.

4. The Court's Findings:

This Court finds that the threshold under Section 2511 (a)(I) has been met.

Regarding the time that Father served in Afghanistan, he argues that it is improper to

consider that period in support of terminating his parental rights. This Court is not using

the mere fact that Father was deployed overseas for a period of time as support of

terminating his rights. A parent's deployment overseas is not in itself a SUPPOlting factor.

See• .!hlb In re Bowman, 666 A.2d 274, 279 (Pa. 1995) (recognizing that military service

and employment made father's "ability to perform his parental duties more difficult").

Being in active military service however, "do[es) not relieve [the parent) of all parental

responsibility." Bowman, 666 A.2d at 279. That parent is required to affirmatively act to

"to maintain the parent-child relationship to the best of his or her ability, even in difficult

circumstances." In re B"N.M., 856 A.2d at 855. The Court finds that Father failed to

live up to litis affirmative duty. Mother testified as to Father's lack of commination with

the chlldren during this time. Father sent no letters to the children, but sent them each a

teddy bear near the end of his service time. Mother testified to only two instances during

Father's deployment IIlat he communicated with the children via Skype. Father presented

testimony that he did send one letter to Mother, by way of her cousin, but it never got to

her. Even if this Court accepts that as true, sporadic attempts at communication do not

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satisfy the affinnative duty of a parent. Father's knowledge of his aunt's Christmas gifts

to the children also does not fulfill his obligation, as it was clear that the gift was not

actually from Father, but from his aunt.

As. to Father's efforts upon his return from Afghanistan up until the hearing date,

the Court finds the type of passive acceptance Father has displayed towards his

relationship with his children to be troubling, and in complete opposition to what the law

requires of a parent. "[T]he parental obligation is a positive duty which requires

affinnative perfonnance," In re Bums, 379 A.2d 535, 540 (pa, 1977), This is an

"affirmative duty," that requires "continuing interest in the child and a genuine effort to

maintain communication and association with the child," !!h Father's sporadic

interaction with his children upon his return from military service does not fulfill this

affirmative duty, This duty requires action by the parent.

Father cannot ''yield to every problem" that presents itself, and must take steps to

maintain the relationship with his children, "to the best of his or her ability, even in

difficult circumstances," In re B"N,M" 856 A.2d at 855, Certainly upon his return

Father was faced with difficult circumstances, and the Court acknowledges as such,

Father returned to find out that Mother and the children no longer resided in the home,

Mother had taken up a relationship with another man, Regardless of those types of

difficulties, the law requires a parent to be a parent.

This is true regardless of any "obstacles" put in place by the other parent. As

discussed at the hearing, Father had the option of, if nothing else, pursue his legal rights

as a parent through the court system, Father's explanation as to why he chose not do to

that did not focus on any action by Mother, but on Father's ongoing legal troubles and the

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unstable nature of his life at that time. This is not a "genuine effort" to maintain contact

with the children. Father's claim that any further attempts to contact the children, after

numerous failed attempts, would be the definition of insanity docs not hold true to this

Court. Passive acceptance has no place in the context of an affinnative duty.

The fact that Father is incarcerated is not itself a ground for tenninating his

parental rights. However, the affinnative parental duty applies even if a parent is

incarcerated. In re B"N.M" 856 A2d at 855 ("[A] parent's responsibilities are not tolled

during incarceration."). The Court must focus on "whether the parent utilized those

resources available while in prison to maintain a relationship with his child." In re

Adoption of Dale A, II, 683 A2d 297, 302 (Pa. Super. 1996). Moreover, "while the fact

that a parent is incarcerated may make it more difficult to parent in a traditional fashion,

the fact ofincarceration alone does not obviate the duty to exercise reasonable firmness

under the circumstances to maintain a secure parent/child bond." In Interest of AP .,692

A2d 240, 245 (pa. Super. 1997).

The Court finds that this burden was not met here. Father cited numerous reasons

for his failure to maintain communication with his children from prison. Father indicated

that he was unsure of Mother's current address or telephone number. Mother maintains

that none of that infonnation has changed. Father did not present any documentary

evidence to the Court showing any changes in address or phone number. Father stated

that he asked members of his family for Mother's phone number and asked Ms. Jean for

Mother'S phone number with no results. Father did not explain why he failed to confinn

Mother's address prior to his incarcemtion, when the parties were living separately.

Father testified that he had the means to purchase postage in jail, and the means to send

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letters from prison, but did not know where to send them. Even if the Court accepts al\

this as true, Father still had a duty to attempt to overcome the difficulties he faced. See,

.Q&, In re B.,N.M., 856 A.2d at 857 ("Father failed to act to the best of his ability to meet

his obligation despite his incarceration and the obstacles Mother placed before him.").

Father did not send any letters to Mother at her old address to be forwarded to any

new address. Father had the means to file something with this Court by mail, or even

send a Ietter to the Court, setting out the situation with the children, but he did not do so.

While the failure to seek court involvement is not in itself a reason to terminate a parent's

rights, it is certainly a relevant consideration when taken in tandem with al\ the

circumstances of this case. See In re Adoption ofL.J.B., 18 A.3d 1098, 1122 (Pa. 2011).

The case presented here is not one where one parent has presented diligent, consistent,

and resolute efforts to overcome any deliberate and devious obstacles put in place by the

custodial parent. In re J.W., 578 A.2d 952, 959 (pa. Super. 1990) ("[A]dequate parenting

requires action as well as Intent."). This is a case of one parent's passive acceptance of

the difficulties put before him; some of which may by the custodial parent, and some of

which are the products of the other parent's actions and overall situation. For all the

foregoing reasons, this Court finds that there is clear and convincing evidence to support

the termination of Father's parental rights under 8eOOon2511(a)(I).

5. Analysis Under Section 2511 (b) - Effect ofTermlllatioll on the Needs and Welfare ofthe Children:

As stated above, once the Court has found that that termination of parental rights

is. warranted, the Court must then determine "the needs and welfare of the child under the

standard of best interests of the child." In re D.A.T., 91 A.3d 197,204 (Pa. 8uper. 2014)

(citation omitted). This inquiry involves consideration of"[i]ntangibles such as love,

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, comfort, security, and stability are involved," as well as "the nature and status of Ule

parent-child bond." In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005). The Court

must consider the effect that terminating Father's parental rights will have on the needs

and welfare of the children. In re Adoption of Godzak, 719 A,2d 365, 368 (pa. Supel'.

1998). There is great importance to "the bond between a child and his or her natural

parent." In re Adoption of Godzak, 719 A,2d at 368 (citing In re B.D.M., 708 A,2d 88

(Pa. 1998). Regarding this consideration, the Superior Court has stated that:

It is universally agreed that fue bond of parental affection is unique and irreplaceable. When parents act in accordance with the natural bonds of parental affection, preservation of the parent-child bond is prima facie in the best interest of the child, and the state has no justification to terminate fuat bond. On the other hand, a court may properly terminate parental bonds which exist In form but not In substance when preservation of the parental bond would consign a child to an indefinite, unhappy, and unstable future devoid of the irreducible minimum parental care to which that child is entitled.

In re J.W., 578 A,2d 952, 958 (pa. Super. 1990) (citations omitted). Moreover, "[i)t is

important to keep in mind that the essential needs of the child and the responsibilities of

the parent must be considered as well as the rights of the parent." Id.

Father argues that the record is devoid of any evidence regarding the effect that

termination of his rights would have on the needs and welfare of the children. This Court

does not agree. The Court was presented with evidence that the children have no bond

whatsoever with Father. Stepfather has lived with Mother and the children since July of

2012. Stepfather testified that the chlldren began referring to him as "dad" around the

fallof2012. He stated that the children have never mentioned natural Father, and

testified that he is unsure that the children would even know who Father was. Stepfather

testified that he provides for the children, including daily physical and emotional needs.

The children embrace Stepfather and Mother as their family, along with their four month IS Circulated 02/20/2015 02:03 PM

old sibling, who is the natural daughter of Stepfather and Mother. The Court was

presented with credible evidence that the children currently have a stable and well

provided for life with Mother and Stepfather,pne filled with "love, comfgrt, sequrity, and ; stability." In re C.M.8., 884 A.2d at 1287. The children's needs are being met on a daily~_ _ _ __

basis and they have an established family dynamic.

What is absent from the record is evidence of a bond between the children and

natural Father. The Pennsylvania Courts have held that "in cases where there is no

evidence of a bond between a parent and child, it is reasonable to infer that no bond

exists," and therefore "the extent ofthe bond-effect analysis necessarily depends on the

circumstances of the particular case." In re Adoption ofJ.M" 991 A,2d 321, 324 (Pa.

Super. 201O) (quoting In rO K.Z.S., 946 A,2d 753, 762--63 (Pa. Super. 2008». In this

:\ .. ,. ;, .' . ,p\lrlict!1ar, cas~1 tp.eS~urt ~~~,Jlres~lI\ed witr ~Yidpl1~Jbat there is no bond between the

children and Father. The children's father figure is their Stepfather, who has been

children's defacto parent for many years, and it is between Stepfather and the children

that the Court finds the existence ofa parental bond. ~ JUt" In re Adoption of I,M.,

991 A,2d at 324-25 (finding that matemal grandfather was "de facto parent," as he

performed Father's parental duties since mild's birth, including financial and emotional

support, and noting that maternal grandfather "desires to fill the void created by Father's

inaction."); In relT., 983 A,2d 771,777 (Pa. Super. 2009) ("[Tlhere is no record

evidence ofa bond between I.T. and Mother. A parent-child bond exists, between J.T. and'

her foster parents, who wish to adopt her."). For all the foregoing reasons, this Court

cannot find that the children' s needs or welfare would be harmed iil any way by

terminating natural Father's parental rights.

16 Circulated 02/20/2015 02:03 PM

b. Termination Pursuant to Section 2511(a)(2):

This Court will now discuss tennination of parental rights under subsection

2511 (a)(2), the second statutory ground cited by Mother. Under that section, the relevant

inquiry is into the "repeated and continued incapacity, abuse, neglect or refusal of the

parent has caused the child to be without essential parental care, control or subsistence

necessary for his physical or mental well-being," as well as the "conditions and causes of

the incapacity, abuse, neglect or refusal cannot or will not be remedied by the paren!."

In her brief, Mother draws attention to Father's incarceration. Mother argues that 15.111, ~: "the fuct thai has been and will continue to serve a sentence of incarceration"

meets the definition of "incapacity" outlined in Subsection (a)(2). Mother argues that this

incapacity is one that cannot be remedied as Father will continue to be incarcerated until

he has served his sentence. Father argues thathis incarceration cannot be used as a

ground for termination of his parental rights, and states that his incarceration does not

constitute a period of "repeated and continued incapacity" as contemplated by the statute.

A review of the applicable case law reveals that, while incarceration cannot serve

as the sole ground for termination, it is certainly relevant to the question of incapacity

presented under subsection (a)(2), The Pennsylvania Supreme Court addressed this

precise issue in In re Adoption of S.P., 47 A,3d 817, 830 (pa. 2012) (discussing "the

relevance of incarceration in termination of parental rights decisions under §

2511(a)(2)."). There, the Supreme Court held as follows:

[W]e now definitively hold that incarceration, while not a litmus test for termination, can be detenninative of the question of whether a parent is incapable of providing "essential parental care, control or subsistence" and the length of the remaining confinement can be considered as highly

17 Circulated 02/20/2015 02:03 PM

relevant to whether "the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent," sufficient to provide grounds for tennination pursuant to 23 Pa,C,S, § 2511(a)(2),

In reAdoption ors,p" 47 A,3d 817, 830 (pa, 2012),

The Supreme Court found a that a parent's incarceration could be a determinative

factor under the subsection (a)(2) analysis, depending on the specific facts and

circumstances that give rise to that parent's incapacity to provide his children with

"essential parental care, control or subsistence," If!., at 828, The Supreme Court drew on

a prior case addressing subsection (a)(2), in which the concurring opinion stated: "It is

beyond cavil ~at in many cases, including the one at bar, an incarcerated parent is

confined twenty-four hours a day, seven days a week; obviously resulting in his being

incapable of providing the essential parental care, control or subsistence necessary for a

child's physical and mental well-being," Id, (quoting In re R.I,S" 36 Ajd 567, 577-78

(pa, 2011) (Baer, J" concurring)), Thus, ilis clear that Father's current incarceration has

some relevancy in determining whether his parental rights should be terminated,

This Court has already discussed Father's lack of pro-active efforts to maintain a

relationship with his children before and-during his incarceration, As stated above, some

of the lack of communication is due to the circumstances of his incarceration, See

Section III(a)(3), supra, This Court cannot find however, that Father's incarceration is

the cause of the children's lack of "essential parental care, control, or subsistence," as

Father's inaction predates his period ofincarceration, The Court also notes that the

children's situation is different from the typical types of cases presented under a

- subsection (a)(2) inquiry, Prior cases addressing this issueusua\ly deal with children

who have been adjudicated dependent, and that dependency being largely due to the

parent's incarceration, See,~, In n) Adoption ofS,P" 47 AJd at 820 ("Father admitted 18 Circulated 02/20/2015 02:03 PM

that his incarceration resulted in Child's placement because his absence caused her to be

without essential parental care and control."). Such is not the case here. Father was

involved sporadically in the children's lives. The two children have been well provided

for by Mother and Stepfather, emotionally, physically, and financially, and appear to live

a well-adjusted family life.

Thus, the children enjoy a stable life, but that stability was not due to Father.

Under the statutory terms, the children have been without the "essential parental care,

control, or subsistence" of Father. Father does not have the ability to spend time with the

children and perform the regular duties of a parent. Father testified that he does have the

ability to make phone calls when telephones are available, and he can write letters when

he has the money for the postage. Father's financial situation injail is tenuous, and this

Court was presented with no evidence that he had any ability to financially provide for

the children or care for the children while he is in jail. It is clear that Father's current

incarceration has necessarily hindered his ability to be a parent. See,~, In re AD.,

2014PA Super 119 (pa. Super. Ct. June 9, 2014) (father was subject to a no contact

order, and thus ''by his own conduct was precluded from interacting with the children,"

and therefore "he was unable to perform his parental duties."). Thus, the "incapacity"

level would be met based on Father's inability to parent his children from his current

situation. The subsequent and more difficult question is "whether the parent can remedy

the incapacity, which depends to a significant degree on the length"of the parent's

sentence." In re Adoption ofS.P., 47 A3d at 829.

As 10 the time period of the incapacity, the Court will look at the length of

Father's sentence to be served. See In re Adoption of S.P .,47 A3d at 830 ("[T]he length

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of the remaining confinement can be considered as highly relevant to whether 'the

conditions and causes ofthe incapacity, abuse, neglect or refusal cannot or'will not be

remedied by the parent,"') (quoting 23 Pa, C,SA § 2511(a)(2»), In this case, Father pled

guilty to a second degree sexual offense on August 21, 2013 in the Circuit Court of

Prince George's County, Maryland, As of the date ofthis Court's involuntary

termination hearing, Father had been incarcerated since August of2013, At the hearing,

Father stated that he was given a sentence of twenty (20) years, all but four (4) years

suspended, This Court was not presented with any evidence to suggest that the hindrance

on Father's parental abilities will not continue until Father is released, or perhaps even

after that. In re Adoption ofS,P., 47 A3d at 831 ("[TJhe record supports the trial court's

findings regarding the uncertainty of Father's parole date and that, even upon parole,

Father would reside in a half~way house and would need to obtain housing, employment

and transportation in addition to parenting skills,"), The record does contain some

uncertainties, however, While presumably Father will serve a period of probation, the

length of that probation was not established in the record, Nor were any restrictive terms

of that probation, Mother alleges in her brief that, because Father was convicted of

sexually assaulting another male, "[wjhether he would be allowed contact with the

subject children upon his eventual release is an unanswered question in itself," This is a

question ·the Com"! does not have enough evidence to make a determination on, 1 While

the terms of Father's sentence mean he is only to serve four years, given the already

discussed evidence regarding Father's lack of contact and inability to perform as a parent,

this Court cannot find that the length of Father's sentence "is not so great as to foreclose

I In the interests of protecting Father's constitutional rights, the Court instructed the parties to refrain from discussing the details of the offense for which Father was convicted, which included the age of the victim and the specific actions involved, 20 Circulated 02/20/2015 02:03 PM

the possibility of the successful maiutenance ofthe parent-child relationship.'~ In re

RI,S" 36 A.3d 567, 574 (Pa, 2011), This Court finds the opposite to be true iu this case,

Father's incarceration has made it virtually impossible to provide for the children

and perform all the duties required ofa parent, and his incarceration will most certainly

continue to do so, In the circumstances of this case, the parent-child relationship is not

there to maintain, See,~, In re Adoption of S,P" 47 AJd 817, 830·31 (Pa, 2012)

("[T]rial courts must carefully review the individual circumstances for every child to

determine, inter alia, how a parent's incarceration will factor into an assessment ofthe

child's best iuterest."), The children have been provided for by Mother and Stepfather,

The Court was presented with credible testimony establishing that there is no emotional

bond between the children and Father, The children have prospered in their current

family situation, This Court has no hesitation in findiug that termination of Father's

parental rights. would -serve the best interests of the children, See,~, In re I.E,P" 87 .'

A.3d 340,344 (Pa, Super. 2014) (describing "needs and welfare" analysis under Section

2511(b) under best interests of the child framework)., Considering the "developmental,

physical, and emotional needs" of the children, it is clear that Father does not have the

ability to meet those needs, Those needs have been met by Mother and Stepfather,

Therefore, the Court finds that Mother has presented clear and convincing evidence to

establish grounds for termination ofparenta\ rights under subsection (a)(2), iu addition to

the grounds under subsection (a)(I) outlined above,

CONCLUSION

For all the foregoing reasons, this Court finds that grounds for involuntary

termination have been established under 23 Pa, C,S,A. § 2511, The Court was presented

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with clear and convincing evidence to support the tennination of Father's parental rights

pursuant to subsections (a)(I) and (a)(2).

22 .;4:2.. PC! s Circulated 02/20/2015 02:03 PM

f/W]. S; ,ao / l' v IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA -- FRANKLIN COUNTY BRANCH

In Re Adoption of ORPHANS' COURT DIVISION

No.7-ADOPT-2014

Honorable Shawn D. Meyers

OPINION JIll ,v. This Opinion addresses PetitionerlMother's, , petition to tenninate $, the natural rights of RespondentlFather,

FACTUAL AND PROCEDURAL HISTORY :S.L. F. The parties are natural parents of two minor children: born

September I, 2010, and ~ born September. 2011. Mother and

Father previously resided together with the children. They separated as a couple in May 4J/-· of2011, but continued to reside together. Mother is cun'ently manied to & . - . the children's stepfather. He has resided with the children since July of2012.

Father previously served in the military and was deployed twice. Father was first

deployed to Iraq in 2008. Father served in Afghanistan from May of2012 - May of

2013, which involved short periods of active service and training. In September of 20 II,

Father was arrested for sexual assault of another man in Maryland. Father entered a

guilty plea on July 10,2013.

Mother filed a Petition for Involuntary Termination of Parental Rights on

February 24, 2014, seeking to tenninate Father's rights in anticipation of an adoption by

Mother's husband, the children's stepfather. This COUli set a hearing on May 9, 2014.

Upon receipt of pro se cOlTespondence from Father, indicating the desire to proceed with

counsel, the Court appointed counsel to represent him. Father's first two appointed

attomeys had conflict issues, and the Court subsequently appointed Kristin Nicklas as

Father's counsel. The Court continued the hearing to June 3, 2014 in order to ensure that

The parties appeared on June 3,2014 for the involuntary tennination hearing.

The Court heard testimony from both sides, and subsequently set a briefing schedule for

the parties. Mother filed her brief in support and Father filed his brief in opposition.

I. Applicable Timeframe for the Court's Detennination:

This COUli will first address the relevant timeframe for its decision. In his brief,

Father raises an argument he previously raised before the COUli. At that hearing, counsel

for Mother first called Stepfather as a witness. Stepfather was asked several questions

about his past involvement with the children and Mother, at which point counsel for

Father objected. Counsel for Father argued that the questions reflected content that was

not included in the petition, and thus the witness was impelmissible testifying to facts not

previously pled. The Court sustained the objection in part, finding that if counsel for

Mother sought to develop certain facts and to suppOli celiain grounds for temlination,

those facts should have been properly pled in the petition. Counsel for Mother was

instructed to move on fl:om questions regarding stepfather's own involvement with the

children, and focus on Stepfather's knowledge of Father and his involvement with his

In his brief, Father argues that Mother's petition includes only one relevant fact

for the Court's consideration: the averment that Father "has had no contact with [Mother]

since April 2013 and is cUlTently serving a sentence in Maryland for sex offense(s)."

Father argues that Mother is precluded from offering evidence offacts that occUlTed prior

to April 2013 in SUppOit of any grounds for termination.

This COUlt agrees that any potential ground for termination must be sufficiently

alleged in the petition. As previously stated at the hearing, any facts regarding

Stepfather's prior relationship with the children that were not included in the petition

would not be relevant to this Court's detennination on Father's parental rights. It is well-

settled that "[t]he focus ofthe tennination proceeding is on the conduct of the parent and

whether his conduct justifies telmination of parental rights." In re B.,N.M., 856 A.2d

847,854-55 (Pa. Super. 2004). Notably, such conduct includes Father's actions during

the six month period preceding the tennination petition, but also encompasses the time

before that. In re B.,N.M., 856 A.2d at 855 ("Although it is the six months immediately

preceding the filing of the petition that is most critical to the analysis, the trial court must

consider the whole history of a given case and not mechanically apply the six-month

statutory provision."). The Court will now address the legal grounds for involuntary

termination and the evidence submitted by both parties.

II. Applicable Standard - Involuntary Tennination of Parental Rights:

Section2511 of the Adoption Act govems termination of parental rights. The statute

requires this Court to engage in a bifurcated analysis to detennine if tennination is

warranted. In interpreting Section 2511, the Pennsylvania Courts have set out this

Initially, the focus is on the conduct of the parent. The party seeking tennination must prove by clear and convincing evidence that the parent's conduct satisfies the statutory grounds for tennination delineated in Section 251 1(a). Only if the court determines that the parent's conduct warrants tennination of his or her parental rights does the court engage in the second pati of the analysis pursuant to Section 2511(b): detennination 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 concems the nature and status of the emotional bond between parent and child, with close attention paid to the effect on the child of pennanently severing any such bond.

In re I.E.P., 87 A.3d 340, 344 (Pa. Super. 2014) (quoting In re L.M .. 923 A.2d 505, 511

(Pa. Super. 2007». Thus, the Court must first look to the grounds for involuntary

tennination, and then proceed into the analysis of the needs and welfare of the children.

The grounds for involuntary telmination are found in Section 2511 (a) of the Adoption

Act. In this case, Mother asselis the following grounds:

(I) 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 perfonn parental duties

(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.

23 Pa. C.S.A. § 2511(a)(1), (2).

The party seeking termination must establish, by clear and convincing evidence,

"that grounds existed for tenninating Father's parental rights." In re Z.S.W., 946 A.2d

726, 728-29 (Pa. Super. 2008). This means that Mother must present evidence that "is so

clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear

conviction, without hesitation, of the truth of the precise facts in issue." In re Z.S.W.,

946 A.2d at 728-29 (quoting In re J.D.W.M., 810 A.2d 688, 690 (Pa. Super. 2002)). The

COUlt must consider the totality of the situation, "examine the individual circumstances

of each case and consider all explanations offered by the parent facing tennination of his

or her parental rights," in order to determine if tennination is walTanted by the

circumstances. In re B.,N.M., 856 A.2d at 855. With this framework in mind, the Court

will now consider Mother's telTllination petition.

III. Analysis Under Section 2511 (a) - Evidence in Support ofTelminating Father's Parental Rights:

a. Termination Pursuant to Section 2511(a)(1):

As stated above, the relevant inquiry under subsection (a)(l) is whether there has

been a "settled purpose of relinqnishing parental claim" to the minor children by Father,

or whether Father has "refused or failed to perfonn his parental duties." The

Penosylvania Supreme Court has explained "parental duties" as follows:

There is no simple or easy definition of parental duties. Parental duty is best understood in relation to the needs of a child. A child needs love, protection, guidance, and support. These needs, physical and emotional, canoot be met by a merely passive interest in the development of the child. Thus, this Court has held that the parental obligation is a positive duty which requires affilTllative perfonnance. This affilTllative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effOit to maintain communication and association with the child.

In re Bums, 379 A.2d 535, 540 (Pa. 1977) (citations omitted). Thus, the courts place

upon a parent an affirmative duty. See, M, In re B"N.M., 856 A.2d at 855 ("Parental

duty requires that the parent act affinnatively with good faith interest and effOli, and not

yield to every problem, in order to maintain the parent-child relationship to the best of his

or her ability, even in difficult circumstances."). This COUli must detennine whether

Father has "failed or refused to perfonn parental duties ... in relation to the particular

circumstances of the case." In re Bums, 379 A.2d at 540.

1. Father's Efforts to COlltact the Childrell Durillg his Active Service:

Mother asserts that Father has not served in his parental role since May of2012.

Mother argues that Father has not provided financial support to the children, or any

parental support for the children, for several years. From May 2012 until March 2013,

during his period in Afghanistan, Mother avers that Father did not communicate with the

children in any way. Father did not attempt to communicate with the children on their

birthdays or holidays. Father did not send the children letters, cards, or emails.

According to Mother, the only contact Father had with the children was when he sent

them each a teddy bear on January 13, 2013. Mother did testifY on rebuttal however, that

she only recalls two times during the ten months that Father served in Afghanistan did he

Father stated that on November 27, 2013, he mailed Mother a letter to read to the

children. Father used Mother's address in Maryland, where he believed she was residing.

According to Father, the letter was retumed to him marked "retum to sender." Father

then forwarded that letter to Mother's cousin, Marjorie Jean. At the hearing, Ms. Jean

testified to this, stating the letter was dated November 27, 2013, addressed to Mother at

her address in Hagerstown, Maryland. Father wanted Ms. Jean to send the letter to

Mother, but she testified that she did not wish to do that as she was not getting along with

Mother at the time. Ms. Jean stated that the "return to sender" on the envelope was in

Mother's handwriting. When asked where the envelope was, Ms. Jean said that she

Father also presented testimony Ji'om Deborah Cotes, Father's aunt. She testified

that she sent a package to Mother, containing Christmas gifts for the children, but Mother

did not open the package. According to Ms. Cotes, Father knew of the package but it was

2. Father's Efforts to Spelld Tillie with the Childrell Upon his Retlll'll:

In her brief, Mother cites three occasions where Father saw the children. Upon

Father's return from Afghanistan in March of2013, Mother and the children met him at

the airport. Mother states that the meeting was brief. It was at that time that Father

learned that Mother and the children no longer lived in their former marital home. Two

months later, in May of2013, Father visited with the children for approximately an hour

and a half. In June, Father and the children "crossed paths" while visiting a relative's

home. According to Mother, that was the extent of Father's efforts to parent or spend

Father argues that he attempted to see the children "numerous times, estimated to

be approximately twenty (20) times, from May 2013 until he was incarcerated in August

2013." Father does not provide any specific dates or context for that asseliion. Father

asserts that Mother prohibited contact between he and the children, except for two

instances where the parties went to dinner, and where the children spent time with Father

at their home. Mother states that neither she nor her husband have acted in any way to

prevent Father fi'om exercising his parental rights.

In support of his argument that Mother erected obstacles, Father avers that

Mmjorie Jean wrote an email to Mother in May of2013, stating that it was not a good

idea for her to "keep the children away from their Father." Father also draws attention to

Mother's testimony that the children refer to her husband as "dad" and therefore it would

3. Father's Efforts to COlltact the Childrell Dllrillg his Illcarceratioll:

Father has been incarcerated in Maryland since August of2013. Father was

placed in county jail for approximately two months prior to his incarceration. Father

testified that while in county jail, he was unable to send any letters or make any phone

calls. Father claims that he pleaded with Mother to see the children prior to his

sentencing date in August, but she refused. Father avers that Ms. Jean overheard that

conversation. Mother states that Father has not attempted to contact the children while he

On direct examination, Father first testified that it was his understanding that

because his cell phone was inactivated, that meant Mother's cell phone was also turned

off. He stated that he could not call the place of her employment because they do not

accept collect calls. Father testified that he asked Ms. Jean to get Mother's work address

but she declined to do so. Father did not send any letters to Mother to be fOlwarded to

her address. Father testified that he would ask Ms. Jean ifshe had heard fi'om the

children. Mother stated that she maintains the same work address and phone number she

had when she and Father were together, and thus Father had the resources to contact

On cross-examination by Mother's counsel, Father was asked if, from May 2013

to August 2013, he had taken any steps to enforce his legal tights as a Father, i.e., going

through the cOUli system. Father testified in the negative. He indicated that it was not in

his nature to "bting it all into the court system like thaI." He also stated that "at that time,

I was too wrapped up in all kinds of legal stuff I didn't want to see any lawyers,"

presumably referring to the criminal action in Maryland. When asked what he was doing

duting this time, he stated that he was making preparations "for every possible outcome,"

which included looking for work and moving to Ms. Jean's home.

On cross-examination by the Guardian ad Litem, Father testified that he did have

the ability to make calls from his the facility in Jessup. There does not appear to be a

limit on how many calls he can make as an inmate, but there are a limited number of

phones to use. Father testified that he can send letters out but he must pay for postage.

His family sent him money to buy postage at the jail, ifhe knew the correct address.

On cross-examination by Mother's counsel, Father was asked about his lack of

communication ii-om the time he was arrested until the hearing date. Father indicated

that he did not have enough money to send letters to the children ptior to November of

2013. Father states in his btiefthat, because of his unsuccessful attempts at contacting

the children, he did not wish to send additional letters or make additional phone calls. He

states that Mother erected intentional bamers to his cOlmnunication which prevented

Father from reaching out to his children, and he ttied "over and over" to make contact

with the children with no success. Because he was not successful in those efforts, Father

did not pursue additional effOits. For fmther explanation, Father cites the definition of

insanity attributed to Albert Eiustein ("doing the same thing over and over again

expecting different results"), and argues that for him to continue the same action

(attempting to contact his children) while expecting different results (from Mother)

4. The Court's Findillgs:

This Court finds that the threshold under Section 2511(a)(1) has been met.

Regarding the time that Father served in Afghanistan, he argues that it is improper to

consider that period in support of tenninating his parental rights. This COUli is not using

themere fact that Father was deployed overseas for a period oftime as support of

tenninating his rights. A parent's deployment overseas is not in itself a suppotiing factor.

See, Sh&, In re Bowman, 666 A.2d 274, 279 (Pa. 1995) (recognizing that military service

and employment made father's "ability to perfonn his parental duties more difficult").

Being in active military service however, "do[ es] not relieve [the parent] of all parental

responsibility." Bowman, 666 A.2d at 279. That parent is required to affinnatively act to

"to maintain the parent-child relationship to the best of his or her ability, even in difficult

circumstances." In re B.,N.M., 856 A.2d at 855. The Court finds that Father failed to

live up to tlus affmnative duty. Mother testified as to Father's lack of cOimnination with

the children during this time. Father sent no letters to the children, but sent them each a

teddy bear near the end of his service time. Mother testified to only two instances during

Father's deployment that he cOimnunicated with the children via Skype. Father presented

testimony that he did send one letter to Mother, by way of her cousin, but it never got to

her. Even if this Couti accepts that as hue, sporadic attempts at communication do not

satisfy the affirmative duty of a parent. Father's knowledge of his aunt's Christmas gifts

to the children also does not fulfill his obligation, as it was clear that the gift was not

As to Father's efforts upon his retum from Afghanistan up until the hearing date,

the Court finds the type of passive acceptance Father has displayed towards his

relationship with his children to be troubling, and in complete opposition to what the law

requires of a parent. "[T]he parental obligation is a positive duty which requires

affilmative performance." In re Bums, 379 A.2d 535, 540 (Pa. 1977). This is an

"affirmative duty," that requires "continuing interest in the child and a genuine effort to

maintain conununication and association with the child." Id. Father's sporadic

interaction with his children upon his retum from militaty service does not fulfill this

affinnative duty. This duty requires action by the parent.

Father cannot "yield to every problem" that presents itself, and must take steps to

maintain the relationship with his children, "to the best of his or her ability, even in

difficult circumstances." In re B.,N.M., 856 A.2d at 855. Ce11ainly upon his retum

Father was faced with difficult circumstances, and the C0U11 acknowledges as such.

Father retumed to find out that Mother and the children no longer resided in the home.

Mother had taken up a relationship with another man. Regardless of those types of

This is hue regardless of any "obstacles" put in place by the other parent. As

discussed at the hearing, Father had the option of, if nothing else, pursue his legal rights

as a parent through the court system. Father's explanation as to why he chose not do to

that did not focus on any action by Mother, but on Father's ongoing legal troubles and the

unstable nature of his life at that time. This is not a "genuine effort" to maintain contact

with the children. Father's claim that any further attempts to contact the children, after

numerous failed attempts, would be the definition of insanity does not hold hue to this

Court. Passive acceptance has no place in the context of an affinnative duty.

The fact that Father is incarcerated is not itself a ground for tenninating his

parental rights. However, the affinnative parental duty applies even if a parent is

incarcerated. In re B.,N.M., 856 A2d at 855 ("[A] parent's responsibilities are not tolled

during incarceration."). The Court must focus on "whether the parent utilized those

resources available while in prison to maintain a relationship with his child." In re

Adoption of Dale A., II, 683 A2d 297, 302 (pa. Super. 1996). Moreover, "while the fact

that a parent is incarcerated may make it more difficult to parent in a traditional fashion,

the fact of incarceration alone does not obviate the duty to exercise reasonable finnness

under the circumstances to maintain a secure parent/child bond." In Interest of AP., 692

The Court finds that this burden was not met here. Father cited numerous reasons

for his failure to maintain communication with his children from prison. Father indicated

that he was unsure of Mother's cun'ent address or telephone number. Mother maintains

that none of that infonnation has changed. Father did not present any documentary

evidence to the Court showing any changes in address or phone number. Father stated

that he asked members of his family for Mother's phone number and asked Ms. Jean for

Mother's phone number with no results. Father did not explain why he failed to confinn

Mother's address plior to his incarceration, when the parties were living separately.

Father testified that he had the means to purchase postage in jail, and the means to send

I3 Circulated 02/20/2015 02:03 PM

letters from prison, but did not know where to send them. Even if the Court accepts all

this as true, Father still had a duty to attempt to overcome the difficulties he faced. See,

~, In re B.,N.M., 856 A.2d at 857 ("Father failed to act to the best of/tis ability to meet

his obligation despite his incarceration and the obstacles Mother placed before him.").

Father did not send any letters to Mother at her old address to be fotwarded to any

new address. Father had the means to file something with this Court by mail, or even

send a letter to the Court, setting out the situation with the children, but he did not do so.

While the failure to seek court involvement is not in itself a reason to terminate a parent's

rights, it is cel1ainly a relevant consideration when taken in tandem with all the

circumstances of this case. See In re Adoption ofL.J.B., 18 A.3d 1098, 1122 (Pa. 2011).

The case presented here is not one where one parent has presented diligent, consistent,

and resolute effot1s to overcome any deliberate and devious obstacles put in place by the

custodial parent. In re J.W., 578 A.2d 952, 959 (Pa. Super. 1990) ("[A]dequate parenting

requires action as well as intent."). This is a case of one parent's passive acceptance of

the difficulties put before him; some of which may by the custodial parent, and some of

which are the products of the other parent's actions and overall situation. For all the

foregoing reasons, this Court finds that there is clear and convincing evidence to suppot1

the termination of Father's parental rights under Section 251 I (a)(1).

5. Allalysis Ullder Sectioll 2511 (b) - Effect of Termillatioll 011 the Needs alld Welfare of the Childrell:

As stated above, once the Court has found that that termination of parental rights

is warranted, the Court must then detennine "the needs and welfare of the child under the

standard of best interests of the child." In re D.A.T., 91 A.3d 197,204 (Pa. Super. 2014)

(citation omitted). This inquiry involves consideration of "[i]ntangibles such as love,

comfort, security, and stability are involved," as well as "the nature and status of the

parent-child bond." In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005). The Court

must consider the effect that tenninating Father's parental rights will have on the needs

and welfare of the children. In re Adoption of Godzak, 719 A.2d 365, 368 (Pa. Super.

1998). There is great impollance to "the bond between a child and his or her natural

parent." In re Adoption of Godzak, 719 A.2d at 368 (citing In re B.D.M., 708 A.2d 88

(Pa. 1998). Regarding this consideration, the Superior Court has stated that:

It is universally agreed that the bond of parental affection is unique and itTeplaceable. When parents act in accordance with the natural bonds of parental affection, preservation of the parent-child bond is prima facie in the best interest of the child, and the state has no justification to tenninate that bond .. On the other hand, a cOUlt may properly tenninate parental bonds which exist in form but not in substance when preservation of the parental bond would consign a child to an indefinite, unhappy, and unstable future devoid of the irreducible minimum parental care to which that child is entitled.

In re J.W., 578 A.2d 952, 958 (Pa. Super. 1990) (citations omitted). Moreover, "[ilt is

important to keep in mind that the essential needs of the child and the responsibilities of

the parent must be considered as well as the rights of the parent." Id.

Father argues that the record is devoid of any evidence regarding the effect that

tennination of his rights would have on the needs and welfare of the children. This Court

does not agree. The COUlt was presented with evidence that the children have no bond

whatsoever with Father. Stepfather has lived with Mother and the children since July of

2012. Stepfather testified that the children began refelTing to him as "dad" around the

fall of2012. He stated that the children have never mentioned natural Father, and

testified that he is unsure that the children would even know who Father was. Stepfather

testified that he provides for the children, itlcluding daily physical and emotional needs.

The children embrace Stepfather and Mother as their family, along with their four month

15 Circulated 02/20/2015 02:03 PM

old sibling, who is the natural daughter of Stepfather and Mother. The Court was

presented with credible evidence that the children cun'ently have a stable and well

provided for life with Mother and Stepfather, one filled with "love, comfort, security, and

stability." In re C.M.S., 884 A.2d at 1287. The children's needs are being met on a daily

What is absent from the record is evidence of a bond between the children and

natural Father. The Pennsylvania Courts have held that "in cases where there is no

evidence of a bond between a parent and child, it is reasonable to infer that no bond

exists," and therefore "the extent of the bond-effect analysis necessarily depends on the

circumstances ofthe particular case." In re Adoption of J.M., 991 A.2d 321, 324 (Pa.

Super. 2010) (quoting In re K.Z.S .. 946 A.2d 753, 762-63 (Pa. Super. 2008». In this

particular case, the Court was presented with evidence that there is no bond between the

children and Father. The children's father figure is their Stepfather, who has been

children's de facto parent for many years, and it is between Stepfather and the children

that the Court finds the existence of a parental bond. See,~, In re Adoption of J.M.,

991 A.2d at 324-25 (finding that maternal grandfather was "de facto parent," as he

perfonned Father's parental duties since child's birth, including financial and emotional

support, and noting that maternal grandfather "desires to fiII the void created by Father's

inaction."); In re J.T., 983 A.2d 771, 777 (Pa. Super. 2009) ("[T)here is no record

evidence of a bond between J.T. and Mother. A parent-child bond exists between J.T. and

her foster parents, who wish to adopt her."). For all the foregoing reasons, this COUIt

cannot find that the children's needs or welfare would be harmed in any way by

This Court will now discuss termination of parental rights under subsection

251 I (a)(2), the second statutory ground cited by Mother. Under that section, the relevant

inquiry is into the "repeated and continued incapacity, abuse, neglect or refusal of the

parent has caused the child to be without essential parental care, control or subsistence

necessary for his physical or mental well-being," as well as the "conditions and causes of

the incapacity, abuse, neglect or refusal carulOt or will not be remedied by the parent."

In her brief, Mother draws attention to Father's incarceration. Mother argues that ~~ r!]. 2'j "the fact that • •1i. has been and will continue to serve a sentence of incarceration"

meets the defInition of "incapacity" outlined in Subsection (a)(2). Mother argues that this

incapacity is one that cannot be remedied as Father will continue to be incarcerated until

he has served his sentence. Father argues that his incarceration Calmot be used as a

ground for tennination of his parental rights, and states that his incarceration does not

constitute a period of "repeated and continued incapacity" as contemplated by the statute.

A review of the applicable case law reveals that, while incarceration cannot serve

as the sole ground for termination, it is celiainly relevant to the question of incapacity

presented under subsection (a)(2). The Pennsylvania Supreme COUli addressed this

precise issue in In re Adoption ofS.P., 47 A.3d 817, 830 (Pa. 2012) (discussing "the

relevance of incarceration in termination of parental rights decisions under §

[W]e now defInitively hold that incarceration, while not a litmus test for tennination, can be detenninative of the question of whether a parent is incapable of providing "essential parental care, control or subsistence" and the length of the remaining confInement can be considered as highly

relevant to whether "the conditions and causes of the incapacity, abuse, neglect or refusal carIDot or will not be remedied by the parent," sufficient to provide grounds for tennination pursuant to 23 Pa.C.S. § 251 I (a)(2).

In re Adoption ofS.P., 47 A.3d 817, 830 (Pa. 2012).

The Supreme COUlt found a that a parent's incarceration could be a detenninative

factor under the subsection (a)(2) analysis, depending on the specific facts and

circumstances that give rise to that parent's incapacity to provide his children with

"essential parental care, control or subsistence." Id. at 828. The Supreme Court drew on

a prior case addressing subsection (a)(2), in which the concurring opinion stated: "It is

beyond cavil that in many cases, including the one at bar, an incarcerated parentis

confined twenty-four hours a day, seven days a week; obviously resulting in his being

incapable of providing the essential parental care, control or subsistence necessary for a

child's physical and mental well-being." Id. (quoting In re R.I.S., 36 A.3d 567, 577-78

(Pa. 2011) (Baer, J., concurring)). Thus, it is clear that Father's CUl1'ent incarceration has

some relevancy in detennining whether his parental rights should be tenninated.

This Court has already discussed Father's lack of pro-active efforts to maintain a

relationship with his children before and during his incarceration. As stated above, some

of the lack of connnunication is due to the circumstances of his incarceration. See

Section III(a)(3), supra. This Court carIDot find however, that Father's incarceration is

the cause of the children's lack of "essential parental care, control, or subsistence," as

Father's inaction predates his period of incarceration. The Court also notes that the

children's situation is different from the typical types of cases presented under a

subsection (a)(2) inquiry. Prior cases addressing this issue usually deal with children

who have been adjudicated dependent, and that dependency being largely due to the

parent's incarceration. See, l<&, In re Adoption of S.P., 47 A.3d at 820 ("Father admitted

18 Circulated 02/20/2015 02:03 PM

that his incarceration resulted in Child's placement because his absence caused her to be

without essential parental care and controL"). Such is not the case here. Father was

involved sporadically in the children's lives. The two children have been well provided

for by Mother and Stepfather, emotionally, physically, and financially, and appear to live

Thus, the children enjoy a stable life, but that stability was not due to Father.

Under the statutory tenus, the children have been without the "essential parental care,

control, or subsistence" of Father. Father does not have the ability to spend time with the

children and perfonu the regular duties of a parent. Father testified that he does have the

ability to make phone calls when telephones are available, and he can write letters when

he has the money for the postage. Father's financial situation in jail is tenuous, and this

Court was presented with no evidence that he had any ability to fmancially provide for

the children or care for the children while he is injaiL It is clear that Father's CU11'ent

incarceration has necessarily hindered his ability to be a parent. See, Q,g" In re AD.,

2014 PA Super 119 (Pa. Super. Ct. June 9,2014) (father was subject to a no contact

order, and thus "by his own conduct was precluded from interacting with the children,"

and therefore "he was unable to perfonu his parental duties."). Thus, the "incapacity"

level would be met based on Father's inability to parent his children from his CU11'ent

situation. The subsequent and more difficult question is "whether the parent can remedy

the incapacity, which depends to a significant degree on the length of the parent's

sentence." In re Adoption of S.P., 47 A3d at 829.

As to the time period of the incapacity, the Court will look at the length of

Father's sentence to be served. See In re Adoption of S.P., 47 A3d at 830 ("[T]he length

of the remaining confinement can be considered as highly relevant to whether 'the

conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be

remedied by the parent."') (quoting 23 Pa. C.S.A. § 251 I (a)(2». In this case, Father pled

guilty to a second degree sexual offense on August 21, 2013 in the Circuit COUli of

Prince George's County, Maryland. As of the date of this Court's involuntary

tennination hearing, Father had been incarcerated since August of2013. At the hearing,

Father stated that he wa's given a sentence of twenty (20) years, all but four (4) years

suspended. This Court was not presented with any evidence to suggest that the hindrance

on Father's parental abilities will not continue until Father is released, or perhaps even

after that. In re Adoption ofS.P., 47 A.3d at 831 ("[T]he record supports the trial cOUli's

findings regarding the unceliainty of Father's parole date and that, even upon parole,

Father would reside in a half-way house and would need to obtain housing, employment

and transpOliation in addition to parenting skills."). The record does contain some

uncertainties, however. While presumably Father will serve a period of probation, the

length ofihat probation was not established in the record. Nor were any restrictive tenns

of that probation. Mother alleges in her brief that, because Father was convicted of

sexually assaulting another male, "[w]hether he would be allowed contact with the

subject children upon his eventual release is an unanswered question in itself." This is a

question the Court does not have enough evidence to make a detennination on. I While

the telms of Father's sentence mean he is only to selve four years, given the already

discussed evidence regarding Father's lack of contact and inability to perform as a parent,

this Court cannot find that the length of Father's sentence "is not so great as to foreclose

I In the interests of protecting Father's constitutional rights, the Court instlUcted the parties to refrain from discussing the details of the offense for which Father was convicted, which included the age of the victim and the specific actions involved.

20 Circulated 02/20/2015 02:03 PM

the possibility of the successful maintenance of the parent-child relationship." In re

R.I.S., 36 A.3d 567, 574 (Pa. 2011). This Court finds the opposite to be true in this case.

Father's incarceration has made it viliually impossible to provide for the children

and perform all the duties required of a parent, and his incarceration will most celiainly

continue to do so. In the circumstances ofthis case, the parent-child relationship is not

there to maintain. See, M, In re Adoption ofS.P., 47 A.3d 817, 830-31 (Pa. 2012)

("[TJrial courts must carefully review the individual circumstances for evelY child to

detennine, inter alia, how a parent's incarceration will factor into an assessment of the

child's best interest."). The children have been provided for by Mother and Stepfather.

The Court was presented with credible testimony establishing that there is no emotional

bond between the children and Father. The children have prospered in their CUlTent

family situation. This Court has no hesitation in finding that termination of Father's

parental rights would serve the best interests of the children. See, M, In re I.E.P ., 87

A.3d 340, 344 (Pa. Super. 2014) (describing "needs and welfare" analysis under Section

251 1(b) under best interests ofthe child framework). Considering the "developmental,

physical, and emotional needs" ofthe children, it is clear that Father does not have the

ability to meet those needs. Those needs have been met by Mother and Stepfather.

Therefore, the Court finds that Mother has presented clear and convincing evidence to

establish grounds for termination of parental rights under subsection (a)(2), in addition to

the grounds under subsection (a)(1) outlined above.

For all the foregoing reasons, this Court finds that grounds for involuntary

telmination have been established under 23 Pa. C.S.A. § 2511. The COUli was presented

with clear and convincing evidence to support the termination of Father's parental rights

pursuant to subsections (a)(J) and (a)(2).

22 ,I Circulated 02/20/2015 02:03 PM

IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH

In Re: Adoption of Orphans' Court G. X. E, No. 6.ADOPT-2014

Judge: Shawn D. Meyers

OPINION

TIle trial court has received a Notice of Appeal and Concise Statement of Errors

Complained of on Appeal filed in the above-captioned action. This opinion and statement by the

Court is offered within the time provisions required by and for a Children's Fast Tmck Appeal.

The Court notes it does not have the benefit of the trial transcript in issuing its opinion, but does

not believe that such a transcript is necessary for this Court to provide responses to the issues

raised by Father as part of his appeal.

Father has raised seven (7) issues on appeal. This Court believes that the Order of Court

of August 5, 2014, to which an opinion n~mbering 22 pages in length already provides adequate

explanation to many of the issues raised by Father in his Statement of Matters Complained of on

Appeal. Specifically, the following issues raised by Father have already been addressed, and this Circulated 02/20/2015 02:03 PM

trial court urges the Appellate Court to accept the findings of fact of the trial court and the

rationale set forth in the opinion entered on August 5, 2014.

Issue #1 - The first issue raised by Father is whether or not the tdal court's decision to

terminate Father'S parental rights is not supported by clear and convincing evidence and

constitutes an abuse of discretion for the following reasons:

(a) Father alleges there is insufficient evidence to determine the Father's conduct

continuing for a period of at least six months inunediately preceding the filing of the

petition either evidenced a settled purpose of relinquishing parental claim to the child,

or failed to perform parental duties.

This issue is specifically answered and addressed in the Court's analysis on pages 5

through 14 of the opinion dated August 5, 2014.

Issue #2 - In the second issue, Father alleges there was insufficient evidence to

determine a repealed and continued incapacity, abuse, neglect, or refusal of Father has caused the

child to be without essential parental care, control, or subsistence necessary for his physical or

mental well·being, and the conditions and causes of the incapacity, abuse, neglect, or refusal

cannot or will not be remedied by Father.

The Court has specifically answered this issue in pages 17 through 22 of its previously

issued opinion dated August 5, 2014.

Issue #3 - The third issue raised by Father is that the trial court failed to address the

required analysis under Section 2511 (b) in the Decree. The Court directs the Appellate Court to

the trial court order and opinion of August 5, 2014, in which the Court recited it had held a

hearing on Petitioner's Petition for Involuntary Termination of Parental Rights, and that it found

grounds for involuntary termination of parental rights which was established by clear and

convincing evidence. Furthermore, the Court directs the Appellate Court,IQ pages II through 14

of the opinion which recites findings of the Court, which this Court believes are clearly

supported by the facts set forth in the transcript when filed by the stenographer. The trial court

proceeded to analyze the case under Section 2511 (b), which is contained within its opinion on

pages 14 through 16. As is clearly outlined in the order of August 5, 2014, the Court directed

that the Petitioner submit an appropriate decree for execution by the Court. This Court submits

that the decree ultimately submitted by the Petitioner and containing the conclusions generally

references Section 2501 of the Adoption Code. The Court's specific findings and opinion of

August 5, 2014 specifically address the Section 2511(b) criteria. To the extent that there is an

omission in the Final Decree as to 251 I (b) fmdings, they are remedied by the Court's prior

findings and statements in the August 5,2014 opinion and order. To the extent that the trial

court maybe required to issue an amended decree, it is urged that the Appellate Court order that

an amended decree be permitted to be entered, but that it would be admitted with prejudice so

that there would be no further appeal as the issues were substantively addressed by the trial court

in its opinion and order of August 5, 2014.

Issue #4 - Did the trial court err by not giving primary consideration to the

developmental, physical, and emotional needs and welfare of the child in tenninating Father's

rights?

Again, tlIis Court directs the Appellate Court to its opinion and order of August 5, 2014.

The Court directs the Appellate Court to pages 14 through 16, which enumerate the Court's

fmdings which this Court asserts is supported by clear and convincing evidence in the record as

to step-father's involvement, along with natural mother in the raising of the children, which

combine with a lack of any record of Father's involvement in his children's lives in the six

months preceding the flIing of the petition, that this Court did consider the development of

physical and emotional needs and welfare of the children before deciding to tel'!l1inate Father's

rights.

Issue #5 - Did the trial court err in findirtg that legal grounds exist for the involuntary

termination of the parental rights of Terence Tobler? To Father's knowledge, Terence Tobler is

not a party or witness to the instant matter.

Per the order entered August 5, 2014, the trial court directed trial counsel to submit a

typed decree for execution by the Court. This Court asserts that Petitioner included incorrect

names in the Final Decree that the trial court did not notice. This is a scrivener's error that

should in no way impact the Court's decision of August 5, 2014. In fact, the Court clearly

outlined who Father was in its opinion and order of August 5, 2014. To the extent that the

Petitioner's counsel submitted a decree that incorrectly identified a party, this Court asserts that

such error should not be a reason to set aside the Final Decree. Rather, the trial court should be

granted the opportunity to issue an amended decree clarifying the order, but that that amended

decree would not entitle Father to additional right of review or appeal provided the Appellate

Court agrees with the substantive analysis of the trial court raised by Father.

Issue #6 - Did the trial court err in finding that Mother is single. Mother is married and

was married and was married at the time of hearing?

The Court points the Appellate Court to its opinion, page 2, Factual and Procedural /I,ll· History, in which the Court clearly finds that Mother is currently married tn 1 & , the

children's step-father. To the extent the decree submitted by Petitioner's counsel to the Court for

signature referenced that Mother was single, that is a factual misstatement attributed to

Petitioner's counsel. To the extent the trial court failed to correct that error before signing the

decree, the Court asks for permission from the Appellate Court to issue an amended decree, but

upon issuance of such amended decree, it would not enlarge the time for appeal of this issue or

review, so long as the substantive issues are being reviewed by the Appellate Court as part of the

Fast Track Appeal.

Issue #7 -Father asserts that the trial court erred in using and considering excluded

evidence, specifically events prior to April, 2013 in its determination to terminate Father's

parental rights.

This Court believes a review of the record will reveal that the Court did limit certain

testimony by Petitioner that might have attempted to enlarge the amount of time included or

·1 ~1 outlined or described in the petition for involuntary termination of parental rights. However, that

being said, this Court considers the involvement prior to April, 2013 of Mother with step·father

to be incidental. The trial court conducted a specific review of the six months prior to the filing

;L 1;-:"';

of petition, which revealed that Mother was involved'in a committed relationship with her

~~~ husband, the children's step·father, and that he was the one who was supplying the parental u~_ guidance and support to the children. This Court believes that the record is replete with -;;;t:3 information showing the lack of involvement of Father in the six months preceding the petition

and the active involvement of step· father, and that to the extent this Court may have relied upon

any information prior to April, 2013, that this Court finds that to be an incidental or harmless

error as there was more than overwhelming and clear and convincing evidence of the lackof

5 Circulated 02/20/2015 02:03 PM · ,

Father's involvement during the six months prior to the filing of petition, and the active

involvement of step-father during that time.

6 leo 1 Circulated 02/20/2015 02:03 PM dJ

(Jet. II /)Olt! /

IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH

In Re: Adoption of Orphans' Court S. L.E. No.7-ADOPT-2014

The trial court has received a Notice of Appeal and Concise Statement orBrrors

Complained of on Appeal filed in the above-captioned action. This opinion and statement by the

Court is offered within the time provisions required by and for a Children's Fast Track Appeal.

The Court notes it does not have the benefit ofthe trial transcript in issuing its opinion, but does

not believe that such a transcript is necessary for this Court to provide responses to the issues

Father has raised seven (7) issues on appeal. This Court believes that the Order of Court

of August 5, 2014, to which an opinion numbering 22 pages in length already provides adequate .

explanation to many ofthe issues raised by Father in his Statement of Malters Complained of on

Appeal. Specifically, the following issues raised by Father have already been addressed, and this Circulated 02/20/2015 02:03 PM

trial court urges the Appellate Court to accept the findings of fact of the trial court and the

rationale set forth in the opinion entered on August 5,2014.

Issue #1 • The first issue raised by Father is whether or not the trial court's decision to

terminate Father's parental rights is not supported by clear and convincing evidence and

constitutes an abuse of discretion for the following reasons:

(a) Father alleges there is insufficient evidence to determine the Father's conduct

continuing for a period of at least six months immediately preceding the filing of the

petition either evidenced a settled purpose of relinquishing parental claim to the child,

This issue is specifically answered and addressed in the Court's analysis on pages 5

Issue #2 - In the second Issue, Father alleges there was insufficient evidence to

determine a repeated and continued incapacity, abuse, neglect, or refusal of Father has caused the

child to be without essential parental care, control, or subsistence necessary for his physical or

mental well·being, and the conditions and causes of the incapacity, abuse, neglect, or refusal

The Court has specifically answered this issue in pages 17 through 22 of its previously

Issue #3 - The third issue raised by Father is that the trial court failed to address the

required analysis under Section 2511(b) in the Decree. The Court directs the Appellate Court to

the trial court order and opinion of August 5, 2014, in which the Court recited it had held a

hearing on Petitioner's Petition for Involuntary Termination of Parental Rights, and that it found

grounds for involuntary termination of parental rights which was established by clear and

convincing evidence. Furthermore, the Court directs the Appellate Court to pages 11 through 14

of the opinion which recites findings of the Court, which this Court believes are clearly

supported by the facts set forth in the transcript when filed by the stenographer. The trial court

proceeded to analyze the case under Section 2511(b), which is contained within its opinion on

pages 14 through 16. As is clearly outlined in the order of August 5, 2014, the Court directed

that the Petitioner submit an appropriate decree for execution by the Court. This Court submits

that the decree ultimately submitted by the Petitioner and containing the conclusions generally

references Section 2501 of the Adoption Code. The Court's specific findings and opinion of

August 5, 2014 specifically address the Section 2511(b) criteria. To the extent that there is an

omission in.theFinal Decree as to 251 I(b) findings, they are remedied by the Court's prior

findings and statements in the August 5, 2014 opinion and order. To the extent that the trial

court may be required to issue an amended decree, it is urged that the Appellate Court order that

an amended decree be permitted to be entered, but that it would be admitted with prejudice so

that there would be no further appeal as the issues were substantively addressed by the trial court

in its opinion and order of August 5, 2014 ..

Issue #4 - Did the trial court err by not giving primary consideration to the

developmental, physical, and emotional needs and welfare of the child in terminating Father's

Again, this Court directs the Appellate Court to its opinion and order of August 5,2014.

The Court directs the Appellate Court to pages 14 through 16, which enumerate the Court's

fmdings which this Court asserts is supported by clear and convincing evidence in the record as

to step-father's involvement, along with natural mother in the raising of the children, which

combine with a lack of any record of Father's involvement in his children's lives in the six

months preceding the filing of the petition, that this Court did consider the development of

physical and emotional needs and welfare of the children before deciding to terminate Father's

Issue #5 - Did the trial court err in fmding that legal grounds exist for the involuntary

termination of the parental rights of Terence Tobler? To Father's knowledge, Terence Tobler is

Per the order entered August 5, 2014, the trial court directed trial counsel to submit a

typed decree for execution by the Court. This Court asserts that Petitioner included incorrect

names in the Final Decree that the trial court did not notice. This is a scrivener's error that

should in no way impact the Court's decision of August 5, 2014. In fact, the Court clearly

outlined who Father was in its opinion and order of August 5, 2014. To the extent that the

Petitioner's counsel submitted a decree that incorrectly identified a party, this Court asserts that

such error should not be a reason to set aside the Final Decree. Rather, the trial court should be

granted the opportunity to issue an amended decree clarifying the order, but that that amended

decree would not entitle Father to additional right of review or appeal provided the Appellate

Court agrees with the substantive analysis of the trial court raised by Father.

Issue #6- Did the trial court err in fmding that Mother is single. Mother is married and

The Court points the Appellate Court to its opinion, page 2, Factual and Procedural II-df· History, in which the Court clearly finds that Mother is currently married the

children's step-father. To the extent the decree submitted by Petitioner's counsel to the Court for

signature referenced that Mother was single, that is a factual misstatement attributed to

Petitioner's counsel. To the extent the trial court failed to correct that error before signing the

decree, the Court asks for permission from the Appellate Court to issue an amended decree, but

upon issuance of such amended decree, it would not enlarge the time for appeal of this issue or

review, so long as the substantive issues are being reviewed by the Appellate Court as part of the

Issue #7 -Father asserts that the trial court erred in using and conSidering excluded

evidence, specifically events prior to April, 2013 in its determination to terminate Father's

This Court believes a review of the record will reveal that the Court did limit certain

testimony by Petitioner that might have attempted to enlarge the amount of time included or

outlined or described in the petition for involuntary termination of parental rights. However, that

being said, this Court considers the involvement prior to April, 2013 of Mother with step-father

to be incidental. The trial court conducted a specific review of the six months prior to the filing

of petition, which revealed that Mother was involved ina committed relationship with her

husband, the children's step-father, and that he was the one who was supplying the parental

guidance and support to the children. This Court believes that the record is replete with

information showing the lack of involvement of Father in the six months preceding the petition

and the active involvement of step-father, and that to the extent this Court may have relied upon

any information prior to April, 2013, that this Court finds that to be an incidental or harmless

error as there was more than overwhelming and clear and convincing evidence ofthe lack of

Father's involvement during the six months prior to the filing of petition, and the active