In Re Adoption of: K.F.R., a Minor

• Court: Superior Court of Pennsylvania
• Decided: May 11, 2021
• Docket: 1449 MDA 2020
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF K.F.R., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: L.R. : : : : : No. 1449 MDA 2020

Appeal from the Decree Entered October 7, 2020 In the Court of Common Pleas of Dauphin County Orphans' Court at No(s): 106-AD-2017

BEFORE: BOWES, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.: FILED: MAY 11, 2021

Appellant, L.R. (“Parent”), appeals from the October 7, 2020 Decree that

involuntarily terminated Parent’s parental rights to K.F.R. (“Child”).1 Upon

review, we affirm.

FACTUAL AND PROCEDURAL HISTORY

The relevant factual and procedural history, as gleaned from the trial

court’s Memorandum Opinion and the record, is as follows. Parent has a

history of mental health issues.2 Parent gave birth to Child in November 2011. ____________________________________________

* Former Justice specially assigned to the Superior Court.

1 Parent is Child’s biological mother. Parent identifies as male and began to confirm his gender identity shortly after Child’s birth. Parent’s Br. at 5 n. 2. Parent uses the pronouns he/him/his. Id.

2Through the years, mental health providers have diagnosed Parent with Post Traumatic Stress Disorder, Mood Disorders, Anxiety Disorders, Attention J-A07019-21

When Child was approximately 4 months old, a Community Inclusion

Caseworker (“CIC”) witnessed Parent hold a knife to Child’s face or throat

while inside Parent’s home, prompting involvement from police and Dauphin

County Social Services for Children and Youth (“CYS”). As a result of the

incident, Parent was hospitalized for mental health treatment; Child went to

live with Parent’s adoptive mother, L.R., and adoptive father, J.R.

(“Grandmother” and “Grandfather,” respectively; collectively,

“Grandparents”) as part of a CYS safety plan; and CYS indicated Parent as a

perpetrator of child abuse against Child.

On April 12, 2012, Grandparents filed an Emergency Custody Petition

and Custody Complaint seeking temporary primary legal and physical custody

of Child. On May 18, 2012, after a custody conference, Grandparents and

Parent reached an agreement to grant Grandparents sole legal and primary

physical custody of Child, and to grant Parent two hours of supervised physical

custody each week. Parent began visiting Child in 2013.

Weekly supervised visitation between Parent and Child continued until

the summer of 2017 when then-five-year-old Child refused to see Parent after

an incident occurred during visitation. Specifically, in July 2017, during a visit,

Parent showed Child a Power Point presentation that identified and showed

____________________________________________

Deficit Hyperactivity Disorder, Conduct Disorders, Personality Disorders, and either Asperger’s or Autism Spectrum Disorder. Parent engages with an outpatient therapist, a psychiatrist, and an in-home behavioral specialist. See Parent Ex. 1, Psychological Risk Evaluation and Bonding Assessments, at 15- 18; N.T. Hearing, 3/6/20, at 136-37.

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pictures of Child’s biological family members, who were unknown to Child at

the time, and informed Child they were her real family. Parent also told Child

that Grandparents were not her real family, and that they were not blood

related. Child, who was not previously aware that Parent was adopted by

Grandparents, became upset and yelled at Parent. Grandparents and Parent

had a heated discussion that resulted in Parent aggressively “belly bumping”

Grandmother in front of Child, which further upset Child.3

On August 21, 2017, Grandparents filed a Petition to Involuntarily

Terminate Parental Rights (“TPR Petition”) to Child. On March 6 and June 15,

2020, the trial court held hearings on Grandparents’ TPR Petition.4 The court

heard testimony from Grandmother; Grandfather; Laura Holahan, a parent

from Child’s dance school; Kim Melhorn, director at Child First Family Services;

Elizabeth Beman, behavioral specialist at Focus Behavioral Health

Incorporated; and Parent. Child’s Guardian ad litem, Allison Hastings, Esq.,

3 Parent has a history of aggressive behavior. In 2012, Parent bit his behavioral health specialist; the same behavioral health specialist witnessed Parent puff his chest in an aggressive way towards his fiancé; sometime between 2012 and 2017, Parent pulled a knife on a medical staff member, resulting in a ban from the facility; and in 2015 Parent pulled a knife on a pastor who was providing counseling to him. See Trial Court Opinion, 10/3/20, at 6.

4 According to the trial court, “[t]here was a pending custody petition in front of the court which resulted in a delay on the termination matter.” Trial Ct. Op., filed 11/30/20, at 1. We are unable to confirm this as our review is limited to the certified record in the termination proceedings.

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and Child’s attorney, Mindy Goodman, Esq., both advocated that the court

grant Grandparents’ TPR Petition. On October 7, 2020, after considering

evidence and reviewing Briefs, the trial court entered a Decree terminating

Parent’s parental rights to Child.5, 6

Parent timely appealed. Both Parent and the trial court complied with

Pa.R.A.P 1925.

ISSUES RAISED ON APPEAL

Parent raises the following issues for our review:

1. Whether the trial court erred or abused its discretion by involuntarily terminating [Parent]’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1) and (2)?

2. Whether the trial court erred or abused its discretion by involuntarily terminating [Parent]’s parental rights pursuant to 23 Pa.C.S. § 2511(b)?

Parent’s Br. at 4 (some capitalization omitted).

LEGAL ANALYSIS

When we review a trial court’s decision to grant or deny a petition to

involuntarily terminate parental rights, we must accept the findings of fact and

credibility determinations of the trial court if the record supports them. In re

T.S.M., 71 A.3d 251, 267 (Pa. 2013). “If the factual findings are supported,

appellate courts review to determine if the trial court made an error of law or

5The Decree is dated October 3, 2020, but the clerk did not give the parties written notice of the Decree until October 7, 2020. See Pa.O.C.R. 4.6.

6 The court also entered a Decree terminating the parental rights of Child’s biological father, who is not a party to this appeal.

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abused its discretion.” Id. (citation omitted). “Absent an abuse of discretion,

an error of law, or insufficient evidentiary support for the trial court’s decision,

the decree must stand.” In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009)

(citation omitted). We may not reverse merely because the record could

support a different result. In re T.S.M., 71 A.3d at 267. We give great

deference to the trial courts “that often have first-hand observations of the

parties spanning multiple hearings.” Id. Moreover, “[t]he trial court is free

to believe all, part, or none of the evidence presented, and is likewise free to

make all credibility determinations and resolve conflicts in the evidence.” In

re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citation omitted).

Section 2511 of the Adoption Act, 23 Pa.C.S. § 2511, governs

termination of parental rights, and requires a bifurcated analysis. “Initially,

the focus is on the conduct of the parent.” In re Adoption of A.C., 162 A.3d

1123, 1128 (Pa. Super. 2017) (citation omitted). “The party seeking

termination must prove by clear and convincing evidence that the parent’s

conduct satisfies the statutory grounds for termination delineated in Section

2511(a).” Id. (citation omitted). If the court determines that the parent’s

conduct warrants termination of his or her parental rights, the court then

engages in “the second part of the analysis pursuant to Section 2511(b):

determination of the needs and welfare of the child under the standard of best

interests of the child.” Id. (citation omitted). Notably, while the trial court

here found that CYS met its burden of proof under 23 Pa.C.S. § 2511(a)(1),

(5), (8), and (b), we need only agree with its decision as to any one subsection

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of Section 2511(a), as well as Section 2511(b), in order to affirm the

termination of parental rights. See In re B.L.W., 843 A.2d 380, 384 (Pa.

Super. 2004) (en banc).

Termination Pursuant to 23 Pa.C.S. § 2511(a)(1)

Parent first avers that the trial court abused its discretion when it

terminated his parental rights pursuant to Section 2511(a)(1). Parent’s Br. at

12. Parent argues that the record is devoid of evidence that he evidenced a

settled purpose of relinquishing his parental rights to Child. Id. at 9. Parent

contends he maintained weekly visitation, attended Child’s dance recitals,

attempted to file several custody petitions, sent cards to Child, and purchased

gifts, clothes, and school supplies for Child. Id. at 9, 17, 18. Finally, Parent

asserts that one month prior to Grandparents filing the TPR Petition, he “made

an affirmative claim of parentage over [Child]” when he presented Child with

a “photographic slide show of her biological family[.]” Id. at 10. Upon review,

we find no abuse of discretion.

Section 2511(a)(1) provides that the trial court may terminate parental

rights if the Petitioner establishes that “the parent by conduct continuing for

a period of at least six months immediately preceding the filing of the petition

either has evidenced a settled purpose of relinquishing parental claim to a

child or has refused or failed to perform parental duties.” 23 Pa.C.S. §

2511(a)(1). The focus of involuntary termination proceedings is on the

conduct of the parent and whether that conduct justifies a termination of

parental rights. In re B.L.L., 787 A.2d 1007, 1013 (Pa. Super. 2001).

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Although the statute focuses on an analysis of the six months immediately

preceding the filing of the petition, “the court must consider the whole history

of a given case and not mechanically apply the six-month statutory provision.”

In re K.Z.S., 946 A.2d 753, 758 (Pa. Super. 2008) (citation omitted). Rather,

“[t]he court must examine the individual circumstances of each case and

consider all explanations offered by the parent facing termination of his

parental rights, to determine if the evidence, in light of the totality of the

circumstances, clearly warrants the involuntary termination.” Id. (citations

omitted). “However, with respect to any petition filed pursuant to subsection

(a)(1), . . . the court shall not consider any efforts by the parent to remedy

the conditions described therein which are first initiated subsequent to the

giving of notice of the filing of petition.” In re Adoption of A.C., 162 A.3d

1123, 1129 (Pa. Super. 2017) (citing 23 Pa.C.S. § 2511(b)).

This Court has repeatedly defined “parental duties” in general as the

affirmative obligation to provide consistently for the physical and emotional

needs of a child:

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 . . . requires continuing interest in the child and a genuine effort to maintain communication and association with the child. Because a child needs more than a benefactor, parental duty requires that a parent exert

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himself to take and maintain a place of importance in the child’s life.

In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations and internal

paragraph breaks omitted).

Moreover, “[p]arental 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.” Id. (citation omitted). “A parent must utilize all

available resources to preserve the parental relationship, and must exercise

reasonable firmness in resisting obstacles placed in the path of maintaining

the parent-child relationship.” Id. (citation omitted). And most importantly,

“[p]arental rights are not preserved by waiting for a more suitable or

convenient time to perform one’s parental responsibilities while others provide

the child with his or her physical and emotional needs.” Id. (citation omitted).

Simply put, “adequate parenting requires action as well as intent.” In re

J.W., 578 A.2d 952, 959 (Pa. Super. 1990) (emphasis in original).

The trial court did not conclude that Parent evidenced a settled purpose

of relinquishing his parental rights under Section 2511(a)(1), rather, the court

found that Parent failed to perform parental duties for Child for more than

five years prior to the filing of the TPR Petition. Trial Ct. Op., dated 10/3/20,

at 3-4. Our review of the record supports the trial court’s determination that

Grandparents met their burden under Section 2511(a)(1). Parent’s failure to

act affirmatively and utilize all available resources to regain custody of Child

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over the past eight years has resulted in Child living with Grandparents, the

only “parents” she has ever known, since she was four months old.

The trial court credited Grandparent’s testimony about the extent of

Parent’s involvement in Child’s life and found that Parent’s efforts in visiting

two hours per week, attending dance recitals, and buying some items for Child

did not rise to the level of performing “parental duties.” The trial court opined:

Although [Parent] visited with [Child], [Parent]’s contact was limited to two hours of supervised visits per week. During testimony, Grandparents reported the visits were more like a play [date] rather than [Parent] creating a parent/child relationship. Grandfather further reported that [Parent] would often become verbally aggressive toward himself or Grandmother, which would then upset [Child]. [Parent] did not inquire about doctor appointments, supply sufficient clothing, or offer to help pay for food. This is supported by the testimony of both Grandmother and Grandfather who stated that [Parent] initially inquired about and attended doctor appointments but then stopped participating in medical appointments and inquiring about [Child]’s health. Both Grandmother and Grandfather testified that [Parent] provided “an outfit here or there” and school supplies, usually after school started, and did not offer to assist with food or medication when [Child] was sick. . . . [Parent] testified to sending cards and gifts on holidays and birthdays and attending [Child]’s dance recitals. This appears to be the extent of [Parent]’s attempt to connect and maintain a relationship with [Child] or perform parental duties.

Id. The record supports the trial court’s findings.

Moreover, the trial court emphasized that Parent failed to make efforts

to modify the custody Order that prevented him from seeing Child for more

than two hours per week:

While [Parent] testified to several attempts to initiate modification of the custody order and visitations, [Parent] did not pursue [his] case by paying the necessary fee or filing an application to proceed

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in forma pauperis. [Parent] further testified to waiting on Grandparents when he approached Grandfather about changing visitations and was told that it was up to the court. This demonstrates a lack of an active and diligent effort toward [the] resumption of full parental responsibilities.

Id. at 5.

We agree. The main obstacle preventing Parent from performing

parental duties was the custody Order that restricted his visitation. Our review

of the record reveals that Parent made minimal efforts to modify the custody

Order or pursue custody of Child, falling short of the requirement that he

utilize all available resources and exercise reasonable firmness to maintain a

parent-child relationship. In short, Parent failed to act. Instead, Parent

allowed Grandparents to provide Child with her physical and emotional needs

for the past eight years while Parent attended limited weekly supervised

visitation with Child.

Finally, the trial court acknowledged that Parent made some efforts after

Grandparents filed the TPR Petition, including attempting to arrange for visits

through Child First Family Services and saving money for Child. Trial Ct. Op.,

dated 10/3/20, at 4. However, the court declined to consider these efforts,

explaining: “[p]ursuant to § 2511(b), the [c]ourt is not permitted to take into

account the efforts by a parent subsequent to receiving notice that a

termination petition has been filed.” Id. We agree that Section 2511(b)

precludes this evidence from consideration. 23 Pa.C.S § 2511(b).

In sum, the trial court concluded, “[Parent]’s efforts were too little and

too late.” Trial Ct. Op., dated 10/3/20, at 4. Our review of the record supports

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the trial court’s findings. We decline to reweigh the evidence or usurp the

lower court’s credibility determinations. Accordingly, we find no abuse of

discretion. Moreover, because we agree with the trial court’s decision as to

subsection (1) of Section 2511(a), we decline to address subsection (2).7

Termination Pursuant to 23 Pa.C.S. § 2511(b)

Parent also contends that the trial court abused its discretion in

terminating his parental rights pursuant to 23 Pa.C.S. § 2511(b). Parent’s Br.

at 21. To support his argument, Parent makes a bald averment that

reunification with him is in Child’s best interest. Id. at 11. Parent’s argument

fails.

With respect to Section 2511(b), our analysis focuses on the effect that

terminating the parental bond will have on the child. In particular, we review

whether “termination of parental rights would best serve the developmental,

physical, and emotional needs and welfare of the child.” In re Adoption of

J.M., 991 A.2d 321, 324 (Pa. Super. 2010). It is well settled that

“[i]ntangibles such as love, comfort, security, and stability are involved in the

inquiry into needs and welfare of the child.” In re C.M.S., 884 A.2d 1284,

1287 (Pa. Super. 2005) (citation omitted).

7We note that Parent failed to raise a challenge to subsection (2) of Section 2511(a) in his Rule 1925(b) Statement. We also decline to address his challenge to subsection (2) because it is waived. Pa.R.A.P. 1925(b)(4)(vii).

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One major aspect of the “needs and welfare” analysis concerns the

nature and status of the emotional bond that the child has with the parent,

“with close attention paid to the effect on the child of permanently severing

any such bond.” In re Adoption of N.N.H., 197 A.3d 777, 783 (Pa Super.

2018) (citation omitted). The fact that a child has a bond with a parent does

not preclude the termination of parental rights. In re A.D., 93 A.3d 888, 897

(Pa. Super. 2014). Rather, the trial court must examine the depth of the bond

to determine whether the bond is so meaningful to the child that its

termination would destroy an existing, necessary, and beneficial relationship.

Id. at 898. Moreover, the trial court may consider intangibles, such as the

love, comfort, security, and stability the child might have with the adoptive

resource. In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011). Ultimately, the

concern is the needs and welfare of the child. In re Z.P., 994 A.2d 1108,

1121 (Pa. Super. 2010).

Instantly, the trial court made findings that Child is doing well in school,

has neighborhood friends, is involved in church activities, attends dance

classes, receives support through a therapist arranged by Grandparents, calls

Grandparents “Mom” and “Dad,” and wants to be adopted by Grandparents.

Trial Ct. Op., dated 10/3/20, at 7. The trial court emphasized that the bonding

assessment conducted by Dr. Shienvold stated that Child would be negatively

impacted if her relationship with Grandparents was severed. Trial Ct. Op. at

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6. The trial court concluded that terminating Parent’s parental rights to Child

would be in Child’s best interest, opining:

Now eight years old, [Child] has only experienced Grandparents as her parents. At this point [Child] expresses no desire to have contact with [Parent], although Grandparents expressed a desire to have [Parent] be part of [Child]’s life when [Child] is ready for this relationship. There is nothing to indicate that [Child] would be harmed by terminating [Parent]’s parental rights. Indeed, there is every indication that termination of parental rights and subsequent adoption by Grandparents would provide permanency for [Child] and would be in [Child]’s best interest.

Id. at 8. Our review of the record supports the trial court’s findings and, thus,

CONCLUSION

In conclusion, the trial court did not abuse its discretion when it found

that Grandparents presented clear and convincing evidence to terminate

Parent’s parental rights to Child.

Decree affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 05/11/2021

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