In Re: Adoption of M.C.H. Appeal of: R.I.H.

• Court: Superior Court of Pennsylvania
• Decided: October 31, 2014
• Docket: 396 WDA 2014
• Status: Unpublished

Opinion

J-A23032-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: M.C.H. IN THE SUPERIOR COURT OF PENNSYLVANIA

APPEAL OF: R.I.H. No. 396 WDA 2014

Appeal from the Order entered February 12, 2014, in the Court of Common Pleas of Washington County, Orphans’ Court, at No. 63-13-0616

IN RE: ADOPTION OF: J.R.H. IN THE SUPERIOR COURT OF PENNSYLVANIA

APPEAL OF: R.I.H. No. 397 WDA 2014

Appeal from the Order dated February 12, 2014, in the Court of Common Pleas of Washington County, Orphans’ Court, at No. 63-13-0617

BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 31, 2014

R.I.H. (“Father”) appeals from the Order involuntarily terminating his

parental rights to his son, M.C.H. (d.o.b. 6/7/99), and daughter, J.R.H.

(d.o.b. 7/28/01) (collectively referred to as “the Children”) pursuant to a

Petition for involuntary termination (hereinafter referred to as “the

Termination Petition”) filed by the Children’s mother, K.C.M. (“Mother”), and

her husband, M.C.M. (“Stepfather”). See 23 Pa.C.S.A. § 2511(a)(1) and

(b). We affirm. J-A23032-14

The trial court thoroughly set forth the relevant facts and procedural

history underlying this appeal in its Pa.R.A.P. 1925(a) Opinion, which we

incorporate herein by reference. See Trial Court Opinion, 4/17/14, at 1-8.1

Following the filing of the Termination Petition, the trial court

appointed a Guardian ad litem (“GAL”) to interview the Children, review the

record, and submit to the court a recommendation as to whether termination

of Father’s parental rights would serve the Children’s best interests. The

GAL met separately with Mother, Stepfather, Father, and the Children. On

January 27, 2014, the GAL issued her written Recommendation

(“Recommendation”), wherein she stated that “several issues give [her]

pause as to whether it would be in the best interests of the [] Children to

terminate [Father’s] parental rights,” explaining, inter alia, as follows:

First, although Mother testified that there is no bond between the Children and Father, it seems highly implausible that two Children who are quite old enough to have developed a loving bond with their Father[,] and appear to have done so, no longer have any bond because they have not seen him in over a year. … To this Counsel, [J.R.H.’s] desire to tell [] Father of the gift she had received despite having not seen him for several months[,] and [M.C.H.’s] desire to keep [] Father’s [last] name[,] demonstrate that the Children do have a bond with Father. So, based on the evidence[,] is it in the Children’s best interest to forever cut off all contact with their Father, thereby severing the bond that exists? Would not the psychological ramifications of termination be devastating and lasting, if the Children knew that their Father had been attempting to get back in their lives before this proceeding began?

1 Although the trial court’s factual recitation continues onto page 9, we do not incorporate that portion herein.

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… There is no doubt that Father has repeatedly demonstrated a dismal lack of effort to maintain a strong relationship with the Children. … Were Father’s actions likely disappointing and perhaps angering to the Children? Most definitely. However, there was no testimony, and this Counsel did not gather from her conversations with the Children, that the Children have written Father off, so to speak, or that they harbor some deep- rooted resentment that makes continuing contact with Father contrary to their best interests. In fact, the Children seem to still maintain the natural desire to know and be loved by their biological father. They certainly may feel disappointed by Father[;] however, it seems that considering Father’s apparent renewed will to fight for some contact with the Children, which interest began before the threat of losing them forever arose, there is a chance of an improvement in their relationship.

Third, there was no testimony that Father ever acted in a way to harm the Children or mistreat them. There was no testimony, nor was there mention in the private interviews, of anything other than a loving relationship between the Children and Father when they were together.

On the other hand, what is the benefit to termination? Mother and [Stepfather] testified that it would benefit the Children to have the stability and security of being adopted by [Stepfather] and making his position as a father-figure in their life official. Stability and cohesiveness of a family are absolutely important considerations. [Stepfather’s] actions in stepping up as a father to these Children is admirable in two respects: one, in that he has filled in the gap of a very vital part in the [C]hildren’s life, and two, he has provided the Children with a good example of a loving and supportive parent that they will hopefully emulate some day. … He has formed a lasting and loving bond with the Children, both of whom view him as a father-figure in their lives. But despite all of his flaws, Father[] is still [the Children’s] biological father and they still appear to love him ….

Without a doubt[,] the Children are both flourishing in the care of [Mother and Stepfather], and undersigned Counsel does not believe that the Children should be anywhere else. What causes this Counsel hesitation and concern are the circumstances that seem to indicate a desire of the Children to maintain a bond with their Father, and Father’s possible renewed desire for the same. It is therefore a recommendation of this Counsel that perhaps [the trial c]ourt would wish to have the opportunity to meet with -3- J-A23032-14

the Children in chambers to assist in determining whether termination would be in their best interest.

Recommendation, 1/27/14, at 6, 7-9 (unnumbered).

In response to the Recommendation, on January 28, 2014, the trial

court conducted an in camera interview with the Children, wherein the court

questioned them about their relationships and bonds with Father and

Stepfather, their feelings regarding the proposed adoption, and how they

would feel if they would never see Father again.2 Both of the Children

discussed the parental duties that Stepfather performs for them, their bond

with him, and stated that they call him “Dad” and view him as a father

figure. See N.T., 1/28/14, at 14-16, 29-32, 41-49. Concerning the

proposed adoption, J.R.H. testified “I want [Stepfather] to adopt me.” Id. at

31. She explained that she would like to be adopted “because [Stepfather

is] more of a father to me because [Father] … hadn’t really done anything to

be with me.” Id. at 32. Upon being asked how she would feel if she would

never see Father again, J.R.H. stated “I guess I’d be a little bit upset, but

I’m not used to seeing him now because it’s been a long time since I’ve seen

him.” Id.; see also id. (wherein J.R.H. explained her remark that she

would be “a little bit upset” by stating “I guess every once in a while, I’d be

2 Prior to the in camera interview, Father’s counsel gave the trial court a list of questions (hereinafter “Proposed Questions”) for the court to ask the Children. See N.T., 1/28/14, Exhibit 1. The trial court declined to ask the Proposed Questions that pertained to whether the Children wanted to have a relationship with their paternal extended family, and whether the Children were aware that Father was contesting the termination proceedings. See id.; see also id. at 7-9. -4- J-A23032-14

like maybe we should invite [Father,] but he probably won’t come or

something.”). M.C.H. also testified that he wanted to be adopted by

Stepfather. Id. at 48; see also id. (wherein M.C.H. stated that adoption

would “be a good thing.”). When the judge asked M.C.H. how he would feel

if he never saw Father again, he replied, “I would just sort of feel normal

because we don’t really talk anymore anyway.” Id. at 52. Finally, the GAL

also testified at the in camera interview, essentially reiterating her opinion

set forth in the Recommendation. Id. at 58-67.

Following the entry of the trial court’s February 12, 2014 Order

terminating Father’s parental rights, Father timely filed a Notice of Appeal.

On appeal, Father presents the following issue for our review:

Contrary to the mandates of 23 Pa.C.S.A. § 2511(b), did the Trial Court abuse[] its discretion and commit [a] reversible error of law when it disregarded both the unrefuted, competent evidence that a loving and affectionate parent-child bond exists between [Father] and [the] Children, and the Re[commendation] and testimony of the [GAL] that termination of Father’s parental rights is not in the best interests of the [] Children[?]

Father’s Brief at 5.

Our standard of review is well-settled:

[A]ppellate courts must apply an abuse of discretion standard when considering a trial court’s determination of a petition for termination of parental rights. As in dependency cases, our standard of review requires an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record. If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Instead, a decision may be reversed for an abuse of discretion -5- J-A23032-14

only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will.

In re Adoption of S.P., 47 A.3d 817, 827 (Pa. 2012) (citations omitted).

The burden is on the petitioner to prove by clear and convincing

evidence that the asserted grounds for seeking the termination of parental

rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

Moreover, we have explained that the standard of clear and convincing

evidence is defined as “testimony that is so clear, direct, weighty and

convincing” as to enable the fact-finder to come to a clear conviction,

“without hesitance, of the truth of the precise facts in issue.” Id. (citation

omitted).

In determining whether a trial court properly exercised its discretion in

terminating parental rights, this Court must engage in a bifurcated analysis,

first addressing whether the parent’s conduct warrants termination of his or

her parental rights, pursuant to 23 Pa.C.S.A. § 2511(a). See In re

Adoption of C.L.G., 956 A.2d 999, 1008-09 (Pa. Super. 2008) (en banc).

“[O]nly if a court determines that the parent’s conduct warrants termination

of his or her parental rights, pursuant to Section 2511(a), does a court

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

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

best interests of the child.” Id. at 1009 (citation and quotation marks

omitted). This Court may affirm a trial court’s decision regarding the

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termination of parental rights with regard to any one subsection of 2511(a).

See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).

In the instant case, the trial court determined that there was sufficient

clear and convincing evidence presented to warrant termination of Father’s

parental rights under subsection 2511(a)(1).3 See Trial Court Opinion,

4/17/14, at 14 (stating that “[t]here is little question that Father has failed

and refused to perform parental duties for [the C]hildren. Father could not

recite one instance within the year preceding the filing of the [Termination

P]etition … in which he acted in a parental role to [the C]hildren.”); see also

id. at 14-15 (stating that “[o]ther than expressing his love for the

[C]hildren, and relating his decision to hire an[] attorney to fight for his

parental rights, Father could not testify to any affirmative act which he

undertook to act as a parent to [the C]hildren.”); see id. at 16 (finding that

“Father offered no credible excuse for his failure and neglect as a parent.”).4

On appeal, Father does not dispute the trial court’s finding that the

requirements of subsection 2511(a)(1) have been met. Moreover, our

review reveals that the record contains sufficient clear and convincing

3 Subsection 2511(a)(1) provides grounds for termination of parental rights where “[t]he parent[,] by conduct continuing for a period of at least six months immediately preceding the filing of the [termination] 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.A. § 2511(a)(1). 4 The trial court fully set forth its rationale regarding subsection 2511(a)(1) in its Opinion. See Trial Court Opinion, 4/17/14, at 14-19. The trial court’s rationale is supported by the record. -7- J-A23032-14

evidence to support the trial court’s determination that termination of

Father’s parental rights under subsection 2511(a)(1) was warranted. See

Trial Court Opinion, 4/17/14, at 14-19.

Having determined that the requirements of section 2511(a) are

satisfied, we must determine whether the requirements of section 2511(b)

are satisfied. See In re Adoption of C.L.G., supra. Section 2511(b)

provides as follows:

(b) Other considerations.-- The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent. With respect to any petition filed pursuant to subsection (a)(1), (6) or (8), the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition.

23 Pa.C.S.A. § 2511(b). This Court has stated that, whereas the focus in

terminating parental rights under section 2511(a) is on the parent, under

section 2511(b), it is on the children. In re Adoption of C.L.G., 956 A.2d

at 1008.

In reviewing the evidence in support of termination under section

2511(b), the Pennsylvania Supreme Court has stated as follows:

[I]f the grounds for termination under subsection (a) are met, a court “shall give primary consideration to the developmental, physical and emotional needs and welfare of the child.” 23 Pa.C.S.[A.] § 2511(b). The emotional needs and welfare of the child have been properly interpreted to include “intangibles such as love, comfort, security, and stability.” [T]he -8- J-A23032-14

determination of the child’s “needs and welfare” requires consideration of the emotional bonds between the parent and child. The “utmost attention” should be paid to discerning the effect on the child of permanently severing the parental bond.

In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and brackets

omitted). However, the mere existence of a bond attachment between the

children and their parent will not necessarily result in the denial of a

termination petition. Id. at 267. Additionally, a trial court must consider

whether the children are in a pre-adoptive home and whether they have a

bond with their putative adoptive parents. Id. at 268; see also In re I.J.,

972 A.2d 5, 13 (Pa. Super. 2009) (stating that “the strength of emotional

bond between a child and a potential adoptive parent is an important

consideration in a ‘best interests’ analysis.”). Finally, it is well-settled that a

child’s life “simply cannot be put on hold in the hope that [a parent] will

summon the ability to handle the responsibilities of parenting.” In re Z.P.,

994 A.2d 1108, 1125 (Pa. Super. 2010).

Here, Father argues that the evidence was insufficient to establish,

under section 2511(b), that termination of his parental rights was in the best

interests of the Children. See Father’s Brief at 14-23. Father points to the

GAL’s Recommendation and her testimony at the in camera interview that

she had reasons to question whether termination of Father’s parental rights

served their best interests. See id. at 15-17 (citing Recommendation,

1/27/14, at 9 (wherein the GAL stated that the Children appear to love

Father and have a bond with him)). According to Father, the trial court

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erred by allegedly ignoring the GAL’s opinion, and other evidence of record,

that the Children and Father are bonded and have a loving relationship. See

Father’s Brief at 15. Father also alleges that the trial court erred in refusing

to ask the Children all of the Proposed Questions that his counsel presented

at the in camera interview. See id. at 17.

In its Opinion, the trial court discussed the best interests of the

Children under section 2511(b), and stated its reasons for determining that

there was sufficient clear and convincing evidence to establish that (1)

termination of Father’s parental rights, and adoption of the Children by

Stepfather, served the Children’s best interests; (2) the Children have a

strong bond with Stepfather, who they view as a positive father figure; (3)

the Children will not be adversely impacted by the termination of Father’s

parental rights; and (4) even if there is some minor bond between the

Children and Father, this alone is not a sufficient reason to deny the Children

the permanency of adoption. See Trial Court Opinion, 4/17/14, at 19-20.

Further, in his Pa.R.A.P. 1925(a) Opinion, the trial court judge who

presided over the in camera interview and observed the Children’s

demeanor, found that “neither child expressed any hesitation, reservation or

anxiety over this circumstance[,]” i.e., adoption by Stepfather and never

seeing Father again. Id. at 20. This Court has stated that

unlike trial courts, appellate courts are not equipped to make the fact-specific determinations on a cold record, where the trial judges are observing the parties during the relevant hearing and often presiding over numerous other hearings regarding the child and parents. Therefore, even where the facts could support an - 10 - J-A23032-14

opposite result, as is often the case in dependency and termination cases, an appellate court must resist the urge to second guess the trial court and impose its own credibility determinations and judgment; instead we must defer to the trial judges so long as the factual findings are supported by the record and the court’s legal conclusions are not the result of an error of law or an abuse of discretion.

In re Adoption of S.P., 47 A.3d at 826-27 (citations omitted). Accordingly,

in the instant case, we must defer to the trial court’s credibility

determinations and its factual findings, which are supported by the record,

even though the facts could arguably support an opposite result. See Trial

Court Opinion, 4/17/14, at 19-20.

In its Opinion, the trial court also correctly rejected Father’s claim that

the court failed to adequately consider the GAL’s Recommendation. See id.

at 20-23. We agree with the trial court’s rationale and incorporate it herein

by reference. See id.; see also In re Adoption of R.J.S., 889 A.2d 92,

100 n.8 (Pa. Super. 2005) (observing that a GAL’s recommendation is purely

advisory).

Moreover, the trial court points out that “since Father was offering to

maintain only limited contact with the [C]hildren if his parental rights were

not terminated, Mother was willing to agree to an open adoption under Act

101 [“Act 101”],5 allowing some limited contact. Father, through his

counsel, summarily rejected this offer.” Trial Court Opinion, 4/17/14, at 13

(footnote added); see also Opinion and Order, 2/12/14, at 10 (same). The

5 See 23 Pa.C.S.A. § 2731, et seq. - 11 - J-A23032-14

trial court further stated as follows regarding the proposal of an open

adoption:

[W]hile the [GAL], in her [Recommendation], placed significant emphasis on the fact that Father is only seeking limited visitation and contact, and that Father has no desire to displace the [C]hildren from their current home, Father did not express this limitation on the record, and there is no binding effect of any such expression. … [The offered open adoption a]greement could have resolved the issues of all concerned, providing permanency for the [C]hildren by maintaining Father’s limited and infrequent contact in their lives. That Father would summarily reject this proposal makes suspect his claim that he is willing to accept a limited role in the [C]hildren’s lives that would serve their best interests.

Trial Court Opinion, 4/17/14, at 13-14; but see also id. at 13 (stating that

“the fact that Father was unwilling to consent to an ‘open adoption’ … was

not, by any means, part of the [c]ourt’s consideration in finding that Father

had failed to perform his parental duties, or in its finding that termination

would serve the best interests of the [C]hildren.”).

Additionally, Father extensively relies upon the Supreme Court of

Pennsylvania’s decision in In re Adoption of Charles E.D.M., 708 A.2d 88

(Pa. 1998), in support of his claim that the trial court failed to engage in a

proper analysis regarding how terminating Father’s relationship with the

Children would affect their needs and welfare, and improperly overlooked

the fact that Father does not seek to take the Children away from the home

of Mother and Stepfather. See Father’s Brief at 17-19, 21. In E.D.M., the

Supreme Court held that termination of the mother’s parental rights was

improper because the record lacked sufficient evidence to establish that

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termination would be in the best interests of the children. E.D.M., 708 A.2d

at 92-93. In so holding, the Court stated that

[w]e cannot underestimate the importance of a child’s relationship with his or her biological parent. Here, [the mother] does not seek to take the children from their home or family, but she is requesting visitation rights through which she may maintain a presence in the children’s lives. This contact will allow the children to continue to feel loved by their mother and receive her guidance and nurturing. Further, it may preclude the children’s painful search for their biological mother as a teen or an adult and the emotional injuries caused by the separation.

Id. at 93.

In its Opinion, the trial court in this case determined that E.D.M. was

unavailing to Father, stating as follows:

The [trial c]ourt finds unpersuasive Father’s reliance on [E.D.M.] In that case[,] the Supreme Court found that the record was devoid of evidence with respect to how the termination would affect either child’s well-being, and how termination would serve the children’s best interests. In the instant case, Mother and the [C]hildren have testified as to the lack of any meaningful relationship with Father. Both of [the C]hildren have expressed their desire to be adopted and to be formal members of Stepfather’s family. Moreover, unlike the instant case, the mother in [] E.D.M. was faced with extraordinary antagonism from the father[,] who was seeking termination of her rights. That is not the case here. Although Father, on one hand, would claim that Mother would dictate the terms of his visitation with the [C]hildren and eventually force him to sever his contact completely, on the other hand[,] he would admit that he would continue to text and call his daughter, and that he would “but[t] heads” with Mother. The [trial c]ourt did not find credible Father’s claim that Mother’s contact impeded his ability to be a parent to his children. There was no testimony of any efforts that Father put forward to fulfill his parental role or to overcome any alleged barriers. The [trial c]ourt found nothing which would justify Father’s lack of interest in [the C]hildren’s daily lives, and in their health, safety, education and welfare.

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Furthermore, [] E.D.M. was decided long before the enactment of Act 101, which would have allowed for post- termination contact by the mother in that case, and likely would have allayed the concern expressed by the Supreme Court that reversal of termination and maintaining the mother’s limited presence in the children’s lives “may preclude the children’s painful search for their biological mother as a teen or an adult and the emotional injuries caused by the separation.” [E.D.M.], 708 A.2d at [93]. The [C]hildren in [the instant] case displayed no fear of emotional injury at the prospect of being separated permanently from Father. On the contrary, the [C]hildren feel that they have been separated from Father already as a result of his gradual evaporation from their lives.

Trial Court Opinion, 4/17/14, at 17-18 (footnotes omitted). We agree with

the trial court’s analysis and its determination that E.D.M. is inapposite.

Finally, we find no merit to Father’s argument that the trial court

abused its discretion by refusing to ask the Children, at the in camera

interview, all of the Proposed Questions submitted by Father’s counsel. As

noted above, the only Proposed Questions that the trial court refused to ask

pertained to whether the Children wanted to have a continued relationship

with their paternal extended family, and whether the Children were aware

that Father was contesting the termination proceedings. See N.T., 1/28/14,

Exhibit 1; see also id. at 7-9. The trial court did, in fact, ask the Children

the relevant Proposed Questions, which pertained to the Children’s bond

with Father and how they would feel if they no longer were to see Father.

See id. at 8-9, 31-31, 48, 52.

In summary, our review discloses that the trial court’s analysis and

factual findings in its Opinion are supported by the record, which contains

sufficient competent evidence to sustain the trial court’s determination that - 14 - J-A23032-14

termination of Father’s parental rights would serve the Children’s best

interests by allowing them to be adopted by Stepfather, with whom they are

undisputedly bonded. Accordingly, we affirm the trial court’s Order

terminating Father’s parental rights to the Children.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/31/2014

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