J-S31015-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: D.W.G., III : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: D.W.G., JR., NATURAL : FATHER : : : : : No. 77 WDA 2017
Appeal from the Order Entered December 14, 2016 In the Court of Common Pleas of Blair County Orphans’ Court at No(s): 2016 AD 11C
IN RE: A.S.E.G. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: D.W.G., JR., NATURAL : FATHER : : : : : No. 78 WDA 2017
Appeal from the Order December 14, 2016 In the Court of Common Pleas of Blair County Orphans’ Court at No(s): 2016 AD 11B
BEFORE: PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, J. FILED MAY 15, 2017
D.W.G., Jr. (“Father”) appeals from the order entered on December
14, 2016, granting the petition filed by S.D.S. (“Mother”) and her husband,
J.M.S., (“Stepfather”) to involuntarily terminate his parental rights to his
female child, A.S.E.G., born in August 2007, and his son, D.W.G., III, born J-S31015-17
in December 2005, (collectively, the “Children”), pursuant to the Adoption
Act, 23 Pa.C.S.A. § 2511(a)(1) and (b). We affirm.
In its opinion, the trial court set forth the factual background and
procedural history of this appeal, which we adopt herein. See Orphans’
Court Opinion, 12/14/16, at 1-9. On March 16, 2016, Mother and Stepfather
filed the petitions seeking to involuntarily terminate the parental rights of
Father to the Children. The court held an evidentiary hearing on August 10,
2016. At the hearing, Mother and Stepfather testified on their own behalf.
Father testified on his behalf, and presented the testimony of P.R., his
mother.
Based on this testimony and the documentary evidence admitted at
the hearing, the court entered its termination order and opinion on
December 14, 2016. Father timely filed notices of appeal and concise
statements pursuant to Pa.R.A.P. 1925(a)(2)(i).1
On appeal, Father raises four issues:
I. Whether or not the Mother has demonstrated by clear and convincing evidence that the Father’s conduct over a period of at least six months immediately preceding the filing of the Petition demonstrates a settled purpose of relinquishing his parental claim?
II. Whether or not the Natural Father used all available resources to preserve the parent-child relationship such that the termination of parental rights should not have been granted?
____________________________________________
1 This Court, acting sua sponte, consolidated the two appeals.
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III Whether or not the termination of the parental rights of the responding parent should be granted where the petitioning parent actively sought to undermine and obstruct the relationship between the responding parent and his children?
IV. Whether or not the Mother or the Guardian Ad Litem put forth adequate evidence to allow the Honorable Trial Court to make a constitutionally sufficient determination regarding whether or not there exists a bond between the Father and his Children that would have a detrimental impact on the Children if it were severed?
Father’s Brief, at 5.
In reviewing an appeal from an order terminating parental rights, we
adhere to the following standard:
[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 only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will.
[T]here are clear reasons for applying an abuse of discretion standard of review in these cases. We observed 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 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
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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 817, 826-827 (Pa. 2012) (internal citations
omitted).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. See In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).2
Moreover, we have explained that
[t]he standard of clear and convincing evidence is defined as testimony that is so “clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue.”
Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
In his brief, Father contends that the court abused its discretion or
erred as a matter of law in concluding that the evidence was sufficient to
support the involuntary termination of his parental rights under § 2511(a)(1)
and (b).
This Court may affirm the trial court’s decision regarding the
termination of parental rights with regard to any one subsection of section
2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc). Here, as noted, the court terminated Father’s parental rights under §
2511(a)(1) and (b), which provides as follows: ____________________________________________
2 Thus, the burden to support the petition is not on both the petitioner and the guardian ad litem, as alleged by Father.
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§ 2511. Grounds for involuntary termination
(a) General rule.--The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.
***
(b) Other considerations.--The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent. With respect to any petition filed pursuant to subsection (a)(1), (6) or (8), the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition.
23 Pa.C.S.A. § 2511(a)(1), (b).
With respect to subsection 2511(a)(1), our Supreme Court has held
that
[o]nce the evidence establishes a failure to perform parental duties or a settled purpose of relinquishing parental rights, the court must engage in three lines of inquiry: (1) the parent’s explanation for his or her conduct; (2) the post-abandonment contact between parent and child; and (3) consideration of the effect of termination of parental rights on the child pursuant to Section 2511(b).
In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1988) (citation
Further, this Court has stated that
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the trial court must consider the whole history of a given case and not mechanically apply the six-month statutory provision. The court must examine the individual circumstances of each case and consider all explanations offered by the parent facing termination of his or her parental rights, to determine if the evidence, in light of the totality of the circumstances, clearly warrants the involuntary termination.
In re B.,N.M., 856 A.2d 847, 854-855 (Pa. Super. 2004) (citations
Father argues that the record clearly established that the Mother failed
to sufficiently demonstrate that his conduct over the six months immediately
preceding the filing of the petition demonstrated that he had a settled
purpose of relinquishing his parental claim. Additionally, Father asserts that
he put forth reasonable and significant efforts to find and contact the
Children, and to maintain his bond with them, considering all of the
circumstances surrounding this case.
Specifically, Father contends that he was incarcerated, and he utilized
all of the resources available to him to attempt to establish a connection
with the Children. At the same time, Mother was engaging in ongoing efforts
to evade Father and prevent a relationship between him and the Children.
Father alleges that Mother utilized his incarceration to further these efforts
by refusing to provide him with a contact address, and by moving to
Pennsylvania without telling him.
Moreover, Father contends that the record also clearly established that
Mother actively sought to prevent and obstruct his relationship with the
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Children, and that, by terminating Father’s parental rights, the trial court
rewarded Mother’s misconduct. Father claims that, considering the totality of
the circumstances and the bad faith conduct of Mother, the trial court should
have excused his lack of success in contacting the Children.
Obviously, incarceration makes performance of the duty to protect,
support, and maintain communication with a child much more difficult. Our
Supreme Court has instructed that
a parent’s absence and/or failure to support due to incarceration is not conclusive on the issue of abandonment. Nevertheless, we are not willing to completely toll a parent’s responsibilities during his or her incarceration. Rather, we must inquire whether the parent has utilized those resources at his or her command while in prison in continuing a close relationship with the child. Where the parent does not exercise reasonable firmness in declining to yield to obstacles, his other rights may be forfeited.
47 A.3d at 828 (quoting In re: Adoption of McCray, 331 A.2d 652, 655
(Pa. 1975)). “[I]ncarceration neither compels nor precludes termination of
parental rights.” Id. (quoting In re Z.P., 994 A.2d 1108, 1120 (Pa. Super.
2010)).
Regarding subsection (b), Father argues that neither Mother nor the
guardian ad litem put forth sufficient evidence to allow the trial court to
make a determination as to the existence of a bond between Father and the
Children that, if severed, would have a detrimental impact on them.
This Court has stated that the focus in terminating parental rights
under § 2511(a) is on the parent, but it is on the child pursuant to
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subsection (b). See In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa.
Super 2008) (en banc).
In reviewing the evidence in support of termination under section
2511(b), our Supreme Court recently 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. § 2511(b). The emotional needs and welfare of the child have been properly interpreted to include “[i]ntangibles such as love, comfort, security, and stability.” In re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa. 1993)], this Court held that the 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 K.M., 53 A.3d at 791.
In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).
When evaluating a parental bond, “the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, Section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d at 1121 (internal citations omitted).
Although it is often wise to have a bonding evaluation and make it part of
the certified record, “[t]here are some instances . . . where direct
observation of the interaction between the parent and the child is not
necessary and may even be detrimental to the child.” In re K.Z.S., 946
A.2d 753, 762 (Pa. Super. 2008) (citation omitted).
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The fact that the child “harbors affection” for a parent and that there is
a biological connection is not enough “to establish [that] a de facto beneficial
bond exists.” In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) “The
psychological aspect of parenthood is more important in terms of the
development of the child and [his or her] mental and emotional health than
the coincidence of biological or natural parenthood.” Id. (citations omitted).
“[A] parent’s basic constitutional right to the custody and rearing of . .
. her child is converted, upon the failure to fulfill . . . her parental duties, to
the child’s right to have proper parenting and fulfillment of [the child’s]
potential in a permanent, healthy, safe environment.” In re B.,N.M., 856
A.2d 847, 856 (Pa. Super. 2004) (internal citations omitted). “[W]e will not
toll the well-being and permanency of [a child] indefinitely.” In re Adoption
of C.L.G., 956 A.2d at 1007 (citing In re Z.S.W., 946 A.2d 726, 732 (Pa.
Super. 2008) (noting 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.”)).
With the above standards of review in mind, we have thoroughly
reviewed the record, the parties’ briefs, and the applicable law. We find that
the court ably and methodically considered the evidence presented at trial,
and addressed Father’s issues. The record supports the court’s factual
findings, and the court’s legal conclusions are not the result of an error of
law or an abuse of discretion; competent evidence supports the court’s
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determinations. Accordingly, we affirm the court’s order based on the
discussion in the opinion entered on December 14, 2016. See Trial Court
Opinion, 12/14/16.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/15/2017
- 10 - 8 Circulated 04/26/2017 01:43 PM ' I I 7 4
IN THE COURT OF COMMON PLEAS OF BLAIR. COUNTY, PENNSYLVANIA
IN RE: AJOMMOISIM1LSE10111111111110111111111 : NO. 2016 AD 11B DiION III NO. 2016 AD 11C
HON. WADE A. KAGARISE PRESIDING JUDGE p5=7',.- V--3 c-) -P. r----
MARYANN JOYCE BISTLINE, ESQUIRE COUNSEL FOR PETIT1ONER.S ..- c.::) rrl 7.3-p. cJ r--- - ' 1._-:
JASON M. IMLER, ESQUIRE
JAMES V. MCGOUGH, ESQUIRE COUNSEL FOR RESPOWti\IT (DUNS GM. GUARDIAN AD LITEM -, ,r1 ,.-, n": - :11: :.:. (c:;(,, `v --10
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OPINION
Date: December 14, 2016
The Court has been called upon to decide a Petition for Involuntary, Termination of
Parental Rights regarding two minor children AINSSEapGun, born August Mk 2007 and Da Gan III, born December, 2005. PROCEDURAL mSTORY:
The Petitioners J:M.S. and S.D.S. filed Petitions for Involuntary Termination of Parental
Rights regarding two minor children, A.S.E.G. and D.W.G. III., on or about March 16, 2016.
Petitioner S,D.S. is the biological mother of the subject children. J.M.S. is Petitioner S.D.S.'s
husband. The Respondent D.W.G. Jr., is the biological father of the subject children. The Court
entered an Order on March 30, 2016 scheduling a hearing for May 9, 2016 at 1:30 p.m. The
Order of March 30, 2016 also appointed James McGough, Esquire to serve as Guardian Ad
Litem of the two subject children. On April 29, 2016, the Court entered an Order appointing
Jason linter, Esquire to represent D.W.G. Jr,
1 The Court conducted a hearing on May 9, 2016. At the time of that hearing, Attorney
Itnler on be of D W,G. Jr. requested a continuance of the scheduled hearing which was
granted. The Court utilized the May 9, 2016 proceeding to conduct a status conference with
counsel. As a result, the Court entered an Order on that day scheduling the matter for a full day
evidentiary on August 10, 2016. Further, the Court indicated that another status conference
would occur on June 29, 2016. The Court conducted a status conference on June 29, 2016. As a
result of that status conference, the Court issued an Ordef on that date reaffirming that the
evidentiary hearing would take place on August 10, 2016.
The evidentiary hearing regarding the subject children occurred to its conclusion on
August 10, 2016. At the close of the evidentiary record, the Court was requested by both
Petitioners' and Respondent's counsel to have time to submit legal memorandums, Neither party
objected to the guardian ad litem counsel's desire to simply place his position on the record at -40
the close of the evidentiary hearing. The Court entered an Order indicating that the transcript
would be transcribed no later than August 31, 2016 and that counsel would have until September
30, 2016 to present written arguments and/or briefs in support of their position. The Court
received the Petitioners' legal memorandum/brief on September 30, 2016. Respondent's counsel
requested an extension and filed their legal memorandum/brief on October 4, 2016. This matter
is now ripe for disposition.
FACTUAL HISTORY:
The Petitioner S.D.S. presented testimony at the evidentiary hearing. S.D.S testified that
she was born on December 40, 1988. She testified that she is the subject children's biological
mother. She testified that the Respondent is the subject child's biological father. She testified
that the subject child D.W.G. III was born on December 0, 2005. S.D.S. testified that she lived
2 She testified that in California at the time of D.W.G. III's birth. She resided with her parents.
her parents still reside in the same house they lived in when D.W.G. 111 was born, S.D.S. was in
A.S.E.G. tenth grade when D.W.G. m was born and hadjust graduated from high school when the children was born. S.D.S. testified that the last time the Respondent D.W.G. Jr. visited with heard from D.W.G. was in February of 2012. S.D.S. also testified that the last time that she had
Jr. was in February of 2012. S.D.S. testified that when mail is sent to her Mother's house for
contact with her it is forwarded to her. S.D.S. testified that in addition to D.W.G. Jr. not having D.W.G. Jr. the children she has also not received any cards, letters or gifts for the children from has not attempted nor has he offered to provide support for the children. S.D.S. testified that he
to call the children since February of 2012. California S.D.S. testified that there is a custody order regarding the children in Fresno, order required from 2008 which only referenced D.W.G III. S.D.S. indicated that the custody would be D.W.G. Jr.'s visitation to be through a third party which at the time the parties agreed then he either S.D.S's father. S.D.S testified that D.W.G. Jr. saw the children a couple times but told D.W.G. did not show up at all or would show up under the influence. At that time, S.D.S,
Jr. that they would either have to follow the Court Order or he would have to have his visits at
that she now the Courthouse. S.D.S. testified that the visits ceased at that time, S.D.S. testified is in desires that D.W.G. Jr.'s parental rights be terminated and that she believes that termination Jr. are the best interest of the children. S.D.S. testified that if the parental rights of D.G. adopt the terminated that she will proceed with a Petition for Adoption to allow her husband to
children. and On cross-examination, S.D.S. testified that she left Fresno, California in May 2008 California due returned to Fresno in August of 2010. She testified thatshe originally left Fresno,
3 to the fact that she did not believe that it was the best place to raise the children and also due to
physical abuse that occurred during her relationship with the Respondent. S.D.S. also testified
that she had a sister in Pennsylvania that could provide support. S.D.S. testified that she
returned back to Pennsylvania in June of 2015, S,D,S. testified that she returned to Fresno in
2010 due to the fact that she had dropped out.of nursing school and had two additional children
and needed support from her parents. S.D.S. testified that she returned back to Pennsylvania in
2015 because she got married and believed that the cost of living would be better in
Pennsylvania. She also indicated that after a period of time with the Respondent visiting the
children he began acting out again. S.D,S. testified that on each occasion when she returned to
Pennsylvania she lived in Altoona.
S.D.S. testified that she married her husband on May 25, 2013. S.D.S. testified on cross-
examination that prior to relocating back to Pennsylvania in 2015 she checked with the Court in
California and was informed that as long as the original notarized letter was in place with the
Court that she was able to relocate, She testified on cross-examination that the Respondent was
aware of her parents' residence and also had contact information for her sister,
Upon questioning from the Guardian Ad Litem counsel, S.D.S. indicated that she had no
knowledge of any attempts by the Respondent to file for any modification of the original custody
order in Fresno, California. S.D.S. testified that in 2008 when S,D.S. informed the Respondent
that he would have to have his visitations at the Courthouse, the Respondent responded by
indicating that he was not willing to pay for his visits. After that point the Respondent's visits
would be random and would only occur when he asked to see the children at her parents'
residence. On the occasions where the Respondent requested to see the children at S.D.S's
parents, he was permitted to do so. S.D.S. testified that this occurred approximately two or three
4 that the times prior to her leaving California and moving to Pennsylvania. S .D.S clarified relocate to notarized letter that was on record with the Court was a statement permitting her to the presence of a Pennsylvania. S.D.S. testified that both her and D,W.G. Jr. signed the letter in have notary. S.D.S. explained that when she initially moved to Pennsylvania D.W.G. Jr. would two maybe contact with her by telephone pretty often. She testified that this contact occurred Respondent was three times a week but it gradually stopped. S.D.S. testified that at one point the calls and S.D.S, incarcerated and the Respondent's incarceration would not allow free telephone became said she could not afford to pay for the calls. S.D.S. testified that even though the Father the incarcerated and could not contact her by telephone she received a couple letters from she would Respondent that were sent to her parents' house. S,D.S. testified that the last time that of 2010. have received a letter from the Respondent would have been in 2009 or the beginning bring the S,D.S testified that while D.W.G. Jr. was incarcerated he never requested that S.D.S.
children to see him. was no S.DS. explained that when she returned to California in 2010 and the Respondent
longer incarcerated that he would have visits with the children at her parents' home which_is
would act where she resided. She testified that these visits ceased in 2012 when the Respondent
inappropriately and appear to be under the influence during the visits. This is when S.D.S.
get visitation. indicated again that the Respondent would have to utilize the court system to that the S.D.S. testified that she always allowed visits during this period of time provided
Respondent would act appropriately. It appears from S.D.S.'s testimony during questioning ceased in from the Guardian Ad Litem counsel that at some point after the Respondent's visits
2012 that he was again incarcerated in southern California. During this period of incarceration, with S.D.S. testified that he did not send any letters or cards or have any written communication
5 when she moved her residence the children. S.D.S.'s testimony revealed that on each occasion
that she notified the custody office in Fresno, California of her current address.
the Respondent received a copy of the The period of no communication continued until At that point, Respondent made contact Petition for Involuntary Termination of Parental Rights. the Petition for involuntary with the Petitioner's Father in March of 2016. After receiving a Petition for Modification in the Termination of Parental Rights, the Respondent filed
courthouse in Fresno. hearing. J.M.S. testified that Petitioner J.M.S. also provided testimony at the evidentiary S.D.S. in 2013 and currently he was born on August 13, 1987. He testified that he married testimony that there hasn't been resides with her and the children. J.M.S. corroborated S.D.S.'s provided any letters, packages, or notes any communication from the Father nor has the Father that he was aware of no barriers that regarding the children since 2012. J.M.S. also testified having contact with the children. J.M.S. existed that would have prevented D.W.G. Jr. from a relationship with S.D.S.'s father because he explained during his testimony that D.W. G. Jr. had testimony about his bond and relationship was his football coach in school. J.M.S. also provided
with the subject children, at the evidentiary hearing, D.W.G. The Respondent D.W.G, Jr. also presented testimony Jr. testified that he currently resides Jr. testified that he was born on January 12, 1987. D.W.G. that he works for the California in Fresno, California with his mother. D.W.G. Jr, testified D.W.G. Jr. testified that he is the biological Department of Transportation doing maintenance. was incarcerated from 2009 to 2011 father of the subject children. D.W.G. Jr. testified that he Jr. testified that during his first and again from December 2013 to December 2015. D.W.G. written communication, He period of incarceration he had contact with the children through
6 indicated that this written communication started in 2009 but in 2010 his letters started being
marked "return to sender". returned to him. D. W.G. Jr. testified that the returned letters were
D.W.G. Jr. explained that he did not know why his letters were being returned. D.W.G. Jr.
reunited with his children. testified that when he was released from incarceration in 2011 he was every other week. This Immediately after his release, D.W.G. Jr. said he would see his children and D.W.G. Jr. explained period of contact eventually decreased to approximately twice a month the children only at and that as time went on the contact "trinkled down" until he started seeing have contact with the after church on Sundays. D.W.G. Jr. explained that in 2013 he would
children "once in a blue moon" when he would see the children outside of S.D.S's parents' house
He testified that on and he would pull over and ask if he could spend time with the children.
these occasions he was permitted to spend time with the children. children ended when D.W.G. Jr. explained during his testimony that his contact with the any means of attempting to he was re -incarcerated in 2013. He indicated that he did not have his mother, sister, or contact S.D.S. by telephone. However, he testified that he would have that they attempt to grandmother attempt to go by to make contact with S,D.S. and requested results in attempts to reach out to her. D.W.G. Jr. explained that he did not have any positive for her. D.W.G. Jr. contact S.D.S. because he did not have any contact numbers or addresses he was released he would testified that he was released from prison in December 2015. When sister to see the see S.D.S.'s sister at church, D.W.G. Jr. explained that he would ask the her, D.W.G. Jr. children and S.D.S.'s sister said she would have to discuss the issue with speak to S.D.S.'s parents explained that he would drive by her parents' house but did not actually that he filed for a until the end of March. D.W.G. Jr. also explained during his testimony into evidence modification of his custody rights in April 2016. D.W.G. Jr.'s counsel admitted
7 requiring each the original custody order regarding the children and pointed out the provision Jr. indicated that he parent to provide a telephone number where they could be reached. D.W.G. Jr. stated his belief had S,D.S.'s telephone number until he was incarcerated in 2013. D,W.G. present testimony at that he has a bond with his children and that he traveled from California to
the hearing because he opposes the Petition for Involuutaiy Termination of Parental Rights.
and the Court's On examination from Petitioners' counsel, Guardian Ad Litem counsel, father and questioning, D.W.G. Jr. testified that he had a good relationship with the Petitioners' D.W.G. that he did not send any letters to the children during his second period of incarceration, in 2013 prior to being Jr. testified that he had contact with the children approximately four times
incarcerated, He indicated that this was because he and the Petitioner were not seeing eye to eye.
to Pennsylvania during He also testified that he was unaware that the Petitioner had moved back
his second period of incarceration. Patricia Ross The Respondent also presented testimony at the evidentiary hearing from Jr. in California, Ms. who is D.W.G. Jr.'s mother, Ms. Ross testified that she lives with D.W,G, seeing them. Ms, Ross testified that D.W.G. Jr. wants to see his children and often talks about December 2012 Ross also presented testimony that after she and her son visited the children in number had changed. that they attempted to contact the Petitioner after that only to find that her contact the Petitioner When asked by Respondent's counsel if she had any experiences trying to drove by a couple prior to the Respondent going to jail in 2013, Ms. Ross indicated that they that her and her times at her residence but the Petitioner wasn't home, Ms. Ross also testified the son attempted to make contact with the Petitioner at her own residence that she had with to children after she had moved from her parents. Ms. Ross also indicated that she attempted
8 time through the use of contact the Petitioner while D.W.G. Jr. was incarcerated the second
Facebook and also through word of mouth with his relatives. at the evidentiary hearing. The Court also heard the opinions of the Guardian Ad Litem with the subject The Guardian Ad Litem testified about his observations and interactions exists between the Petitioners children as well as the bond that The Guardian Ad Litem believes
and the children.
APPLICABLE LAW:
right to the care, It has long been recognized that a parent possesses a basic constitutional
custody, and control of his or her child. Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86
625, 67 L.Ed. 1042 (1923). L.Ed. 1655 (1942); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct.
Accordingly, the termination of parental rights is "one of the most serious and severe steps a
890, 891 (1971). Nevertheless, court can take." In re Adoption ofSarver, 444 Pa. 507, 281 A.2d or her parental duties to the a parent's right may be terminated if he or she fails to fulfill his denied, 582 Pa. 718, 872 A.2d child. In re B., N.M., 856 A.2d 847, 856 (Pa.Super, 2004), appeal does not receive either proper parenting or 100 (2005), This right may be terminated if the child gravity of the right at stake, the care in a permanent, safe, or healthy environment. Id. Due to the and considering court takes a careful look at each case, examining its individual circumstances of the circumstances all explanations offered by the parent, to determine whether the totality .R.I.S.; 614 Pa. 275, 36 A.3d 567, warrants an involuntary termination of parental rights. In re E.D.M., 550 Pa. 595, 708 A.2d 88, 572 (2011) (citing In the Matter ofthe Adoption of Charles
91 (1998)).
9 1
must contain The Adoption Act governs who may bring a petition and what the petition
so as to terminate parental rights. Strict adherence to the Adoption Act is a prerequisite to the
with a proposed court's jurisdiction to hear a petition to terminate parental rights in connection 2001). Section 2512 states: adoption. In re Adoption of JED., 782 A.2d 564, 565 (Pa.Super.
(a) Who may file.-A petition to terminate parental rights with respect to a child under the age of 18 years may be filed by any of the following: parent. (1) Either parent when termination is sought with respect to the other
(2) An agency. child and (3) The individual having custody or standing in loco parentis to the (relating to who has filed a report of intention to adopt required by section 2531 report of intention to adopt). a child (4) An attorney representing a child or a guardian ad litem representing to who has been adjudicated dependent under 42 Pa.C, S. § 6341(c) (relating adjudication).
(b) Contents.-The petition shall set forth specifically those grounds and facts alleged as the basis for terminating parental rights. The petition filed wider this section shall also time as contain an averment that the petitioner will assume custody of the child until such aver that an the child is adopted. If the petitioner is an agency it shall not be required to to adopt adoption is presently contemplated nor that a person with a present intention exists.
23 Pa.C.S.A. § 2512. Assuming the petition meets the above threshold requirements, the court
request to terminate a may then consider the underlying procedural requirements and merits of a
parent's rights.
in showing The party seeking the termination of parental rights bears the burden of proof
the grounds for termination. In re 614 Pa. 275, 36 A.3d at 572. Specifically, for a court to
for termination terminate a parent's rights, the petitioning party must prove the asserted grounds that by clear and convincing evidence. id Clear and convincing evidence is defined as testimony
is so "clear, direct, weighty and convincing as to enable the trier of fact to come to a. clear 10 conviction, without hesitance, of the truth of the precise facts in issue." In re J.L,C., 837 A.2d
1247, 1251 (Pa.Super. 2003).
The petitioning party is charged with satisfying the following two-part test to warrant the
termination, which the court considers in a bifurcated manner prior to terminating parental rights:
Initially, the focus is on the conduct of the parent. The patty 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). Only if the court determines that the parent's conduct warrants termination of his or her parental rights does the 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.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007). Section 2511 (a) -(b) provides in pertinent part:
(a) General rule, --The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds: (1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties. (b) Other considerations. --The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent. With respect to any petition filed pursuant to subsection (a)(1), (6) or (8), the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing ofthe petition.
23 Pa.C.S.A. § 2511.
Pursuant to Section 2511(a), the statutory ground for termination is met "if the parent
either demonstrates a settled purpose of relinquishing parental claim to a child or fails to perform
parental duties" for a duration of at least six months. In re C.M.S., 832 A.2d 457, 462 (Pa.Super.
11 2003), appeal denied, 580 Pa. 687, 859 A.2d 767 (2004) (emphasis added). The Pennsylvania
Supreme Court has explained that parental duty "is best understood in relation to the needs of a
child," In re JT., 983 A.2d 771, 777 (Pa.Super. 2009) (quoting In re Burns, 474 Pa. 615, 379
A.2d 535, 540 (1977)).
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. Because a child needs more than a benefactor, parental duty requires that a parent exert himself to take and maintain a place of impOrtance in the child's life.
Id.; In re CM.S., 832 A.2d at 462.
While termination will not occur when parental absence is truly a result of circumstances
outside of a parent's control, a parent must use all available resources to preserve the parent -
child relationship. Moreover, a parent must exercise reasonable firmness in resisting obstacles
that may threaten to impede the parent-child relationship. In re Shives, 525 A.2d 801, 803
(1987). The Commonwealth's courts have repeatedly recognized that "parental 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 immediate physical and emotional
needs." In re C.MS., 832 A.2d at 462 (citing In re Adoption of Godzak, 719 A.2d 365, 368
(Pa.Super 1998)).
Upon finding either a settled purpose of relinquishing parental rights or a failure to
perform parental duties, the court must then consider the following three factors: (1) the parent's
explanation for his or her conduct; (2) the post-abandonment contact between the parent and
12 p 1 I
child child; and lastly (3) consideration of the effect of the termination of parental rights on the
pursuant to Section 2511(b). In re Adoption of Charles ED.M., 708 A,2d at 92.
Pursuant to the first prong, the court must consider a parent's explanation for the apparent
abandonment. Consideration should also be paid to any situations in which the custodial parent impede "has deliberately created obstacles and has by devious means erected barriers intended to his or her free communication and regular association between the non-custodial parent and
child" In re Shives, 525 A.2d at 803. The pertinent inquiry is not the degree of success a parent
may have had in reaching his or her child, but whether, under the circumstances, the parent
employed all available resources to preserve the parent-child relationship. Id. (citing In re
does Adoption ofFaith M., 509 Pa. 238, 501 A.2d 1105, 1108 (1985)). Parental duty certainly
not require the impossible, but may require that which is difficult and demanding. In re Burns,
474 Pa. 615, 379 A.2d 535, 541 (1977). For instance, a temporary delegation of parental duties
to a suitable caregiver during a crisis may constitute evidence of responsible parenting. Petition
ofLutheran Children and Family Service of Eastern Pennsylvania, 456 Pa. 429, 321 A.2d 618,
or 620 (1974). However, a parent's failure to communicate with a child due to drug addiction
even participation in a drug rehabilitation program may not be excused if it occurs over a lengthy
period. In Interest of Q.J.R., 664 A.2d 164, 166-67 (Pa.Super. 1995) (affirming termination of
mother's rights when she did not personally or verbally contact child for over fourteen months
due to her drug addiction and treatment).
In accordance with the second prong, the court must examine the parent's post-
abandonment conduct to determine whether the parent attempted to reestablish a parent -child
relationship. 23 Pa.C.S.A. § 2511(b). Taken alone, past incapacity is not sufficient to warrant
termination; there must be evidence of a parent's present incapacity to parent the child. In re
13 1
Adoption of.A.N.D., 520 A.2d 31,.35 (Pa.Super. 1986). Nonetheless, a child cannot be put "on
hold" until the parent finds it convenient to communicate and care for the child. In re D.J.S., 737
A.2d 283, 286-87 (Pa.Super. 1999). Merely because a parent experienced a renewed interest in
the child after the six-month statutory period had elapsed does not necessarily bar termination.
Id.
Pursuant to Section 2511(b) and as described in the above third prong, the court should
consider the presence the nature and status of the emotional bond between the parent and child,
with close attention paid to the effect on the child if that bond were to be permanently severed. In
re Adoption °P.M, 991 A.2d 321, 323 (Pa.Super. 2010) (citing In re L.M., 923 A.2d at 511). Specifically, the court must determine whether termination of parental rights would best serve
the developmental, physical, and emotional needs and welfare of the child. 23 Pa.C.S.A, §
2511(b). While the emotional bond shared between a parent and child is a major element of the
emotional needs analysis, it is only one factor to be considered; the natural attraction between
parents and children does not equate to a bond that will necessarily defeat a petition to terminate
parental rights. In re N.A.M., 33 A.3d 95, 104 (Pa.Super. 2011). In situations in which there is no
evidence of a bond between parent and child, it is reasonable to infer that no bond exists. In re
Adoption ofJ.M., 991 A.2d at 324 (Pa.Super. 2010) (citing In re KZ.S., 946 A.2d 753, 762-63
(Pa.Super. 2008)). After all, Section 2511(b) requires the court to determine what effect breaking
an existing parent -child bond will currently have on the child; Section 2511(b) does not ask
courts to speculate whether a bond may be formed in the distant future. In re Adoption of J.M.,
991 A.2d at 325. Because the Adoption Act seeks to achieve permanency for the child, the focus
must be on the present rather than on the uncertain future. As a result, the court cannot consider
14 any efforts made by a parent to remedy conditions supporting termination when taken
subsequent to the filing of the petition. In re D. W., 856 A.2d 1231, 1234 (Pa.Super, 2004).
In addition to emotional needs, consideration must also be given to the child's
developmental and physical needs. A parent's rights may not be terminated solely on the basis of
medical care or other environmental factors, including inadequate housing, furnishings, income,
or clothing, provided those factors are deemed outside of the parent's control. 23 Pa.C,S.A. §
2511(b). A parent's rights further may not be terminated simply because the child may encounter
greater advantages in another home. In re Anderson, 464 A.2d 428, 431 (Pa.Super. 1983).
Contained within the Section 2511(b) analysis of the needs and welfare of the child, the court
must also address and evaluate whether the proposed adoption is in the child's best interests. In
re E.M.I., 57 A.3d 1278, 1287 (Pa,Super. 2012) (citing In re Adoption ofL.J.B., 610 Pa. 213, 18
A.3d 1098 (2011)). Intangible benefits, such as the love, comfort, security, and stability that the
child may experience with the adoptive parent, should also be considered in this needs and
welfare inquiry. In re A.S.,11 A.3d 473, 483 (Pa.Super. 2010). Based on the totality of the
circumstances from the above inquiries, the court must then determine whether an involuntary
termination of parental rights is warranted.
Incarceration, while not a litmus test for termination, can be determinative 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 cannot or will not be remedied
by the parent", In re.' Adoption ofSP., 47 A.3d, 817, 830 (Pa. 2012).
15 ,
DISCUSSION:
We find the Petitioner's testimony at the evidentiary hearing credible. We believe the
Petitioners have met their burden to establish by clear and convincing evidence that the
termination of the Respondent's parental rights is warranted. The evidence in this case suggests
that that Respondent failed to have any meaningful contact with the subject children after 2012;
The Respondent's testimony indicated that he saw the children "once in a blue moon" in 2013.
The Respondent estimated the number of contacts with the children during this period of time to
be approximately four. The Respondent indicated that he failed to have any additional contact
with the children in 2013 because he and the Mother were not seeing "eye to eye". We also note
that once the Respondent was re -incarcerated in late 2013 he failed to have any contact with the
children. During his incarceration, he testified that he did not send any cards, gifts, or otherwise
establish any contact with the children. He testified that he had his family members attempt to
reach out to the Mother but claims they were unable to contact her. It was only when he received
the Petition to Terminate Parental Rights in this case that he re-established contact with the
Petitioner's family and requested to see the children.
We believe that the Respondent failed to exercise reasonable firmness in resisting any
obstacles that may have impeded the parent/child relationship. Due to the fact that we find the
testimony of the Petitioners credible, we do not believe that the Petitioner created any real
obstacles. Nonetheless, even if obstacles existed, the Respondent clearly failed to act in
reasonable firmness to overcome these obstacles. The evidence suggests that the Respondent
could have had contact with the children either directly or through the maternal grandparents
prior to his incarceration in 2013 and after his release in late 2015, The testimony established
that the Mother's residence was always on record with the Court in Fresno, California. We also
16 to, #
note that the Respondent's Mother testified that she was aware of a residence that the Mother
lived at after she moved out of her parents' residence, The testimony also established that the
Respondent had a good relationship with the Maternal Grandfather and on every occasion when
he attempted to haire contact with the children through the Maternal Grandfather the Maternal
Grandfather allowed the contact, We also believe that during his incarceration he could have
attempted to maintain farther contact with the children, However, the evidence suggests that he
had no contact with the children either by mail or otherwise during his incarceration. He could
have filed a Petition with the Court in Fresno, California or otherwise requested an alternative
means of maintaining communication with the children during his incarceration. Simply put, the
Respondent failed to have any meaningful contact with the subject children, failed to maintain
the parent/child relationship, and did not engage in any reasonable firmness to maintain his
relationship with the children since 2012.
We also believe that the evidence suggests that the children have a strong bond with the
prospective adoptive father. We believe that this conclusion is supported by the evidence and
also by the recommendation of the Guardian Ad Litem counsel, Furthermore, there is no
evidence of record to suggest that a bond remains between the Respondent and the subject
children, For these reasons, we will enter an Order granting the Petitioner's Petition to'
Terminate Parental Rights,
For the above reasons, we enter the following Order:
0 D