J-S31016-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: J.A.B. A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : : : : : APPEAL OF: J.N., FATHER : No. 869 EDA 2021
Appeal from the Decree Entered March 30, 2021 In the Court of Common Pleas of Montgomery County Orphans' Court at No(s): 2020-A0089
IN RE: N.A.B. A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : : : : : APPEAL OF: J.N., FATHER : No. 870 EDA 2021
Appeal from the Decree Entered March 30, 2021 In the Court of Common Pleas of Montgomery County Orphans' Court at No(s): 2020-A0090
BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: Filed: November 5, 2021
Appellant, J.N. (“Father”), appeals from the decrees entered in the
Montgomery County Court of Common Pleas Orphans’ Court, granting the
petition of Appellees, S.B. (“Mother”) and S.W. (“Stepfather”), for involuntary
termination of Father’s parental rights to his minor children, J.A.B. and N.A.B.
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S31016-21
(“Children”). We affirm.
The trial court set forth the relevant facts and procedural history of this
case as follows:
[Mother] and [Father] separated in 2008 and commenced custody proceedings with respect to their older child, N.A.B., at that time. The younger child, J.A.B., was born in 2012. Custody orders were issued and modified numerous times including in 2013, 2016 and 2017 and thereafter….
Testimony from [Mother] and other witnesses established that [Father] frequently yells at [Mother] over the telephone, seeks to intimidate her, and that on occasion this has occurred over the speakerphone while [Mother] had the children with her in a car. [Mother] testified [that Father] has repeatedly threatened her life or threatened her with bodily harm, and has threatened the life of her husband, [Stepfather].
* * *
The children state that they do not want to be around [Father] because they cannot predict how he will act on any given occasion. They have also indicated they do not feel secure with [Father] and are afraid of him.
In the summer of 2019, his son, N,A.B., stopped attending visits with [Father]. … Testimony from several witnesses indicates that N.A.B. heard [Father] tell [N.A.B.] that [Father] no longer wants to be his father, which hurt N.A.B, and created a wedge in their relationship. Since the summer of 2019, N.A.B. has continually refused visits with [Father] and has indicated that he is uncomfortable around him because he does not know how he’s going to act. [Father]’s visits with [J.A.B.] continued until November 2019….
On November 7th, 2019, the [Orphans’ Court] granted [Mother]’s petition for modification and entered a new custody order that required that all visits between [Father]
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and the children be supervised visits, and specifying that the visit supervisor should be a person approved by [Mother]. According to her testimony, [Mother] sought this custody order because [Father] was threatening her and displaying unstable behavior….
[Mother] identified Ms. Angela Giannone[1] to be the supervisor and notified [Father] of this on December 22, 2019. [Father] responded angrily and stated that he didn’t think he needed his visits supervised….
After the November 2019 order, an order scheduling conciliation for November 25, 2019 was entered. [Father] did not appear before the conciliator….
On January 14, 2020 the [Orphans’ Court] issued a new custody order that suspended [Father]’s weekend visits, required him to have a supervisor for his Wednesday visits, and ordered him to attend an anger management program….
A custody conciliation was scheduled for February 10, 2020 … and [Father] did not attend….
… The [Orphans’ Court] issued a new custody order dated June 17, 2020 that gave [Mother] sole physical and legal custody of [Children], suspended [Father]’s Wednesday visits, and again required [Father] to complete six sessions of anger management before he could resume visits with his children….
… [Father]’s testimony confirms that he was aware of the custody order from the November 7, 2019 and the custody order from June 17, 2020 hearing. Despite knowing about these orders, [Father] made no effort to comply with the order or request modification of the custody order.
(Orphans’ Court Opinion, filed March 30, 2021, at 4-5, 10, 12-15) (internal
record citations omitted).
1 Ms. Giannone is a friend of Mother’s who testified on her behalf at the termination hearing.
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On July 10, 2020, Appellees filed a petition for involuntary termination
of Father’s parental rights. The court conducted termination hearings in
regard to both children on January 13, 2021 and January 14, 2021. On March
30, 2021, the court entered decrees involuntarily terminating Father’s
parental rights to both children. On April 24, 2021, Father timely filed
separate notices of appeal and concise statements of errors complained of on
appeal for each trial court docket number. This Court consolidated the appeals
sua sponte on May 10, 2021.
Father raises the following issues for our review:
The [Orphans’ Court] committed an error of law and/or abuse of discretion when it held that [A]ppellee[s] had proven by “clear and convincing evidence” that [Father]’s parental rights should be terminated pursuant to 23 Pa.C.S. § 2511(a)(1) where [Father] tried to have contact with the minor children but was subjected to parental alienation by [Mother] as evidenced by the testimony at the hearing and that there was not clear and convincing evidence of conduct, sustained for at least six months prior to the filing of the termination petition, which reveals a settled intent to relinquish parental claim to the children or a refusal or failure to perform parental duties.
The [Orphans’ Court] committed an error of law and/or abuse of discretion when it held that [A]ppellee[s] had proven by “clear and convincing evidence” that [Father]’s parental rights should be terminated pursuant to 23 Pa.C.S. § 2511(a)(2) in that the repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child[ren] to be without essential parental care, control or subsistence necessary for their physical or mental well- being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent where [Father] tried to have contact with the minor children but was subjected to parental alienation by [Mother] as evidenced by the testimony at the hearing.
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The [Orphans’ Court] committed an error of law and/or abuse of discretion when it terminated [Father]’s parental rights pursuant to 23 Pa.C.S. § 2511(b) on the basis that the developmental, physical emotional and welfare of the child[ren] was best served by termination of [Father]’s rights where [Father] tried to have contact with the minor children but was subjected to parental alienation by [Mother] as evidenced by the testimony at the hearing.
(Father’s Brief at 5).
On appeal, Father argues that he tried to call and text Children during
the six months prior to the filing of the termination petition but received no
response. Father alleges that Mother alienated Children from him by refusing
to co-parent, failing to encourage Children to visit him, excluding him from
important aspects of Children’s lives such as therapy sessions and school
events, and trying to have him arrested. Father maintains Appellees failed to
present clear and convincing evidence of his refusal to perform parental duties
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J-S31016-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: J.A.B. A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : : : : : APPEAL OF: J.N., FATHER : No. 869 EDA 2021
Appeal from the Decree Entered March 30, 2021 In the Court of Common Pleas of Montgomery County Orphans' Court at No(s): 2020-A0089
IN RE: N.A.B. A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : : : : : APPEAL OF: J.N., FATHER : No. 870 EDA 2021
Appeal from the Decree Entered March 30, 2021 In the Court of Common Pleas of Montgomery County Orphans' Court at No(s): 2020-A0090
BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: Filed: November 5, 2021
Appellant, J.N. (“Father”), appeals from the decrees entered in the
Montgomery County Court of Common Pleas Orphans’ Court, granting the
petition of Appellees, S.B. (“Mother”) and S.W. (“Stepfather”), for involuntary
termination of Father’s parental rights to his minor children, J.A.B. and N.A.B.
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S31016-21
(“Children”). We affirm.
The trial court set forth the relevant facts and procedural history of this
case as follows:
[Mother] and [Father] separated in 2008 and commenced custody proceedings with respect to their older child, N.A.B., at that time. The younger child, J.A.B., was born in 2012. Custody orders were issued and modified numerous times including in 2013, 2016 and 2017 and thereafter….
Testimony from [Mother] and other witnesses established that [Father] frequently yells at [Mother] over the telephone, seeks to intimidate her, and that on occasion this has occurred over the speakerphone while [Mother] had the children with her in a car. [Mother] testified [that Father] has repeatedly threatened her life or threatened her with bodily harm, and has threatened the life of her husband, [Stepfather].
* * *
The children state that they do not want to be around [Father] because they cannot predict how he will act on any given occasion. They have also indicated they do not feel secure with [Father] and are afraid of him.
In the summer of 2019, his son, N,A.B., stopped attending visits with [Father]. … Testimony from several witnesses indicates that N.A.B. heard [Father] tell [N.A.B.] that [Father] no longer wants to be his father, which hurt N.A.B, and created a wedge in their relationship. Since the summer of 2019, N.A.B. has continually refused visits with [Father] and has indicated that he is uncomfortable around him because he does not know how he’s going to act. [Father]’s visits with [J.A.B.] continued until November 2019….
On November 7th, 2019, the [Orphans’ Court] granted [Mother]’s petition for modification and entered a new custody order that required that all visits between [Father]
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and the children be supervised visits, and specifying that the visit supervisor should be a person approved by [Mother]. According to her testimony, [Mother] sought this custody order because [Father] was threatening her and displaying unstable behavior….
[Mother] identified Ms. Angela Giannone[1] to be the supervisor and notified [Father] of this on December 22, 2019. [Father] responded angrily and stated that he didn’t think he needed his visits supervised….
After the November 2019 order, an order scheduling conciliation for November 25, 2019 was entered. [Father] did not appear before the conciliator….
On January 14, 2020 the [Orphans’ Court] issued a new custody order that suspended [Father]’s weekend visits, required him to have a supervisor for his Wednesday visits, and ordered him to attend an anger management program….
A custody conciliation was scheduled for February 10, 2020 … and [Father] did not attend….
… The [Orphans’ Court] issued a new custody order dated June 17, 2020 that gave [Mother] sole physical and legal custody of [Children], suspended [Father]’s Wednesday visits, and again required [Father] to complete six sessions of anger management before he could resume visits with his children….
… [Father]’s testimony confirms that he was aware of the custody order from the November 7, 2019 and the custody order from June 17, 2020 hearing. Despite knowing about these orders, [Father] made no effort to comply with the order or request modification of the custody order.
(Orphans’ Court Opinion, filed March 30, 2021, at 4-5, 10, 12-15) (internal
record citations omitted).
1 Ms. Giannone is a friend of Mother’s who testified on her behalf at the termination hearing.
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On July 10, 2020, Appellees filed a petition for involuntary termination
of Father’s parental rights. The court conducted termination hearings in
regard to both children on January 13, 2021 and January 14, 2021. On March
30, 2021, the court entered decrees involuntarily terminating Father’s
parental rights to both children. On April 24, 2021, Father timely filed
separate notices of appeal and concise statements of errors complained of on
appeal for each trial court docket number. This Court consolidated the appeals
sua sponte on May 10, 2021.
Father raises the following issues for our review:
The [Orphans’ Court] committed an error of law and/or abuse of discretion when it held that [A]ppellee[s] had proven by “clear and convincing evidence” that [Father]’s parental rights should be terminated pursuant to 23 Pa.C.S. § 2511(a)(1) where [Father] tried to have contact with the minor children but was subjected to parental alienation by [Mother] as evidenced by the testimony at the hearing and that there was not clear and convincing evidence of conduct, sustained for at least six months prior to the filing of the termination petition, which reveals a settled intent to relinquish parental claim to the children or a refusal or failure to perform parental duties.
The [Orphans’ Court] committed an error of law and/or abuse of discretion when it held that [A]ppellee[s] had proven by “clear and convincing evidence” that [Father]’s parental rights should be terminated pursuant to 23 Pa.C.S. § 2511(a)(2) in that the repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child[ren] to be without essential parental care, control or subsistence necessary for their physical or mental well- being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent where [Father] tried to have contact with the minor children but was subjected to parental alienation by [Mother] as evidenced by the testimony at the hearing.
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The [Orphans’ Court] committed an error of law and/or abuse of discretion when it terminated [Father]’s parental rights pursuant to 23 Pa.C.S. § 2511(b) on the basis that the developmental, physical emotional and welfare of the child[ren] was best served by termination of [Father]’s rights where [Father] tried to have contact with the minor children but was subjected to parental alienation by [Mother] as evidenced by the testimony at the hearing.
(Father’s Brief at 5).
On appeal, Father argues that he tried to call and text Children during
the six months prior to the filing of the termination petition but received no
response. Father alleges that Mother alienated Children from him by refusing
to co-parent, failing to encourage Children to visit him, excluding him from
important aspects of Children’s lives such as therapy sessions and school
events, and trying to have him arrested. Father maintains Appellees failed to
present clear and convincing evidence of his refusal to perform parental duties
and/or his refusal or incapacity to parent causing Children to be without
essential care. Further, Father contends that he has an important bond with
Children and terminating his parental rights would have a negative effect on
the developmental, physical and emotional needs and welfare of the children.
Father concludes the court erred in terminating his parental rights pursuant
to 23 Pa.C.S.A. § 2511(a)(1), (a)(2), and (b). We disagree.
Appellate review in termination of parental rights cases implicates the
following principles:
In cases involving termination of parental rights: “our standard of review is limited to determining whether the order of the trial court is supported by competent evidence,
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and whether the trial court gave adequate consideration to the effect of such a decree on the welfare of the child.”
In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972
A.2d 5, 8 (Pa.Super. 2009)).
Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court’s decision, the decree must stand. … We must employ a broad, comprehensive review of the record in order to determine whether the trial court’s decision is supported by competent evidence.
In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004) (internal citations omitted).
Furthermore, we note that the trial court, as the finder of fact, is the sole determiner of the credibility of witnesses and all conflicts in testimony are to be resolved by [the] finder of fact. The burden of proof is on the party seeking termination to establish by clear and convincing evidence the existence of grounds for doing so.
In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super. 2002) (internal citations and quotation marks omitted). The standard of clear and convincing evidence means testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue. In re J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We may uphold a termination decision if any proper basis exists for the result reached. In re C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc). If the court’s findings are supported by competent evidence, we must affirm the court’s decision, even if the record could support an opposite result. In re R.L.T.M., 860 A.2d 190, 191[-92] (Pa.Super. 2004).
In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d
1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d 1165
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(2008)).
Appellees filed a petition for the involuntary termination of Father’s
parental rights on the following grounds:
§ 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.
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well- being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
(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), (b).
“A court may terminate parental rights under subsection 2511(a)(1)
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when the parent demonstrates a settled purpose to relinquish parental claim
to a child or fails to perform parental duties for at least six months prior to
the filing of the termination petition.” In re I.J., supra at 10.
Once 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 Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations
omitted). Regarding the six-month period prior to filing the termination
petition:
[T]he 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, 855 (Pa.Super. 2004), appeal denied, 582 Pa.
718, 872 A.2d 1200 (2005) (internal citations omitted).
“The bases for termination of parental rights under Section 2511(a)(2),
due to parental incapacity that cannot be remedied, are not limited to
affirmative misconduct; to the contrary, those grounds may include acts of
refusal as well as incapacity to perform parental duties.” In re S.C.B., 990
A.2d 762, 771 (Pa.Super. 2010). “Parents are required to make diligent
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efforts towards the reasonably prompt assumption of full parental
responsibilities.” In re A.L.D., 797 A.2d 326, 340 (Pa.Super. 2002). Under
Section 2511(a)(2), “the petitioner for involuntary termination must prove (1)
repeated and continued incapacity, abuse, neglect or refusal; (2) that such
incapacity, abuse, neglect or refusal caused the child to be without essential
parental care, control or subsistence; and (3) that the causes of the
incapacity, abuse, neglect or refusal cannot or will not be remedied.” In
Interest of Lilley, 719 A.2d 327, 330 (Pa.Super. 1998).
“Parental rights may be involuntarily terminated where any one
subsection of Section 2511(a) is satisfied, along with consideration of the
subsection 2511(b) provisions.” In re Z.P., supra at 1117. Additionally,
Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evidence that the parent’s conduct satisfies the statutory grounds for termination delineated in Section 2511(a). 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) (internal citations omitted).
Under Section 2511(b), the court must consider whether termination
will meet the child’s needs and welfare. In re C.P., 901 A.2d 516, 520
(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability
are involved when inquiring about the needs and welfare of the child. The
court must also discern the nature and status of the parent-child bond, paying
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close attention to the effect on the child of permanently severing the bond.”
Id. (internal citations omitted). “In this context, the court must take into
account whether a bond exists between child and parent, and whether
termination would destroy an existing, necessary and beneficial relationship.”
In re Z.P., supra at 1121.
After a thorough review of the certified record, the parties’ briefs, and
the relevant law, we conclude the Orphans’ Court’s decision is supported by
competent evidence. See id. Consequently, we affirm the decrees
terminating Father’s parental rights for the reasons stated in the March 30,
2021 opinion filed by the Honorable Lois E. Murphy.
Regarding Section 2511(a)(1), Judge Murphy noted that Father was
aware of the June 2019 and November 2019 custody orders. Nevertheless,
Father made no effort to enroll in or complete anger management classes and
resume visits with Children. (See Orphans’ Court Opinion at 17). Father also
made no effort to coordinate with a professional supervisor to resume visits
with Children. (Id.) Father’s own actions and words created a rift between
him and N.A.B., such that N.A.B. refused visits with Father. (Id. at 18-19).
Due to his own conduct, Father has not had a visit with N.A.B. since the
summer of 2019, or with J.A.B. since November 2019. (Id. at 17).
Other than a few text messages, Father has taken no affirmative actions
to maintain a loving and supportive relationship with his children. (Id. at 20).
Father failed to provide a credible explanation for his failure to take steps to
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maintain a relationship with his children.2 Thus, Judge Murphy determined
that Father failed to perform parental duties for the six-month period prior to
the filing of the termination petitions. See In re I.J., supra.
Regarding Section 2511(a)(2), Judge Murphy observed that Father
refused to comply with various custody orders which would have allowed him
to see Children. Father’s conduct deprived Children of the love and affection
of their biological father. (See Orphans’ Court Opinion at 23-24). Father
demonstrated that he cannot or will not remedy the problem by repeatedly
refusing to comply with custody orders and/or participate in mediation and
conciliation efforts. Id. Further, Father’s “long history of volatility and anger,
paired with his unwillingness to attend anger management, make him
incapable of providing security, safety and permanency for his children.” (Id.
at 25).
Regarding Section 2511(b), Judge Murphy observed that there is no
healthy parental bond between Father and Children. (Id. at 27). As a result
of Father’s actions, Children have no desire to see him or talk to him. Id.
Conversely, Mother and Stepfather have provided for all of Children’s physical
needs, and Father has undertaken little to no effort to contribute. Id. Further,
Children have a strong parental bond with Stepfather who spends quality time
2 We acknowledge Father’s argument that the Orphans’ Court failed to consider his testimony that Mother alienated Children from him. We emphasize, however, that the Orphans’ Court was the fact-finder and sole determiner of credibility. See In re Adoption of A.C.H., supra.
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with them engaging in their favorite activities. (Id. at 28). Thus, Judge
Murphy determined that Children’s needs and welfare would be best served
by terminating Father’s parental rights. See In re Z.P., supra. As to the
foregoing points, we adopt Judge Murphy’s reasoning as our own.
Accordingly, we affirm the decrees involuntarily terminating Father’s parental
rights to Children.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/5/21
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