In Re: S.S.W., Appeal of: S.W. & M.J.W.

125 A.3d 413
CourtSuperior Court of Pennsylvania
DecidedSeptember 24, 2015
Docket1726 WDA 2014
StatusPublished
Cited by12 cases

This text of 125 A.3d 413 (In Re: S.S.W., Appeal of: S.W. & M.J.W.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re: S.S.W., Appeal of: S.W. & M.J.W., 125 A.3d 413 (Pa. Ct. App. 2015).

Opinions

OPINION BY

STABILE, J.:

Appellants, S.P.W. (Mother) and M.J.W. (Stepfather), appeal from the orphans’ court’s October 6, 2014 order denying their petition for involuntary termination of the parental rights of J.M.W. (Father), to S.S.W. and S.F.W. (the Children). We affirm.

The orphans’ court set forth its findings of fact in its opinion of November 13, 2014. In relevant part, the court found that the Children have been in sole custody of Mother since January 4, 2013. Orphans’ Court’ Opinion, 11/13/14, at ¶ 6. Father has not attempted contact with Mother or Children since then. Id. at ¶ 25. Mother obtained an order pursuant [415]*415to the Protection Prom Abuse (PFA) Act1 after a December 27, 2012 incident during which Father threatened to shoot himself in Mother’s presence and also grabbed Mother’s thigh, resulting in visible bruising. Id. at ¶¶ 8-9, 13. At a January 10, 2013 PFA hearing, Father consented to entry of an order without admitting the underlying facts. Id. at ¶ 17, Pursuant to that order, Mother had sole physical and legal custody of the Children and Father was not permitted any contact. Id. Also, on January 10, 2013, Father sent.flowers to Mother to apologize for his conduct. Id. at ¶ 19. On January 19, 2013',' Father took diapers for their baby to Mother’s office and left them as Mother was out of town. Id. at ¶21. For this attempted contact, police charged Father with indirect criminal contempt of the PFA order. Id. at ¶22. Father pled guilty and received a 90-day suspended sentence. Id. at ¶ 23.

Father participated in two months of counseling in April and May of 2013 for which a certificate of completion was provided to the Somerset County probation officer. Id. at ¶30. Father also underwent faith-based pasto'r'al counseling. Id. at ¶ 31. The orphans’ court found Father “has undergone a reversal in his mental outlook through having secured a new job with job training and steady responsible work.” Id. at ¶ 31.

The trial court extended the PFA order to January 10, 2016 because Father failed to appear at a December 12, 2013 PFA extension hearing. Id. at ¶36. Father’s employer denied his request for time off to attend the hearing and Father did not believe his appearance at the hearing would alter the result because he could not afford counsel. Id. at ¶ 37. Father attempted to obtain counsel for the custody proceeding though Legal Aid, but Legal Aid declined assistance due to criminal charges pending against Father. Id. at ¶ 43.

In its analysis, the orphans’ court noted Father’s emotional “turnaround” owing to psychiatric treatment. Id. at' 12.2 Concerning § 2511(b), the orphans’ court noted, “There was no testimony from either party regarding thé relationship between [Father] and [the Children] prior to January 2013.” Id. Specifically, the court noted the older child was two at the time of separation and neither party offered evidence, on the nature of the bond between the older child and Father. Id. at 13.

The orphans’ court credited Father’s testimony that he could not afford counsel and that the absence of competent counsel rendered him unaware of the possibility of modifying the PFA to permit him to maintain a relationship with the Children. Id. In addition, “[a]ny attempts he made to make amends with [Mother] or to initiate contact with his in-laws was deemed contemptuous by. the court, resulting in his arrest.” Id.

On July 31, 2014, Appellants filed a petition seeking termination of Father’s parental rights pursuant to 23 Pá.C‘.S.A. § 2511(a)(1) and (b). At the conclusion of an October 3, 2014 hearing on the petition, the orphans’ court found that Appellants failed to. prove by clear and convincing evidence that termination of Father’s parental rights was appropriate under § 2511(a)(1). The orphans’ court entered an order to that effect on October 6, 2014, and Appellants filed a timely appeal.3

[416]*416Section 2511(a)(1) permits involuntary termination of parental rights where á parent exhibits a settled purpose of relinquishing his or her parental claim or refuses to perform parental duties for six months prior to the filing of a termination petition. 23 Pa.C.S.A. § 2511(a)(1). On appeal, Appellants argue the orphans’ court erred because the record reflects clear and convincing evidence of Father’s settled purpose of relinquishing his parental rights, or failure to perform parental duties. for at least six months, prior to Appellants’ petition.,

Although the six month- period immediately preceding the filing of- the petition is most critical to the analysis,-the court must consider the whole history of the case and not mechanically apply the six-month statutory provision. The trial court must examine the individual circumstances of each case and consider all of the explanations of the parent to decide if the evidence, under the totality of the circumstances, requires involuntary termination.

In re I.J., 972 A.2d 5, 10 (Pa.Super.2009). “A parent must utilize all available resources to preserve the parental relationship, and must exercise reasonable firmness in resisting obstacles placed in the path of maintaining the parent-child relationship.” In re B., N.M., 856 A.2d 847, 855 (Pa,Super.2004).

Our' courts have piovided the following guidance on the meaning of parental duty:

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

In re C.M.S., 832 A.2d 457, 462 (Pa.Super.2003) (quoting In re Burns, 474 Pa. 615, 379 A.2d 535, 540 (1977)), appeal denied, 580 Pa. 687, 859 A.2d 767 (2004).

We review the orphans’ court’s decision for abuse of discretion or error of law, and we must defer to the orphans’ court’s findings of fact if the record supports them. In re L.M., 923 A.2d 505, 511 (Pa.Super.2007). As we have already noted, termination of parental rights is appropriate only where clear and convincing evidence supports termination under § 2511(a), Id.

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Cite This Page — Counsel Stack

Bluebook (online)
125 A.3d 413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ssw-appeal-of-sw-mjw-pasuperct-2015.