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

Opinion

J-S13030-15

2015 PA Super 204

IN RE: S.S.W., DOB 11/3/2010 IN THE SUPERIOR COURT OF IN RE: S.F.W., DOB 9/27/2012 PENNSYLVANIA

APPEAL OF: S.W. NOW S.P.W. AND M.J.W.

No. 1726 WDA 2014

Appeal from the Order October 6, 2014 In the Court of Common Pleas of Somerset County Orphans' Court at No(s): 15 Adoption 2014 15A Adoption 2014

BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.

DISSENTING STATEMENT BY MUNDY, J.: FILED SEPTEMBER 24, 2015

I respectfully dissent from the learned Majority’s decision to affirm the

orphans’ court’s order denying Mother and Stepfather’s petition to terminate

Father’s parental rights. In my view, Mother and Stepfather met their

burden in this case.

As noted by the Majority, our cases require “[a] parent [to] utilize all

available resources to preserve the parental relationship, and [to] 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), appeal denied, 872 A.2d 1200 (Pa. 2005) (citation omitted);

see also, e.g., In re Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012)

(stating that a parent has “a duty to utilize available resources to continue a J-S13030-15

relationship with his or her child[]”). The Majority rests its conclusion on the

proposition that all of the orphans’ court’s findings and credibility

determinations are supported by the record. Majority Opinion at 6-9. In my

view, even accepting all of the orphans’ court’s findings of fact and credibility

determinations, its legal conclusion that they amounted to “reasonable

firmness” under Section 2511(a)(1) was in error.

As the Majority observes, the orphans’ court found it significant that,

in a period of three weeks during January 2013, Father “underwent an

extremely difficult time in his life when everything was turned upside down,

and he was, for the most part, on his own to sort out all that had

transpired.”1 Orphans’ Court Opinion, 11/13/14, at 11. However, this does

not alter the legal conclusion that Father failed to exercise reasonable

firmness in resisting the obstacles to maintaining his relationship with the

Children. See B.,N.M., supra. Notably, the obstacles stemmed from

____________________________________________ 1 In addition to the facts surrounding the PFA action, the orphans’ court found Father underwent a difficult time in January 2013 for the following reasons. Mother filed a criminal complaint against him for simple assault arising from the argument that resulted in the PFA order. Orphans’ Court Opinion, 11/13/14, at 11, Finding of Fact ¶ 14. Mother’s father filed a criminal complaint against him for crimes alleging the conversion of funds from the nonprofit company owned by Mother’s father where Father had worked. Id. at 11, Findings of Fact ¶¶ 7, 27-28. Father’s employment at the nonprofit was terminated. Id. at 11, Finding of Fact ¶ 16. Father voluntarily admitted himself for two days to Somerset Hospital for psychological treatment. Id. at 11, Findings of Fact ¶¶ 10-12. Finally, Mother filed a divorce and child custody action against him. Id. at 11, Findings of Fact ¶¶ 20, 23.

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Father’s actions that resulted in the PFA order. Thereafter, Father made a

choice not to participate in the custody action filed by Mother or to initiate

his own action. In addition, Father did not attend the PFA extension hearing

on December 12, 2013, essentially giving up on his affirmative duty to the

Children. Father did not request the orphans’ court to appoint counsel or

inform the orphans’ court that he was not able to appear for the extension

hearing. N.T., 10/3/14, at 81. Father also did not request a continuance of

the extension hearing. Id. at 69. Further, Father did not secure an attorney

for the custody action, nor did he participate in the custody action because

he believed he could not do so without a lawyer. Id. at 49, 77. Father

testified that he intentionally declined to seek financial help from family or

friends to secure an attorney.2 Id. at 70.

Although we may be sympathetic to Father, Section 2511(a)(1) does

not contain an “extremely difficult time” exception. Orphans’ Court Opinion,

11/13/14, at 11. The law requires a parent to attempt to overcome

obstacles placed in his or her path. B., N.M., supra. Father has failed in

this regard, even accepting all of the orphans’ court’s findings and credibility

determinations. As the guardian ad litem stated to the orphans’ court, “part

of performing your parental duties, when you feel you are subject to an

____________________________________________ 2 Although Father satisfied his child support obligation, it is well settled that the performance of parental duties “encompasses more than a financial obligation.” B., N.M., supra (citation omitted).

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unjust PFA perhaps, part of performing your parental duties is to come in

here, to come in here and seek custody, to show up, and none of that

happened.” N.T., 10/3/14, at 102-103. In my view, reasonable firmness

requires such action. I would therefore conclude that Mother and Stepfather

met their burden under Section 2511(a)(1).

Based on the foregoing, I conclude the orphans’ court abused its

discretion when it denied the petition to involuntarily terminate Father’s

parental rights pursuant to Section 2511(a)(1) and (b).3 Accordingly, I

would reverse the October 6, 2014 order and instruct the orphans’ court on

remand to enter a decree involuntarily terminating Father’s parental rights.

I respectfully dissent.

____________________________________________ 3 Because the Majority disposes of Mother and Stepfather’s appeal on Section 2511(a) grounds, any discussion of Section 2511(b) would be moot. However, I note that I agree with the orphans’ court when it found that, with respect to the younger child, S.F.W., she was “born only three months before the separation, [and] it is doubtful that any bond existed between Father and the child which would be harmful to sever should [termination] be granted.” Orphans’ Court Opinion, 11/13/14, at 12-13. However, I disagree with the orphans’ court when it concluded with respect to the older child, S.S.W., that she “would have been over two years of age at the time of separation and would certainly have some theoretical bond with Father, the nature of which was not explored by either party.” Id. at 13. Here, Mother testified that S.S.W. does not ask about Father and does not know him. N.T., 10/3/14, at 20-21. Mother also testified that Stepfather was the “only male role model in their life right now … and was [a] very hands-on [parent.]” Id. at 18-19. Therefore, I would conclude the record demonstrates that terminating Father’s parental rights would serve the needs and welfare of the Children pursuant to Section 2511(b).

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