In the Interest of: H.A.Y., a Minor

• Court: Superior Court of Pennsylvania
• Decided: June 8, 2017
• Docket: In the Interest of: H.A.Y., a Minor No. 572 EDA 2017
• Status: Unpublished

Opinion

J-S36002-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: H.A.Y., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : APPEAL OF S.R.Y., FATHER : : : : : : No. 572 EDA 2017

Appeal from the Decree Entered January 26, 2017 In the Court of Common Pleas of Montgomery County Orphans’ Court at No(s): 2016-A0188

IN THE INTEREST OF: S.R.Y., JR., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : APPEAL OF S.R.Y., FATHER : : : : : : No. 574 EDA 2017

Appeal from the Decree Entered January 26, 2017 In the Court of Common Pleas of Montgomery County Orphans’ Court at No(s): 2016-A0189

BEFORE: PANELLA, J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J. FILED JUNE 08, 2017

S.R.Y. (“Father”) appeals the decrees entered on January 26, 2017,

that granted the petitions filed by Kelly Weidner, of Haven Adoptions,

seeking to involuntarily terminate Father’s parental rights to his twin

children, S.R.Y., Jr., a male, and H.A.Y., a female, (collectively, the

“Children”) with G.E.E.B. (“Mother”), pursuant to the Adoption Act, 23

Pa.C.S.A. § 2511(a)(1), (6), and (b), so that R.J.S. (“Adoptive Father”) and J-S36002-17

D.S. (“Adoptive Mother”) (collectively, “Adoptive Parents”) may adopt the

Children. We affirm.1

Mother executed consents to adoption on October 21, 2016. Towards

the end of that month, Adoptive Parents, who live in Utah, had the Children

residing in their home for at least a week until Father objected to the

adoption set up by Mother. The Children were then returned to

Pennsylvania, where Haven Adoptions placed them in temporary foster care

while the adoption proceedings took place. On November 17, 2016, Kelly

Weidner, of Haven Adoptions, filed petitions seeking to involuntarily

terminate the parental rights of Father to the Children and petitions to

confirm consent to adoptions executed by Mother.

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1 The trial court did not file an opinion in this matter. Rather, in a document captioned “Pa.R.A.P 1925(a) Opinion,” the court adopted its reasoning stated on the record at the conclusion of the hearing on the termination petition between pages 124 and 142 as its opinion. See Pa.R.A.P. 1925(a) Opinion. See also N.T., Termination Hearing, 1/25/17, at 124-142. The transcript attached to the Pa.R.A.P. opinion, such that it is, is missing page 142, but that page is included in the record as part of the transcript.

The court’s discussion is devoid of any citations to the record and supporting case law. The failure to draft a proper Rule 1925(a) opinion, containing case law and citation to the record, is simply unacceptable. We, however, decline to remand to the trial court for the preparation of an opinion as that would delay the resolution of this Children’s Fast Track appeal. We strongly caution the trial court against proceeding by adopting on-record discussions as its Rule 1925(a) opinion in the future.

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The trial court held an evidentiary hearing on December 1, 2016. At

the hearing, the trial court granted the petitions to confirm Mother’s consent

to adoption, involuntarily terminating her parental rights.2 The trial court

continued the hearing to January 2017, so that Father could obtain counsel

prior to the court hearing the petitions to involuntarily terminate his parental

rights.

On January 25, 2017, Kelly Weidner, on behalf of Haven Adoptions,

filed amended termination petitions for the Children. The trial court held an

evidentiary hearing with regard to the petitions to terminate Father’s

parental rights. At the hearing, Adoptive Parents first presented the

testimony of Mother. See N.T., Termination Hearing, 1/25/17, at 4. Mother

testified that Father had been at the hospital for the birth of the Children,

but had not provided any money or gifts for the Children, and had refused

her requests for money for the Children. See id., at 6-7, 13. She noted

Father had once provided disposable diapers and a box of baby wipes a

couple of weeks after the Children were born, and that he had only seen

them five or fewer times. See id., at 6, 13, 17. Mother stated that she had

been unable to contact Father for several months, because he had her phone

number blocked on his phone. See id., at 7.

2 Mother has not filed an appeal from the orders confirming her consent to the adoption and involuntarily terminating her parental rights to the Children.

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After Father opposed the adoption, the Children were returned to

Mother’s home from Adoptive Parents’ home in November 2016 for a week

or two. See id., at 18. During the period when the Children were returned to

Mother, she had driven them to Father, at his request—and he had seen

them through the car window on a street in Norristown. See id., at 14-15,

17, 19-20.

At the time of the hearing, the Children were placed in a foster home

through Haven Adoptions. See id., at 8. Mother testified that Father is a

danger to the Children, and has a criminal past. See id., at 9. Mother

testified that she has a five-year-old daughter, S.B, with Father who resides

with her. See id., at 11-12.

Adoptive Father then testified on his own behalf. See id., at 21.

Adoptive Father testified that he and Adoptive Mother have three other

adopted children. See id., at 12. Adoptive Parents had met the Children and

immediately fallen in love with them and wished to adopt them. See id., at

21-23.

Haven Adoptions, on behalf of Adoptive Parents, then presented the

testimony of Kayla Mazzotta, a caseworker employed with Haven Adoptions.

See id., at 24-25. She believed that Adoptive Parents would be good

parents and that the Children would bond with them. See id., at 25-26. She

clarified that Haven Adoptions became involved as a provider of temporary

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foster care for the Children and was not acting as an adoption agency. See

id., at 30.

Father then presented the testimony of Mother’s brother, A.B. See id.,

at 33. He saw Father at the hospital on the day the Children were born. See

id., at 34. A.B. also testified that Father had come to the home where he

resides with his mother, the Children’s grandmother, on several weekends in

June and July 2016, and a bag with diapers and onesies was on the floor at

most times. See id., at 37-38. A.B. was unsure whether Father provided

Mother with any money for the Children. See id., at 38. A.B. testified that

he had seen Father at the birthday party for A.B.’s son in late September

2016. See id., at 39-40. A.B. had seen Mother and the Children at the

party, as well, but he was unsure whether Father brought anything for the

Children. See id., at 40. Between the end of July and the beginning of

November, Father did not contact A.B. to assist him in getting to see the

Children. See id., at 42.

Next, Father presented the testimony of A.C., the mother of Mother’s

niece. See id., at 43. A.C. saw Father at the hospital when the Children

were born. See id., at 44. A.C. saw Father at the birthday party for A.B.’s

son on the last weekend of September 2016. See id., at 44-45. A.C. also

stated that she had seen Father leaving the residence of Mother on four

occasions on weekends prior to the party, after the birth of the Children.

See id., at 45. She observed a bag with diapers, and A.B. told her that there

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were wipes and onesies in the bag, but she did not know whether Father had

brought them for the Children. See id. A.C. testified that Father held the

Children at the party. See id., at 46-47.

Father then testified on his own behalf. See id., at 48. Father testified

that he moved to Norristown in September or October 2016, and that he had

previously resided in New Jersey after his release from incarceration in

2014. See id., at 48-50. Father resides with his sixteen-month-old son and

his girlfriend. See id., at 50. Father also has two older female children, ages

thirteen and nine, who reside with their mother. See id., at 51-52. Father

stated that he has custody of the older two children on weekends, by

agreement of their mother, and not by order of court, and that he pays the

mother of those children $550 a month in child support through a court

order. See id., at 51. Father stated that he would see his five-year-old

daughter with mother, S.B., every other weekend until September or

October 2016, when Mother found out about his girlfriend, and then Mother

would not let him see S.B. See id., at 52. Father testified that he saw S.B.

one time around Christmas 2016, when he went to Mother’s home to discuss

the adoption of the Children. See id., at 52-53. Father stated that Mother

told him that the Children were at the home of a relative. See id. Father

stated that he does not provide any set amount of support to Mother for

S.B., but provides for S.B. on an “as needed” basis. Id., at 53.

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Father testified that he was present for the birth of the Children. See

id., at 53-54. Father stated that he saw the twins more than five times, that

he had seen them on every weekend in June, and that he had mostly seen

them on weekends, when Mother would come to his house in Norristown,

which was being renovated. See id., at 55-59. Father stated that he had

begun working on Saturdays in November 2016. See id., at 58. Prior to his

current employment, Father was fired from his previous job, and was

between jobs. See id., at 57-58. Father stated that the Children had seen

his older children when they were at his home on weekends and at the

homes of his sisters. See id., at 58-59. Father had the trial court admit an

exhibit purporting when he had visited the Children since their birth. See

id., at 59-60; Exhibit F-1. He stated that the visits during the week might

not be 100% accurate, but the visits on the weekends were accurate, and

that the document was 98% accurate. See id. Father had the trial court

admit as an exhibit a group of pictures he had taken of the Children. See

id., at 62-63; Exhibit F-2.

Father testified that he was unaware that Mother was placing the

Children for adoption until he was asked to give his consent. See id., at 60-

61. He also testified that he had provided the Children with supplies

including two boxes of diapers a month, as well as onesies, and that he had

given Mother money for the Children, in the amount of $40 or $50, on

several occasions. See id., at 64. Father stated that Mother would bring the

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Children to his Norristown home and stay for the weekend on every weekend

that he did not have his older two children after their birth until Mother

placed them for adoption. See id., at 64-65. Father testified that he and

Mother took the Children outlet shopping in the summer 2016, and he

purchased some clothing for the Children that Mother subsequently

destroyed as not good enough for the Children. See id., at 66-67. Father

testified that he filed a petition for full custody of the Children on the day

prior to the hearing, January 24, 2017. See id., at 67. Father testified that

he and Mother’s family believe that Mother is placing the Children for

adoption to get back at him. See id., at 68. Father stated that he deserves a

chance to raise them and they deserve a chance to live with him, and not

with some strangers in Utah. See id., at 68.

On cross-examination by counsel for the Children, Father testified that

he paid Mother $150 to $200 a month for support of the Children, in addition

to providing two boxes of diapers and onesies. See id., at 76-77. Father

conceded that the Children cannot survive on $175 a month. See id., at 77.

Father stated that he had gone with S.R.Y., Jr., to Children’s Hospital of

Philadelphia for an acid reflux issue in late September 2016. See id., at 79.

When questioned on cross-examination by counsel for Haven

Adoptions about Exhibit F-1, reflecting that he visited the Children on

October 22, 23, and 30, Father stated that he probably got the dates wrong.

See id., at 70. Father stated that he did not know that Mother was placing

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the Children for adoption when he went to her home after Christmas in

December 2016, and the Children were not present. See id., at 79-80.

Counsel for Haven Adoptions then questioned Adoptive Father on re-

direct examination. Adoptive Father testified that the Children had been with

him and Adoptive Mother on October 21, 22, 23, 29, and 30 of 2016,

contrary to the representation in Father’s Exhibit F-1 and testimony that

they were with Father on those dates. See id., at 93. Mother testified on re-

direct examination that the dates represented on Father’s Exhibit F-1 were

incorrect, and that Father had not seen the Children as many times as

Father indicated, but only five times in total. See id., at 95-96. Mother

stated that Father went with her and bought one box of diapers and one box

of wipes, at her insistence. See id., at 96. She testified that Father never

purchased any clothing for the Children, nor did he provide any money. See

id.

On cross-examination by counsel for the Children, Mother testified that

she could not afford to raise the Children, and that her financial situation

was a factor in her decision to place the Children for adoption. See id., at

97-98. Mother testified that she had discussed her financial situation with

Father and had requested monetary assistance from him, both before and

after the birth of the Children, and that Father had told her that he was not

working. See id. She was unaware that Father was working until she saw

him in his work vest at the termination hearing. See id., at 98. Mother is

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aware that Father provides support for his other children. See id. In their

conversation in December 2016 around Christmas, Father did not offer to

provide support for the Children. See id. Mother stated that father’s Exhibit

F-2 was incorrect because the Children were with Adoptive Parents during

the last weekend of October 2016. See id., at 99-100.

Mother stated that Father never told her that he and his girlfriend were

willing to raise the Children, as he has never admitted to her that he even

has a girlfriend. See id., at 100-101. Mother explained that her five-year-old

child with Father, S.B., is deaf and has implants to help her hearing, and

Father has refused to provide any support for the child. See id., at 101.

Mother’s friend, R., and her husband have helped Mother in raising and

financially supporting S.B. See id., at 101-102. Father comes to birthday

parties for S.B. without bringing any gift for the child, while Mother is

working two jobs to provide for the child financially. See id., at 102. Mother

is afraid that Father poses a danger to the Children and herself because his

criminal past involved gun violence and a shooting that resulted in the death

of an individual. See id., at 103-107.

Based on the testimony and the documentary evidence admitted at the

hearing, the trial court entered decrees granting the termination petitions.

Father timely filed notices of appeal and concise statements pursuant to

Pa.R.A.P. 1925(a)(2)(i). This Court, acting sua sponte, consolidated the

appeals on March 2, 2017.

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On appeal, Father raises two issues:

1. The [t]rial [c]ourt erred in finding clear and convincing evidence existed to terminate Birth Father’s parental rights under 23 Pa.C.S. Section 2511(a)(1).

2. The [t]rial [c]ourt erred in finding clear and convincing evidence existed to terminate Birth Father’s parental rights under 23 Pa.C.S. Section 2511(a)(6).

Father’s Brief, at 4.3

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. ____________________________________________

3 In his brief, Father contends that the trial 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 (6). He does not raise the termination of his parental rights under § 2511(b) in either his concise statement or the Statement of Questions Involved portion of his brief. Thus, he has waived any challenge to the termination under section 2511(b). See Krebs v. United Refining Company of Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (holding that an appellant waives issues that are not raised in both his concise statement of errors complained of on appeal and the statement of questions involved in his brief on appeal). See also In re M.Z.T.M.W., ___ A.3d ___, ___, n.3, 2017 WL 2153892, *3, n.3 (Pa. Super., filed May 17, 2017).

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[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 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).

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)).

This Court may affirm the trial court’s decision regarding the

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).

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In his brief, Father contends that the trial 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 (6). We need only address subsection (a)(1).

§ 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.

With respect to subsection (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

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.

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In re B.,N.M., 856 A.2d 847, 854-855 (Pa. Super. 2004) (citations

With regard to § 2511(a)(1), Father asserts that he has not evidenced

a settled purpose of relinquishing his parental rights, nor has he failed

and/or refused to perform his parental duties. Given the trial court’s

credibility findings, which are supported by the record, we disagree.

The conflicting testimony is set forth in detail above. The trial court

found Father’s testimony that he had visited with the Children on most

weekends since their birth at the end of May 2016 until their placement in

foster care in November of 2016, and that he had provided support for the

Children lacked any credibility. See N.T., Termination Hearing, 1/25/17, at

128-130, 133, 138-139. The trial court found no evidence that Father

interacted with the Children as a parent with an obligation to care for them,

feed them, change their diapers, or provide for them financially. See id., at

134, 138-139. Accordingly, the trial court found that, during the six-month

period preceding the filing of the petition, July 17, 2016 through November

17, 2016, Father failed to perform his parental duties. See N.T., Termination

Hearing, 1/25/17, at 125-126.

The trial court’s credibility determinations are supported by competent

evidence in the record. The petitioner proved by clear and convincing

evidence that the asserted grounds for seeking the termination of parental

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rights are valid. We agree with the trial court that termination of Father’s

parental rights under §2511(a)(1) was warranted.

Decrees affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/8/2017

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