Term. of Par. Rights H.J.P., Appeal of: N.I.L., II

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

TERMINATION OF PARENTAL RIGHTS : IN THE SUPERIOR COURT OF TO: H.J.P., A MINOR : PENNSYLVANIA :

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APPEAL OF: N.I.L., II, FATHER :

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: No. 185 MDA 2023

Appeal from the Order Entered December 2, 2022 In the Court of Common Pleas of Schuylkill County Orphans' Court at No(s): A63-021-2022

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and SULLIVAN, J. MEMORANDUM BY McLAUGHLIN, J.: FILED: JULY 25, 2023 N.I.L., II (“Father”) appeals from the order terminating his parental rights to H.J.P. (“Child”). He argues the court erred in finding grounds for termination under 23 Pa.C.S.A. §§ 2511(a)(1) and (b) and that the court erred in relying on the recommendation of Child’s attorney/guardian ad litem. We affirm.

In April 2022, H.V. (“Mother”) filed a petition to terminate Father’s parental rights, to allow for her husband, P.V., to adopt Child. Child was born in July 2019, and was approximately two years and nine months old. The court appointed counsel for Father and for Child.

At a November 2022 hearing, counsel for Child stated that she had met with Child on two occasions. She opined that because of Child’s age, he did not understand adoption, but she believed she could speak on his behalf

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relative to his best and his legal interests. All parties agreed that Child’s counsel could represent Child’s legal and best interests.

The trial court’s opinion sets forth the factual history in full. See Trial Ct. Op., filed Dec. 2, 2022, at 1-9, (“1925(a) Op.”). In summary, Father, Mother, P.V, and Child’s paternal grandfather, N.I.L. (“Grandfather”), testified at the hearing. Mother has had custody of Child since birth. During Child’s first year, Father saw Child sporadically. In September 2019, Father initiated a custody action. In December 2019, the court entered a custody order wherein the parties shared legal custody and Mother had primary physical custody. Father had custody every other weekend from Friday until Sunday. Father did not follow the schedule, often not exercising his custody times.

From February 2020 until June 2020, Father was incarcerated. He did not attempt to contact Child during this time. When he was released from prison, he contacted Mother and scheduled a visit in August 2020, which his parents attended but he did not.

Mother filed for child support at an unspecified time. Father was ordered to pay $400 per month. He paid child support only once, after he was arrested for failure to pay the support.

From June 2020 to December 2020, Father did not have regular contact with Child, and he did not send gifts or cards. From January through June 2021, Father had irregular contact with Child, often missing visits. In June 2021, Father was again incarcerated. Father’s parents had visits with Child in August 2021, winter of 2021, and February 2022, where Father may have

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spoken on the phone with Child. While he was incarcerated, Father did not contact Mother or send letters inquiring about Child.

Prior to his incarceration, Mother invited Father to attend Child’s doctor appointments, but he did not do so.

P.V. has been in Child’s life for two years and began living with Mother and Child in August 2021. P.V. expressed his love for Child, and testified he had a good relationship with Child, who calls him “Daddy.”

Father testified that he lives in a room in a building with three other men and is on state parole. Although he has a job where he earns $20.00 per hour, he has not paid child support.

The court credited the testimony presented by Mother and found the evidence presented by Father, “in particular that presented via the testimony of [Grandfather], [was not] credible in numerous material respects.” 1925(a) Op. at 9.

The trial court entered an order terminating Father’s parental rights.

Father appealed.

Father raises the following issues:

A. Whether the trial court erred and/or abused its discretion in terminating Father’s parental rights?

B. Whether the trial court erred and/or abused its discretion in relying upon the recommendation of the Child’s attorney/guardian ad litem where the Child’s attorney/guardian ad litem did not interview Father inperson and where the Child’s attorney/guardian ad litem failed to observe Father with Child?

Father’s Br. at 4 (suggested answers and some capitalization omitted).

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Father argues Mother did not prove he had failed to perform parental duties. He points out he was incarcerated from June 2021 through June 2022, and claims he had been exercising periods of custody prior to his incarceration. He argues that he had video chats and phone calls with Child while he was incarcerated when Child was with his paternal grandparents (“Paternal Grandparents”). He claims that Mother was clear she would not support Father’s relationship with Child during his incarceration. Father notes that incarceration alone is not sufficient to demonstrate a parent abandoned a child, and argues the court erred in finding he failed to maintain contact with Child. He argues the court erred in crediting Mother’s testimony as to the number of times Child saw Paternal Grandparents, as she had “every incentive to be less than forthcoming.” Id. at 21.

He further argues even if Mother’s testimony is deemed credible, “when viewed with the totality of the evidence, [it] was neither clear nor convincing.” Id. Father claims he scheduled video calls when Child was with Paternal Grandparents, and although “it is arguable that Father could have done more to assert himself as the Child’s parent, these calls are sufficient proof that Father has not evidenced a settled purpose of relinquishing parental claim to the Child.” Id. Father claims the court also erred by “ignoring Mother’s efforts to thwart and discourage Father’s relationship with the Child,” alleging Mother did not let Child visit Father in prison and “clearly stated to Paternal Grandparents that she did not want Father to have contact with the Child during his incarceration.” Id. at 22. He claims his period of incarceration was

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“relatively short-term,” he had been involved in Child’s life prior to incarceration, and he attempted to reinsert himself in Child’s life after the incarceration. Father states that although Child is bonded with Mother’s husband, P.V., “there is room in the Child’s life for both men to exist.” Id. at 23, 24-25. He claims the court erred in basing a finding that no harm would come to Child from termination on the fact that Child did not remember Father, stating that it was an “oversimplifi[cation of] the life-long impact the termination of parental rights will have on the Child.” Id. at 25.

When we review termination of parental rights cases, we “accept the findings of fact and credibility determinations of the trial court if they are supported by the record.” In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citation omitted). “If the factual findings have support in the record, we then determine if the trial court committed an error of law or abuse of discretion.” In re Adoption of K.C., 199 A.3d 470, 473 (Pa.Super. 2018). We may reverse a trial court’s decision in a termination case “for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will.” In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012).

A party seeking to terminate parental rights has the burden of establishing grounds for termination by clear and convincing evidence. See In re Adoption of K.C., 199 A.3d at 473. Clear and convincing evidence means evidence “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.” Id. (citation omitted).

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Termination of parental rights is controlled by Section 2511 of the Adoption Act. See In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007). Under Section 2511, the trial court must engage in a bifurcated analysis prior to terminating parental rights:

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.

Id. (citations omitted).

Here, the trial court terminated Father’s parental rights pursuant to Subsection 2511(a)(1). That subsection provides:

(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.

23 Pa.C.S.A. § 2511(a)(1). “With respect to any petition filed pursuant to subsection (a)(1) . . . , 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(b).

Subsection 2511(a)(1) requires the moving party to prove by clear and convincing evidence that the subject parent engaged in “conduct, sustained

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for at least the six months prior to the filing of the termination petition, which reveals a settled intent to relinquish parental claim to a child or a refusal or failure to perform parental duties.” In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008). The parental obligation is a “positive duty which requires affirmative performance” and “cannot be met by a merely passive interest in the development of the child.” In re C.M.S., 832 A.2d 457, 462 (Pa.Super. 2003) (quoting In re Burns, 379 A.2d 535, 540 (Pa. 1977)). Indeed,

[p]arental duty requires that the parent act affirmatively with good faith interest and effort, and not yield to every problem, in order to maintain the parent-child relationship to the best of his or her ability, even in difficult circumstances. 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. 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 physical and emotional needs.

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

Here, the trial court concluded that Mother proved by clear and convincing evidence grounds for termination under Section 2311(a)(1). It reasoned, “Father did not put forth any reasonable effort to ‘maintain a place of importance in the child’s life.’” 1925(a) Op. at 10 (citation omitted). The court pointed out that Father did not exercise regular custody prior to his incarceration, did not provide monetary support for Child despite his testimony that he had been employed, did not attend Child’s doctor visits or inquire about Child’s health after the visits or provide gifts or letters or contact the

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Child at Child’s home while Father was in prison, and had only occasional contact while Child was with Paternal Grandparents. Id. The court found there was “no reliable explanation” for Father’s failure to maintain contact with Child while in prison, finding that “[t]o the extent Father contends that Mother said or did anything to prevent . . . contact, such is not found credible.” Id. at 11. Following review of the briefs, relevant statutory and case law, the trial court record, and the well-reasoned opinion of the Honorable Jacqueline L. Russell, we affirm the court’s finding of grounds for termination under Section 2311(a)(1) on the basis of the trial court opinion. Id. at 9-11.

Under section 2511(b), the trial court must consider “the developmental, physical and emotional needs and welfare of the child” to determine if termination of parental rights is in the best interest of the child. See 23 Pa.C.S.A. § 2511(b). This inquiry involves assessment of “[i]ntangibles such as love, comfort, security, and stability.” Interest of K.T., --- A.3d ---- , Nos. 37 & 38 WAP 2022, 2023 WL 4092986, at *14 (Pa. filed June 21, 2023) (quoting In re T.S.M., 71 A.3d at 26). The court must examine any pre- adoptive home and any bond between the child and the foster parents. Id. Further, “if the child has any bond with the biological parent, the court must conduct an analysis of that bond[.]” Id. “[T]o grant termination when a parental bond exists, there must be clear and convincing evidence that the bond is not necessary and beneficial.” Id. at *19. “[A]n ‘adverse effect’ or ‘detrimental impact’ of severance alone cannot demonstrate a necessary and beneficial bond.” Id.

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Further, “analysis of the parental bond is but one part of the overall subsection (b) analysis, which includes a determination of whether the bond is necessary and beneficial to the child, i.e., whether maintaining the bond serves the child’s developmental, physical, and emotional needs and welfare.” Id. at *18. “The Section 2511(b) inquiry must also include consideration of other important factors such as: the child’s need for permanency and length of time in foster care consistent with 42 Pa.C.S. § 6351(f)(9) and federal law [the Adoption and Safe Families Act], 42 U.S.C. §§ 675(5)(C), (E); whether the child is in a preadoptive home and bonded with foster parents; and whether the foster home meets the child's developmental, physical, and emotional needs, including intangible needs of love, comfort, security, safety, and stability.” Id.

The trial court concluded that no harm would come to Child if Father’s parental rights were terminated. Trial Ct. Op. at 11. It reasoned that Child did not recognize Father when they most recently saw each other. Id. at 11-12. Further, the court pointed out that P.V. “served the role of father for a lengthy period of time when considering [C]hild’s young life, while Father either was incarcerated or had abandoned that role.” Id. at 12. The court further reasoned that Father offered no satisfactory reason for failing to consistently contact Child during his incarceration. The trial court also found that the developmental, physical, and emotional needs and welfare of Child supports termination. It noted no emotional bond existed between Father and Child. It further pointed out that Child had been living with Mother and P.V., with whom

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Child had a bond and a “wonderful relationship.” Id. It concluded termination would serve Child’s best interests. After reviewing the briefs, trial court record, relevant law, and the trial court opinion, we affirm the court’s finding under Section 2511(b) on the basis of the trial court opinion. Id. at 10-12.

Father next claims that the court erred in relying on the recommendation of Child’s attorney/guardian ad litem, reasoning the attorney had minimal contact with Father, whom she did not meet in person or observe with Child. He claims the attorney “was not open to information that would alter her premature conclusion that Father’s rights should be terminated.” Father’s Br. at 16. Father maintains the attorney should have, at a minimum, met with him. He argues that she did not fulfill her duties and therefore the court erred in relying on her verbal report.

Father has waived this claim because he failed to raise it before the trial court. Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot be raised for the first time on appeal”). Father never raised an objection to Child’s attorney/guardian ad litem’s ability to opine as to the legal and best interests of Child, and did not contend at any time before the trial court that the attorney/guardian ad litem should have met with Father.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 07/25/2023

Circulated 07/06/2023 02:18 PM