In re E.S.M. ( 1993 )

HUDOCK, Judge,

dissenting:

I respectfully dissent. I disagree with the majority’s conclusion that Appellee could have overcome the obstructive barriers to perform his parental duties to E.S.M. The majority accepts the Appellants’ argument that Appellee contributed to these barriers by not contacting Appellants, E.S.M., or their attorney when he had access to information as to their whereabouts for a period in excess of six months. The majority rests this conclusion on Appellants’ version of the incidents. Specifically, the majority concentrates on the fact that Appellee was given a letter by the natural mother, which contained the address of Appellants’ attorney in June, 1989, and that Appellee then did not make any effort to contact the attorney nor the adoptor parents until March 21, 1990. Although the majority concedes that Appellee subsequently gave the letter to his sister, Ms. Ronnette Newsome, who eventually lost the letter, the majority finds that Appellee has offered no explanation for his failure to attempt contact during the time period in which he possessed the information. Moreover, the majority questions Appellee’s concern for the child in that he again failed to contact Appellants after receiving their telephone number from Ms. Newsome in September or October, 1989. Ms. Newsome, after reading the papers received by her brother, had contacted Appellants’ attorney in July, 1989. She was then contacted by Appellants and given their telephone number which she was to give to Appellee. The majority thus concludes that the barriers were not so great as to prevent Appellee from at least showing concern for his child by inquiring about her well-being. The majority, however, in reaching this determination, has replaced the trial court’s findings of fact with their own. The trial court found that it was unclear as to when Appellee actually obtained Appellants’ telephone number. The only testimony as to when the telephone number was given to Appellee was by Appellee himself. He testified, on direct examination, that he did not receive the telephone number until two or three months after his sisters had been telephoned by Appellants.¹ (N.T. at p. 44). Appellee, however, testified on cross-examination that he had received Appellants’ telephone number approximately one year and three or four months prior to the hearing on the involuntary termination petition held October 1,1991. (N.T. at p. 60). Although Appellee’s testimony differs as to the time of receiving the Appellants’ telephone number, the trial court found that Appellee did not have sufficient knowledge as to where to contact his child until March, 1990, nor his former girlfriend until one month before the hearing. Likewise, the trial court found Appellee’s explanation for failing to contact Appellants’ attorney, subsequent to receiving the initial letter of adoption in June, 1989, credible. Appellee explained that there was so much confusion at that time, and he did not see the address of the attorney on the papers. (N.T. at p. 48). Furthermore, Appellee testified that he did not know what to do with the papers, and that he did not have any help or counseling on the matter. (N.T. at pp. 48, 59). This is precisely why Appellee had taken the papers to his sister’s home, where they were later misplaced. The trial court reasonably found Appellee to have been bewildered by this information. (Trial Court Opinion at p. 5).

Appellate courts are bound by the findings of the trial court, which have adequate support in the record, so long as the findings do not evince capricious disregard for competent and credible evidence. The trial court is free to believe all, part, or none of the evidence presented, and is likewise free to make all credibility determinations and resolve conflicts in the evidence, In re J.W., 396 Pa.Super. 379, 386-388, 578 A.2d 952, 956-57 (1990). I find, after a careful review of the record, the trial court’s assessment of the evidence, in this instance, was not in error. Moreover, Appellants, as the parties petitioning for the termination of the natural father’s parental rights, have the burden of establishing grounds for involuntary termination by clear and convincing evidence. Our Supreme Court has explained the standard as follows:

[t]he 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 hesitance, of the truth of the precise facts in issue.

Matter of Sylvester, 521 Pa. 300, 304, 555 A.2d 1202, 1203-04 (1989); In re J.W., supra, 396 Pa.Super. at 388-389, 578 A.2d at 957. Accordingly, because there remains a doubt as to the actual date when Appellee received Appellants’ telephone number, Appellants have failed to prove beyond clear and convincing evidence that Appellee has neglected or failed to perform his parental duties in light of insurmountable barriers. I would therefore affirm the Decree of the trial court denying Appellants’ petition to involuntarily terminate Appellee’s parental rights.

1 . It is clear that Appellee was uncertain as to the precise date he received Appellants’ telephone number, as only Ms. Newsome had been contacted in July, 1989. Appellee’s other sister, Ms. Kimberly Barnes, had not been contacted by Appellants until March, 1990.