In Re Adoption of: K.F.R., a Minor ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF K.F.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: L.R. :
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: No. 1449 MDA 2020
Appeal from the Decree Entered October 7, 2020
In the Court of Common Pleas of Dauphin County Orphans' Court at
No(s): 106-AD-2017
BEFORE: BOWES, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED: MAY 11, 2021
Appellant, L.R. (“Parent”), appeals from the October 7, 2020 Decree that
involuntarily terminated Parent’s parental rights to K.F.R. (“Child”).1 Upon
review, we affirm.
FACTUAL AND PROCEDURAL HISTORY
The relevant factual and procedural history, as gleaned from the trial
court’s Memorandum Opinion and the record, is as follows. Parent has a
history of mental health issues.2 Parent gave birth to Child in November 2011.
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* Former Justice specially assigned to the Superior Court.
1 Parent is Child’s biological mother. Parent identifies as male and began to
confirm his gender identity shortly after Child’s birth. Parent’s Br. at 5 n. 2.
Parent uses the pronouns he/him/his. Id.
2Through the years, mental health providers have diagnosed Parent with Post
Traumatic Stress Disorder, Mood Disorders, Anxiety Disorders, Attention
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When Child was approximately 4 months old, a Community Inclusion
Caseworker (“CIC”) witnessed Parent hold a knife to Child’s face or throat
while inside Parent’s home, prompting involvement from police and Dauphin
County Social Services for Children and Youth (“CYS”). As a result of the
incident, Parent was hospitalized for mental health treatment; Child went to
live with Parent’s adoptive mother, L.R., and adoptive father, J.R.
(“Grandmother” and “Grandfather,” respectively; collectively,
“Grandparents”) as part of a CYS safety plan; and CYS indicated Parent as a
perpetrator of child abuse against Child.
On April 12, 2012, Grandparents filed an Emergency Custody Petition
and Custody Complaint seeking temporary primary legal and physical custody
of Child. On May 18, 2012, after a custody conference, Grandparents and
Parent reached an agreement to grant Grandparents sole legal and primary
physical custody of Child, and to grant Parent two hours of supervised physical
custody each week. Parent began visiting Child in 2013.
Weekly supervised visitation between Parent and Child continued until
the summer of 2017 when then-five-year-old Child refused to see Parent after
an incident occurred during visitation. Specifically, in July 2017, during a visit,
Parent showed Child a Power Point presentation that identified and showed
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Deficit Hyperactivity Disorder, Conduct Disorders, Personality Disorders, and
either Asperger’s or Autism Spectrum Disorder. Parent engages with an
outpatient therapist, a psychiatrist, and an in-home behavioral specialist. See
Parent Ex. 1, Psychological Risk Evaluation and Bonding Assessments, at 15-
18; N.T. Hearing, 3/6/20, at 136-37.
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pictures of Child’s biological family members, who were unknown to Child at
the time, and informed Child they were her real family. Parent also told Child
that Grandparents were not her real family, and that they were not blood
related. Child, who was not previously aware that Parent was adopted by
Grandparents, became upset and yelled at Parent. Grandparents and Parent
had a heated discussion that resulted in Parent aggressively “belly bumping”
Grandmother in front of Child, which further upset Child.3
On August 21, 2017, Grandparents filed a Petition to Involuntarily
Terminate Parental Rights (“TPR Petition”) to Child. On March 6 and June 15,
2020, the trial court held hearings on Grandparents’ TPR Petition.4 The court
heard testimony from Grandmother; Grandfather; Laura Holahan, a parent
from Child’s dance school; Kim Melhorn, director at Child First Family Services;
Elizabeth Beman, behavioral specialist at Focus Behavioral Health
Incorporated; and Parent. Child’s Guardian ad litem, Allison Hastings, Esq.,
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3 Parent has a history of aggressive behavior. In 2012, Parent bit his
behavioral health specialist; the same behavioral health specialist witnessed
Parent puff his chest in an aggressive way towards his fiancé; sometime
between 2012 and 2017, Parent pulled a knife on a medical staff member,
resulting in a ban from the facility; and in 2015 Parent pulled a knife on a
pastor who was providing counseling to him. See Trial Court Opinion,
10/3/20, at 6.
4 According to the trial court, “[t]here was a pending custody petition in front
of the court which resulted in a delay on the termination matter.” Trial Ct.
Op., filed 11/30/20, at 1. We are unable to confirm this as our review is
limited to the certified record in the termination proceedings.
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and Child’s attorney, Mindy Goodman, Esq., both advocated that the court
grant Grandparents’ TPR Petition. On October 7, 2020, after considering
evidence and reviewing Briefs, the trial court entered a Decree terminating
Parent’s parental rights to Child.5, 6
Parent timely appealed. Both Parent and the trial court complied with
Pa.R.A.P 1925.
ISSUES RAISED ON APPEAL
Parent raises the following issues for our review:
1. Whether the trial court erred or abused its discretion by
involuntarily terminating [Parent]’s parental rights pursuant to
23 Pa.C.S. § 2511(a)(1) and (2)?
2. Whether the trial court erred or abused its discretion by
involuntarily terminating [Parent]’s parental rights pursuant to
23 Pa.C.S. § 2511(b)?
Parent’s Br. at 4 (some capitalization omitted).
LEGAL ANALYSIS
When we review a trial court’s decision to grant or deny a petition to
involuntarily terminate parental rights, we must accept the findings of fact and
credibility determinations of the trial court if the record supports them. In re
T.S.M., 71 A.3d 251, 267 (Pa. 2013). “If the factual findings are supported,
appellate courts review to determine if the trial court made an error of law or
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5The Decree is dated October 3, 2020, but the clerk did not give the parties
written notice of the Decree until October 7, 2020. See Pa.O.C.R. 4.6.
6 The court also entered a Decree terminating the parental rights of Child’s
biological father, who is not a party to this appeal.
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abused its discretion.” Id. (citation omitted). “Absent an abuse of discretion,
an error of law, or insufficient evidentiary support for the trial court’s decision,
the decree must stand.” In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009)
(citation omitted). We may not reverse merely because the record could
support a different result. In re T.S.M., 71 A.3d at 267. We give great
deference to the trial courts “that often have first-hand observations of the
parties spanning multiple hearings.” Id. Moreover, “[t]he 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 M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citation omitted).
Section 2511 of the Adoption Act, 23 Pa.C.S. § 2511, governs
termination of parental rights, and requires a bifurcated analysis. “Initially,
the focus is on the conduct of the parent.” In re Adoption of A.C., 162 A.3d
1123, 1128 (Pa. Super. 2017) (citation omitted). “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).” Id. (citation omitted). If the court determines that the parent’s
conduct warrants termination of his or her parental rights, the court then
engages 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. (citation omitted). Notably, while the trial court
here found that CYS met its burden of proof under 23 Pa.C.S. § 2511(a)(1),
(5), (8), and (b), we need only agree with its decision as to any one subsection
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of Section 2511(a), as well as Section 2511(b), in order to affirm the
termination of parental rights. See In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc).
Termination Pursuant to 23 Pa.C.S. § 2511(a)(1)
Parent first avers that the trial court abused its discretion when it
terminated his parental rights pursuant to Section 2511(a)(1). Parent’s Br. at
12. Parent argues that the record is devoid of evidence that he evidenced a
settled purpose of relinquishing his parental rights to Child. Id. at 9. Parent
contends he maintained weekly visitation, attended Child’s dance recitals,
attempted to file several custody petitions, sent cards to Child, and purchased
gifts, clothes, and school supplies for Child. Id. at 9, 17, 18. Finally, Parent
asserts that one month prior to Grandparents filing the TPR Petition, he “made
an affirmative claim of parentage over [Child]” when he presented Child with
a “photographic slide show of her biological family[.]” Id. at 10. Upon review,
we find no abuse of discretion.
Section 2511(a)(1) provides that the trial court may terminate parental
rights if the Petitioner establishes that “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. §
2511(a)(1). The focus of involuntary termination proceedings is on the
conduct of the parent and whether that conduct justifies a termination of
parental rights. In re B.L.L., 787 A.2d 1007, 1013 (Pa. Super. 2001).
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Although the statute focuses on an analysis of the six months immediately
preceding the filing of the petition, “the court must consider the whole history
of a given case and not mechanically apply the six-month statutory provision.”
In re K.Z.S., 946 A.2d 753, 758 (Pa. Super. 2008) (citation omitted). Rather,
“[t]he court must examine the individual circumstances of each case and
consider all explanations offered by the parent facing termination of his
parental rights, to determine if the evidence, in light of the totality of the
circumstances, clearly warrants the involuntary termination.” Id. (citations
omitted). “However, 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 petition.” In re Adoption of A.C., 162 A.3d
1123, 1129 (Pa. Super. 2017) (citing 23 Pa.C.S. § 2511(b)).
This Court has repeatedly defined “parental duties” in general as the
affirmative obligation to provide consistently for the physical and emotional
needs of a child:
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 . . . requires continuing interest in the
child and a genuine effort to maintain communication and
association with the child. Because a child needs more than
a benefactor, parental duty requires that a parent exert
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himself to take and maintain a place of importance in the
child’s life.
In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations and internal
paragraph breaks omitted).
Moreover, “[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.” Id. (citation omitted). “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.” Id. (citation omitted). And most importantly,
“[p]arental 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.” Id. (citation omitted).
Simply put, “adequate parenting requires action as well as intent.” In re
J.W., 578 A.2d 952, 959 (Pa. Super. 1990) (emphasis in original).
The trial court did not conclude that Parent evidenced a settled purpose
of relinquishing his parental rights under Section 2511(a)(1), rather, the court
found that Parent failed to perform parental duties for Child for more than
five years prior to the filing of the TPR Petition. Trial Ct. Op., dated 10/3/20,
at 3-4. Our review of the record supports the trial court’s determination that
Grandparents met their burden under Section 2511(a)(1). Parent’s failure to
act affirmatively and utilize all available resources to regain custody of Child
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over the past eight years has resulted in Child living with Grandparents, the
only “parents” she has ever known, since she was four months old.
The trial court credited Grandparent’s testimony about the extent of
Parent’s involvement in Child’s life and found that Parent’s efforts in visiting
two hours per week, attending dance recitals, and buying some items for Child
did not rise to the level of performing “parental duties.” The trial court opined:
Although [Parent] visited with [Child], [Parent]’s contact was
limited to two hours of supervised visits per week. During
testimony, Grandparents reported the visits were more like a play
[date] rather than [Parent] creating a parent/child relationship.
Grandfather further reported that [Parent] would often become
verbally aggressive toward himself or Grandmother, which would
then upset [Child]. [Parent] did not inquire about doctor
appointments, supply sufficient clothing, or offer to help pay for
food. This is supported by the testimony of both Grandmother
and Grandfather who stated that [Parent] initially inquired about
and attended doctor appointments but then stopped participating
in medical appointments and inquiring about [Child]’s health.
Both Grandmother and Grandfather testified that [Parent]
provided “an outfit here or there” and school supplies, usually
after school started, and did not offer to assist with food or
medication when [Child] was sick. . . . [Parent] testified to sending
cards and gifts on holidays and birthdays and attending [Child]’s
dance recitals. This appears to be the extent of [Parent]’s attempt
to connect and maintain a relationship with [Child] or perform
parental duties.
Id. The record supports the trial court’s findings.
Moreover, the trial court emphasized that Parent failed to make efforts
to modify the custody Order that prevented him from seeing Child for more
than two hours per week:
While [Parent] testified to several attempts to initiate modification
of the custody order and visitations, [Parent] did not pursue [his]
case by paying the necessary fee or filing an application to proceed
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in forma pauperis. [Parent] further testified to waiting on
Grandparents when he approached Grandfather about changing
visitations and was told that it was up to the court. This
demonstrates a lack of an active and diligent effort toward [the]
resumption of full parental responsibilities.
Id. at 5.
We agree. The main obstacle preventing Parent from performing
parental duties was the custody Order that restricted his visitation. Our review
of the record reveals that Parent made minimal efforts to modify the custody
Order or pursue custody of Child, falling short of the requirement that he
utilize all available resources and exercise reasonable firmness to maintain a
parent-child relationship. In short, Parent failed to act. Instead, Parent
allowed Grandparents to provide Child with her physical and emotional needs
for the past eight years while Parent attended limited weekly supervised
visitation with Child.
Finally, the trial court acknowledged that Parent made some efforts after
Grandparents filed the TPR Petition, including attempting to arrange for visits
through Child First Family Services and saving money for Child. Trial Ct. Op.,
dated 10/3/20, at 4. However, the court declined to consider these efforts,
explaining: “[p]ursuant to § 2511(b), the [c]ourt is not permitted to take into
account the efforts by a parent subsequent to receiving notice that a
termination petition has been filed.” Id. We agree that Section 2511(b)
precludes this evidence from consideration. 23 Pa.C.S § 2511(b).
In sum, the trial court concluded, “[Parent]’s efforts were too little and
too late.” Trial Ct. Op., dated 10/3/20, at 4. Our review of the record supports
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the trial court’s findings. We decline to reweigh the evidence or usurp the
lower court’s credibility determinations. Accordingly, we find no abuse of
discretion. Moreover, because we agree with the trial court’s decision as to
subsection (1) of Section 2511(a), we decline to address subsection (2).7
Termination Pursuant to 23 Pa.C.S. § 2511(b)
Parent also contends that the trial court abused its discretion in
terminating his parental rights pursuant to 23 Pa.C.S. § 2511(b). Parent’s Br.
at 21. To support his argument, Parent makes a bald averment that
reunification with him is in Child’s best interest. Id. at 11. Parent’s argument
fails.
With respect to Section 2511(b), our analysis focuses on the effect that
terminating the parental bond will have on the child. In particular, we review
whether “termination of parental rights would best serve the developmental,
physical, and emotional needs and welfare of the child.” In re Adoption of
J.M., 991 A.2d 321, 324 (Pa. Super. 2010). It is well settled that
“[i]ntangibles such as love, comfort, security, and stability are involved in the
inquiry into needs and welfare of the child.” In re C.M.S., 884 A.2d 1284,
1287 (Pa. Super. 2005) (citation omitted).
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7We note that Parent failed to raise a challenge to subsection (2) of Section
2511(a) in his Rule 1925(b) Statement. We also decline to address his
challenge to subsection (2) because it is waived. Pa.R.A.P. 1925(b)(4)(vii).
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One major aspect of the “needs and welfare” analysis concerns the
nature and status of the emotional bond that the child has with the parent,
“with close attention paid to the effect on the child of permanently severing
any such bond.” In re Adoption of N.N.H., 197 A.3d 777, 783 (Pa Super.
2018) (citation omitted). The fact that a child has a bond with a parent does
not preclude the termination of parental rights. In re A.D., 93 A.3d 888, 897
(Pa. Super. 2014). Rather, the trial court must examine the depth of the bond
to determine whether the bond is so meaningful to the child that its
termination would destroy an existing, necessary, and beneficial relationship.
Id. at 898. Moreover, the trial court may consider intangibles, such as the
love, comfort, security, and stability the child might have with the adoptive
resource. In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011). Ultimately, the
concern is the needs and welfare of the child. In re Z.P., 994 A.2d 1108,
1121 (Pa. Super. 2010).
Instantly, the trial court made findings that Child is doing well in school,
has neighborhood friends, is involved in church activities, attends dance
classes, receives support through a therapist arranged by Grandparents, calls
Grandparents “Mom” and “Dad,” and wants to be adopted by Grandparents.
Trial Ct. Op., dated 10/3/20, at 7. The trial court emphasized that the bonding
assessment conducted by Dr. Shienvold stated that Child would be negatively
impacted if her relationship with Grandparents was severed. Trial Ct. Op. at
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6. The trial court concluded that terminating Parent’s parental rights to Child
would be in Child’s best interest, opining:
Now eight years old, [Child] has only experienced Grandparents
as her parents. At this point [Child] expresses no desire to have
contact with [Parent], although Grandparents expressed a desire
to have [Parent] be part of [Child]’s life when [Child] is ready for
this relationship. There is nothing to indicate that [Child] would
be harmed by terminating [Parent]’s parental rights. Indeed,
there is every indication that termination of parental rights and
subsequent adoption by Grandparents would provide permanency
for [Child] and would be in [Child]’s best interest.
Id. at 8. Our review of the record supports the trial court’s findings and, thus,
we find no abuse of discretion.
CONCLUSION
In conclusion, the trial court did not abuse its discretion when it found
that Grandparents presented clear and convincing evidence to terminate
Parent’s parental rights to Child.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/11/2021
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