In Re: Adoption of J.M.H. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF J.M.H. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: J.J.H., FATHER :
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:
:
:
: No. 84 EDA 2018
Appeal from the Decree December 1, 2017
In the Court of Common Pleas of Montgomery County Orphans’ Court at
No(s): 2017-A0099
BEFORE: BENDER, P.J.E., BOWES, J., and STEVENS*, P.J.E.
MEMORANDUM BY BOWES, J.: FILED JUNE 18, 2018
J.J.H. (“Father”) appeals from the December 1, 2017 decree that
granted the petition filed by L.L. (“Mother”) to involuntarily terminate his
parental rights to their son, J.M.H. We affirm.
During July 2009, J.M.H. was born of Mother and Father’s relationship.
The parties cohabitated until 2011, when Mother and her then-two-year-old
son left the family home. N.T., 11/29/17, at 7, 62. Mother obtained a
protection from abuse (“PFA”) order with respect to Father during 2013. Id.
at 13. Between March 2013 and October 2017, Father was incarcerated
intermittently for a total of twenty-eight months. Id. at 143-44. During this
period, Father failed to send letters, cards, or gifts to his son, although J.M.H.’s
paternal grandmother, L.C., did contribute to his private school costs. Id. at
14-15, 67, 75, 136.
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* Former Justice specially assigned to the Superior Court.
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On June 15, 2017, Mother filed the instant petition to involuntarily
terminate Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2),
and (b), in order to facilitate J.M.H.’s adoption by her husband, J.L.
(“Stepfather”), whom she married in August 2016. The orphans’ court
appointed counsel for J.M.H. and Father, and it conducted an evidentiary
hearing on November 29, 2017.1 Mother and Stepfather testified in favor of
terminating Father’s parental rights. Father testified on his own behalf and
presented his mother as a witness.
At the conclusion of the hearing, the orphans’ court terminated Father’s
parental rights to J.M.H. pursuant to 23 Pa.C.S. § 2511(a)(1) and (b). On
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1 The order appointing counsel for J.M.H. states that “Craig B. Bluestein,
Esquire, is hereby appointed as counsel for [J.M.H.] in the above contested
termination of parental rights proceeding, and any appeal that may be taken
in this matter.” Order of Court, 11/29/17. While Attorney Bluestein filed a
“Brief of the Guardian Ad Litem for the Child” in this Court, both the order
appointing Attorney Bluestein and the transcript from the hearing make it
apparent that Attorney Bluestein acted as legal counsel for J.M.H. For
example, during summations, Attorney Bluestein opined as follows:
Mr. Bluestein: I am confident, based on my discussions with
my client, that he’s aware of the issues involved, just like these
two gentlemen talked to their clients who are aware of the issues
involved. And based on my conversations with my client, as
his counsel, legal counsel, I assert in favor of you finding
that needs and welfare would be promoted by adoption, if
you decide grounds are established.
N.T., 11/29/17, at 177-78 (emphases added). Hence, notwithstanding the
styling of his appellate brief, the certified record confirms that Attorney
Bluestein represented J.M.H.’s legal interest pursuant to 23 Pa.C.S. § 2313(a).
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December 27, 2017, Father filed a timely notice of appeal and a concise
statement of errors complained of on appeal. Father raises the following
issues for our review:
1. Did the honorable trial court commit error in terminating the
parental rights of Father, pursuant to 23 Pa.C.S.A. § 2511(a)(1),
when the testimony at trial demonstrated that Father had made
significant efforts to comply with the terms of relevant court-
ordered reunification efforts and had effectively been prevented
by [Mother] from establishing a parental claim and performing
parental duties[?]
2. Did the honorable trial court commit error in terminating the
parental rights of Father, pursuant to 23 Pa.C.S.A. [§] 2511(a)(2),
when [Mother] did not establish by clear and convincing evidence
that Father’s incapacity cannot or will not be remedied by father,
particularly in light of the impressive strides made by father and
the extent to which Father has endeavored to remain in contact
with the child[?]
3. Did the honorable trial court commit error by involuntarily
terminating Father's parental rights where the evidence confirmed
that (i) a strong and loving bond had existed at relevant times
between father and the child and (ii) [Mother] was unable to
establish by clear and convincing evidence that termination was
in the best interests of the child as contemplated by 23
Pa.C.S.A. [§] 2511(b)[?]
Father’s brief at 2.2
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2 The orphans’ court decree referenced only the statutory grounds for
terminating Father’s parental rights outlined in § 2511(a)(1). However, the
court’s contemporaneous on-the-record statements and its subsequent
opinion also included the grounds under § 2511(a)(2). Accordingly, Appellant
challenged both grounds in this appeal. Nevertheless, as noted in the body of
this memorandum, we sustain the termination of parental rights based on
§ 2511(a)(1), the grounds that the orphans’ court specifically stated in its
decree.
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We review these claims mindful of our well-settled standard of review:
The standard of review in termination of parental rights cases
requires appellate courts 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. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Termination of parental rights is governed by § 2511 of the Adoption
Act, 23 Pa.C.S. §§ 2101-2938, which requires a bifurcated analysis:
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. One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between
parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted).
In this case, the orphans’ court terminated Father’s parental rights
pursuant to § 2511(a)(1), (2), and (b). We need only agree with the orphans’
court as to any one subsection of § 2511(a), as well as § 2511(b), in order to
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affirm. In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc). Here,
we analyze the orphans’ court’s decision to terminate pursuant to §
2511(a)(1) and (b), which provide as follows.
(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.
....
(b) Other considerations.--The court in terminating the rights
of a parent shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child. The rights
of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings,
income, clothing and medical care if found to be beyond the
control of the parent. With respect to any petition filed pursuant
to subsection (a)(1), (6) or (8), the court shall not consider any
efforts by the parent to remedy the conditions described therein
which are first initiated subsequent to the giving notice of the filing
of the petition.
23 Pa.C.S. § 2511(a)(1), (b).
As it relates to § 2511(a)(1), the pertinent inquiry for our review is as
follows:
To satisfy Section 2511(a)(1), the moving party must
produce clear and convincing evidence of conduct sustained
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. . . . Section 2511 does not require
that the parent demonstrate both a settled purpose of
relinquishing parental claim to a child and refusal or failure
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to perform parental duties. Accordingly, parental rights may
be terminated pursuant to Section 2511(a)(1) if the parent
either demonstrates a settled purpose of relinquishing
parental claim to a child or fails to perform parental duties.
In re D.J.S., 737 A.2d 283, 285 (Pa.Super. 1999) (quoting In re Adoption
of Charles E.D.M., 708 A.2d 88, 91 (Pa. 1998)). Although the six months
immediately preceding the filing of the petition are the most critical to the
analysis, “the trial court must consider the whole history of a given case and
not mechanically apply the six-month statutory provision.” In re B., N.M.,
856 A.2d 847, 855 (Pa.Super. 2004). Additionally, as it relates to the orphans’
court’s decision to terminate parental rights pursuant to § 2511(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. § 2511(b). In In re C.M.S., 832 A.2d
457, 462 (Pa.Super. 2003), we explained, “[a] parent is required to exert a
sincere and genuine effort to maintain a parent-child relationship; the parent
must use 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.”
Once the evidence establishes a failure to perform parental duties or a
settled purpose of relinquishing parental rights, the trial court must then
engage in three additional 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
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the child pursuant to Section 2511(b).” In re Z.S.W., 946 A.2d 726, 730
(Pa.Super. 2008) (quoting In re Adoption of Charles E.D.M., supra at 91).
With regard to a parent’s incarceration, in In re Adoption of S.P., our
Supreme Court reiterated the standard of analysis pursuant to § 2511(a)(1)
for abandonment and added as follows:
[a]pplying [In re: Adoption of McCray, 331 A.2d 652, 655 (Pa.
1975)] the provision for termination of parental rights based upon
abandonment, now codified as § 2511(a)(1), we noted that a
parent “has an affirmative duty to love, protect and support his
child and to make an effort to maintain communication and
association with that child.” We observed that the father’s
incarceration made his performance of this duty “more difficult.”
Id.
....
[A] parent’s absence and/or failure to support due to
incarceration is not conclusive on the issue of
abandonment. Nevertheless, we are not willing to
completely toll a parent’s responsibilities during his or her
incarceration. Rather, we must inquire whether the parent
has utilized those resources at his or her command while
in prison in continuing a close relationship with the child.
Where the parent does not exercise reasonable firmness in
declining to yield to obstacles, his other rights may be
forfeited.
In re Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012), (quoting In re:
Adoption of McCray, supra at 655) (footnotes and internal quotation marks
omitted). Further, the Supreme Court stated, “incarceration neither compels
nor precludes termination of parental rights.” In re Adoption of S.P., 47
A.3d at 828 (adopting this Court’s statement in In re Z.P., 994 A.2d 1108,
1120 (Pa.Super. 2010)).
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Father argues that he did not have a settled purpose of relinquishing his
parental rights to J.M.H. and did not refuse or fail to perform parental duties.
Father’s brief at 17. He asserts that he demonstrated a settled purpose of
maintaining his relationship and made repeated efforts to facilitate counseling
and connect with his son that were not successful due to barriers Mother
erected. Id. We disagree.
With regard to § 2511(a)(1), the orphans’ court explained its decision
to terminate Father’s parental rights as follows:
There is simply no question on this record, where birth father has
had no contact with his son since June of 2014, that [Mother] has
established that birth father has failed to perform parental duties
for more than six months prior to the filing of the petition for
termination of parental rights. This failure having been
established, the court must now consider the parent’s explanation
for his conduct, and that quality of any post-abandonment contact
between parent and child. In re Z.S.W., 946 A.2d 726, 730 (Pa.
Super. 2008) (citing In re Adoption of Charles E.D.M., 708
A.2d 88, 91 (Pa 1998)). This [c]ourt finds birth father’s
explanations for his conduct unpersuasive. His behavior in
quibbling over the terms of proposed visits with his son was
needlessly antagonistic and counterproductive. Birth father, even
though granted opportunities by the family court, missed every
opportunity to visit with his son and re-establish a relationship.
There has been no contact between the parent and child for over
three years before the filing of the petition; therefore there is no
continuing relationship between the birth father and the child for
the court to evaluate.
....
In this case, the [c]ourt hereby determines that [Mother]
has established by clear and convincing evidence that the parent
has failed to perform any parental duties for a period of more than
6 months prior to the filing of the petition for termination of
parental rights. Therefore, [Mother] has established by clear and
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convincing evidence a basis for termination of birth father’s
parental rights under section 2511(a)(1).
Orphans’ Court Opinion, 3/6/18, at 6-8.
Our review of the record supports the orphans’ court’s determination.
The record reveals the following. Father has not seen his son since June 2014,
at the latest. He failed to send letters, cards, or gifts, and he squandered his
opportunities to perform his parental duties. During June 2016, a custody
court awarded Father unsupervised partial physical custody of J.M.H. on
alternating Saturdays. However, since he and Mother could not agree on how
the exchanges would take place, Father failed to exercise his custodial rights.
N.T., 11/29/17, at 16-19, 131-32. Four months later, the custody court issued
an order requiring Father to begin reunification therapy with Jane Kessler, and
upon starting therapy, Father could exercise partial physical custody of the
child every other Saturday from noon until 6:00 p.m. Id. Again, Father failed
to act. Rather than employing any reasonable effort to overcome the barriers
to the performance of his parental duties, he did nothing. As Father did not
participate in reunification therapy, he never regained any form of physical
custody. N.T., 11/29/17, at 21, 133. Thus, the record supports the orphans’
court’s determination that Mother established clear and convincing evidence
of abandonment under § 2511(a)(1).
With regard to Father’s explanation for his inaction, Father testified that
he did not attend any school events with his son because he believed that the
2013 PFA prevented it. Id. at 100-101. He also attempted to justify his
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failure to avail himself of his custodial periods by referencing his disagreement
with Mother regarding the logistics of the custody exchanges. Id. at 103-105.
Furthermore, Father claimed that he did not attend reunification therapy
because Dr. Kessler and Mother’s lawyer are friends on Facebook and Father
got “bad feelings” from Dr. Kessler. Id. at 106-107. As discussed infra, these
excuses are unavailing.
In sum, the orphans court determined that Father failed to maintain
contact with J.M.H. for more than three years before Mother filed her petition
to terminate parental rights, and his explanations for his inaction were
unpersuasive. In addition, the orphans’ court concluded that “there is no
continuing relationship between [Father] and [J.M.H.] for the court to
evaluate.” Orphans’ Court Opinion, 3/6/18, at 7. As Father has not had any
contact with his son since 2014, we find that the court’s conclusions are amply
supported by the record. Accordingly, we discern no abuse of discretion in its
decision to terminate Father’s parental rights to J.M.H. pursuant to
§ 2511(a)(1).
Next, we address Father’s challenge to the orphans’ court’s § 2511(b)
analysis. In reviewing the evidence in support of termination under § 2511(b),
our Supreme Court has stated as follows.
[I]f the grounds for termination under subsection (a) are
met, a court “shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child.” 23 Pa.C.S. § 2511(b). The emotional needs and welfare
of the child have been properly interpreted to include
“[i]ntangibles such as love, comfort, security, and stability.” In
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re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M., [533
Pa. 115, 121, 620 A.2d 481, 485 (Pa. 1993)], this Court held that
the determination of the child’s “needs and welfare” requires
consideration of the emotional bonds between the parent and
child. The “utmost attention” should be paid to discerning the
effect on the child of permanently severing the parental bond. In
re K.M., 53 A.3d at 791.
In re: T.S.M., supra at 267.
When evaluating a parental bond, “the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., supra at 1121 (internal citations omitted). Although
it is often wise to have a bonding evaluation and make it part of the certified
record, “[t]here are some instances . . . where direct observation of the
interaction between the parent and the child is not necessary and may even
be detrimental to the child.” In re K.Z.S., 946 A.2d 753, 762 (Pa.Super.
2008).
With regard to § 2511(b), Father argues that “a bond truly exists
between [him] and [J.M.H.]” and that “[i]t is impossible to conclude that
terminating Father’s parental rights ‘will clearly promote the welfare of the
child.’” Father’s brief at 23. Further, Father argues that Mother “was not able
to establish that severing the . . . parent-child bond, given Father’s efforts to
maintain contact with his son and stabilize his life, was in the best interest of
the child.” Id. Father asserts that the “only testimony critical of the bond
between Father and his son came from Mother who, without any doubt
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whatsoever, presented as an extremely biased source who at all relevant
times has wanted Father permanently out of the lives of both herself and her
son.” Id.
In rejecting Fathers assertions, the orphans’ court explained:
In this case, the testimony clearly established that, although
birth father maintains that he loves his son, he has not taken steps
necessary to maintain contact and to maintain a place of
importance in his son’s life. He has not seen his son since June of
2014, nor has he sent his son letters, presents or cards for
birthdays or other occasions. Although he asserts that the PFA
against him obtained by birth mother impeded his contact with his
son, he did not take advantage of the opportunity to arrange visits
pursuant to an order of the family court for every other Saturday.
Based upon all of the testimony, I conclude that no evidence
was presented to support birth father’s contention that there is
now any emotional attachment between birth father and son. I
therefore conclude that the emotional needs and welfare of
J.M.H. . . . can best be met by termination of the parental rights
of the birth father and that J.M.H. . . . will not suffer a detriment
as a result of termination of the parental rights of his birth father.
The testimony also demonstrated that the parental bond
between J.M.H. . . . and his step-father is strong and loving and
that his step-father is involved with him on a daily basis, involved
with his school and extracurricular activities, and supportive of his
special needs.
Orphans’ Court Supplemental Opinion, 3/6/18, at 10-11.
Again, our review of the certified record supports the orphans’ court’s
determination. While Father testified regarding activities he and J.M.H.
engaged in, such as swimming, watching movies, reading, and crabbing, those
events occurred nearly three and one-half years ago when J.M.H. was no older
than four. Father has not seen his son since at least June 2014. N.T.,
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11/29/17, at 103, 111-13. In the interim, Father failed to send letters, cards,
or gifts. Id. at 14-15, 67, 136. Indeed, Mother testified that J.M.H. does not
remember Father and that he is excited to be adopted by Stepfather. Id. at
70, 71.
In contrast to J.M.H.’s non-existent relationship with Father, the child
has a significant bond with Stepfather, whom he typically refers to as “dad.”
Id. at 70, 78-79. The certified record demonstrates that Stepfather and
J.M.H. spend a substantial amount of time together playing, reading books,
and doing homework. Id. at 80-83. Stepfather takes J.M.H. to school events
and doctor’s appointments, and he attends the child’s Cub Scout meetings.
Id. at 80-83.
In light of the foregoing evidence in the certified record, we sustain the
orphans’ court’s conclusion that an emotional attachment does not exist
between Father and J.M.H. and that J.M.H. will not suffer a detriment as a
result of the termination of the parental rights of Father. As the orphans’ court
accurately determined, the parental bond between J.M.H. and Stepfather is
strong and loving and J.M.H.’s needs and welfare can best be met by
terminating the parental rights of Father. Hence, we do not disturb the
orphans’ court’s decree.
Decree affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/18/18
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