In Re: Adoption of: B.G.R. a/k/a A.R., a Minor ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: B.G.R. A/K/A : IN THE SUPERIOR COURT OF
A.R., A MINOR : PENNSYLVANIA
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APPEAL OF: K.C. :
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: No. 563 MDA 2016
Appeal from the Order Entered March 3, 2016
In the Court of Common Pleas of Berks County
Orphans’ Court at No(s): 84399
BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 19, 2016
K.C. (“Father”) appeals from the March 3, 2016 Order that terminated
Father’s parental rights to infant A.R. (“Child”) pursuant to 23 Pa.C.S. §§
2511(a) and (b) of the Adoption Act. After careful review, we affirm.
The orphans’ court set forth the relevant factual history as follows:
Father and Mother met in the summer of 2011 or 2012 when
Mother was 11 or 12 years of age. Father was 19 or 20 at the
time. They began dating several months later. In late 2014
[23-year-old Father and 14-year-old-Mother] had sexual
intercourse a "handful of times." Father believes the conception
of Child occurred on December [], 2014. He was aware of
Mother's pregnancy about one month after conception. Based
upon his own calculations he estimated the Child's birth for
August [], 2015. In July 2015, Mother's adult brother obtained a
Protection From Abuse [(“PFA”)] Order against Father on behalf
of Mother, which prohibited Father from having any contact with
Mother. Despite the PFA [Order], Father and Mother text-
messaged each other, and Mother telephoned Father. Father
has had no direct contact with Mother since the entry of the PFA
Order.
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Father learned of Child's August [], 2015 birth from Mother's
extended family – grandmother, aunt, and uncle – about two to
three weeks after Child was born. During that conversation, he
also learned that Mother was placing Child for adoption. Roughly
one week later, on September 16, 2015, Father received a
telephone call from A Baby Step Adoption, the adoption agency
assisting Mother with Child's adoption plan. The call lasted a
mere two to three minutes. Father did not ask about Child but
did state that he wanted custody of her. Father called the
agency back the same day and spoke to Barbara Casey, Esq.
Again, it was a short conversation lasting perhaps one to three
minutes.
Father had no further contact with the agency until on or about
January 15, 2016 when he received notice of the termination
hearing. He made no additional telephone calls to the agency,
nor did he send any written correspondence regarding the Child
or his rights. He sent no financial support, cards, presents,
tokens of affection, or clothes for Child. Though acknowledging
that he heard the Child's birth weight was eight pounds, nine
ounces, Father gave the incredible excuse of not knowing the
newborn child's size as the reason for failure to send clothes. He
never requested any photographs of Child; however, he testified
that he received some from Mother's aunt once or twice. Father
resides seven blocks from the agency, but he never stopped in
to demand that Child be returned to him or to ask about her
welfare.
Father is a painter making $14 per hour. He takes home $300
to $1,000 per week. He lives with his mother. Despite this
income and shared-living arrangement, Father claimed he did
not have money to hire an attorney to obtain custody of Child,
but he did have private counsel in his [PFA] matter only a month
prior to Child's birth and again at the termination hearing. He
testified that he needs his money for his criminal charges and
transportation to go to work. Father did not ask for money from
family although it appears family would have been willing to
assist.
Father filed a pro se custody action in October 2015 that he says
was denied pending the results of his criminal case. Apparently
he filed no motion for reconsideration or notice of appeal and
never served papers upon the agency or adoptive family.
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At some point after the September 16, 2015 contact with the
adoption agency, Mother informed Father about Child's birth and
the adoptive family. Father looked up the family on the internet
and learned information such as the adoptive [mother] being a
teacher and the adoptive [father] being an engineer, but he
claimed he did not attempt to find their address. He testified
that he did not want to contact them and risk violating the PFA
Order because of his belief that it covered [Child] as part of the
whole household or family even though the PFA Order was
entered prior to Child's birth. He also did not want the adoptive
family to feel like he was attacking them since they were told
that Child was the product of rape. When questioned, Father
admitted that he could have written a letter and attempted to
deliver it to the family through the agency.
Orphans’ Court Opinion, filed 5/9/16, at 3-5 (footnote omitted).
In August 2015, three days after Child’s birth, Mother executed a
Consent to Adoption pursuant to 23 Pa.C.S. § 2711. On January 13, 2016, A
Baby Step Adoption (“Adoption Agency”) filed a Petition to Confirm Consent
to Adoption and to Terminate Parental Rights. After a hearing, on March 3,
2016, the orphans’ court terminated Father’s parental rights and confirmed
the consent of Mother.
Father filed a timely Notice of Appeal and accompanying Concise
Statement of Errors pursuant to Pa.R.A.P 905(a)(2) and 1925(a)(2)(i). The
orphans’ court filed a 1925(a) Opinion.
Father raises the following issues on appeal:
1. The [orphans’ court abused its discretion and] erroneously
concluded that Father had not maintained contact with [Child]
where Father had no access to [Child] or information as to
[Child]’s whereabouts from birth and therefore had no way to
reasonably have contact with [Child] as [Child] was
immediately placed for adoption. Moreover, Father did take
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steps during the four month period to challenge the adoption
and gain access to [Child].
2. The [orphans’ court abused its discretion and] erroneously
concluded that [Child] was conceived as a result of rape when
there is no evidence that Father’s sexual conduct constituted
rape, and it is unclear as to what definition of rape applies for
the purposes of 23 Pa.C.S.A. [§] 2511(a)(7).
3. The [orphans’ court abused its discretion and] erroneously
concluded that [Child] had no bond with Father when Father
could never reasonably have had an opportunity to bond with
[Child].
Father’s Brief at 4-5.
Father first avers that the orphans’ court abused its discretion in
terminating Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(6)
when it determined that Father “failed for a period of four months preceding
the petition, as re-filed, to make reasonable efforts to establish and maintain
substantial and continuing contact with [Child.]” Order, filed 3/3/16. We
disagree.
Our standard of review regarding orders terminating parental rights is
abuse of discretion. In re A.R., 125 A.3d 420, 422 (Pa. Super. 2015).
Specifically, “[w]e must employ a broad, comprehensive review of the record
in order to determine whether the trial court's decision is supported by
competent evidence.” Id. (quotation and citation omitted).
In termination of parental rights cases, “the burden is upon the
petitioner to prove by clear and convincing evidence that its asserted
grounds for seeking the termination of parental rights are valid.” In re
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Adoption of W.J.R., 952 A.2d 680, 683 (Pa. Super. 2008). “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. (internal
quotation marks and citation omitted).
Upon review, “[i]f competent evidence supports the trial court's
findings, we will affirm even if the record could also support the opposite
result.” In re Adoption of M.R.B., 25 A.3d 1247, 1251 (Pa. Super. 2011).
Further, this Court must agree with the orphans’ court decision as to only
one subsection of 23 Pa.C.S. §2511(a) in order to affirm a termination of
parental rights. W.J.R., supra at 684.
Section 2511(a)(6) provides that parental rights with respect to a
newborn child may be terminated on the grounds that, “the parent knows or
has reason to know of the child's birth, does not reside with the child, has
not married the child's other parent, has failed for a period of four months
immediately preceding the filing of the petition to make reasonable efforts to
maintain substantial and continuing contact with the child and has failed
during the same four-month period to provide substantial financial support
for the child.” 23 Pa.C.S. §2511(a)(6).
Here, Father concedes that he knew Child was born, that he does not
live with Child, that he is not married to Child’s Mother, and that he has
failed to provide financial support for the child. Father’s Brief at 11.
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Father is “only disputing the fourth part of the requirements [–] that
he failed to make reasonable efforts to maintain substantial and continuing
contact.” Id. Father argues that he spoke with the adoption agency,
attempted to contact legal counsel, and filed a pro se custody action.1
Father’s Brief at 12. We do not find this to be a compelling argument.
This Court has stated “[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 K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008).
Moreover, “[i]t is incumbent upon a parent when separated from his
child to maintain communication and association with the child. This requires
an affirmative demonstration of parental devotion, imposing upon the parent
the duty to exert himself, to take and maintain a place of importance in the
child's life.” In re G.P.-R., 851 A.2d 967, 976 (Pa. Super. 2004).
The orphans’ court opines:
It is [] clear that Father has failed to make reasonable efforts to
establish and maintain substantial and continuing contact with
Child. Father learned the identity and some general information
about the prospective adoptive parents who maintained actual
1
While Father testified that he filed a custody action, he never provided any
documentation at trial.
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physical custody of Child yet made no effort to contact them by
any means in order to inquire about Child or to ask for a visit.
The Protection From Abuse Order did not preclude his contact
with them or Child and Father's testimony that he believed in its
preclusive effect was incredible and weak. Similarly he made no
such inquiries with the adoption agency. Father acted as if he
were more concerned about how his contact attempts might
affect the prospective adoptive parents rather than his own
rights, wants, and desires to be a parent and with no apparent
regard for how his lack of contact with Child might affect Child.
Additionally, he found it more important to devote his financial
resources to things other than securing counsel to pursue any
custody rights he might have had, and he failed to actively
prosecute his pro se custody action upon receipt of the very first
preliminary ruling in the matter. It is the Court's perception that
Father has not been diligent in performing his parental duties or
protecting his rights, choosing instead to wait for a more suitable
circumstance.
***
Father has never had any contact with Child, he never served as
a parent to Child, and he will not be in a position to do either
any time soon.
Orphans’ Ct. Op. at 5-6 (footnotes omitted). A review of the record supports
the orphans’ court’s findings. As such, we find no abuse of discretion. See
A.R., supra at 422.
Father next avers that the orphans’ court abused its discretion when it
terminated Father’s parental rights pursuant to 23 Pa.C.S. § 2511(7),
concluding that Child was conceived as a result of Rape, when Father pled
guilty to Statutory Sexual Assault. Father’s Brief at 8, 14.
Because we have determined the orphans’ court did not abuse its
discretion in terminating Father’s parental rights pursuant to 23 Pa.C.S.
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§2511(a)(6), we need not consider this other basis for termination. See
W.J.R., supra at 684.
Father’s final claim of error is that the orphans’ court “erroneously
concluded that [Child] had no bond with Father when Father could never
reasonably have had an opportunity to bond with the child.” Father’s Brief
at 5. Father admits that there is no bond between Father and Child but
argues that “when this short a time period is involved, it is extremely
difficult to say that a child has a bond with anyone. In a situation such as
this, the lack of bonding should be considered a neutral fact as opposed to a
negative. Even if [Father] had had time with the minor child, there would
have been minimal to no bond under the circumstances.” Father’s Brief at
17-18. Father’s argument fails for the following reasons.
This Court has determined that under Section 2511, the lower court
must engage in a bifurcated process prior to terminating parental rights. In
re L.M., 923 A.2d 505, 511 (Pa. Super. 2007). The initial focus “is on the
conduct of the parent” and whether there is clear and convincing evidence
that the “parent's conduct satisfies the statutory grounds for termination
delineated in Section 2511(a).” Id. (internal citations omitted). If the court
determines that the parent's conduct warrants termination of his or her
parental rights then the court will 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
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omitted). 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.” Id.(citations omitted).
While Father argues that the orphans’ court weighed the lack of bond
between Father and Child “against” Father, the record reflects that the
orphans’ court independently determined that there were sufficient grounds
to terminate Father’s parental rights based on Section 2511(a)(6); the court
then properly engaged in a separate bond analysis under Section 2511(b) to
ensure that termination would be in Child’s best interest and would not have
a detrimental effect on Child. There was not a finding “against” Father.
Accordingly, Father’s argument has no merit.
Further, our review of the records supports the orphans’ court’s
determination that the Adoption Agency met its burden under 23 Pa.C.S.
§2511(b). Section 2511(b) “focuses on 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).
This Court has found that “[i]ntangibles such as love, comfort,
security, and stability are involved in the inquiry into the needs and welfare
of the child.” In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005). In
addition, the orphans’ court “must also discern the nature and status of the
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parent-child bond, with utmost attention to the effect on the child of
permanently severing that bond.” Id.This Court has determined that in cases where there is no evidence of
contact between a parent and a child, it is reasonable to infer that no bond
exists. In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super. 2008). Thus, the
extent of the bond-effect analysis necessarily depends on the circumstances
of the particular case. Id. at 763.
In the instant case, the orphans’ court concluded from testimony that
the “foster family has provided for every want and need of Child” and
“[C]hild knows no other parental bond than that which she has with her
foster parents.” Trial Ct. Op. at 9. Further, the orphans’ court found that
there was no evidence of a bond between Father and Child, and that
terminating Father’s parental rights would not have a detrimental effect on
Child. Id. at 9.
Our review of the record supports the orphan’s court’s conclusions that
a termination of parental rights is in the best interest of Child and we find no
abuse of discretion.
In sum, our review of the record supports the orphans’ court’s
determination that the Agency met its burden of proving by clear and
convincing evidence that Father’s parental rights should be terminated
pursuant to 23 Pa.C.S. §§ 2511(a)(6) and 2511(b). Accordingly, we affirm.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/2016
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