In Re: E.K.J. Appeal of: A.W. ( 2017 )

J-S55035-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: E.K.J. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
APPEAL OF: A.W. : No. 616 MDA 2017
Appeal from the Decree Entered March 10, 2017
In the Court of Common Pleas of Lancaster County
Orphans’ Court at No(s): 2015-1472
BEFORE: DUBOW, RANSOM, and STRASSBURGER*, JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 13, 2017
A.W. (Mother) appeals from the March 10, 2017 decree which
terminated involuntarily her parental rights to her minor son, E.K.J.
(“Child”).1 After careful review, we affirm.
The orphans’ court summarized the relevant factual and procedural
history of this matter as follows.
[Child] is a minor male child who was born [in August
2014] to Mother during her incarceration at the Muncy State
Correctional Institute (Muncy SCI). Prior to [Child’s] birth,
Mother arranged through Lighthouse Prison Ministries to have
[J.B. and M.B. (collectively, Petitioners)] act as the guardians
and caregivers for [Child] while she was incarcerated.[2]
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
The orphans’ court issued a separate decree on December 1, 2016,
terminating involuntarily the parental rights of J.J., Child’s father. J.J. did
not file a brief in connection with this appeal, nor did he file his own separate
appeal.
2
Petitioners “were part of a prison ministry … and … were matched with a
mom. In [July 2014, they] received a letter from [Mother] saying she had
(Footnote Continued Next Page)
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Petitioners met Mother at Muncy SCI for the first time in early
August of 2014 and Petitioners came to the hospital when
[Child] was born. [Child] had health problems at birth,
reportedly due to drug and alcohol use by Mother during her
pregnancy, and [Child] spent ten days in the NICU due to
meconium aspiration and general breathing issues before he was
released to Petitioners on August 31, 2014. [Child] has lived
with Petitioners since that time.
Mother and Petitioners agreed to a temporary custody
order on September 12, 2014 that laid out the scope and
duration of [Child’s] care. Petitioners were told that Mother was
incarcerated for a parole violation and the duration of the
guardianship would last until her release in June 2015.
Petitioners brought [Child] to visit with Mother twice a month at
Muncy SCI…. There were only two occasions when Petitioners
were unable to bring [Child] to visit. On the first occasion
Mother was in solitary confinement for getting into an
altercation. On the second occasion Mother had been
transferred to a different facility.
Mother was denied parole in April or March of 2015.
Around that time Mother contacted Petitioners and asked them
to care for another child of hers who lived in Erie County. She
indicated that she did not like the resource family that was
caring for the child. When Petitioners called Erie County Children
and Youth they were told that the child was placed in protective
care so that Mother would be unable to contact the child or the
family. Petitioners then discovered that Mother had a previous
charge of endangering the welfare of a child and that she was
prohibited from having contact with minors. Accordingly,
Petitioners stopped bringing [Child] for visitation with Mother in
July of 2015 and filed a petition to involuntarily terminate
Mother’s parental rights on July 1, 2015. Mother wrote a letter
to [the orphans’ court] to contest the petition and she was
appointed counsel. Petitioners subsequently withdrew their
petition on October 16, 2015. Petitioners then filed for custody
on October 23, 2015[,] and were granted physical and legal
custody by order of the court on October 29, 2015.
_______________________
(Footnote Continued)
gotten [their] name from Prison Ministries and that she would like
[Petitioners] to care for her son.” N.T., 2/13/2017, at 6-7.
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Mother was released from prison on January 11, 2016. As
a result of the custody proceeding, a risk[-]of[-]harm hearing
was scheduled to address Mother’s criminal history on January
12, 2016 and March 16, 2016.[3] On January 13, 2016, the
Judge presiding over the risk[-]of[-]harm hearing was sent a
letter from the County of Erie Department of Human Services
Office of Children and Youth advising that Mother was an
indicated perpetrator of abuse. The incident which led to her
indicated status occurred on January 21, 2011[,] and involved
Mother’s failure to seek medical attention for her child. It was
reported that her child was diagnosed with 1st, 2nd, and 3rd
degree burns to the bottom of both feet and Mother did not seek
medical attention for the child for at least ten days. The Erie
County Children and Youth Agency requested a finding of
aggravated circumstances as to Mother which was granted by
the [Erie County juvenile court].
On March 23, 2016[,] after hearing the testimony at the
risk[-]of[-]harm hearing, a Lancaster County Judge found that
Mother posed a serious risk of harm to [Child.] The Court found
that any contact between Mother and [C]hild would have to be
supervised in the presence of an agreed-upon supervisor or
competent professional….
Orphans’ Court Opinion, 3/10/2017, at 2-4 (footnote omitted).
On October 14, 2016, Petitioners filed a second petition to terminate
Mother’s parental rights to Child involuntarily. The orphans’ court conducted
a termination hearing on February 13, 2017. Following the hearing, the
court issued a decree, dated March 10, 2017, terminating Mother’s parental
rights. On April 10, 2017, Mother filed a concise statement of errors
____________________________________________
3
See 23 Pa.C.S. § 5329(a) (requiring a court to consider a parent’s criminal
history prior to making a custody determination); 23 Pa.C.S. § 5329(a.1)
(requiring a court to consider a parent’s history of child abuse as to that
child or other children before making a custody determination).
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complained of on appeal.4 Mother filed an amended concise statement on
April 11, 2017, along with a notice of appeal.5
Mother now raises the following issues for our review.
A. Did the [orphans’] court commit an error of law by allowing
[Petitioners’] deliberate and continuing course of conduct to be
used as a basis for termination?
B. Does the aforementioned error of law require this Honorable
Court overrule the [orphans’] court’s Decree?
Mother’s Brief at 3 (suggested answers and orphans’ court answers
omitted).
____________________________________________
4
Mother filed her first concise statement the day before she filed her notice
of appeal.
5
Generally, a party must file his or her notice of appeal within thirty days of
the entry of the order being appealed. Pa.R.A.P. 903(a) (“Except as
otherwise prescribed by this rule, the notice of appeal … shall be filed within
30 days after the entry of the order from which the appeal is taken.”). Here,
thirty days after March 10, 2017, was Sunday, April 9, 2017. Thus, under
normal circumstances, Mother’s notice of appeal would have been due by
Monday, April 10, 2017. 1 Pa.C.S. § 1908 (“Whenever the last day of any
such period shall fall on Saturday or Sunday, … such day shall be omitted
from the computation.”).
In this case, however, the decree terminating Mother’s parental rights
was never entered, as the docket does not indicate that notice of the decree
was given. As a result, the thirty-day appeal period never began to run. In
re L.M., 923 A.2d 505, 509 (Pa. Super. 2007) (citing Frazier v. City of
Philadelphia, 735 A.2d 113, 115 (Pa. 1999)) (“[T]he 30–day appeal period
is not triggered until the clerk makes a notation on the docket that notice of
entry of the order has been given.”). In addition, while the decree is dated
March 10, 2017, and has a docket date of March 10, 2017, it is stamped as
having been filed on March 15, 2017. We therefore conclude that Mother’s
notice of appeal was timely filed on Tuesday, April 11, 2017.
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We consider Mother’s 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 section 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 [subs]ection 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 [subs]ection
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).
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In this case, the orphans’ court terminated Mother’s parental rights
pursuant to subsections 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 of notice of the filing of the petition.
23 Pa.C.S. § 2511(a)(1), (b).
Here, Mother presents two interrelated issues for our review. In her
first issue, Mother contends that the orphans’ court erred by terminating her
parental rights pursuant to subsection 2511(a)(1). Mother’s Brief at 7-9. In
her second issue, Mother argues that the court’s error with respect to
subsection 2511(a)(1) was “fatal” and requires reversal. Id. at 9-10.
Mother makes no effort to challenge the termination of her parental rights
pursuant to subsection 2511(b) in the argument section of her brief, nor did
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she include any such challenge in her concise statement or statement of
questions involved. Thus, we conclude that Mother waived any challenge as
to subsection 2511(b), and we focus solely on subsection 2511(a)(1). See
In re M.Z.T.M.W., __ A.3d __, 2017 WL 2153892 (Pa. Super. May 17,
2017) (holding that the appellant waived her challenge to subsection
2511(b) by failing to include it in her concise statement and statement of
questions involved).
To meet the requirements of subsection 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.” In re Z.S.W., 946 A.2d 726, 730 (Pa.
Super. 2008) (citing In re Adoption of R.J.S., 901 A.2d 502, 510 (Pa.
Super. 2006)). The court must then consider “the parent’s explanation for
his or her conduct” and “the post-abandonment contact between parent and
child” before moving on to analyze subsection 2511(b). Id. (quoting In re
Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1998)).
This Court has explained that a parent does not perform his or her
parental duties by displaying a “merely passive interest in the development
of the child.” In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (quoting
In re C.M.S., 832 A.2d 457, 462 (Pa. Super. 2003)). Rather, “[p]arental
duty requires that the parent act affirmatively with good faith interest and
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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). Critically, incarceration does not relieve a parent of
the obligation to perform parental duties. An incarcerated parent must
“utilize available resources to continue a relationship” with his or her child.
In re Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012) (discussing In re
Adoption of McCray, 331 A.2d 652 (Pa. 1975)).
Instantly, Mother argues that the orphans’ court erred by terminating
her parental rights, because Petitioners prevented her from maintaining
contact with Child. Mother’s Brief at 7-10. Mother argues that she strove to
maintain a relationship with Child, but that Petitioners engaged in “deliberate
and continuing conduct, which completely obstructed her[.]” Id. at 8.
Mother places particular emphasis on In re J.S.M.’s Adoption, 424 A.2d
878, 880 (Pa. 1981), wherein our Supreme Court explained that a parent’s
lack of communication with his or her child cannot be used as a basis to
terminate parental rights, “[w]here the absence of communication results
from the deliberate conduct of the opposing parent[.]”
In its opinion accompanying the decree on appeal, the orphans’ court
found that Mother evidenced a settled purpose of relinquishing her parental
claim to Child, and that she refused or failed to perform parental duties
during the six months immediately preceding the filing of the termination
petition. Orphans’ Court Opinion, 3/10/2017, at 6. The court found that
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Mother performed no parental duties on Child’s behalf during the relevant six
months, and that Mother made no effort to maintain a relationship with
Child. Id. at 7.
The orphans’ court also rejected Mother’s claim that Petitioners
prevented her from maintaining contact with Child.
Mother cannot claim that Petitioners created barriers to the
development of a parent-child relationship. Petitioners took
[Child] to visit with Mother at the prison twice a month until they
discovered Mother’s history of child abuse. Mother has always
had Petitioners’ phone number and has always been able to call
or text them. Petitioners did not block her calls or refuse to
send pictures and updates of [Child.] The only barrier between
Mother and her son was self-imposed. The court-ordered
supervised visits were available to her, but she did not pursue
them and Mother has not made any attempt to visit her son
since July of 2015.
Id.
After a thorough review of the record in this matter, we conclude that
the orphans’ court did not abuse its discretion. During the termination
hearing, Child’s prospective adoptive mother, J.B., testified at length
concerning the circumstances that brought Child into her care. J.B. testified
about Petitioners’ initial attempt to terminate Mother’s parental rights in
2015, as well as the subsequent custody proceedings, which culminated in
the March 23, 2016 order finding that Mother poses a risk of harm to Child.
Concerning the six months immediately preceding the filing of the
termination petition, on October 14, 2016, J.B. testified that Mother did not
visit with Child. N.T., 2/13/2017, at 55. While Mother was permitted to
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have supervised visits pursuant to the risk of harm order, Mother never
suggested an appropriate supervisor. Id. at 23-24. Moreover, Mother did
not send any cards to Child, nor did she send gifts or financial assistance.
Id. at 39.
While Mother maintained contact with Petitioners during the relevant
six months, J.B.’s testimony reveals that this contact was limited. Mother’s
primary means of contacting J.B. was via text message. Id. at 26. Mother
would send text messages to J.B. asking for pictures of Child, and J.B. would
send pictures back to Mother. Id. J.B. also wrote a letter to Mother in April
2016. Id.
J.B. further testified that she and Mother had a phone conversation in
May 2016, during which Mother indicated that she wanted Petitioners to
adopt Child. Id. at 27. She explained, “she was just telling me her drug of
choice, who the father was, what kind of contact she wanted to have with
him, which was none, who we were to send occasionally letters and pictures
to. I think the maternal grandmother.” Id. at 28. As a result, Petitioners
sent a consent to adoption form to Mother’s attorney, as well as a voluntary
post-adoption contact agreement. Id. at 29. However, Mother did not sign
the consent form. Id. J.B. later learned that Mother had once again been
incarcerated in June 2016, due to a parole violation. Id. at 30. Mother was
released in August 2016, and contacted J.B. via text message, saying that
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she would “fight for her son.” Id. at 31. J.B. then received “sporadic texts”
from Mother from August 2016 until November 2016.6 Id. at 33.
In support of her testimony, J.B. presented exhibits containing every
text message sent to her by Mother since April 2016. Id. at 35. These
exhibits were entered into evidence as Petitioner’s Exhibits 8 and 9, and are
contained in the certified the record on appeal. The exhibits reveal that,
during the relevant six-month period, Mother sent text messages to J.B. on
April 22, 2016, April 29, 2016, May 8, 2016, May 9, 2016, May 18, 2016,
May 19, 2016, May 28, 2016, May 30, 2016, August 2, 2016, August 5,
2016, August 16, 2016, August 21, 2016, September 7, 2016, September
22, 2016, September 29, 2016, October 10, 2016, and October 11, 2016.
See Petitioner’s Exhibit 8. Many of Mother’s text messages consist of her
asking for pictures of Child or asking how Child is doing. Id. In multiple
text messages sent in May 2016, Mother indicates that she would like
Petitioners to adopt Child. See, e.g., id. (text message received May 18,
2016) (“Well since you don’t want to talk I just want to say take damn good
care of my son he’s you[r] son now I am signing him over to you open
adoption[.]”).
____________________________________________
6
J.B. also testified that she received a Facebook message from Mother in
the fall of 2016, and that she and Mother corresponded via e-mail at an
unspecified time. N.T., 2/13/2017, at 31, 36.
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Thus, the record supports the finding of the orphans’ court that Mother
evidenced a settled purpose of relinquishing her parental claim to Child
and/or refused or failed to perform parental duties during the six months
preceding the filing of the termination petition. Contrary to the argument
presented in Mother’s brief, Petitioners did not prevent Mother from
maintaining contact with Child. Mother’s failure to maintain contact with
Child was entirely her own doing, as she failed to pursue visitation by
suggesting an appropriate supervisor. Moreover, while Mother sent text
messages to J.B. asking about Child, it is clear that occasional text messages
are not sufficient to preserve Mother’s parental rights. See B.,N.M., 856
A.2d at 855 (providing that a parent must display more than a “merely
passive interest in the development of the child”).
Accordingly, because we conclude that the orphans’ court did not
abuse its discretion by terminating involuntarily Mother’s parental rights to
Child, we affirm the court’s March 10, 2017 decree.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/13/2017
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