In the Interest of: S.E.E., a Minor ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.E.E., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: M.S. MOTHER AND :
S.S., STEPFATHER :
:
:
: No. 1779 EDA 2017
Appeal from the Order Entered May 17, 2017
in the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000997-2016
BEFORE: BENDER, P.J.E., MUSMANNO, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 08, 2018
Appellants, M.S. (“Mother”) and S.S. (“Stepfather”), file this appeal from
the order dated May 16, 2017, and entered May 17, 2017,1 in the Philadelphia
County Court of Common Pleas, Family Court Division, denying their petition
to involuntarily terminate the parental rights of R.E. (“Father”) to his minor
daughter with Mother, S.E.E. (“the Child”), born in October of 2011, pursuant
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* Former Justice specially assigned to the Superior Court.
1 The subject order was dated May 16, 2017. However, the clerk did not
provide notice pursuant to Pa.R.C.P. 236(b) until May 17, 2017. Our appellate
rules designate the date of entry of an order as “the day on which the clerk
makes the notation in the docket that notice of entry of the order has been
given as required by Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b). Further, our
Supreme Court has held that “an order is not appealable until it is entered on
the docket with the required notation that appropriate notice has been given.”
Frazier v. City of Philadelphia, 557 Pa. 618, 621, 735 A.2d 113, 115
(1999).
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to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1) and (b). After careful review,
we reverse the trial court’s order, and remand for further proceedings.
The trial court summarized the relevant procedural and factual history
as follows:
The relevant facts and procedural history of this case are as
follows: Mother and Father are the biological parents of S.E.[E.]
(the “Child”). The Child was born [in October of 2011]. Father
was involved in the Child’s life during the early period of the Child’s
life, through visits facilitated by Mother approximately three times
a week. During this time, Mother moved approximately two hours
away.[2] Mother continued to facilitate visits, driving the Child to
and from Father’s house. In 2013, Mother initiated a custody
action; however, the matter was resolved by an informal
arrangement between Mother and Father[] that allowed Father to
see the Child every other weekend. . . .Mother testified that the
arrangement was not beneficial to the Child because of behaviors
the Child exhibited upon return from visits with Father, which
included regressed potty-training, rashes, and frequently smelling
of smoke.[3]
On October 10, 2014, per a custody order issued by the
Philadelphia Family Court, it was ordered that Mother and Father
share legal custody of the Child. It was further ordered that
Mother was to retain primary physical custody of the Child and
____________________________________________
2 Mother relocated to another section of Philadelphia. Notes of Testimony
(“N.T.”), 3/28/17, at 11-12; N.T., 3/16/17, at 37; Adoption Personal Interview
at 1.
3 Upon review of the certified record, which includes a copy of the docket of
the relevant custody action, it appears that Mother first filed a complaint for
custody of the Child in July 2012, which was later dismissed for lack of
prosecution in January 2013. Mother then re-filed for custody in August 2013.
This comports with the testimony of Mother. N.T., 3/16/17, at 38-42. We
observe that, while custody orders dated October 10, 2014, February 24,
2015, August 27, 2015, and August 26, 2016, were not included as part of
the certified record as exhibits from the termination hearing, despite
admission, N.T., 3/28/17, at 5, these orders were otherwise included as part
of the certified record and were reviewed by this Court.
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Father was to have partial physical custody of the Child. The order
specified that Father’s partial physical custody was to be under
the supervision of the paternal grandmother and that visits were
to occur two days per week for at least three hours each day.
Father was also permitted to have partial physical custody of the
Child as the parties agreed.
On February 24, 2015, Mother and Father appeared pro se
at a custody hearing before the Honorable Angeles Roca. At the
hearing, Mother was awarded primary physical and legal custody
of the Child. Father was granted supervised physical custody of
the Child every Sunday from 10:00 am until 3:00 pm at the Family
Court nursery. The order indicated that if Father missed two
consecutive visits with the Child, Father’s supervised physical
custody would be suspended. At a hearing held on August 27,
2015, before the Honorable Peter Rogers, Mother testified that
Father missed visits for an entire month. Consequently, Father’s
supervised custody was temporarily suspended, and it was
ordered that Father was to have no contact with the Child. Father
was not present at the August 27, 2015, hearing.
On October 19, 2015, Mother filed a petition to modify
custody. At a custody hearing held on August 26, 2016, before
the Honorable Diane Thompson, the [c]ourt granted Mother’s
petition to modify custody and Mother was granted sole physical
and sole legal custody of the Child. The [c]ourt also continued the
suspension of Father’s supervised partial custody, emphasizing
that Father took no affirmative steps to reconnect with the Child
in a year. In particular, the [c]ourt reasoned that Father did not
petition the [c]ourt to reconsider the August 27, 2015 order
suspending Father’s supervised visits.
On October 24, 2016, petitioners filed a petition to
involuntarily terminate the parental rights of Father.[4] Bifurcated
hearings were held before this [c]ourt on March 16, 2017 and May
16, 2017, respectively (collectively the “TPR [termination of
parental rights] hearing”).[5] At the TPR hearing, Mother testified
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4Mother and Stepfather additionally filed a petition for adoption, which was
withdrawn per order dated May 16, 2017, and entered May 17, 2017.
5The termination hearing was also conducted on March 28, 2017. In support
of their petition to terminate Father’s parental rights, Mother and Stepfather
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that Father had no visitation with the Child for approximately two
years. Furthermore, Mother claimed that Father had no contact
with the Child for six months immediately prior to October 24,
2016, the date petitioners filed the petition to terminate Father’s
parental rights. Mother also indicated that there were two court
orders indicating that Father was to have no contact with the
Child.1
Mother further testified that the Child has a close
relationship with the Child’s paternal grandmother and paternal
cousins. In fact, Mother stated that the Child visits her paternal
grandmother regularly. In August 2016, the Child attended a
family reunion hosted by [P]aternal [G]randmother, and Father
was present at the reunion.2 Father also sent the Child clothing
on several occasions. Mother claims that the Child has never
asked to see Father and that the Child calls Father by his first
name. Mother also reported that the Child is well adjusted, and
that Father has never played a significant role in the Child’s life.
Mother stated that Father has never filed for any custody of the
Child or asked for visitation. When asked about the custody
orders suspending Father’s custody-visitation, Mother testified
that Father was not present at the August 26, 2016 custody
hearing, at which time, Father’s partial custody was suspended.3
Father was, however, present at all other custody hearings.[6]
According to the testimony of both petitioners, the Child and
Stepfather have a close relationship. Stepfather is the primary
financial supporter of the Child and supports the Child’s
educational efforts, including the Child’s speech therapy and
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each testified. Additionally, Father was present and testified on his own
behalf. Father further presented the testimony of family friend, B.B., and his
mother, Paternal Grandmother. The court-appointed child advocate was also
present and participated in the proceedings.
We additionally note that, aside from custody orders and photographs
marked and admitted as P-1, additional photographs identified as photographs
of Father’s residence were marked as P-2. N.T., 3/28/17, at 32. Upon review,
P-2 was never admitted and was not included as part of the certified record.
This omission was not necessary for and does not affect our disposition.
6Mother admitted this testimony was incorrect. Father was not present at the
custody hearing on August 27, 2015. He was present at all other hearings.
N.T., 3/28/17, at 29; N.T., 3/16/16, at 48-51; N.T., 8/26/16, at 5-6.
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homeschooling. Petitioners also testified that the Child calls
Stepfather “dad.” The Child has resided with the petitioners for
approximately three and a half years, and the petitioners have
another child together. The petitioners recently moved to King of
Prussia, Pennsylvania, which is approximately a thirty minute
drive to Philadelphia.
At the TPR hearing, [P]aternal [G]randmother testified that
she has a very close relationship with the Child and has
maintained a relationship with the Child for the entire duration of
the Child’s life. Paternal [G]randmother indicated that she attends
the Child’s school functions and brings the Child to family functions
with the Child’s paternal family. Paternal [G]randmother has also
picked the Child up from school when Mother was unable to.
Paternal [G]randmother also testified that, up until December
2016[,] when she was hospitalized for various illnesses, she would
visit the Child in petitioners’ home approximately once a week.
On numerous occasions, the petitioners took the Child to the
hospital to visit with [P]aternal [G]randmother. Paternal
[G]randmother also stated that the Child did in fact attend a family
picnic hosted by [P]aternal [G]randmother and that[,] while at the
picnic[,] the Child asked for Father, who was not present at the
picnic due to stay away orders. When the Child asked for Father,
[P]aternal [G]randmother invited Father to the picnic so that he
may see the Child. Paternal Grandmother also testified that every
year Father purchases clothes for the Child on her birthday.
Consistent with Mother’s own testimony, [P]aternal
[G]randmother testified that, in October of 2016, Father
purchased clothes for the Child.
___
1 Mother is apparently referencing the orders issued on
August 27, 2015 by the Honorable Peter Rogers, suspending
Father’s visitation with the Child, and August 26, 2016, continuing
the suspension of Father’s visitation.
2 Mother testified that Father purchased the Child Halloween
clothes in October of 2016. Mother also testified that sometime
[sic] in 2016, Father purchased the Child a winter jacket.
3 It is important to note that, per the court certified
transcripts of the August 26, 2016 hearing, Father was present
and did in fact testify. Father failed to appeal at the August 27,
2015 hearing, at which time his partial custody was temporarily
suspended.
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Trial Court Opinion (“T.C.O.”), 7/10/17, at 1-5 (citations to notes of testimony
omitted).
Father testified to early contact with the Child as facilitated by Mother.
N.T., 3/28/17, at 11-12. He confirmed the procedural history as to the
custody matter, which eventually resulted in an order for supervised visitation
at the court nursery. Id. at 12-14. Father acknowledged that visitation
ceased as he missed two visits. Id. at 17, 41, 43. He did not appear at the
custody hearing on August 27, 2015, which resulted in an order suspending
his visitation. Id. at 29. While testifying that he did attempt to file a challenge
to the suspension of his visitation, he indicated that he did not do so between
the August 27, 2015 hearing and the August 26, 2016 hearing. Id. at 27-29;
however, Father, had no supporting documentation with him. Id. at 29.
Father testified that he bought the Child clothes, Christmas gifts and toys,
which have not been returned to him. Id. at 19, 26. Father further confirmed
seeing the Child, who he indicated calls him “Papi,” at a family reunion in
August 2016. Id. at 21-22. He described a positive interaction at the reunion.
Id. at 23.
By order dated May 16, 2017, and entered May 17, 2017, the trial court
denied the petition to terminate Father’s parental rights. Thereafter, on June
5, 2017, Mother and Stepfather filed a notice of appeal, along with a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b).
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On appeal, Mother and Stepfather raise the following issues for our
review:
1. Did the [c]ourt err by denying the Petition to Terminate
Parental Rights of [F]ather pursuant to 23 Pa.C.S.[A.] §
2511(a)(1)?
2. Did the [t]rial [c]ourt err by ruling that it would not be in the
child’s best interest pursuant to § 2511(b) to terminate the
parental rights of [F]ather?
Appellants’ Brief at 3.
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
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.” In re Adoption of S.P., [616 Pa. 309, 325, 47
A.3d 817, 826 (2012)]. “If the factual findings are supported,
appellate courts review to determine if the trial court made an
error of law or abused its discretion.” Id. “[A] decision may be
reversed for an abuse of discretion only upon demonstration of
manifest unreasonableness, partiality, prejudice, bias, or ill-will.”
Id. The trial court’s decision, however, should not be reversed
merely because the record would support a different result. Id.
at [325-26, 47 A.3d at] 827. We have previously emphasized our
deference to trial courts that often have first-hand observations of
the parties spanning multiple hearings. See In re R.J.T., [608
Pa. 9, 26-27, 9 A.3d 1179, 1190 (2010)].
In re T.S.M., 620 Pa. 602, 628, 71 A.3d 251, 267 (2013). “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 M.G. & J.G., 855 A.2d 68, 73-74 (Pa.Super. 2004) (citation omitted).
“[I]f competent evidence supports the trial court’s findings, we will affirm even
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if the record could also support the opposite result.” In re Adoption of
T.B.B., 835 A.2d 387, 394 (Pa.Super. 2003) (citation omitted).
The termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, and requires a bifurcated analysis
of the grounds for termination followed by the needs and welfare of the child.
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating parental
rights. 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). We have
defined clear and convincing evidence as that which 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.” In re
C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc) (quoting Matter of
Adoption of Charles E.D.M. II, 550 Pa. 595, 601, 708 A.2d 88, 91 (1998)).
In the case sub judice, the trial court declined to terminate Father’s
parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1) and (b), which provide
as follows:
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(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.A. § 2511(a)(1), (b).
We first examine Section 2511(a)(1). We have explained this Court’s
review of a challenge to the sufficiency of the evidence to support the
involuntary termination of a parent’s rights pursuant to Section 2511(a)(1) as
follows:
To satisfy the requirements of 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. In addition,
Section 2511 does not require that the parent demonstrate
both a settled purpose of relinquishing parental claim to a
child and refusal or failure to perform parental duties.
Accordingly, parental rights may be terminated pursuant
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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.
Once the evidence establishes a failure to perform parental
duties or a settled purpose of relinquishing parental rights,
the court must engage in three 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 the child pursuant to Section 2511(b).
In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations
omitted).
As it relates to the crucial six-month period prior to the filing of the
petition, this Court has instructed:
[I]t is the six months immediately preceding the filing of the
petition that is most critical to our analysis. However, the trial
court must consider the whole history of a given case and not
mechanically apply the six-month statutory provisions, but
instead consider the individual circumstances of each case.
In re D.J.S., 737 A.2d 283, 286 (Pa.Super. 1999) (citations omitted). This
requires the Court to “examine the individual circumstances of each case and
consider all explanations offered by the parent facing termination of his or her
parental rights, to determine if the evidence, in light of the totality of the
circumstances, clearly warrants the involuntary termination.” In re B., N.M.,
856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa. 718, 872 A.2d
1200 (2005) (citation omitted).
Further, we have stated:
[t]o be legally significant, the [post-abandonment] contact must
be steady and consistent over a period of time, contribute to the
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psychological health of the child, and must demonstrate a serious
intent on the part of the parent to recultivate a parent-child
relationship and must also demonstrate a willingness and capacity
to undertake the parental role. The parent wishing to reestablish
his parental responsibilities bears the burden of proof on this
question.
In re Z.P., 994 A.2d 1108, 1119 (Pa.Super. 2010) (citation omitted). See
also In re Adoption of C.L.G., 956 A.2d 999, 1006 (Pa.Super 2008) (en
banc).
Regarding the definition of “parental duties,” this Court has stated:
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 encompasses more than a financial
obligation; it 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 himself to take and maintain a place
of importance in the child’s life.
Parental 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. 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 . . . her physical and emotional
needs.
In re B., N.M., 856 A.2d at 855 (internal citations omitted).
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In the instant matter, in finding a lack of grounds for termination under
subsection (a)(1), the trial court concluded:
Under these specific facts and circumstances, this [c]ourt
did not abuse its discretion when it denied [the] petition to
terminate the parental rights of Father as to the Child. The record
supported a determination that, based upon the totality of the
circumstances, termination was not warranted. There was
compelling evidence that Father loved the Child and wanted to
maintain a relationship with the Child. There was also ample
testimony that the Child maintained an ongoing relationship with
[P]aternal [G]randmother and had a close relationship with the
paternal relatives. According to Mother’s own testimony, the Child
frequently visited with [P]aternal [G]randmother. At a family
reunion hosted by [P]aternal [G]randmother, both the Child and
Father were present. Based on the foregoing testimony, the
[c]ourt determined that Father would have contact with the Child
whether or not his parental rights were terminated because the
[P]aternal [G]randmother and relatives would remain active in the
Child’s life.
Additionally, in making its decision, this [c]ourt gave great
weight to the custody orders suspending Father’s visitation. But
for those orders, this [c]ourt believes that Father would have
maintained a relationship with the Child. This [c]ourt found
[P]aternal [G]randmother’s testimony particularly compelling. For
example, consistent with Mother’s own testimony, [P]aternal
[G]randmother testified that in August of 2016, the Child attended
a family picnic with the Child’s paternal relatives. Due to the no
contact orders, Father did not attend the picnic. It was not until
the Child inquired into the whereabouts of Father that [P]aternal
[G]randmother invited Father to the picnic.
Based on the foregoing reasons, and in light of the totality
of the circumstances, this [c]ourt found that the evidence
presented by petitioners did not warrant involuntary termination.
In addition, this matter’s unique circumstances, particularly the
custody orders prohibiting Father from contacting the Child, tilted
the balance in favor of denying the [] petition to terminate
Father’s parental rights.
T.C.O. at 8-9 (citations to the record omitted).
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Mother and Stepfather, however, argue that “[t]here is absolutely no
compelling evidence from the testimony of [Paternal Grandmother] that
Father loved the [C]hild and wanted to maintain a relationship with the Child
. . . . Moreover, under the totality of the circumstances[,] there is absolutely
clear[] and convincing evidence that Father did not perform parental duties
for a period well in excess of the six months.” Appellants’ Brief at 18. Any
financial contribution was limited to an “infrequent gift.” Id. at 18. Mother
and Stepfather further challenge the trial court’s finding that the custody
orders suspending visitation and prohibiting contact presented an obstacle and
assert that this does not “excuse Father’s complete and utter abandonment of
the Child.” Id. at 20-21. Moreover, Mother and Stepfather contend that
Father did nothing to further his custodial rights. Id. at 20. They state:
Father did nothing to have any custodial rights to the
[C]hild. The only thing the father ever did was appear in the
adoption court when the [p]etition to [t]erminate his [p]arental
[r]ights was scheduled. One could search the record, one could
go through all of the transcripts. There is nothing to show an
effort by [F]ather to have a day[-]to[-]day relationship with the
[C]hild. . . .
Id.
Upon our review, we find the record does not support the trial court’s
determinations as to subsection (a)(1). While Father maintained an early
relationship with the Child, this was largely facilitated by Mother, even after
she moved further away from Father. N.T., 3/28/17, at 11-12; N.T., 3/16/17,
at 35-37. Moreover, and most importantly, the evidence establishes that,
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despite providing some birthday and Christmas gifts along with Paternal
Grandmother and seeing the Child at a family reunion in August 2016, Father
failed to maintain regular contact with and support the Child.7 Father did not
exercise visitation as afforded with the Child,8 ultimately leading to the
suspension of visitation in August 2015. N.T., 3/28/17, at 15-17, 41; N.T.
8/26/16 at 3-4, 13, 17-18. Although the trial court suggests that the custody
orders suspending visitation and providing for no contact between Father and
the Child essentially created an obstacle to Father’s ability to maintain a
relationship with the Child, T.C.O. at 9, the court ignores that Father remained
idle and made no legal efforts to regain custodial rights for at least one year,
if at all. Father simply stopped attending visitation after he missed two visits,
assuming he could not go anymore. N.T., 3/28/17, at 17, 41, 43.
Additionally, Father failed to appear for the custody hearing on August
27, 2015, stemming from Mother’s petition due to Father’s missed visitation
and resulting in the temporary suspension of his visitation. N.T., 3/28/17, at
29; N.T., 3/16/16, at 48-51; N.T., 8/26/16, at 5-6; Custody Order, 8/27/15.
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7 Despite the testimony of paternal family friend, B.B., that she saw Father
with the Child on multiple occasions, Paternal Grandmother, whom the trial
court relies on heavily, testified that Father saw the Child “very seldom” over
the last three years due to the court proceedings between Mother and Father.
N.T., 5/16/17, at 7-8.
8Father explained that he initially missed visitation due to side agreements
with Mother, on which Mother reneged. N.T., 3/28/17, at 15-17.
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Father admittedly did not file for modification or reconsideration thereafter.9
N.T., 3/28/16, at 28-29, 47. One year later, on August 26, 2016, after a
hearing at which Father appeared and was represented by counsel, the
suspension was made final. N.T., 8/26/16, at 15-16; Custody Order, 8/26/16.
Again, Father sought no reconsideration or further contest. Father testified
he made two attempts to file documents pertaining to his visitation, but lacked
the requisite funds for filing and received no notification from the trial court
that his filings had been rejected.10 Father failed to present proof to support
this contention. N.T., 3/28/17, at 17-19, 27-29. Regardless, Father went at
least one year without visitation and without efforts to reinstate visitation with
the Child. Moreover, Father did not appreciate this as the reason the trial
court made the suspension of visitation a final order. Id. at 48. Thus, the
evidence clearly demonstrates Father’s failure to utilize all available resources
to preserve his parental relationship with the Child and a lack of reasonable
firmness in resisting obstacles in the path of maintaining this relationship.
See In re B., N.M., 856 A.2d at 855.
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9 This was a key factor in the trial court’s making this order final on August
26, 2016. N.T., 8/26/16, at 16, 19-20. Critically, counsel for Father at the
time admitted Father’s lack of legal efforts. Id. at 18-19.
10 It is unclear from the record what exactly Father tried to file and when
exactly he attempted to do so. However, despite a similar assertion at the
August 26, 2016 hearing, N.T., 8/26/16, at 15-16, at the termination hearing
on March 28, 2016, in response to cross-examination from counsel for Mother
and Stepfather, he clearly stated that he did not attempt to file anything
between the two custody hearings. N.T., 3/28/17, at 28-29. Notably, the
docket for the custody matter, which was printed in December 2016, does not
reflect any filings by Father.
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We next review the propriety of termination under Section 2511(b). Our
Supreme Court has stated:
if 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.[A.] § 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 re K.M., 53 A.3d
781, 791 (Pa.Super. 2012). In In re E.M. [a/k/a E.W.C. &
L.M. a/k/a L.C., Jr.], [533 Pa. 115, 123, 620 A.2d 481, 485
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. However, as
discussed below, evaluation of a child’s bonds is not always an
easy task.
In re T.S.M., 620 Pa. at 628-29, 71 A.3d at 267. The breadth of any bond
analysis necessarily depends on the circumstances of a particular case
especially where a bond exists to some extent. In re K.Z.S., 946 A.2d 753,
762-63 (Pa.Super. 2008) (citation omitted). Additionally, we have stated that
the trial court should consider the importance of continuity of relationships
and whether any existing parent-child bond may be severed without
detrimental effects on the child. Id. at 763.
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., 994 A.2d at 1121 (internal citations omitted).
Moreover,
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[w]hile a parent’s emotional bond with his or her child is a major
aspect of the subsection 2511(b) best-interest analysis, it is
nonetheless only one of many factors to be considered by the
court when determining what is in the best interest of the child.
[I]n addition to a bond examination, the trial court can
equally emphasize the safety needs of the child, and
should also consider the intangibles, such as the love,
comfort, security, and stability the child might have
with the foster parent. . . .
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa.Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa.Super. 2011)) (quotation marks and
citations omitted). Further,
[t]he mere existence of an emotional bond does not preclude the
termination of parental rights. See In re T.D., 949 A.2d 910 (Pa.
Super. 2008) (trial court's decision to terminate parents' parental
rights was affirmed where court balanced strong emotional bond
against parents' inability to serve needs of child). Rather, the
orphans' court must examine the status of the bond to determine
whether its termination “would destroy an existing, necessary and
beneficial relationship.” In re Adoption of T.B.B., 835 A.2d 387,
397 (Pa. Super. 2003).
In re N.A.M., 33 A.3d at 103. See also In re C.S., 761 A.2d at 1202 (court
must consider whether natural parental bond exists between child and parent,
and whether termination would destroy existing, necessary and beneficial
relationship).
In the case sub judice, Mother and Stepfather argue the trial court
abused its discretion in determining the Child would suffer irreparable
emotional harm if Father’s parental rights were terminated. Appellants’ Brief
at 22. They challenge the trial court’s finding that their custody orders served
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as an obstacle to Father. Id. at 22-23. Lastly, they highlight the Child’s
positive relationship with Stepfather. Id. at 23-25.
In concluding that termination of Father’s parental rights does not favor
the Child’s needs and welfare and is not in the Child’s best interest pursuant
to Section 2511(b), the trial court reasoned as follows:
In the instant matter, this [c]ourt determined that the Child
would suffer irreparable emotional harm if Father’s parental rights
were terminated. The testimony of both Mother and [P]aternal
[G]randmother established that the Child has a bond with the
Child’s paternal relatives. As to the existence of a parent-child
bond between Father and the Child, this [c]ourt considered that
Father, based on Mother’s own testimony, was involved in the
Child’s life during the early years of the Child’s life. In fact, prior
to August 27, 2015, when Father’s supervised visits were
suspended, Father maintained contact with the Child through
visits facilitated by Mother and subsequently supervised at the
Court Nursery. This [c]ourt also found that the orders prohibiting
Father from visiting the Child has been an obstacle for Father to
maintain a close relationship with the Child. Particularly
compelling to this [c]ourt was that Father was not present at the
custody hearing on August 27, 2015, at which time his partial
supervised custody of the Child was suspended. Furthermore, this
[c]ourt acknowledged that a bond does exist between the Child
and Stepfather and emphasized that allowing the Child to maintain
a relationship with Father would not in any way hinder the bond
between the Child and Stepfather. In fact, based upon the
testimony of all parties, it is clear to this [c]ourt that the Child is
loved by all parties and that it would be in the Child’s best interest
to have two father figures.
For the foregoing reasons, this [c]ourt properly denied [the]
petition to terminate the parental rights of Father pursuant to
[S]ection 2511(b). Overwhelming evidence was submitted at the
TPR hearing to support a finding that petitioners failed to show by
clear and convincing evidence that termination was in the best
interest of Child.
T.C.O. at 11-12 (citations to the record omitted).
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We find the record fails to corroborate the trial court’s determination
that terminating Father’s parental rights was not in the Child’s best interests
pursuant to Section 2511(b). Testimony of Father’s family friend confirmed
early contact between Father and the Child. N.T., 3/16/17, at 35-37. In
addition, Father and Paternal Grandmother testified to the positive interaction
between Father and the Child at the family reunion in August 2016. N.T.,
5/16/17, at 9-10; N.T., 3/28/17, at 23. Likewise, Paternal Grandmother
opined that Father and the Child miss one another and love one another. N.T.,
5/16/17, at 10. However, the record lacks evidence that in light of the minimal
recent contact between Father and the Child that termination would have a
detrimental impact on the Child. Indeed, as the trial court stated, the existing
bond is with the Child’s paternal relatives.
While the trial court emphasizes the custody orders suspending
visitation and providing for no contact served as an obstacle to Father
maintaining a close relationship with the Child, as indicated previously, Father
took no legal efforts for at least one year, if at all, to regain visitation.
Additionally, both Mother and Stepfather testified that the Child was upset and
not herself when picked up from the paternal family reunion. N.T., 3/16/17,
at 13-14, 57; N.T., 8/26/16, at 8-9. Mother testified that the Child does not
ask for Father, N.T., 3/16/17, at 20, and, as confirmed by Paternal
Grandmother, the Child now calls Father by his first name. N.T., 5/16/17, at
10; N.T., 3/16/17, at 16. Further, Mother has facilitated and maintained a
relationship between the Child and paternal family, despite the custody
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orders, and there is nothing to suggest this would cease. N.T., 3/16/17, at
15.
Moreover, and more importantly, the Child shares a close bond with
Stepfather whom she calls “daddy” and with whom she has lived since she
was two years old. N.T., 3/16/17, at 8-10, 55. Stepfather supports the
Child in all aspects, including educationally, religiously and financially. Id. at
10, 55-56.
The record confirms that the termination of Father’s parental rights
serves the Child’s needs and welfare. Accordingly, based upon our review of
the record, we conclude that the trial court abused its discretion by failing to
terminate Father’s parental rights under 23 Pa.C.S.A. § 2511(a)(1) and (b).
We, therefore, reverse the order of the trial court, and remand the matter for
further proceedings.
Order reversed. Appeal remanded for further proceedings. Jurisdiction
relinquished.
P.J.E. Bender joins the memorandum.
Judge Musmanno files a dissenting statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date:1/8/18
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