In the Int. of: A.M.A. Appeal of: C.A., Father ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.M.A. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: C.A., FATHER No. 1763 MDA 2015
Appeal from the Order Entered September 11, 2015
in the Court of Common Pleas of Adams County, Juvenile Division, at No(s):
RT-3-2015
BEFORE: LAZARUS, STABILE and DUBOW, JJ.
MEMORANDUM BY DUBOW, J.: FILED APRIL 25, 2016
Appellant, C.A. (“Father”), appeals from the decree involuntarily
terminating his parental rights to his daughter, A.M.A. (“Child”), pursuant to
the Adoption Act, 23 Pa.C.S.A. § 2511 (a)(1), and (b). We affirm.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
Father and M.C.D. (“Mother”) were married in 2005, and lived together
in South Carolina. Child was born in February 2008. The parties separated
in or about April 2009, and Mother and Child moved to the home of Child’s
maternal grandparents in Virginia Beach, Virginia. In July 2009, Mother and
Child moved to Dover, York County, and in October 2009, they moved with
Mother’s then boyfriend into an apartment in Hanover, York County. At some
point, they moved to Adams County, but returned to live in York County in
2013.
In early spring 2011, Father contacted Mother to arrange a meeting
with her and the Child. They met for two to three hours. This was the first
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time Father had seen the Child since the parties’ 2009 separation, two years
earlier. The next time Father saw Child was three years later, in February
2012, at Child’s fourth birthday party.
In April 2012, Father filed a divorce and custody action in South
Carolina. The court transferred the custody action to Adams County where
Mother and Child were then living. In August 2012 after a custody
conference, the trial court ordered that the parties have shared legal custody
of Child with primary physical custody remaining with Mother. In addition,
the court ordered that Father was to have no contact with Child except as
directed by the court.
Four custody conferences followed in Adams County between March 7,
2013, and July 3, 2013, in which the court granted Father five limited blocks
of mostly-supervised contact with Child in Pennsylvania and Richmond,
Virginia.
Child was five years old in March 2013 and had seen Father only twice
since the parties’ separation in 2009, four years earlier. The court granted
Father permission to have weekly telephone contact with Child beginning in
late March 2013.
After a July 7, 2013 visit with Child, although he kept in telephone
contact when possible, Father did not see Child, made no further efforts to
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see Child and did not seek any further custody orders so he could see the
Child.1
On February 18, 2015, Mother filed a Petition to Terminate Father’s
Parental Rights (“TPR Petition”) in Adams County. Father filed preliminary
objections, asserting that York County was the proper venue because, inter
alia, he believed the Adams County Orphans’ Court had been giving
preferential treatment to Mother. The Orphans’ Court tentatively granted
Father’s motion, but permitted Mother to file a motion for leave of court so
that the action could remain in Adams County. Mother filed the motion and,
after a hearing in which Mother testified as to the numerous contacts Child
has with Adams County, the Orphan’s Court granted her motion on July 7,
2015.
Parental Rights Termination Hearing
On August 27, 2015, the Orphans’ Court held an evidentiary hearing
on Mother’s TPR Petition at which Mother, Mother’s current husband, M.D.,
and Father, among others, testified. The Guardian ad litem provided
argument on behalf of Child.
Father testified that obstacles, such as distance, hindered his efforts to
maintain contact with Child, and suggested that Mother was uncooperative
and had attempted to thwart his efforts. Father produced phone records
1
Mother and M.D. married on December 20, 2013, and had a child, S.D., in
February 2014. Father also remarried and has two children from his second
marriage.
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showing numerous attempts he had made in 2014 to contact Child by
telephone, even when he was overseas on military assignment. He stated
that he had sent Mother many text messages asking about Child but would
get only “vague answers.” Trial Court Order, dated 9/11/15, at 7. Father
stated that he had kept Child on his health insurance policy but admitted
that, despite having shared legal custody of Child, he had made no inquiries
with Child’s school regarding how she was progressing (purportedly on the
advice of previous counsel). Father testified that his failure to send gifts and
cards to Child was because he believed Mother would not share them with
Child, but admitted that he never forwarded anything to test that theory.
See id. at 13-14.
Most significantly, Father stated that after the July 7, 2013 meeting,
he “basically decided to back away” because “he had spent a lot on legal
fees, he had [had] to travel from South Carolina for visits, and he had a new
family.” Id. at 6. He also stated that he decided to wait until all of his
children were older to pursue visits with Child. Id.
Mother testified as to the lack of contact between Father and Child
since the July 7, 2013 visit. She stated that Father never called to ask about
Child’s health, schooling, and counseling. She also stated that she never
petitioned for, and Father never offered, child support.
Mother’s current husband, M.D., testified that Child has called him
“Daddy” since she was two years old. He also stated that he has attended to
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her every need, and that he wishes to adopt her. Trial Court Order at 14-
15.
Child’s Guardian ad litem informed the Orphans’ Court that, according
to Child, M.D. is her father and she refers to Father as “Mr. [C.]” N.T.,
8/27/15, at 150. The Guardian ad litem stated: “[Child] did indicate to me
that’s how she wanted things to stay, and she wanted to have her family
situation solidified in the language you would expect a seven-year old [sic]
would use. A lot of it being she wanted to have the same last name as
everybody else in the house and things like that.” Id.
The Orphans’ Court concluded that Mother had met her burden,
pursuant to 23 Pa.C.S. §§ 2511(a)(1) and 2511(b). On September 11,
2015, the court entered a decree terminating Father’s parental rights.
Father filed this timely appeal.
ISSUES ON APPEAL
Father raises the following issues for our review:
a. Did the [orphans’] court abuse its discretion and err as
a matter of law by granting [Mother] Leave of Court
when venue properly resided in York County instead of
Adams County?
b. Did the [orphans’] court abuse its discretion and err as
a matter of law in terminating Father’s parental rights
when [Mother] failed to meet her burden that
termination of parental rights was warranted under 23
Pa.C.S. Section 2511(a)(1) and 2511(b)?
Father’s Brief at unnumbered 7.
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ANALYSIS
Venue
Father first avers that the Orphans’ Court erred in granting Mother
leave to file her TPR petition in Adams County. When reviewing a trial
court’s decision regarding venue, we will not reverse absent an abuse of
discretion. Galgon v. Martnick, 653 A.2d 44, 46 (Pa. Super. 1995). “This
determination, in turn, depends on the facts and circumstances surrounding
each case and will not be disturbed if the trial court's decision is reasonable
in light of those facts.” Id. at 93 (citation omitted).
The Pennsylvania Adoption Act provides the following section regarding
venue:
§ 2302. Venue.
Proceedings for voluntary relinquishment, involuntary
termination and adoption may be brought in the court of
the county:
(1) Where the parent or parents or the adoptee or the
person or persons who have filed a report of
intention to adopt required by section 2531
(relating to report of intention to adopt) reside.
(2) In which is located an office of an agency having
custody of the adoptee or in the county where the
agency having placed the adoptee is located.
(3) With leave of court, in which the adoptee formerly
resided.
23 Pa.C.S. § 2302.
This Court recently addressed venue with regard to a Petition for the
Involuntary Termination of a biological father’s rights filed in Centre County,
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Pennsylvania, pursuant to an agreement between the biological mother (who
voluntarily relinquished her parental rights) and the Ohio adoptive couple.
In re Adoption of G.K.T., 75 A.3d 521 (Pa. Super. 2013). None of the
parties involved lived in Centre County and there was no agency involved in
the proceeding. In response to the adoptive couple’s claim that the
Legislature’s use of the permissive word “may” in Section 2302 allowed the
child’s biological mother and adoptive couple to agree to venue, we stated:
If we were to agree with Adoptive Couple’s position,
[S]ection 2302 would lose its force. Venue would
therefore be appropriate in any county in this
Commonwealth if the petitioning party and consenting
party agree to it. As a result, the contesting party would
be without recourse to challenge venue under [S]ection
2302.
It is true that nothing prevents Adoptive Couple and
Mother from agreeing to venue in Centre County.
However, Adoptive Couple and Mother cannot by
agreement require Father to accept venue in Centre
County where, as noted above, all parties agree that
Centre County has no connection to the case or to the
parties in it.
G.K.T., 75 A.3d at 527-28.
Father argues that the above reasoning in G.K.T. “directly applies to
the present case.” Father’s Brief at unnumbered 25. We disagree.
The Orphans’ Court offered the following explanation for why it
granted Mother’s motion for leave to litigate the termination petition in
Adams County:
Under 23 Pa.C.S.A. §2302, venue can lie in a county where
the child formerly resided. The statute does not place a
time limit upon how recently that former residence had to
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occur in order for the former county to retain venue.
Therefore, the [Orphans’] [C]ourt felt that the length of
absence from Adams County was only one factor among
other relevant information to consider when determining
whether venue should be retained in Adams County. Here
[Child] resided in York County since January 2013, after
moving from Adams County. [Mother] argued that venue
was appropriate in Adams County because of the former
residence, [Child] was attending school in Adams County,
there is a custody action in Adams County, there is
extended family in Adams County, and 8 of 14 potential
witnesses, including a psychologist, reside or have an
office in Adams County. [Father] had no ties to either
Adams or York County except for the aforesaid custody
action. Based upon these factors, venue was retained in
Adams County. As it turned out, at trial, [Mother] did not
call all of the potential witnesses; however [the Orphans’
Court] assume[s] that decision was based upon trial
strategy at the time.
Orphans’ Court’s Opinion, 10/20/15, at 2.
Thus, unlike in G.K.T., Child and Mother have significant contacts in
Adams County. Adams County was their prior residence, Child still goes to
school there, and it was where the parties’ custody case had been
proceeding. We agree with the Orphans’ Court’s that it was appropriate to
proceed on Mother’s TPR petition in Adams County.
Termination of Father’s Parental Rights
In his second claim, Father argues that the Orphans’ Court erred in
concluding that he failed to perform his parental duties, and avers that
Mother presented insufficient evidence to support the involuntarily
termination of his parental rights pursuant to 23 Pa.C.S. §§ 2511(a)(1) and
2511(b).
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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., 47 A.3d 817, 826 (Pa. 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. We may reverse a decision based on an abuse
of discretion only upon demonstration of “manifest unreasonableness,
partiality, prejudice, bias, or ill-will.” Id. We may not reverse, however,
merely because the record would support a different result.” Id. at 827.
We give great 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). The Orphans’ Court is free to believe all, part, or
none of the evidence presented and is likewise free to make all credibility
determinations and resolve conflicts in the evidence. In re M.G., 855 A.2d
68, 73-74 (Pa. Super. 2004).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). We
have explained that “[t]he standard of 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. (citations omitted).
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In the instant case, the Orphans’ Court terminated Father’s parental
rights pursuant to 23 Pa.C.S.A. § 2511(a)(1) and (b), which provide:
§ 2511. Grounds for involuntary termination
(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 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) and (b).
Termination of Father’s Parental Rights for Failure to Perform
Parental Duties
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:
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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 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 [s]ection 2511(b).
In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (internal citations
omitted).
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 … 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
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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 847, 855 (Pa. Super. 2004) (internal citations
omitted) (emphasis added).
In the instant case, in determining that Mother had met her statutory
burden to terminate Father’s parental rights pursuant to Section 2511(a),
the Orphans’ Court concluded:
[V]iewing this matter objectively, it was clear that for a period of
nearly six years from the time [Child] was 14 months old until
the instant petition was filed when she was 7 years old, the only
things [Father] did to fulfill his parental duty was to 1) visit
[Child] for several hours in the Spring of 2011 and in February of
2012[;] 2) initiate a custody action in April of 2012 in South
Caroline[;] 3) visit [Child] for 12 hours in March [2013;] 4)
make weekly 5-minute telephone calls to [Child] after March 25,
22013[;] 5) visit with [Child] for 16 hours [in April 2013]; and 6)
visit with [Child] for 26.5 hours [in July 2013]. [Father has not
seen [Child] since July 7, 2013. He has not supported [Child]
(except for medical coverage at some unknown cost); been
involved in [Child’s] education , health care, parent[sic] or
activities; [and] has not … requested further custody court
intervention for the last two years.
Trial Court’s Opinion, dated 10/20/15, at 3-4.
As the Orphans’ Court properly noted, Father’s diligence in maintaining
brief contact hardly qualifies as exercising his parental duties, “especially
when the pathway to meaningful and regular physical meaningful
involvement was being paved” in the custody proceeding. Trial Court Order,
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dated 9/11/15, at 13-14. Our review of the record supports the Orphans’
Court’s determination. Accordingly, the trial court did not abuse its
discretion in terminating Father’s parental rights pursuant to 23 Pa.C.S. §
2511(a)(1).
23 Pa.C.S. § 2511(b) – Child’s Best Interests
Father also challenges the Orphans’ Court termination of his parental
rights pursuant to 23 Pa.C.S. § 2511(b). While Father admits that “there is
no question that at this time [Child] has a very limited relationship with
[him], he nonetheless asserts that “[t]his is not his fault[,]” because he “has
done everything he is permitted to do and in fact he was exercising the only
custody rights he could under the Custody Order.” Father’s Brief at
unnumbered 38.
With respect to Section 2511(b), our analysis shifts focus from
parental actions in fulfilling parental duties to the child’s best interests with
respect to the child’s bond with his or her parent. 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).
In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005), this Court
stated, “Intangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of the child.” In addition,
we instructed that the trial court must also discern the nature and status of
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the parent-child bond, with utmost attention to the effect on the child of
permanently severing that bond. Id. In cases where there is no evidence of
a bond 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 determined that there was no
discernable bond between Child and Father such that termination of Father’s
parental rights would negatively affect Child. The court concluded:
There is no evidence of a beneficial bond that exists
between Father and [Child], nor is there any evidence that
Father is aware of [Child’s] individual needs, her
personality, her idiosyncrasies, her medical or her
educational circumstances. [Child] has lived with Mother
her entire life and with [M.D] since October 2009, when
she was 18 months old. [Child] views [M.D.] as her
father, she calls him “daddy” and he attends to her every
need. [M.D.] is willing to adopt [Child]. Accordingly, the
Court concludes that it is in [Child’s] best interest to grant
the Petition.
Order of Court, 9/11/15, at 14-15 (footnote omitted).
Our review of the record supports the Orphans’ Court’s conclusion
regarding the absence of any true parent/child bond between Father and
Child.
CONCLUSION
In sum, our review of the record supports the Orphans’ Court’s
determination that Mother has met her statutory burden of proving by clear
and convincing evidence that Father’s parental rights should be terminated
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pursuant to 23 Pa.C.S.A. §§ 2511(a)(1) and 2511(b). Accordingly, we
affirm.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/25/2016
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