In Re: Adoption of G.S.B. Appeal of: G.S.B. father ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF G.S.B. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
APPEAL OF: G.S.B., NATURAL :
FATHER : No. 551 WDA 2016
Appeal from the Decree Entered March 28, 2016 in the
Court of Common Pleas of Somerset County Orphans’
Court at No(s): 14 Adoption 2015
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 29, 2016
G.S.B. (Father) appeals from the decree entered March 28, 2016, in
the Court of Common Pleas of Somerset County, which terminated
involuntarily his parental rights to his minor son, G.S.B. (Child), born in April
of 2011. After careful review, we affirm.
This appeal arises from the petition for involuntary termination of
parental rights filed by S.J.L. (Mother) on October 1, 2015. The record
indicates Mother and Father dated for approximately two or three years and
separated in the summer of 2012. N.T., 3/28/2016, at 41, 89. Father has
not been actively involved in Child’s life since 2012, and the last time Father
saw Child was in June of 2014. Id. at 17, 126-27. Father is a member of
the United States Marine Corps, and was stationed in Virginia during his
relationship with Mother. Id. at 38. Father currently is stationed at Camp
Lejeune in North Carolina, and is regularly deployed overseas. Id. at 78-80.
Mother married her husband, D.P.L. (Stepfather), in May of 2015. Id. at 7.
*Retired Senior Judge assigned to the Superior Court.
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Stepfather has assisted Mother in caring for Child, and Child knows
Stepfather as his father. Id. at 24-25, 33.
A termination hearing took place on March 28, 2016. Following the
hearing, the orphans’ court entered its decree terminating involuntarily
Father’s parental rights to Child. Father timely filed a notice of appeal, along
with a concise statement of errors complained of on appeal.
Father now raises the following issue for our review. “Whether the
[orphans’] court’s decision to terminate [] Father’s rights is unsupported by
clear and convincing evidence and said decision is an abuse of discretion
and/or error of law.” Father’s Brief at 6 (unnecessary capitalization
omitted).
We consider Father’s claim 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 orphans’ court if they are
supported by the record. If the factual findings are supported,
appellate courts review to determine if the orphans’ 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 orphans’ court’s decision, however, should not be reversed
merely because the record would support a different result. We
have previously emphasized our deference to orphans’ 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).
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Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated
analysis.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing
evidence that the parent’s conduct satisfies the statutory
grounds for termination delineated in Section 2511(a). Only if
the court determines that the parent’s conduct warrants
termination of his or her parental rights does the court engage in
the second part of the analysis pursuant to Section 2511(b):
determination of the needs and welfare of the child under the
standard of best interests of the child. One major aspect of the
needs and welfare analysis concerns the nature and status of the
emotional bond between parent and child, with close attention
paid to the effect on the child of permanently severing any such
bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
In the instant matter, the orphans’ court terminated Father’s parental
rights pursuant to Sections 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
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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) and (b).1
To meet 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 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 Section 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
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1
Father makes no effort to argue that the orphans’ court abused its
discretion pursuant to Section 2511(b). Thus, we will focus our analysis
solely on Section 2511(a)(1). See In re Adoption of R.K.Y., 72 A.3d 669,
679 n.4 (Pa. Super. 2013) (declining to address Section 2511(b) where the
appellant did not make an argument concerning that section).
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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.”
Id. (citation omitted).
Father argues that that he was unable to maintain a relationship with
Child due to his frequent military deployments and training exercises, during
which he had only limited access to telephones and the Internet. Father’s
Brief at 12-13. Father contends that he did not know how to reach Mother
because she frequently changed her address and phone number, and that
Mother repeatedly refused to allow him to have contact with Child when he
was able to reach her. Id. at 12. Finally, Father stresses that he has
requested a position as a Pennsylvania-based recruiter for the Marine Corps,
which demonstrates his dedication to developing a relationship with Child.
Id. at 12-14.
The orphans’ court aptly summarized its findings in support of
termination as follows.
At the hearing, [the orphans’ court] found [Father]
foreclosed avenues to communicate with [Mother] regarding
[Child], either through his own actions or inactions. The
evidence showed that Facebook, the telephone, Internet, Skype,
and the U.S. Mail provided avenues to communicate with [Child],
however, [Father] either failed to utilize them or prevented
interaction through these avenues[: Father] “blocked” [Mother]
on Facebook; [Mother] consistently provided her contact
information and maintained communication with [Father’s]
parents and other family members who provided [Father] the
contact information of both [Child] and [Father’s] daughter []
upon [Father’s] request; [Father] inquired as to the [Child’s]
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contact information from his parents when he required it;
[Father] had access to U.S. Mail although it took one month to
reach any given address; [Father] had access to the telephone
and Internet for fifteen minute periods while he was stationed on
a ship; [Father] had access to Skype but it used his cell phone
data; and [Father] had avenues to communicate with [Child].
Although [Father] argued that [Mother] did not directly provide
updated contact information and even argued she refused to let
[Father] speak with [Child], [Father] provided no evidence
documenting these alleged attempts, outside of a September 30,
2015 phone conversation [which was] outside of the pertinent
period, and never sought any form of physical or legal custody
which could have remedied any alleged issues over the three
year period that he did not contact [Child]. At the hearing, [the
orphans’ court] also found that, even if the means available to
[Father] to contact [Child] presented obstacles, [Father] did not
even attempt to utilize these means to contact [Child].
Evidencing [that] attempting to contact [Child] was “annoying”
[]. As such, the evidence clearly demonstrates that avenues
were available to [Father] to contact [Child].
At the hearing, [the orphans’ court] further found that,
while [Father] had leave from the military and sometimes visited
Somerset County during the past three years, [Father] made no
effort to see Child. This finding is based on the evidence that:
[Father] did not communicate the dates and times of his visits to
Somerset County to [Mother;] during [Father’s] visits to
Somerset County he visited exclusively with family and friends,
excluding [Child;] [Father] has not seen [Child] in three years[;]
and [Father] was granted leave from the military numerous
times in 2014 and 2015 which allowed him to return to Somerset
County, Pennsylvania. Based on these facts, [the orphans’
court] determined [Father] failed to avail himself of the
opportunity to see [Child].
Finally, [the orphans’ court] determined that [Father] very
clearly expressed no interest in [Child]. This finding is based on
the evidence that: [Father] sought no information regarding
[Child’s] development[;] [Father] never sent gifts for any
holiday[;] [Father] never sent [Child] photographs, letters, or
cards[;] [Father] does not keep up with [Child’s] hobbies[;]
[Father] does not know where [Child] attends school[;] [Child]
has no benefits of active military personnel[;] [Father] has not
acted to foster a relationship between [Child] and [Father’s]
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natural daughter, [], who is [Child’s] half-sister and [Child] does
not know who [Father] is.
Orphans’ court opinion, 4/26/2016, at 3-5 (citations to the record and
footnote removed).
Ultimately, the orphans’ court found that Father refused or failed to
perform parental duties with respect to Child for at least six months
immediately preceding the filing of Mother’s termination petition. The court
acknowledged that Father’s service in the military placed “inconvenient
limitations” on his ability to maintain a relationship with Child. Orphans’
court opinion, 4/26/2016, at 6. However, the orphans’ court reasoned that
Father failed to take advantage of the opportunities that he had in order to
be a part of Child’s life. Id. at 3-6.
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, Mother testified that Father stayed in contact with her and visited
with Child while they remained in a relationship. N.T., 3/28/2016, at 10, 33-
34. Mother explained that Father’s contact with Child decreased after their
relationship ended, and that Father has visited with Child only once since
Christmas of 2012. Id. at 18. Specifically, Father visited with Child at a
park following a child support hearing in June of 2014.2 Id. at 17. Mother
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2
Mother testified that she continues to receive child support from Father
each month. N.T., 3/28/2016, at 48.
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stated that Child did not know who Father was, and that Child was more
interested in playing with the other children. Id. at 18.
Concerning the six months immediately preceding the filing of her
termination petition, Mother testified that Father did not send any cards,
letters, or gifts to Child, nor did he ask to speak to Child on the phone. Id.
at 50. Mother acknowledged that she has changed her address and phone
number on several occasions since Child was born, and that she did not
always notify Father of these changes. Id. at 36-37. Nonetheless, Mother
believed that Father would have been able to get in contact with her if he
wanted to do so. Id. at 28. Mother recalled that she spoke to Father’s
parents in March of 2015, and informed them that Child was in need of ear
surgery. Id. at 20. Mother also provided Father’s parents with her phone
number. Id. Father contacted Mother using Skype later that day, and
inquired about Child’s medical condition. Id. at 20, 25. Father informed
Mother that he would call her again the following week, but never did so.
Id. at 26. Mother did not have any other contact with Father until
September of 2015, when she called him to ask that he voluntarily relinquish
his parental rights. Id. at 19-20.
Thus, the record supports the finding of the orphans’ court that Father
has refused or failed to perform parental duties with respect to Child during
the six months immediately preceding the filing of Mother’s termination
petition on October 1, 2015. Father has had no contact with Child since
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June of 2014, and Father has not contacted Mother to inquire about Child’s
well-being since March of 2015. The record does not indicate that Father did
anything during the relevant six-month period to maintain or develop a
relationship with Child.
Further, while Father argues that he was unable to maintain a
relationship with Child because of his military duties and Mother’s ever-
changing contact information, Father’s own testimony belies that assertion.
Father acknowledged during the termination hearing that he has occasional
access to phones and the internet even when deployed overseas, and that
his parents provided him with Mother’s new phone numbers. Id. at 81-82,
92, 104. Father also had the ability to write letters to Child, but chose not
to do so. Id. at 83, 117-19. Finally, while Father emphasizes that he
requested an assignment as a Pennsylvania-based recruiter for the Marine
Corps, we observe that he did not make this request until sometime in
October of 2015. Id. at 103; see 23 Pa.C.S. § 2511(b) (“With respect to
any petition filed pursuant to subsection (a)(1), . . . the court shall not
consider any efforts by the parent to remedy the conditions described
therein which are first initiated subsequent to the giving of notice of the
filing of the petition.”).
Accordingly, because we conclude that the orphans’ court did not
abuse its discretion by terminating involuntarily Father’s parental rights to
Child, we affirm the decree of the orphans’ court.
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Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2016
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