The Adoption of: G.T., Appeal of: A.T., father ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF: THE ADOPTION OF IN THE SUPERIOR COURT OF
G.T., PENNSYLVANIA
Appellee
APPEAL OF: A.T., NATURAL FATHER
No. 941 WDA 2016
Appeal from the Decree May 27, 2016
In the Court of Common Pleas of Erie County
Orphans’ Court at No(s): 97 In Adoption 2015
BEFORE: SHOGAN, MOULTON, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 24, 2017
Appellant, A.T. (“Father”), appeals from the decree entered on May 27,
2016, in the Erie County Court of Common Pleas that terminated his
parental rights to his minor son, G.T. (“Child”), born in March 2008.
Appellant’s counsel has filed a petition to withdraw representation and a
brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which govern
withdrawal from representation on direct appeal.1 Appellant has not filed a
pro se response to counsel’s petition to withdraw. Following our review, we
*
Retired Senior Judge assigned to the Superior Court.
1
This Court extended the Anders principles to appeals involving the
termination of parental rights in In re V.E., 611 A.2d 1267, 1275 (Pa.
Super. 1992).
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grant counsel’s petition to withdraw and affirm the decree terminating
Father’s parental rights.
After the entry of the decree terminating Father’s parental rights on
May 27, 2016, Father filed a timely appeal.2 Contained within Father’s
notice of appeal was a statement of counsel’s intention to withdraw pursuant
to Anders v. California, 386 U.S. 738 (1967).3 See In the Interest of
J.T., 983 A.2d 771, 772 (Pa. Super. 2009) (applying Anders procedure and
Pa.R.A.P. 1925(c)(4) to appeals involving the termination of parental rights).
On September 2, 2016, counsel filed an Anders brief, and on September 6,
2016, counsel filed a petition to withdraw followed by an amended petition
on September 26, 2016.
By letter dated July 13, 2016, the orphans’ court informed this Court
that it would not draft an opinion because counsel sought to withdraw.
Letter, 7/13/16. Due to the permanency of an order involuntarily
terminating parental rights, and because the orphans’ court’s rationale for
termination under 23 Pa.C.S. § 2511(a)(1), (2), and (b) could not be
2
Father’s notice of appeal was due by June 26, 2016, which fell on a
Sunday. Father’s notice, filed the next day on June 27, 2016, therefore was
timely filed. 1 Pa.C.S. § 1908 (when thirtieth day of appeal period falls on a
Saturday or Sunday, those days are excluded from computation).
3
Anders sets forth the requirements for counsel to withdraw from
representation on direct appeal. See also Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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ascertained in the notes of testimony,4 we remanded to the orphans’ court
for a thorough opinion on December 16, 2016.5 The orphans’ court has
diligently and timely complied, and this matter is now ready for disposition.
The orphans’ court explained the procedural history as follows:
G.T. was born [i]n March [of] 2008. Amended Petition for
Involuntary Termination of Parental Rights, 12/7/15, ¶3. On
September 26, 2008, a custody order was entered in Crawford
County, Pennsylvania, giving the mother and the Appellant
shared [legal] custody of G.T. The mother retained primary
physical custody of G.T. and the Appellant was granted periods
of visitation with G.T. by the parties’ mutual consent. If the
parties could make no such agreement, the order stated
Appellant was entitled to visitation on Mondays and Wednesdays
from one until four p.m., Thursdays from one until six p.m. and
on Sunday from twelve noon until six p.m. each week. See
Petitioner’s Exhibit A.
On December 7, 2015, the mother filed a petition for
involuntary termination of parental rights. Appellant received
appointed counsel and a termination hearing was held on
May 27, 2016.
Appellant’s parental rights were terminated by Decree that
same day. Appellant filed a timely Notice of Appeal and
Statement of Intent to File an Anders brief June 27, 2016.
Trial Court Opinion, 12/29/16, at 1–2.
Before we address the questions raised on appeal, we first must
resolve appellate counsel’s request to withdraw. Commonwealth v.
Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc). See
4
N.T., 5/27/16, at 84–85.
5
We note that the filing of a statement of intent to withdraw as counsel
pursuant to Anders and Pa.R.A.P.1925(c)(4) does not relieve the orphans’
court of its duty to provide the rationale for its decision under Pa.R.A.P.
1925(a)(2).
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Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005) (stating,
“When faced with a purported Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.”).
There are procedural and briefing requirements imposed upon an
attorney who seeks to withdraw on appeal. The procedural mandates are
that counsel must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to [his client]; and 3) advise [his client] that he or
she has the right to retain private counsel or raise additional
arguments that the [client] deems worthy of the court’s
attention.
Cartrette, 83 A.3d at 1032 (citation omitted).
In addition, our Supreme Court, in Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009), stated that an Anders brief must:
(1) provide a summary of the procedural history and facts, with
citations to the record;
(2) refer to anything in the record that counsel believes arguably
supports the appeal;
(3) set forth counsel’s conclusion that the appeal is frivolous;
and
(4) state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of record,
controlling case law, and/or statutes on point that have led to
the conclusion that the appeal is frivolous.
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Santiago, 978 A.2d at 361. The Supreme Court reaffirmed the principle
that indigents “generally have a right to counsel on a first appeal, [but] . . .
this right does not include the right to bring a frivolous appeal and,
concomitantly, does not include the right to counsel for bringing such an
appeal.” Santiago, 978 A.2d at 357 (citation omitted). The Court stated:
In the Court’s view, this distinction gave meaning to the Court’s
long-standing emphasis on an indigent appellant’s right to
“advocacy.” . . . As the Court put it, “although an indigent whose
appeal is frivolous has no right to have an advocate make his
case to the appellate court, such an indigent does, in all cases,
have the right to have an attorney, zealous for the indigent’s
interests, evaluate his case and attempt to discern nonfrivolous
arguments.”
Santiago, 978 A.2d at 357–358 (citation omitted).
Father’s counsel has complied with the first prong of Santiago by
providing a summary of the procedural history and facts in the Anders brief.
She has complied with the second prong by referring to any evidence in the
record that she believes arguably supports the appeal. Counsel also set
forth her conclusion that the appeal is frivolous and stated her reasons for
that conclusion, with appropriate support. Moreover, counsel filed a
separate motion to withdraw as counsel, wherein she stated that she
examined the record and concluded that the appeal is frivolous. Further,
counsel has attempted to identify and fully develop any issues in support of
Father’s appeal. Additionally, counsel sent a letter to Father, and she
attached a copy of the letter to her motion. Counsel states that she
informed Father that she has filed a motion to withdraw and an Anders
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brief, and she apprised Father of his rights in light of the motion to withdraw
as counsel. Thus, Father’s appellate counsel has satisfied the requirements
of Anders and Santiago. We thus conclude that the procedural and
briefing requirements for withdrawal have been met.
In the Anders brief, counsel presents the following issues for our
review:
1. Whether the orphans’ court erred and/or abused its
discretion when it concluded that sufficient grounds were
estab[l]ished for termination pursuant to 23 Pa.C.S.A.
§2511(a)(1)?
2. Whether the orphans’ court erred and/or abused its
discretion when it concluded that sufficient grounds were
established for termination pursuant to 23 Pa.C.S.A.
§2511(a)(2)?
3. Whether the orphans’ court erred and/or abused its
discretion when it concluded that termination of A.T.’s
parental rights was in [C]hild’s best interests pursuant to
23 Pa.C.S.A. §2511(B)?
Anders Brief at 4.
We address whether the orphans’ court erred in granting the
termination petition because the evidence was insufficient to support the
termination. In reviewing an appeal from an order terminating parental
rights, we adhere to the following standard:
[A]ppellate courts must apply an abuse of discretion standard
when considering a trial court’s determination of a petition for
termination of parental rights. As in dependency cases, our
standard of review requires an appellate court to accept the
findings of fact and credibility determinations of the trial court if
they are supported by the record. In re: R.J.T., 608 Pa. 9, 9
A.3d 1179, 1190 (Pa. 2010). If the factual findings are
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supported, appellate courts review to determine if the trial court
made an error of law or abused its discretion. Id.; In re R.I.S.,
614 Pa. 275, 36 A.3d 567, 572 (Pa. 2011) (plurality). As has
been often stated, an abuse of discretion does not result merely
because the reviewing court might have reached a different
conclusion. Id.; see also Samuel-Bassett v. Kia Motors
America, Inc., 613 Pa. 371, 455, 34 A.3d 1, 51 (Pa. 2011);
Christianson v. Ely, 575 Pa. 647, 838 A.2d 630, 634 (Pa.
2003). Instead, a decision may be reversed for an abuse of
discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. Id.As we discussed in R.J.T., there are clear reasons for
applying an abuse of discretion standard of review in these
cases. We observed that, unlike trial courts, appellate courts are
not equipped to make the fact-specific determinations on a cold
record, where the trial judges are observing the parties during
the relevant hearing and often presiding over numerous other
hearings regarding the child and parents. R.J.T., 9 A.3d at
1190. Therefore, even where the facts could support an
opposite result, as is often the case in dependency and
termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the
record and the court’s legal conclusions are not the result of an
error of law or an abuse of discretion. In re Adoption of
Atencio, 539 Pa. 161, 165, 650 A.2d 1064, 1066 (Pa. 1994).
In re I.E.P., 87 A.3d 340, 343–344 (Pa. Super. 2014) (quoting In re
Adoption of S.P., 47 A.3d 817, 826–827 (Pa. 2012)).
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 the “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
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the truth of the precise facts in issue.’” Id. (quoting In re J.L.C., 837 A.2d
1247, 1251 (Pa. Super. 2003)). Moreover, this Court may affirm the trial
court’s decision regarding the termination of parental rights with regard to
any one subsection of section 2511(a). In re B.L.W., 843 A.2d 380, 384
(Pa. Super. 2004) (en banc).
The orphans’ court terminated Father’s parental rights pursuant to 23
Pa.C.S. § 2511(a)(1), (2), and (b). Order, 5/27/16, at 1. Section
2511(a)(1), (2), and (b) provide as follows:
§ 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 either has evidenced a settled purpose of
relinquishing parental claim to a child or has refused or
failed to perform parental duties.
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child to be
without essential parental care, control or subsistence
necessary for his physical or mental well-being and the
conditions and causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied by the parent.
***
(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
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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. This Court has explained that the focus in terminating
parental rights under section 2511(a) is on the parent, but under section
2511(b), the focus is on the child. In re Adoption of C.L.G., 956 A.2d 999,
1008 (Pa. Super. 2008) (en banc).
The orphans’ court has provided a thorough evaluation supporting
termination of Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1),
(2) and (b). We have reviewed the notes of testimony and conclude that the
orphans’ court’s findings and conclusions are supported by the testimony of
record, and we adopt the orphans’ court opinion as our own.6 Moreover,
after conducting an independent review of the record, we discern no non-
frivolous issues overlooked by counsel. Accordingly, we grant counsel’s
motion to withdraw.
Decree affirmed. Motion to withdraw as counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
6
The parties are directed to attach a copy of the orphans’ court’s opinion of
December 29, 2016, to any future filings in this matter.
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Date: 1/24/2017
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Circulated 01/12/2017 03:22 PM
G-T- IN THE COURT OF COMMON PLEAS
JfN THE MATTER OF ·
THE ADOPTION OF OF ERIE COUNTY, PENNSYLVANIA
ORPHANS' COURT
DOCKET NO. 97 IN ADOPTION 2015
1925{a} OPINION
On May 27, 2016, a decree was entered terminating the parental rights of the natural
father, AIII TIIII (Appellant), to his minor child, CIII T-(G.T.). He filed a timely
Notice of Appeal and Statement of Intent to File an Anders Brief. A review of the record shows
the natural mother, Kii Tll•••(mother), met her burderi. in establishing grounds for
termination under 23 Pa. C.S.A. §251 l(a)(l), (a)(2), and (b). It is therefore respectfully
requested the Superior Court affirm the Decree.
BACKGROUND
Procedural History
G.T. was born on March "2008. Amended Petition for Involuntary Termination of
Parental Rights, 12/7II 5, 13. On September 26, 2008, a custody order was entered in Crawford
County, Pennsylvania, giving the mother and the Appellant shared custody of G.T. The mother
retained primary physical custody of G. T. and the Appellant was granted periods of visitation
with G. T. by the parties' mutual consent. If the parties could make no such agreement, the order
stated Appellant was entitled to visitation on Mondays and Wednesdays from one until four p.m.,
Thursdays from one until six p.m. and on Sunday from twelve noon until six p.m. each week.
See Petitioner's Exhibit A.
On December 7, 2015, the mother filed a petition for involuntary termination of parental
rights. Appellant received appointed counsel and a termination hearing was held on May 27,
2016.
I L
1 DEC 29 2016
Regiiter of Wms ;
·•
Appellant's parental rights were terminated by Decree that same day. Appellant filed a
timely Noti¢e of Appeal and Statement oflntent to File en Anders brief June 27, 2016.
The trial court submitted a letter notifying the Superior Court its intent to rest on the
record, and of its intent not to submit a 1925(a) Opinion. By Judgment Order dated December
16, 2016, the Superior Court remanded this matter to the orphans'/trial court for the preparation
l ~· ,i l '., ,
of a 1925(a) opinion within thirty (30) days.
Facts
.. • ·l '
The testimony at the termination hearing revealed the following:
Shortly after G.T. was born, Appellant and mother obtained a formal custody order in
Crawford County, Pennsylvania. At that time, mother and Appellant were not living together.
Mother characterized Appellant's involvement with G.T. as "very sporadic." Involuntary
..
Termination Proceedings Transcript, 5/27/16, p. 5-6.
After the custody order was entered, mother still characterized Appellant's involvement
as "sporadic." She described instances in which Appellant cancelled his visits and would
become upset about having to· come to her home to visit the child. Nevertheless, Appellant
visited mother's home for the better part of the first year of the child's life. Involuntary
Termination Proceedings Transcript, 5/27/16, p. 7.
In 2009, mother testified Appellant still remained sporadically involved in the child's life.
She stated Appellant saw the child about two times a month. During some of these visits,
Appellant took G.T. to his mother's home, or, would remain at her home with the child.
Appellant attended G.T. 's preschool graduation. As of 2009, Appellant had a good, working
relationship with the mother, which continued for some time. Involuntary Termination
Proceedings Transcript, 5/27116, p. 7-8.
2
Mother testified that in 2013 her working relationship with Appellant deteriorated.
Mother learned Appellant became involved with the criminal justice system and was criminally
charged. She also learned Appellant struggled with drug addiction. After these events,
Appellant did not have contact with mother and G.T. for a period of at least eight months, even
though Appellant lived down the street from mother and child. Involuntary Termination
Proceedings Transcript, 5/27/16, p. 8. Eventually, mother learned Appellant was arrested in
Tennessee, and was being extradited back to Pennsylvania. Involuntary Termination
Proceedings Transcript, 5/27/16, p. 9.
Appellant was released from the Crawford County Jail around Thanksgiving or
Christmas, 2014. At that time, mother and her new husband invited Appellant to their home in
an attempt to work on Appellant's relationship with the child and "promote him to be a good
father." Involuntary Termination Proceedings Transcript, 5/27/16, p. 9.
Communication between mother and Appellant further deteriorated in March, 2015.
Appellant attended a birthday party mother and her husband gave G.T., but did not bring a
present for the child. The next month, Appellant contacted the mother asking to spend time with
G.T. over Easter. However, G.T. told Appellant he would rather go to Florida to see his
grandmother with the rest of the family. Mother testified she heard Appellant screaming at the
child through the phone, saying "I don't care that you want to go see your grandma, you're
coming to my house whether you like it or not." Involuntary Termination Proceedings
Transcript, 5/27/16, p. 10-11. Mother testified G.T. became so upset he started "bawling."
Involuntary Termination Proceedings Transcript, 5/27/16, p. 17. When mother took the phone
away from the child, Appellant continued to yell at her, until mother's husband took the phone
from her. Involuntary Termination Proceedings Transcript, 5/2 7I16, p. 17-18, 3 3.
3
Since the argument at Easter, 2015, Appellant did not contact mother or attempt to
exercise any rights under the existing custody order until September, 2015, when he sent a text
message to mother asking why he hadn't seen his son. Around this time, mother's attorney
served Appellant with a post-adoption ' letter, indicating mother wished to move forward with
termination of Appellant's parental rights. Involuntary Termination Proceedings Transcript,
5/27/16, p. 11-12.
After April, 2015, Appellant did not contact the child at any holiday. The child continued · I
L;
to do well in school and in his extracurricular sports activities. Appellant did not attend any of
the child's school or sports activities for at least two years, and did not at any time inquire as to
the child's progress in school. Involuntary Termination Proceedings Transcript, 5/27/16, p. 13.
He never appeared for a parent/teacher conference or the child's medical appointments.
Involuntary Termination Proceedings Transcript, 5/27/16, p. 22.
Prior to April, 2015, mother and husband picked up Appellant and transported him to one
of the child's football games, but Appellant made no effort to continue his involvement on his
own. Involuntary Termination Proceedings Transcript, 5/27/16, p. 22.
Mother denied telling Appellant at any time to stay away from the child or otherwise
prohibit contact between Appellant and child. Involuntary Termination Proceedings Transcript,
5/27/16, p. 17, 78. Mother also testified her phone number stayed the same, she updated the
Appellant with new addresses when relevant, and did not receive any cards, presents, or
information from any family member Appellant tried to contact her. Involuntary Termination
Proceedings Transcript, 5/27116, p. 16-17, 20. At no time did mother file anything in Crawford
County to modify the standing custody order. Involuntary Termination Proceedings Transcript,
5/27/16, p. 80.
4
Mother described the ways in which Appellant's minimal contact and incarceration took
a great emotional toll on G.T. Mother testified to an instance in which someone on the child's
school bus told G.T. his father was in jail. Mother stated G.T. understood what it meant to be in
prison and had a lot of anxiety about it. G. T. currently sees a doctor every three months for
medication and was in individual therapy twice a week at one point. Involuntary Termination
Proceedings Transcript, 5/27/16, p. 24-26. Appellant never participated in or inquired as to
G.T. 's progress in therapy. Involuntary Termination Proceedings transcript, 5/27/16,p. 28.
The child frequently asks when mother's husband will become his father and when his
last name will be the same as his. Involuntary Termination Proceedings Transcript, 5/27/16, p.
83.
Appellant's testimony did little to support his belief his parental rights to the child should
not be terminated. At the time of the hearing, Appellant was incarcerated in the Erie County
Prison on charges of Possession With Intent to Deliver heroin, a theft offense, and endangering
the welfare of a child. Involuntary Termination Proceedings Transcript, 5/27/16, p. 47. He knew
a custody order was in place to allow him regular visitation with his son since 2008, yet never
exercised his right to enforce the order, despite his assertions mother kept him from seeing the
child. Involuntary Termination Proceedings Transcript, 5/27/16, p. 40, 45. Though Appellant
denied an ongoing problem with drug addiction, he admitted being ordered into drug and alcohol
treatment in conjunction with a prior conviction. Involuntary Termination Proceedings
Transcript, 5/27/16, p. 49-50. Most recently, Appellant attended treatment for drug addiction,
but did not do so until after the termination petition was filed in December, 2015. Involuntary
Termination Proceedings Transcript, 5/27/16, p. 76-77.
5
Appellant admitted he had no contact with the child since April, 2015, and blamed this on
the mother telling him a court order existed prohibiting him from seeing the child. Involuntary
Termination Proceedings Transcript, 5/27/16, p. 53-54. However, mother never prevented
Appellant from attending the child's sporting events, asking about his progress in school, or
further inquiring as to the child's health and well-being, as Appellant insisted he participated in
over the years. Involuntary Termination Proceedings Transcript, 5/27/16, p. 57, 69-70. Even
when he did see the child, it was only two or three weekends and an occasional Wednesday per
month at best. Involuntary Termination Proceedings Transcript, 5/27/16, p. 64.
Appellant testified he tried to keep in contact with mother to see G.T., but mother
refused. However, Appellant never returned to Crawford County, or petitioned for custody
and/or modification in any other court in Pennsylvania, though he already had knowledge of the
custody process. Involuntary Termination Proceedings Transcript, 5/27/16, p. 72.
At the close of testimony, a finding was made on the record determining the mother's
testimony was more credible than the Appellant's. An order was entered terminating Appellant's
parental rights under 23 Pa.C.S.A. §2511 (a)(l), (a)(2), and (b). This timely appeal followed.
ISSUE PRESENTED
After review of the record, the only issue of possible arguable merit that could be raised
on appeal is one challenging the sufficiency of the evidence supporting the trial court's findings
under subsections (a)(l), (a)(2), and (b).
STANDARD OF REVIEW
In reviewing an appeal from an order terminating parental rights,
Appellate courts must apply an abuse of discretion standard when considering a
trial court's determination of a petition for parental rights. [The] standard of
review requires an appellate court to accept the findings of fact and credibility
6
determinations of the trial court if they are supported by the record. In re: R.JT.,
608 Pa. 9, 9 A.3d 1179, 1190 (2010).
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 An abuse of
discretion does not result merely because the reviewing court might have reached
a different conclusion. Id Instead, a decision may be reversed for an abuse of
discretion only upon determination of manifestunreasonableness, partiality,
prejudice, bias, or ill-will.
DISCUSSION
In a termination of parental rights hearing, the initial focus is on the conduct of the
parent. The party moving for termination must "prove by clear and convincing evidence that the
parent's conduct satisfies the statutory grounds for termination delineated in Section 251 l(a)."
In re L.M, 923 A.2d 505, 511 (Pa. Super. 2007). Once these statutory grounds-exist, the court
may analyze whether it is in the best interests of the child for parental rights to be terminated. Id
One major aspect of this analysis includes the "nature and status of the emotional bond
between parent and child, with close attention paid to the effect on the child of permanently
severing any such bond." Id The Superior Court may affirm the trial court's decision regarding
the termination of parental rights with regard to any one subsection of23 Pa.C.S.A. §251 l(a). In
re B.L. W, 843 A.2d 380, 384 (Pa: Super. 2004)(en bane), app. den. 863 A.2d 1141 (2004).
Preserving Appellant's parental rights is not an acceptable option in this case. "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." In re B.NM, 85 6 A.2d 847, 855 (Pa. Super. 2004). "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." Id
7
While Appellant was somewhat involved in the child's life shortly after his birth, the
mother's credible testimony indicated Appellant never had more than sporadic contact with the
child and failed to perform any meaningful parental duties on the child's behalf. Despite
Appellant's assertions mother kept the child from him, it was clear to the trial court the mother
made every effort to keep the Appellant in the child's life, even inviting him to dinner at her
home and providing transportation for him to and from the child's sporting events. Involuntary
Termination Proceedings Transcript, May 27, 2016, p. 9, 22.
Despite mother's assistance, Appellant had no steady, meaningful presence in the child's
life. Though a custody order was entered in 2008 giving Appellant regular visitation with the
child, Appellant did not see the child more than a few times per month at best, and never
petitioned for modification or enforcement of the order despite his claims mother withheld the
child from him. He did not regularly attend medical appointments or school conferences for the
child, nor did he regularly send gifts, cards, or letters to the child for holidays or his birthday.
Mother testified the last time Appellant had contact with the child was in March, 2015, over one
year before the termination proceedings. Involuntary Termination Proceedings Transcript, May
27, 2016, p. 5, 7-8, 13, 22, 28, 53-54, 84-85.
Furthermore, the child has significant issues with anxiety, which stem from the
Appellant's minimal presence in his life and frequent incarceration. The child, at one point, was
involved with therapy to address these issues. Involuntary Termination Proceedings Transcript,
5/27116, p. 24-26. The testimony indicated the child is bonded with mother and her husband and
is looking forward to the day when mother's husband can finally become his "father."
Involuntary Termination Proceedings Transcript, 5/27/16, p. 83.
8
Appellant's testimony did little to support the position his parental rights should not be
terminated. He offered no explanation as to why he did not file for custody modification or
contempt in any court in Pennsylvania if he felt mother was keeping the child from him, nor
could he offer a credible explanation as to why he did not have contact with the child for at least
a year leading up to the termination hearing. Appellant's incarceration on new charges
demonstrated his inability or refusal to conform his conduct the requirements of the law and
provide for his child's needs. Involuntary Termination Proceedings Transcript, 5/27/16, p. 40,
45, 47.
CONCLUSION
Appellant demonstrated his unwillingness to put forth effort in maintaining a relationship
with his child. He barely exercised his rights under the current custody order, or failed to spend
time with the child at all, to the child's detriment. Appellant's involvement with the criminal
justice system is additional evidence of his settled purpose to relinquish his parental rights.
Given the lack of bond Appellant and child share, it is in the child's best interests Appellant's
rights be terminated. It is respectfully requested the Superior Court affirm the decree terminating
the Appellant's parental rights to the children.
. . (- ......
~ l}1 f::l_-..day o f f1:;..,.,._._.
]t> .{ ,: /VY! !,,l,_ t/-1....
D ated thi sf..,.( 201 ``)
1
• , .•. , •.. ,-
BY THE COURT:
1~1l~il(l1l L-s.&l
,;1:j&ti ti.lr!Jft!fJtrz/i!llf/Jl0tr:#'
___
1l, ......;;"-;....C$ '<1 ?,.,_,f' J.
ROBERT A. SAMBROAH{ JR.
cc: Patrick Kelley, Esquire
2503 West 26th Street
Erie, PA 16506
9