In Re: Q.R.D., Appeal of: N.J.D. ( 2019 )

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2019 PA Super 199IN RE: Q.R.D., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: N.J.D., NATURAL :
FATHER :
:
:
:
: No. 150 MDA 2019
Appeal from the Decree Entered January 15, 2019
In the Court of Common Pleas of Schuylkill County Orphans' Court at
No(s): A63-245A-17
BEFORE: SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.
OPINION BY DUBOW, J.: FILED JUNE 25, 2019
Appellant, N.J.D. (“Father”), appeals from the January 15, 2019 Decree
that terminated Father’s parental rights to Q.R.D. (“Child”). After careful
review, we affirm.
FACTUAL AND PROCEDURAL HISTORY
This Court has previously summarized the factual and procedural history
as follows:
Child was born in August of 2013 to K.D. (“Mother”) and Father.
Mother and Father were unmarried at the time of Child’s birth and
lived together until approximately December of 2013, when they
separated. The parties subsequently entered into a custody
agreement in the Carbon County Court of Common Pleas in April
of 2014. The custody order provided Mother with primary custody
of Child and partial custody to Father. When Mother subsequently
refused to follow the custody order, Father filed a petition for
contempt with the Carbon County Court of Common Pleas, and
Mother was found to be in contempt.
A second custody order was entered in June of 2014, which
continued to give Mother primary custody and Father partial
custody. In July of 2015, while Child was in Father’s custody,
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* Retired Senior Judge assigned to the Superior Court.
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Child suffered burn marks. The matter was referred to Children
and Youth Services, but it was determined there was no need for
services. Thereafter, Mother would not allow Father to have
custody of Child outside of Mother’s home. Although Father had
successfully filed a contempt action against Mother in May of
2014, he chose not to seek another contempt finding. From July
of 2015 until May of 2016, Father’s visits with Child were sporadic.
Father saw Child on May 5, 2016, the day Father exited
rehabilitation services [for treatment of depression and drug use],
during a chance encounter at a local supermarket and later that
day.
There was also evidence provided that Father attempted to see
Child on Child’s birthday in August of 2016. Father testified that
Mother agreed to allow Father to see Child on that date and Father
waited at Mother’s home until Child and Mother returned. Mother,
however, testified that Father advised her that he was going to
Mother’s house on that date, and she told him they were not home
but that he could wait until Mother and Child returned home.
While waiting, Father stated that Mother’s Father, A.H. (“Maternal
Grandfather”), who lives with Mother, Child, and B.M.D.
(“Stepfather”), started an argument with him, so he left before
seeing Child. Father left birthday presents for Child. Father
maintains that he attempted to contact Mother and Maternal
Grandfather after August of 2016 in an effort to see Child. Father
stated that his calls to Mother would “not go through,” and he
speculated that Mother blocked his number or changed her
number [despite the fact that Mother presented evidence showing
that her phone number had not changed since 2014]. Father
contends that neither Mother nor Maternal Grandfather returned
his messages.
In November or December of 2016, Father maintains that he
advised Maternal Grandfather that he planned to move to
Philadelphia, where he had accepted a job. Father asserts that
neither Mother nor Maternal Grandfather responded. Father
remained in Philadelphia until September of 2017, when he moved
back to Schuylkill County because Mother and Stepfather had
begun the process to terminate Father’s parental rights to Child.
Father acknowledged that he had not seen Child since May 5,
2016. Despite Mother’s efforts to keep Child from Father, Father
has not filed any proceedings against Mother since the contempt
action in 2014.
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In re Q.R.D., No. 1060 MDA 2018, unpublished memorandum at 1-2 (Pa.
Super. filed December 24, 2018).
On November 21, 2017, Stepfather filed a Petition to Involuntarily
Terminate Father’s Parental Rights.1 The trial court appointed Constance A.
Calabrese, Esq. to represent Child. On June 8, 2018, after a hearing, the trial
court issued an Opinion and Final Decree that granted Stepfather’s Petition,
terminated Father’s parental rights, and awarded full legal and physical
custody to Mother and Stepfather.
After the termination hearing, Attorney Calabrese notified the trial court
that she was retiring. The trial court appointed Shelby G. Hostetter, Esq., to
represent Child in further proceedings.
Father timely appealed. On appeal, this Court addressed sua sponte
whether the representation of Child by Attorney Calabrese satisfied the
requirements of 23 Pa.C.S. § 2313(a), which provides, inter alia, that “[t]he
court shall appoint counsel to represent the child in an involuntary termination
proceeding when the proceeding is being contested by one or both of the
parents.”2 This Court determined that the record was devoid of evidence
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1 Pursuant to 23 Pa.C.S. § 2512(a)(3), a petition to terminate parental rights
with respect to a child under the age of eighteen years may be filed by “[t]he
individual having custody or standing in loco parentis to the child and who has
filed a report of intention to adopt required by section 2531 (relating to report
of intention to adopt).”
2 See In re K.J.H., 180 A.3d 411 (Pa. Super. 2018) (holding this Court must
raise the failure to appoint statutorily-required counsel for children sua sponte,
as children are unable to raise the issue on their own behalf due to their
minority).
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regarding Child’s preference regarding the involuntary termination proceeding
and, consequently, we found “no basis upon which to conclude that Attorney
Calabrese effectively represented Child’s legal interests in this matter.” In re
Q.R.D., supra, at 9. This Court vacated the Decree without prejudice and
remanded the case to permit the trial court to determine whether a conflict
existed between Child’s best interests and legal interests, if ascertainable. Id.
On January 14, 2019, upon remand, the trial court held a hearing to
determine whether Child’s legal interests were ascertainable at the time of
trial. The trial court heard evidence from newly-appointed Attorney Hostetter,
who met with Child on January 7, 2019. Based on testimony from Attorney
Hostetter, the trial court made the following findings: “It was [Attorney
Hostetter’s] impression that [Child], who is now five years old, was quite
immature for his age. He showed no recognition of [Father]’s name and no
memory related to [Father] other than [Stepfather]. It was Attorney
Hostetter’s opinion that [Child] had no understanding of the litigation and was
unable to express a preference for its outcome.” Opinion After Remand, filed
1/15/09, at 1. On January 15, 2019, the trial court issued an Order that
concluded: “[Child]’s legal interests were unascertainable at the time of trial,
and [] Attorney Calabrese properly represented the best interest of [Child] at
trial,” and terminated Father’s parental rights pursuant to 23 Pa.C.S. §§
2511(a)(1) and (b). Order, 1/15/19.
Father timely appealed. Father and the trial court complied with
Pa.R.A.P. 1925.
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ISSUES RAISED ON APPEAL
Father raises the following issues on appeal:
A. Whether Attorney [] Calabrese, as the court[-]appointed
counsel for [Child], failed to ascertain whether [Child]’s legal
interests were satisfied as part of her representation of [Child]
prior to the termination hearing?
B. Whether the trial court abused its discretion in determining that
[Stepfather] produced clear and convincing evidence that
[Father’s] conduct satisfied at least one of the nine statutory
grounds delineated in Section 2511(a) of the Pennsylvania
Adoption Act, codified at 23 Pa.C.S. § 2101[,et. seq.]?
C. Whether the trial court abused its discretion in addressing the
second part of the bifurcated process by determining that the
best interests of [Child] warrant the parental rights of [Father]
to be terminated, in accordance with 23 Pa.C.S. [§ 2511(b)]?
Father’s Br. at 6 (reordered for ease of disposition; some capitalization
omitted).
LEGAL ANALYSIS
When we review a trial court’s decision to terminate parental rights, we
must accept the findings of fact and credibility determinations of the trial court
if the record supports them. In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). “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. (citation
omitted). “Absent an abuse of discretion, an error of law, or insufficient
evidentiary support for the trial court's decision, the decree must stand.” In
re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (citation omitted). We may
not reverse merely because the record could support a different result. In re
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T.S.M., 71 A.3d at 267. We give great deference to the trial courts “that often
have first-hand observations of the parties spanning multiple hearings.” Id.
Moreover, “[t]he 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., 855 A.2d 68, 73-74 (Pa. Super.
2004) (citation omitted).
Section 2511 of the Adoption Act, 23 Pa.C.S. § 2511, governs
termination of parental rights, and requires a bifurcated analysis. “Initially,
the focus is on the conduct of the parent.” In re Adoption of A.C., 162 A.3d
1123, 1128 (Pa. Super. 2017) (citation omitted). “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).” Id. (citation omitted). Provided that the court determines the
parent’s conduct warrants termination of his or her parental rights, the court
then engages 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.” Id. (citation omitted). “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).
Child’s Legal Interests Are Unassertainable
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In his first issue, Father avers that Attorney Calabrese, Child’s attorney
during the contested termination hearing, failed to ascertain Child’s preferred
outcome prior to the hearing, and, therefore, failed to represent Child’s legal
interests during the hearing. Father’s Br. at 27. Father acknowledges that
when newly-appointed Attorney Hofstetter interviewed Child in January 2019,
after this Court remanded the case, Child was unable to express a preferred
outcome. Id. at 28. Father argues, however, “it is possible that [Child] may
have remembered [Father] and been able to express a preference prior to the
initial trial nine months earlier.” Id. As the record supports the trial court’s
findings, Father is not entitled to relief on this issue.
As stated above, Section 2313(a) mandates that counsel be appointed
to “represent the child” in contested termination of parental rights
proceedings. 23 Pa.C.S. § 2313(a). For purposes of Section 2313, a child’s
legal interests are synonymous with the child’s preference. In re T.S., 192
A.3d 1080, 1089 (Pa. 2018). Our Supreme Court has recently held that that,
“during contested termination-of-parental-rights proceedings, where there is
no conflict between a child's legal and best interests, an attorney-guardian ad
litem representing the child's best interests can also represent the child's legal
interests” Id. at 1092. Importantly, “if the preferred outcome of a child is
incapable of ascertainment because the child is very young and pre-verbal,
there can be no conflict between the child's legal interests and his or her best
interests[.]” Id. In this situation, “the mandate of Section 2313(a) of the
Adoption Act that counsel be appointed “to represent the child,” 23 Pa.C.S. §
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2313(a), is satisfied where the court has appointed an attorney-guardian ad
litem who represents the child's best interests during such proceedings.” Id.
Our review of the record reveals that the trial court did not abuse its
discretion when it concluded that Child’s legal interests were unascertainable
at the time of the trial. The trial court found Attorney Hostetter’s testimony
to be credible that Child was immature, did not understand the legal
proceedings, did not remember who Father was, and did not have a preferred
outcome. The record supports the trial court’s findings. We decline to reweigh
the evidence or interfere with the trial court’s credibility determinations.
Because Child’s preferred outcome was not ascertainable at the time of
the hearing, there was no conflict between Child’s legal interests and his best
interests. See id. Accordingly, the trial court’s appointment of Attorney
Calabrese, who represented Child’s best interests at the hearing, satisfied
Section 2313(a)’s mandate that trial court appoint counsel “to represent the
child[.]” See 23 Pa.C.S. § 2313; In re T.S., 192 A.3d at 1092. Thus, Father
is not entitled to relief on this issue.
Termination Pursuant to 23 Pa.C.S. § 2511(a)(1)
In his second issue, Father asserts that Stepfather failed to present clear
and convincing evidence that Father’s rights should be terminated pursuant
to Section 2511(a)(1). Father’s Br. at 16. Father concedes that he did not
have contact with Child during the six months immediately preceding the filing
of the Petition, but argues that the trial court failed to consider Father’s
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explanations as to why he did not have contact with Child. Id. at 17. We find
no abuse of discretion.
Section 2511(a)(1) provides that the trial court may terminate parental
rights if the Petitioner establishes that “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.” 23 Pa.C.S. §
2511(a)(1). The focus of involuntary termination proceedings is on the
conduct of the parent and whether that conduct justifies a termination of
parental rights. In re B.L.L., 787 A.2d 1007, 1013 (Pa. Super. 2001).
Although the statute focuses on an analysis of the six months immediately
preceding the filing of the petition, “the court must consider the whole history
of a given case and not mechanically apply the six-month statutory provision.”
In re K.Z.S., 946 A.2d 753, 758 (Pa. Super. 2008) (citation omitted). Rather,
“[t]he court must examine the individual circumstances of each case and
consider all explanations offered by the parent facing termination of his
parental rights, to determine if the evidence, in light of the totality of the
circumstances, clearly warrants the involuntary termination.” Id. (citations
omitted).
This Court has repeatedly defined “parental duties” in general as the
affirmative obligation to provide consistently for the physical and emotional
needs of a child:
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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.
In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations and internal
paragraph breaks omitted).
Moreover, “[p]arental 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). “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. (citation omitted). And most importantly,
“[p]arental 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 his or her physical and emotional needs.” Id. (citation omitted).
Our review of the record supports the trial court’s determination that,
because Father has refused or failed to perform parental duties for more than
six months prior to the filing of the petition in order to preserve the parent-
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child relationship, Stepfather met his burden under 23 Pa.C.S. § 2511(a)(1).
At the time of the hearing, Father had not seen Child in approximately 2 years,
or half of Child’s life. The trial court acknowledged that Mother sometimes
prevented Father from visiting with Father, but concluded that Father’s efforts
to maintain a parent-child relationship in spite of those obstacles fell short.
The trial court opined:
We find Father’s testimony credible that [Mother] sometimes
acted in a manner to block his efforts to maintain a relationship
with [Child]. However, [Father] is required to take an active an
affirmative role in [pursuing] and maintaining that relationship.
We find that he did not assert himself sufficiently to try to
overcome those obstacles . . . Instead he allowed almost two
years to pass without seeing [Child].
[Father] asserted that there were periods of time when he could
not telephone [Child] because he had deliberately smashed his
phone while fighting with an ex-girlfriend. He recalled trying to
call at least “four times.” [Father] admitted that he made no
attempt to call after August 2016. He asserted that when he had
tried calling, he could not get through or it would not ring. He
said it was a “hassle” trying to arrange to see [Child], and he did
not want to “bring drama” to [Child]. [Father] reported that while
he was working in Philadelphia, he would travel to Schuylkill
County almost every other weekend to see another child, but he
made no attempt to arrange a visit with [Child] on any of those
occasions.
[Father]’s testimony about his efforts to maintain a relationship
with [Child] falls short of establishing that he took an active role
in pursuing his responsibilities as a parent to his child despite the
limitations of some obstacles placed before him. He seems to
deflect the blame on others as the reasons that he has failed to
parent his child. He testified that the school would not give him
any information; he was not told the physician’s name; others
tried to contact [Mother] on his behalf but she would not
communicate with them; [Maternal Grandfather] did not like him
and prevented him from seeing [Child]; his telephone calls would
not go through; he did not have an address to send a letter; and
[Mother] never asked him for financial support. The evidence
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shows that [Father] has been either unwilling or has refused to
take on a parental role, and it is unlikely that any amount of time
will remedy that. There is evidence that [Mother] was less than
cooperative in enabling [Father] to schedule a visit, but he made
no reasonable efforts to overcome her lack of cooperation or to
maintain contact with his son. He made no attempt to contact her
by mail or even threaten to go back to court. There were no cards
and no more presents for [Child], who has been waiting for more
than three years for [Father] to act like a parent.
Trial Ct. Op., filed 6/8/18, at 6-7. Our review of the records supports the trial
court’s findings.
While Father argues that the trial court failed to consider his
explanations as to why he was not in contact with Child, our review of the
record belies this claim. The trial court considered all of Father’s explanations
and found them to fall short of Father’s affirmative obligation to perform his
“parental duties” and provide consistently for the physical and emotional
needs of Child.
In light of the evidence, the trial court properly concluded that Father
failed to perform his parental duties for more than six months preceding the
filing of the Petition. Accordingly, the trial court did not abuse its discretion
when it terminated Father’s parental rights pursuant to 23 Pa.C.S. §
2511(a)(1).
Termination Pursuant to Section 2511(b)
In his last issue, Father contends that the trial court abused its discretion
when it determined that it was in Child’s best interest to terminate Father’s
parental rights pursuant to Section 2511(b). Father’s Br. at 22. We disagree.
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With respect to Section 2511(b), our analysis shifts focus from parental
actions in fulfilling parental duties to the effect that terminating the parental
bond will have on the child. 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). It is well settled that “[i]ntangibles such as love,
comfort, security, and stability are involved in the inquiry into needs and
welfare of the child.” In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005)
(citation omitted). This Court has emphasized that although a parent’s
emotional bond with 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 trial court when determining what is in the best interest of
the child.” In re A.D., 93 A.3d 888, 897 (Pa. Super. 2014) (citation omitted).
Finally, “[i]n cases where there is no evidence of any bond between the parent
and child, it is reasonable to infer that no bond exists. The extent of any bond
analysis, therefore, necessarily depends on the circumstances of the particular
case.” In re K.Z.S., 946 A.2d at 762–63.
The trial court opined:
[Child] has been in the care of [Mother] for his entire life and has
resided with [Stepfather] for approximately three years of his four
and a half years of life. [Stepfather] has taken on the role of
parent and has provided for [Child]’s physical, emotional, and
spiritual needs. [Child] has some developmental needs which are
being addressed, but he is healthy overall and doing well in
preschool. [Child] most likely would not even recognize [Father],
given his young age when he last saw him. [Father] may think
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that he has developed a bond with [Child] due to his relationship
immediately after he was born, but he has not acted in the past
three years to maintain that bond. We conclude that there is no
evidence showing that [Child]’s needs and welfare are better
served by continuing [Father]’s parental rights. Instead, the
termination of the parental rights of [Father] is in the best
interest, needs, and welfare of [Child].
Trial Ct. Op. at 8. Our review the record supports the trial court’s findings.
Father argues that the record does not support the trial court’s
conclusion that Child would probably not recognize Father. Father’s Br. at 24.
In making this assertion, Father relies on his own testimony that when Child
saw Father the day that Father left rehab in May 2016, Child recognized him
and jumped into his arms. Id. Father’s argument is unpersuasive. The
evidence showed, and Father admitted, that at the time of the hearing, Father
had not seen Child in over two years. Accordingly, the record supports the
trial court’s inference that Child would probably not recognize Father.
The record supports the trial court’s findings and, therefore, the trial
court did not abuse its discretion when it determined that it was in Child’s best
interest to terminate Father’s parental rights pursuant to Section 2511(b).
CONCLUSION
In sum, the record supports the trial court’s findings that Child’s
preferred outcome was unascertainable at the time of the hearing.
Accordingly, there was no conflict between Child’s best interests and legal
interests and, therefore, the representation of Child by Attorney Calabrese
satisfied the requirements of 23 Pa.C.S. § 2313(a). In addition, our review of
the record reveals that Stepfather provided clear and convincing evidence to
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support the termination of Father’s parental rights pursuant to 23 Pa.C.S. §§
2511(a)(1) and (b).
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/25/2019
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