In the Interest of: B.M v. Appeal of: D.V. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: B.M.V. : IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: D.V., NOW KNOWN AS
D.W.
No. 397 WDA 2019
Appeal from the Order Entered, February 12, 2019,
in the Court of Common Pleas of Lawrence County,
Orphans' Court at No(s): 20030 of 2018, O.C.A.
BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY KUNSELMAN, J.: FILED AUGUST 9, 2019
D.W., formerly known as D.V. (Mother), appeals the orphans' court's
denial of her private petition to terminate the parental rights of the
incarcerated B.V. (Father), under the Adoption Act.' See 23 Pa.C.S.A. §
2511(a)(1). After careful review, we affirm.
Father and Mother are the parents of a six -year -old daughter (Child).
The parents wed in 2012, and Child was born in November of that year. The
parties were residing in Ohio during that time. In September 2013, following
a domestic violence incident in which Father fired a gun, Father pleaded guilty
to kidnapping, felonious assault, domestic violence, and child endangerment.
He was sentenced to a term of three to six years; he is scheduled to be
released on September 28, 2019. After Father's arrest, Mother applied for,
' Mother's husband was prepared to adopt the child.
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and the court in Ohio granted, a Consent Agreement and Domestic Violence
Civil Protection Order. The order, which expired on October 9, 2018, barred
Father from having any contact, direct or indirect, with either Mother or the
minor child.
Despite the existence of a protection order, Mother facilitated contact
between Father and Child during the early months of Father's incarceration.
But the parents eventually divorced, and Mother remarried. Father attempted
to stay in contact with Child, but his correspondence was limited once Mother
began invoking the protection order. In June 2018, she filed a petition
terminate Father's parental rights under 23 Pa.C.S.A. § 2511(a)(1). After a
hearing, the orphans' court denied Mother's petition.
Mother presents this timely appeal. Both Mother and the orphans' court
complied with Pa.R.A.P. 1925. Mother raises two issues for our review:
1. As Mother had filed a petition to involuntarily
terminate parental rights of Father, did the trial court
abuse its discretion and/or err in denying Mother's
petition as the weight of the evidence does not
support the finding that Mother did not prove by clear
and convincing evidence grounds for termination of
Father's parental rights under 23 PA.C.S.A. §
2511(a)(1)?
2. Did the orphans' court abuse its discretion and/or err
in denying Mother's petition as the court did not "give
primary consideration to the developmental, physical
and emotional needs and welfare of the child"
pursuant to 23 Pa.C.S.A. § 2511(b), as the total
weight of the evidence presented does not support the
finding that it is in the child's best interest to deny
Mother's petition?
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Mother's Brief at 8-9.2 Child joins Mother's position and adopts Mother's brief
as her own.3
We are 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 trial court if they are
supported by the record. If the factual findings are
supported, appellate courts review to determine if the trial
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 trial court's
decision, however, should not be reversed merely because
the record would support a different result. We have
previously emphasized our deference to trial courts that
often have first-hand observations of the parties spanning
multiple hearings.
In re Adoption of A.C., 162 A.3d 1123, 1128 (Pa. Super. 2017) (quoting In
re T.S.M., 71 A.3d 251, 267 (Pa. 2013).
Termination of parental rights is governed by section 2511 of the
Adoption Act, 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
2 Mother presents two issues for our review, but she included eight issues in
her statement of matters complained of on appeal. While the issues she
presents before us do not match verbatim any of the issues she raised with
the orphans' court, the two issues contained in her brief are fairly suggested
by the issues she raised in her concise statement. See Pa.R.A.P. 2116(a) ("No
question will be considered unless it is stated in the statement of questions
involved or is fairly suggested thereby."). We may proceed with our review.
3 Child had proper representation under 23 Pa.C.S.A. § 2313(a).
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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.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
The petitioner must prove by clear and convincing evidence that the
asserted statutory grounds for seeking the termination of parental rights are
valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
In her first issue, Mother contends that the orphans' court decision is
against the weight of the evidence. Mother maintains that termination was
warranted because Father's incarceration prevented him from performing
parental duties.
Section 2511(a)(1) provides that a court can terminate parental rights
if, inter alia, the petitioner provides clear and convincing evidence that the
respondent -parent failed to perform parental duties for a period of at least six
months immediately preceding the filing of the petition. See 23 Pa.C.S.A. §
2511(a)(1).
Although it is the six months immediately preceding the filing of the
petition that is most critical to the analysis, the trial court must consider the
whole history of a given case and not mechanically apply the six-month
statutory provision. In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004)
(citation omitted).
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In an analysis under this section, we have acknowledged there is no
simple or easy definition of parental duties. But we have explained:
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.
* * *
Parental duty requires that the parent act affirmatively with
good faith interest and effort, and not yield to every
problem, in order to maintain the parent -child relationship
to the best of his or her ability, even in difficult
circumstances. A parent must utilize all available resources
to preserve the parental relationship, and must exercise
reasonable firmness in resisting obstacles placed in the path
of maintaining the parent -child relationship. Parental rights
are not preserved by waiting for a more suitable or
convenient time to perform one's parental responsibilities
while others provide the child with [the child's] physical and
emotional needs.
Id. (Internal citations and quotations omitted).
The court must examine the individual circumstances of each case and
consider all explanations offered by the parent facing termination of his or her
parental rights, to determine if the evidence, in light of the totality of the
circumstances, clearly warrants the involuntary termination. Id.
A parent's incarceration does not, in itself, provide grounds for the
termination of parental rights. Id. An analysis of an incarceration case
depends upon which provision under section 2511(a) termination is sought.
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When a petitioner seeks to terminate an incarcerated parent's rights
under section 2511(a)(1), we have said a parent's responsibilities are not
tolled during incarceration. Id. The court's focus is whether the parent
utilized resources available while in prison to maintain a relationship with his
or her child. Id. (citation omitted). An incarcerated parent is expected to
utilize all available resources to foster a continuing close relationship with his
or her children. Id. Where the parent does not exercise reasonable firmness
"in declining to yield to obstacles," parental rights may be forfeited. In re
Adoption of A.C., 162 A.3d at 1130 (quoting In re Adoption of McCray,
331 A.2d 652, 655 (Pa. 1975)).
Finally, the court must account for an incarcerated parent's self-imposed
barriers while simultaneously evaluating the parent's duty to overcome them:
Where a non -custodial parent is facing termination of his or
her parental rights, the court must consider the non-
custodial parent's explanation, if any, for the apparent
neglect, including situations in which a custodial parent has
deliberately created obstacles and has by devious means
erected barriers intended to impede free communication
and regular association between the non -custodial parent
and his or her child. Although a parent is not required to
perform the impossible, he must act affirmatively to
maintain his relationship with his child, even in difficult
circumstances. A parent has the duty to exert himself, to
take and maintain a place of importance in the child's life.
In re B.,N.M., 856 A.2d at 855-856 (citations omitted).
Instantly, the orphans' court detailed Father's extensive efforts to
maintain a relationship with Child:
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Contemporaneous with Father's six -year prison sentence was a
five-year protection order. Notwithstanding the existence of the
protection order, Mother initially encouraged a continuing
relationship between Father and Child. Father and Child visited in
the Mahoning County Justice Center in May 2014. But by Fall
2014, the parties divorced, and Mother decided she would not
permit a relationship between Father and Child. Father sought
visitation but his request was denied.
From December 2014 until May 2015, Father's correspondence to
Child, which began with his incarceration, increased to a weekly
basis. Mother testified that she never opened any of the letters.
In May 2015, Father learned by prison officials that his continued
attempt to contact Child would result in his discipline. From May
2015 until November 2016, he continued the correspondence but
sent the same to Paternal Grandmother, so she could contact
Child. At this point, upon Mother's request, Father was found in
violation of the protection order.
Father continued to write to Child, but instead of trying to contact
Child, he sent his correspondence to Paternal Grandmother with
the understanding that she could keep the letters until the day
came that Child was old enough and ready for them.
While incarcerated, Father completed a parenting class, faith -
based programs, and a convocational training course, the latter in
which he excelled.
In March 2017, Father sought to modify the protection order so
as to allow Paternal Grandmother to be an authorized
intermediary. But Father's petition was denied for lack of service
and the hearing was never held. In May 2017, Father appeared
telephonically to object to Mother's request to change Child's
surname to the stepfather's surname; the court granted Mother's
request.
In June 2018, Mother filed in the instant petition to terminate
Father's rights. Father is scheduled to be released in September
2019.
See Orphans' Court Findings of Fact, 2/12/19, at 1111 6- 24.
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The court concluded that Father utilized all resources reasonably
available to him to maintain the parent -child relationship; that the Father did
make sincere, continued efforts to maintain and foster the relationship; and
that Father exercised reasonable firmness, given the obstacles placed in front
of him, in his desire to maintain a bond with Child.
Notwithstanding her successful thwarting of Father's efforts to stay in
contact with Child, Mother argues that Father forfeited his rights because he
did nothing in 2018; i.e., the six months immediately preceding the filing of
her termination petition. See 23 Pa.C.S.A. § 2511(a)(1).
As we said in In re B.,N.M., supra, we do not apply the six-month
statutory provision mechanically; we must consider the whole of Father's
endeavors to preserve the relationship. In addition to the efforts listed above,
the court accepted Father's explanation why he did not engage in further
litigation after 2017: "The reason I had stayed my hand was because they
were seeking - - my attorney was also the attorney for my mother, who was
seeking grandparent's visitation in Ohio. [...] So we were waiting[.]" N.T.,
1/16/2019, at 44. The orphans' court concluded that Father did not sleep on
his rights during the six months leading up to Mother's petition. We agree.
Regarding Father's history of domestic violence, we are mindful of our
role as an error -correcting court, and that this case concerns the termination
of parental rights, not custody. The Involuntary Termination subchapter of
the Adoption Act does not specifically address incarceration. Incarceration
analyses are derived from the case law. In a proper review, we must yield to
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the orphans' court's credibility determinations and findings of fact. While the
record contains deplorable instances of Father's abuse - some of which Father
denies and some of which he does not - we must acknowledge that the court
found Father to be sincere in his efforts to preserve the parent -child
relationship. Although Father's obstacles were self-imposed, the court
determined he did all he could to overcome them. Under the totality of the
circumstances, the orphans' court concluded that termination of parental
rights was not warranted. We cannot say the court abused its discretion.
Even though the facts also support the opposite result, we adhere to our
Supreme Court's directive in these difficult cases: we must resist the urge to
second guess the orphans' court and not impose our own credibility
determinations and judgment. See In re Adoption of S.P., 47 A.3d 817,
826-827 (Pa. 2012).
Because the orphans' court concluded that Mother's petition failed under
section 2511(a), the court had no occasion to proceed to the second prong of
the termination analysis under section 2511(b). This procedure was proper,
and thus Mother's second appellate issue is moot. We therefore affirm the
orphans' court order.
Order affirmed.
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Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 8/9/2019
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