In Re: Adoption of: B.E.C. & N.C.C. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: B.E.C. & : IN THE SUPERIOR COURT OF
N.C.C., MINOR CHILDREN : PENNSYLVANIA
:
APPEAL OF: S.J.C., :
: No. 872 MDA 2015
Appellant :
Appeal from the Decree, April 21, 2015,
in the Court of Common Pleas of Lycoming County
Orphans’ Court Division at No. 6457
BEFORE: FORD ELLIOTT, P.J.E., WECHT AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 26, 2015
S.J.C. (“Mother”) appeals from the decree granting the petition filed by
D.C. (“Father”) to involuntarily terminate her parental rights to their
children, B.E.C. and N.C.C. (“the Children”), pursuant to Section 2511(a)(1)
and (b) of the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1) and (b), so that
Father’s wife, S.C. (“Stepmother”), may adopt the Children. We affirm.
Mother and Father were married in 2005. The Children were born in
2005 and 2007. The parties separated in the spring of 2007. Father has
always maintained primary physical custody of the Children. On August 2,
2007, the parties entered into a custody stipulation that was made an order
of court granting Mother periods of partial custody every other weekend.
Mother’s periods of custody were to be exercised at maternal grandmother’s
home. Mother moved to Florida in 2008. The Children continued to visit
* Former Justice specially assigned to the Superior Court.
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with their maternal grandmother until September of 2013 when Father
stopped the visits.
Mother moved back to Pennsylvania on January 13, 2013. Mother did
not contact the Children because she did not have a telephone. Father did
not speak to Mother in 2013 or 2014. (Notes of testimony, 4/1/15 at 8-9.)
According to Father, he received one or two texts from Mother in 2014. (Id.
at 8.) Mother obtained a telephone in December of 2014. She called
Father’s home on January 16, 2015, and spoke to the Children. The last
time she physically saw the Children was on August 19, 2014, at a Dollar
General Store in Lycoming County. Mother did not speak to the Children at
this time because Stepmother prevented contact.
Father and Stepmother began living together in September of 2010.
They married on April 6, 2013. The petition to terminate Mother’s parental
rights was filed on January 2, 2015. A hearing was held on April 1, 2015.
The decree terminating Mother’s parental rights was entered on April 21,
2015. This timely appeal followed.
Mother raises two issues for our consideration:
I. WHETHER THE TRIAL COURT ERRED IN
DETERMINING THAT CLEAR AND CONVINCING
EVIDENCE EXISTED TO SHOW THAT
APPELLANT HAD A SETTLED PURPOSE TO
RELINQUISH A PARENTAL CLAIM UNDER
23 PA.C.S.A. § 2511(A)(1) IN THAT
[APPELLANT] WAS REBUFFED BY BOTH
FATHER AND STEPMOTHER IN HER ATTEMPTS
TO MAINTAIN CONTACT WITH THE CHILDREN
AND PERFORM PARENTAL DUTIES?
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II. WHETHER THE TRIAL COURT ERRED IN
DETERMINING THAT CLEAR AND CONVINCING
EVIDENCE EXISTED TO SHOW THAT
APPELLANT’S RIGHTS SHOULD BE
TERMINATED UNDER 23 PA.C.S.A. § 2511(B),
IN THAT THE DEVELOPMENTAL, PHYSICAL,
AND EMOTIONAL NEEDS AND WELFARE OF
THE CHILD ARE NOT BEST SERVED BY
TERMINATING MOTHER’S PARENTAL RIGHTS?
Mother’s brief at 4.
We review an appeal from the termination of parental rights in
accordance with the following standard:
In an appeal from an order terminating parental
rights, our scope of review is comprehensive: we
consider all the evidence presented as well as the
trial court’s factual findings and legal conclusions.
However, our standard of review is narrow: we will
reverse the trial court’s order only if we conclude
that the trial court abused its discretion, made an
error of law, or lacked competent evidence to
support its findings. The trial judge’s decision is
entitled to the same deference as a jury verdict.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted).
Termination of parental rights is controlled by Section 2511 of the
Adoption Act. See 23 Pa.C.S.A. § 2511. The burden is upon the petitioner
“to prove by clear and convincing evidence that its asserted grounds for
seeking the termination of parental rights are valid.” In re R.N.J., 985 A.2d
273, 276 (Pa.Super. 2009). “[C]lear 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
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the precise facts in issue.” Id. (citation and quotation marks omitted).
Further, the “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). If competent evidence supports the trial court’s findings,
“we will affirm even if the record could also support the opposite result.”
In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa.Super. 2003).
Satisfaction of any one subsection of Section 2511(a), along with
consideration of Section 2511(b), is sufficient for the involuntary termination
of parental rights. In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004)
(en banc). In this case, we will review the trial court’s decision to terminate
Mother’s parental rights based upon Section 2511(a)(1) and (b), which state
the following:
§ 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.
....
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(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), (b).
We have explained this court’s review of a challenge to the sufficiency
of the evidence supporting the involuntary termination of a parent’s rights
pursuant to Section 2511(a)(1) as follows:
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.
....
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 Section 2511(b).
In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (citations omitted).
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[T]o be legally significant, the [post-abandonment]
contact must be steady and consistent over a period
of time, contribute to the psychological health of the
child, and must demonstrate a serious intent on the
part of the parent to recultivate a parent-child
relationship and must also demonstrate a willingness
and capacity to undertake the parental role. The
parent wishing to reestablish his parental
responsibilities bears the burden of proof on this
question.
In re Z.P., 994 A.2d 1108, 1119 (Pa.Super. 2010) (citation omitted); see
also In re Adoption of C.L.G., 956 A.2d 999, 1006 (Pa.Super. 2008)
(en banc).
Further, regarding the definition of “parental duties,” this court has
stated as follows:
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 encompasses more than a
financial obligation; it 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
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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
. . . her physical and emotional needs.
In re B., N.M., 856 A.2d 847, 855 (Pa.Super. 2004) (citations omitted);
see also In re Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012).
Instantly, the trial court did not find that Mother evidenced a settled
purpose to relinquish her parental rights. (See trial court opinion, 6/2/15 at
2.) Instead, the trial court determined “Mother refused or failed to perform
parental duties for a period in excess of six months prior to the filing of the
petition.” (Id.) Mother argues she performed parental duties during the
relevant statutory timeframe, July 2, 2014 through January 2, 2015. Mother
cites two examples of her performance of parental duties; she sent B.E.C. a
birthday card in August and attempted to interact with the Children during a
“chance encounter” at the Dollar Tree Store on August 19, 2014. (Mother’s
brief at 10.) Mother’s examples fall short, as sending a birthday card and
attempting to speak with her Children during a “chance encounter” are
hardly the type of actions that show Mother was trying to perform her
parental duties.
Turning to Mother’s testimony, she testified that she could not call the
Children in 2013 and 2014 because she did not have a telephone. (Notes of
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testimony, 4/1/15 at 108-109.) However, when she did finally obtain a cell
phone in December 2014, she waited three weeks before she called the
Children. (Id. at 107.) Mother finally spoke with the Children on
January 16, 2015, after Father filed the petition to terminate Mother’s
parental rights. In this day and age with cell phone usage everywhere, it
defies logic that Mother was unable to borrow a cell phone from someone so
that she could contact her Children or inquire as to their welfare. The trial
court specifically found that Mother’s failure to have a cell phone “does not
alleviate her obligation to perform her parental duties.” (Trial court opinion,
4/21/15 at 5.)
Our review of the record indicates that after leaving for Florida in
2008, Mother has never provided the Children with any basic needs, such as,
food, clothing, or any form of financial support. (Notes of testimony,
4/1/15, 15-16, 103.) Mother does not know the Children’s doctors, nor did
she inquire about the Children’s health between 2012 and the filing of the
petition in January of 2015. (Id. at 103-104.) Mother has never attended a
parent/teacher conference or asked how the Children were doing in school.
(Id. at 112.) Mother admitted that even though the maternal grandmother
was aware of how the Children were doing in school and that B.E.C. had a
medical condition,1 Mother never asked for more information, such as,
B.E.C.’s doctor’s name. (Id. at 113.) This testimony clearly established
1
B.E.C. suffers from epilepsy. (Id. at 104.)
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that Mother did not perform parental duties for the Children within the
relevant time period.
Next, Mother argues the trial court failed to consider the obstructive
behavior on the part of Father and Stepmother aimed at thwarting her ability
to maintain a parental relationship with the Children. In Adoption of M.S.,
664 A.2d 1370, 1374 (Pa.Super. 1995), this court warned “that obstructive
behavior on the part of the custodial parent aimed at thwarting the other
parent’s maintenance of a parental relationship will not be tolerated, and
certainly will not provide a sound basis for the involuntary termination of
parental rights.” Here, as examples of Father’s and Stepmother’s
obstructive behavior, Mother references Father’s failure to respond to a text
message she sent and Stepmother’s refusal to allow Mother to speak to the
Children at the Dollar General Store on August 19, 2014. (Mother’s brief at
11.)
Regarding Mother’s texting Father, she testified as follows:
Q. So you would have text[ed] [Father] with a
friend’s cell phone in 2014?
[Mother]: Correct.
Q. Would you agree with me that it’s conceivable
that [Father] would not have recognized that
phone number?
[Mother]: Correct.
Q. Is that the only time in 2014 that you text[ed]
[Father] with the cell phone?
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[Mother]: Correct.
Notes of testimony, 4/1/15 at 110.
Regarding Mother’s claim that Stepmother refused to allow her to
speak to the Children, Stepmother testified as follows:
Q. And who was present at this -- at the Dollar
Store that day?
[Stepmother]: My mother, her aunt, Tammy, and I
don’t know who else was in the car, and all of my
children.
Q. Okay. [N.C.C.] and [B.E.C.]?
A. Un-hum. Yes.
Q. And how close was [Mother] to [B.E.C.] and
[N.C.C.] that day?
A. A couple car lengths away.
Q. And did she see them?
A. Yes.
Q. And what was the nature of the conversation --
well, let me ask you this, how long was your
conversation with [Mother] on that day?
A. I’m going to say probably 15 minutes.
Q. And what was the nature of the conversation
that you had?
A. I pretty much just, you know, wanted to let
her know that [the Children] know that she’s
their real mom and we don’t lie to them, you
know. And when they can understand better
then we will have a -- you know, it wouldn’t be
an issue.
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Q. What did she --
A. But she wanted to talk about [Father]; and I
kept --
Q. What do you mean?
A. What he did wrong in their marriage basically.
And I kept bringing it back to [B.E.C.] and
[N.C.C.].
Q. How would you describe the tone or tenure
[sic] of the conversation?
A. Friendly.
Q. And did Mother ask you about the Children?
A. I don’t believe so, no.
Q. Did she ask to see them?
A. No.
Q. Well, what happened at the end of the
meeting?
A. We walked away. I don’t really remember
exact words but -- we just walked away and
got in our cars.
***
Q. Did [Mother] lean in the car and say anything
to the boys?
A. No. No.
Q. Did you prevent [Mother] from going up to
your car and seeing the boys?
A. No.
Id. at 56-58.
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The above instances hardly represent obstructive behavior on the part
of Father and Stepmother, and the trial court specifically found that Mother’s
testimony regarding “roadblocks” was not credible. (Trial court opinion,
4/21/15 at 5.) Additionally, despite the August 2, 2007 court order
awarding Mother partial physical custody, at no time did Mother seek to
enforce that order. The trial court noted, “Mother’s only interaction with her
children has been at her convenience and has been minimal, at best.” (Id.)
In this case, the record demonstrates the trial court heard Mother’s
testimony regarding her circumstances and concluded Mother failed to
perform her parental duties for years. Mother’s interest in her Children was
sporadic at best; meanwhile, Stepmother assumed the role of the Children’s
mother. We conclude the evidence presented supports termination of
Mother’s parental rights pursuant to Section 2511(a)(1).
Next, Mother argues the trial court erred when it decided the
termination of her parental rights best serves the needs and welfare of the
Children. We begin by observing that once the statutory requirement for
involuntary termination of parental rights has been established under
Section 2511(a), the court must consider whether the child’s needs and
welfare will be met by termination pursuant to Section 2511(b). In re
D.W., 856 A.2d 1231, 1234 (Pa.Super. 2004). Pursuant to Section 2511(b),
the trial court must engage in an analysis of the best interests of the child by
taking into primary consideration the developmental, physical, and
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emotional needs of the child. In re Adoption of R.J.S., supra at 508. The
trial court must consider “intangibles such as love, comfort, security, and
stability.” In re C.P., 901 A.2d 516, 520 (Pa.Super. 2006). To this end,
this court has indicated that the trial court “must also discern the nature and
status of the parent-child bond, paying close attention to the effect on the
child of permanently severing the bond.” In re C.L.G., 956 A.2d 999, 1009
(Pa.Super. 2008) (en banc).
In support of her claim that the termination of her parental rights
would not serve the Children’s developmental, physical, and emotional needs
and welfare, Mother cites a Christmas visit in 2011, a visit in 2012, and her
telephone call to the Children on January 15, 2015. (Mother’s brief at 13.)
The maternal grandmother testified that Mother and the Children “got along
great.” (Notes of testimony, 4/1/15 at 126.) She further testified that the
Children were happy to see Mother and showed affection towards her. (Id.)
The trial court determined the Children had no bond with Mother and
addressed Mother’s relationship with her children as follows:
Mother does not have a bond with the children.
She has shown almost no interest in the lives or
welfare of her children for a period in excess of
two (2) years. The only mother that the children
know is Step-Mother. Step-Mother has performed a
large portion of the parental duties. The children do
not ask about Mother. Mother did not attempt to
contact either child in 2013 or 2014. There was no
testimony from any party that there was a bond
demonstrated between the children and Mother at
any time. There was no testimony that a bond exists
between children and Mother after Mother’s years of
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absence and disinterest. Further, termination of her
rights would not destroy an existing necessary and
beneficial relationship as there currently exists no
relationship between Mother and the children.
Trial court opinion, 4/21/15 at 7.
Clearly, the Children, who are now ten and eight years old, know they
have a Mother who has not had any type of presence in their daily lives.
While Mother may have some type of casual relationship with the Children, it
is not a parental bond, as Mother has not demonstrated any actual
commitment to parenting.
Accordingly, we discern no abuse of discretion by the trial court
terminating Mother’s parental rights to the Children.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/26/2015
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