Adoption of V.L., Appeal of: D.F.L., Jr. ( 2019 )

J-S31029-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF V.L. : IN THE SUPERIOR COURT
IN RE: ADOPTION OF N.S.L. : OF PENNSYLVANIA
IN RE: ADOPTION OF I.L. :
:
:
APPEAL OF: D.F.L., JR. :
:
:
: No. 221 WDA 2019
Appeal from the Order Entered December 28, 2018
In the Court of Common Pleas of Westmoreland County
Orphans' Court at Nos: 120, 121, 122 of 2018
BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY STABILE, J.: FILED AUGUST 20, 2019
D.F.L., Jr., (“Father”) appeals from the orders entered on December 28,
2018, in the Court of Common Pleas of Westmoreland County, involuntarily
terminating his parental rights to his sons, V.L., born in June of 2011, and
N.S.L., born in May of 2009, and his daughter, I.L., born in July of 2012
(collectively, “the Children”). Upon review, we affirm.
On August 30, 2018, A.F. (“Mother”) and her husband, E.F.
(“Stepfather”) (collectively, “Appellees”), filed petitions for the involuntary
termination of Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1)
and (b). A hearing occurred on the petitions on December 6, 2018, during
J-S31029-19
which Mother, Father, and C.L. (“Paternal Grandmother”) testified.1 In its
opinion accompanying the subject orders, the orphans’ court set forth its
factual findings, which the testimonial evidence supports. As such, we adopt
them herein. See Trial Court Opinion, 12/28/18, at 1-7.
By orders dated and entered on December 28, 2018, the orphans’ court
involuntarily terminated Father’s parental rights. On January 23, 2019, Father
timely filed notices of appeal and concise statements of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
On appeal, Father raises the following issue for our review:
1. Whether the [orphans’] court erred in finding the clear and
convincing evidence that [Appellees] met their burden, under 23
Pa.C.S. § 2511(a)(1), when, in the six months preceding the filing
of the termination petitions, Father filed a complaint in custody?
Father’s brief at 4.
Our standard of review is abuse of discretion, as follows.
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
____________________________________________
1 The Children were represented during the proceeding by legal counsel and a
guardian ad litem (“GAL”). The record supports the findings of the orphans’
court that the Children told their attorney that they want Stepfather to be
their father. Trial Court Opinion, 12/28/18, at ¶ 33 [N.T., 12/6/18, at 48-50].
Further, the court found that the Children do not want a relationship with
Father because they do not know him, inter alia. Id. at ¶ 34 [N.T., 12/6/18,
at 49-50].
-2-
J-S31029-19
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 T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
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 grounds for
termination delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants termination of his
or her parental rights does the court engage in the second part of
the analysis pursuant to Section 2511(b): determination of the
needs and welfare of the child under the standard of best interests
of the child. One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between
parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Section 2511(a)(1) and (b) provide as follows:
(a) General Rule.—The rights of a parent in regard to a child
may be terminated after a petition filed on any of the following
grounds:
(1) The parent by conduct continuing for a period of at
least six months immediately preceding the filing of the
petition either has evidenced a settled purpose of
relinquishing parental claim to a child or has refused or
failed to perform parental duties.
...
(b) Other considerations.―The court in terminating the rights
of a parent shall give primary consideration to the developmental,
-3-
J-S31029-19
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. § 2511(a)(1), (b).
With respect to Section 2511(a)(1), “the moving party must produce
clear and convincing evidence of conduct, sustained for at least the six months
prior to the filing of the termination petition, which reveals a settled intent to
relinquish parental claim to a child or a refusal or failure to perform parental
duties.” In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citation
omitted).
It is well-established that “Section 2511 does not require that the parent
demonstrate both a settled purpose of relinquishing parental claim to a child
and refusal or failure to perform parental duties. Accordingly, parental rights
may be terminated pursuant to Section 2511(a)(1) if the parent either
demonstrates a settled purpose of relinquishing parental claim to a child or
fails to perform parental duties.” In re Adoption of Charles E.D.M., 708
A.2d 88, 91 (Pa. 1998) (emphasis in original) (citation omitted). In addition,
[T]he trial court must consider the whole history of a given case
and not mechanically apply the six-month statutory provision.
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
-4-
J-S31029-19
evidence, in light of the totality of the circumstances, clearly
warrants the involuntary termination.
In re N.M.B., 856 A.2d 847, 854-855 (Pa. Super. 2004) (citations omitted).
Our Supreme Court has explained that parental duty “is best understood
in relation to the needs of a child.” In re Burns, 379 A.2d 535, 540 (Pa.
1977).
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.’
Id. (citations omitted).
In In re Adoption of S.P., supra, our Supreme Court discussed In re
Adoption of McCray, 331 A.2d 652 (Pa. 1975), a case wherein the Court
considered the issue of the termination of parental rights of incarcerated
persons involving abandonment, which is currently codified at Section
2511(a)(1). The S.P. Court stated:
Applying in McCray the provision for termination of parental
rights based upon abandonment, now codified as § 2511(a)(1),
we noted that a parent “has an affirmative duty to love, protect
and support his child and to make an effort to maintain
communication and association with that child.” Id. at 655. We
observed that the father’s incarceration made his performance of
this duty “more difficult.” Id.
In re Adoption of S.P., 47 A.3d at 828. The S.P. Court continued:
-5-
J-S31029-19
[A] parent’s absence and/or failure to support due to
incarceration is not conclusive on the issue of
abandonment. Nevertheless, we are not willing to
completely toll a parent’s responsibilities during his or her
incarceration. Rather, we must inquire whether the parent
has utilized those resources at his or her command while
in prison in continuing a close relationship with the child.
Where the parent does not exercise reasonable firmness in
declining to yield to obstacles, his other rights may be
forfeited.
[McCray] at 655 (footnotes and internal quotation marks
omitted). . . .
In re Adoption of S.P., supra (emphasis added).
With respect to Section 2511(b), we have explained, “[i]ntangibles such
as love, comfort, security, and stability are involved in the inquiry into the
needs and welfare of the child.” In re C.M.S., 884 A.2d 1284, 1287 (Pa.
Super. 2005) (citation omitted). Further, the trial court “must also discern
the nature and status of the parent-child bond, with utmost attention to the
effect on the child of permanently severing that bond.” Id. (citation omitted).
However, “[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 753, 762-763 (Pa. Super. 2008)
(citation omitted).
Instantly, Father contends that the court abused its discretion in
terminating his parental rights pursuant to Section 2511(a)(1) because he
erroneously believed that a Protection from Abuse (“PFA”) order entered
-6-
J-S31029-19
against him in 2010 on behalf of Mother continued in effect. Because the
Children resided with Mother, he did not contact them. In addition, Father
contends that his conduct does not warrant termination because he filed a
child custody complaint on March 27, 2018, within six months immediately
preceding the filing of the involuntary termination petition.
The orphans’ court set forth the following factual findings, in relevant
part, which the testimonial evidence supports.
10. [Appellees] have been a couple and resided with one another
since September 2013. [N.T., 12/6/18, at 14].
11. The last time . . . Father saw [the C]hildren was at a public
park in the Fall of 2013, over five (5) years ago. [N.T., 12/6/18,
at 5].
12. During the last five years, Mother’s and the [C]hildren’s
address has been the same and is listed in the white pages of the
telephone directory; Mother has a Facebook account; and Mother
has maintained the same mobile phone number. [N.T., 12/6/18,
at 5-6].
13. Up until 2016, Mother was in contact with [Paternal
Grandmother]. . . . [N.T., 12/6/18, at 7].
14. Mother obtained a [PFA] Order against . . . Father in 2010, at
a time when only the oldest child was born. [N.T., 12/6/18, at
27-28, 44-45].
15. After [the PFA] Order was issued, . . . Mother and . . . Father
continued to have some contact, as their two youngest children
were conceived and born after the issuance of the [PFA] Order.
[N.T., 12/6/18, at 45].
16. Father has been incarcerated several times over the course of
the last several years. He was released from prison in the summer
of 2017, and has not been incarcerated since. [N.T., 12/6/18, at
8, 10].
-7-
J-S31029-19
17. Despite the fact that the [C]hildren’s location was
ascertainable, in the six (6) months prior to the filing of the
[p]etitions for [i]nvoluntary [t]ermination of Father’s parental
rights, . . . Father did not send any cards, gifts or money to the
[C]hildren, nor did he attempt to see the [C]hildren. [N.T.,
12/6/18, at 5-6].
18. Father testified he did not contact the [C]hildren through . . .
Mother because he believed the [PFA] Order was still enforceable.
[N.T., 12/6/18, at 18-19, 35-36].
19. Father has provided little to no financial support for the
[C]hildren during the last five years; he testified he made one
child support payment sometime in 2015. [N.T., 12/6/18, at 8].
20. Father is currently employed as a roofer and installer, yet he
has not offered any form of financial support to [the C]hildren in
the last six (6) months. [N.T., 12/6/18, at 24].
21. Mother elected not to pursue child support from . . . Father
after he was released from incarceration in the summer of 2017
because she and her husband planned to move forward with the
termination and adoption. [N.T., 12/6/18, at 9].
22. In late 2017 and early 2018, [Appellees]’ attorney sent . . .
Father notice of [Appellees]’ intent to pursue involuntary
termination proceedings and a request to sign a Consent to Adopt.
[N.T., 12/6/18, at 20].
23. On March 27, 2018, . . . Father filed a “[c]omplaint for
[c]ustody” in Allegheny County. When . . . Father learned that
Allegheny County was not the appropriate venue because the
[C]hildren did not reside there, he did not pursue the custody
action in Westmoreland County. [N.T., 12/6/18, at 14, 25-27].
24. Father took no other steps to contact [the C]hildren during
this period of time. During the six (6) months prior to the filing
of the [p]etitions in August 2018, . . . Father never contacted . . .
Mother to meet or have visitations with the [C]hildren. [N.T.,
12/6/18, at 12].
25. The child, I.L., has had no contact with . . . Father since she
was a little over one year old and[,] consequently, has no memory
of him. [N.T., 12/6/18, at 14-15].
-8-
J-S31029-19
26. The child, V.L., is diagnosed with autism, and is
developmentally delayed; he has no memory of . . . Father either.
[N.T., 12/6/18, at 15].
27. The child, N.S.L., can identify . . . Father on sight, and
infrequently asks questions about him, but he has not seen him
since he was a toddler. [N.T., 12/6/18, at 15].
28. [Stepfather] has been the father figure in the [C]hildren’s lives
for the past six years. The [C]hildren call him “Dad.” He provides
financial and emotional support. [N.T., 12/6/18, at 15-16].
...
Trial Court Opinion, 12/28/18, at 2-5.
Based on the foregoing facts, the orphans’ court concluded that Father’s
conduct warranted the termination of his parental rights pursuant to Section
2511(a)(1). We discern no abuse of discretion.
The testimonial evidence demonstrates that Father has refused or failed
to perform his parental duties since 2013. The court found Father’s
explanations in this regard disingenuous. Father testified that he erroneously
believed a PFA order issued against him on behalf of Mother in 2010 remained
in effect. Because the Children resided with Mother, he did not contact them
in the last five years. N.T., 12/6/18, at 27-28. However, Father testified that
he knew the address of the Children’s maternal grandfather, but he never sent
cards to the Children at that address. Id. at 36. Father further explained his
lack of contact with the Children as follows on direct examination:
Q. Why haven’t you had contact with the [C]hildren?
A. Since 2013?
-9-
J-S31029-19
Q. Yes.
A. Because I was not the greatest person, and [Mother] didn’t
want me in my kids[’] lives, and I really wasn’t fit to be in my
children’s lives. I was wrapped up with myself and I was battling
drug addiction very badly.
Id. at 28-29.
With respect to the custody complaint that Father filed in the Allegheny
County Court of Common Pleas on March 27, 2018, Father testified, “I was
notified via mail that it was going to get thrown out due to lack of venue, and
I was going to have to re-file in Westmoreland County.” Id. at 26. Father did
not re-file the custody complaint. As such, we discern no abuse of discretion
by the court in failing to credit Father for filing a custody complaint within six
months immediately preceding the filing of the termination petition. Father’s
issue on appeal fails.
With respect to Section 2511(b), Father does not raise an issue in the
statement of questions involved in his brief. It follows that he does not
present a claim regarding Section 2511(b) in the argument section of his brief.
Therefore, we do not review the orders under this section. See Krebs v.
United Refining Company of Pennsylvania, 893 A.2d 776, 797 (Pa. Super.
2006) (stating that any issue not set forth in or suggested by an appellate
brief’s Statement of Questions Involved is deemed waived); see also In re
M.Z.T.M.W., 163 A.3d 462 (Pa. Super. 2017). Accordingly, we affirm the
involuntary termination orders.
- 10 -
J-S31029-19
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/2019
- 11 -