A.F. v. E.B.V. ( 2020 )

J-S56004-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
A.F. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
E.B.V. : No. 1708 EDA 2019
Appeal from the Order Entered May 24, 2019
In the Court of Common Pleas of Carbon County
Orphans' Court at No(s): No. 18-9056
BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.
MEMORANDUM BY PANELLA, P.J.: FILED FEBRUARY 12, 2020
In this appeal, A.F. (“Father”) challenges the decree entered in the Court
of Common Pleas of Carbon County that denied his petition for involuntary
termination of parental rights. He contends the trial court should have
involuntarily terminated the parental rights of E.B.V. (“Mother”) to their child,
J.B.V., (born May 2015) (the “Minor Child” or “Child”) due to her failure to
perform parental duties. After careful review, we affirm the trial court’s order
denying Father’s petition.1
The Minor Child was born in May 2015. Shortly after, Child experienced
withdrawal symptoms due to Mother’s drug use during pregnancy. Monroe
____________________________________________
1 Mother filed a motion to dismiss Father’s appeal as wholly frivolous and
vexatious. She also seeks an award of her attorney’s fees pursuant to
Pa.R.A.P. 2744. While we express our concern about Father’s clearly meritless
constitutional challenges, we decline to find that Father’s challenge to the
court’s refusal to terminate Mother’s parental rights wholly frivolous. We
therefore deny Mother’s motion to dismiss and her motion for sanctions.
J-S56004-19
County Children and Youth Services (“CYS”) conducted an investigation into
the circumstances of Child’s birth and Mother’s addiction. As a result, Child
was placed in emergency shelter care.
The Monroe County Court of Common Pleas held an emergency shelter
care hearing at which time Father appeared and expressed an interest in
taking custody of Child. But, as of the hearing, Father was unable to establish
paternity. The court ordered Father to undergo genetic testing. In the
meantime, Child was maintained in emergency shelter care.
Thereafter, the court held a dependency hearing, during which Child was
adjudicated a dependent child. The court reversed its decision soon after the
results of Father’s genetic testing established he was the presumptive father.
As such, the court terminated Child’s dependency status and awarded Father
legal and physical custody. At all times up to and including the dependency
hearings, Mother showed no interest in accepting parental responsibility for
Child.
Even so, Mother’s mother (“Maternal Grandmother”) filed a custody
action to obtain legal and physical custody of Child. A custody conciliation
conference resulted in Maternal Grandmother receiving partial physical
custody of Child. This arrangement required Father to present Child for visits
with Maternal Grandmother on certain weekends and holidays. It was during
these visits that Mother – now clean and sober - attempted to re-enter Child’s
life. Mother would appear during the visits and spend time with Child,
unbeknownst to Father. Due to Mother’s presence at these visits, Father filed
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a petition for involuntary termination of Mother’s parental rights, claiming she
did nothing to provide for Child nor perform parental duties on his behalf.
As a resident of Carbon County, Father successfully transferred the case
to the Carbon County Court of Common Pleas. After conducting an evidentiary
hearing on the petition, the court entered a decree denying Father’s requested
relief. Father timely filed a notice of appeal and a concise statement of errors
complained of on appeal. This appeal is properly before us.
On appeal, Father raises the following issues:
(1) Did the trial court err as a matter of law and thereby infringe
[on] . . . [Father’s] fundamental liberty interests protected by his
due process and equal protection rights under the U.S.
Constitution, amend. 14, § 1, and the Pennsylvania Constitution
art. I, § 1 . . . [?]
(2) Did the trial court err as a matter of law when it concluded
that . . . [Mother’s] parental rights could not be terminated under
any of the enumerated sections of 23 Pa. C.S.A. ?
(3) Did the trial court abuse its discretion by admitting evidence
identifying the potential adoptive person?
(4) Did the trial court abuse its discretion in making specific factual
findings and conclusions from the testimony presented?
Appellant’s Brief, at 4-5.
We review these claims under 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
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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 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 (the “Act”), 23 Pa.C.S.A. § 2101-2938, 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).
In his first issue, Father challenges the constitutionality of the Act. He
alleges that in order to terminate Mother’s parental rights under the Act, he
“must either (a) participate in an adoption . . . or (b) relinquish his parental
rights.” Appellant’s Brief, at 21. Father asserts that conditioning the
termination of Mother’s parental rights upon either a pending adoption or
voluntary relinquishment interferes with his fundamental right to raise Child.
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See id., at 25. Furthermore, as there is no basis to impair his liberty interest,
Father maintains that it is constitutionally repugnant to require marriage as a
prerequisite to termination under the Act. See id., at 28. Therefore, Father
contends the Act violates his due process and equal protection rights under
the Fourteenth Amendment of the U.S. Constitution. See id., at 21.
Preliminarily, we must address an issue related to Father’s challenge to
the constitutionality of the Act. In Pennsylvania, when a party challenges the
constitutionality of any statute, and the Commonwealth is not a party in the
matter, the challenging party must notify the Pennsylvania Office of the
Attorney General so that the Attorney General has the opportunity to be heard
on the issue. See In re J.Y., 754 A.2d 5, 11 (Pa. Super. 2000); see also
Pa.R.C.P. 235. Failure to file such notice results in waiver of the claim. See
Pa.R.A.P. 521 (a).
The record reveals that the Commonwealth is not a party in this matter,
and Father failed to notify the Office of the Attorney General of his challenge
to the constitutionality of the Act. Accordingly, we are constrained to find that
Father has waived any constitutional claim. Therefore, we decline to address
the merits of this claim.
In addition, based on our review of the trial court opinion and the
applicable law, we conclude that the trial court properly disposes of the
remaining issues raised by Father. Of particular note, we agree with the court
that Father’s “attempt [to terminate Mother’s parental rights] . . . fails as the
conditions which led to . . . [Child] being removed from . . . [Mother] no longer
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exist and in fact ceased to exist when . . . [Father] was given custody . . . .”
Trial Court Opinion, 5/24/19, at 17. Further, we cannot conclude, on this
record, that it was error for the court to admit evidence regarding the
proposed adoptive mother’s identity. See id., at 9-15. Having averred that
adoption was contemplated, Father had an obligation to present testimony on
this subject, which he did not. Finally, the record supports the court’s
determination that Mother demonstrated a serious intent to parent Child, as
evinced by the performance of her parental duties. See id., at 25.
Therefore, we affirm the order on the basis of the trial court opinion.
Order affirmed. Motion to dismiss denied. Motion for sanctions denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/20
-6-
Circulated 01/22/2020 10:52 AM
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,: : .-: (.'-··
IN THE COURT OF COMMON PLEAS OF C_ARBON __COUNTY, PENNSYLVANIA
ORPHANS COURT DIVISION
li] i 9 flj '( 2 Ll ,�, i I: 11
Plaintiff
Vs. No. 18-9056
Defendant
Michael S. Greek, Esquire Counsel for Plaintiff
Bernard Conway, Esquire Counsel for Plaintiff
Joseph Sebelin, Jr., Esquire Counsel for Defendant
Mark Combi, Esquire Guardian Ad Litem
MEMORANDUM OPINION
Matika, J. - Maya"f , 2019
In this Opinion and accompanying Decree, this Court is tasked
with determining whether or not the parental rights of a recovering
addict, who surreptitiously visited with her subject child while
that child was in the partial physical custody of his maternal
grandmother, has exhibited sufficient efforts to maintain an
appropriate position in this child's life and avoid the termination
of her parental rights. For the reasons stated in this Memorandum
Opinion, this Court is constrained to deny the Petition for
Involuntary Termination of Parental Rights filed by the father,
FACTUAL AND PROCEDURAL BACKGROUND
The Petitioner, (hereinafter ''-") and the
Respondent, (hereinafter
[FM-10-19)
1
conceived a child, (hereinafter "J.V.") who was born
on May ., 2015. At the time of his birth and prior thereto,
- was addicted to and had been using various controlled
substances such as methamphetamine, heroin, suboxone, and xanax.
As a result, J.V. was born addicted to opiates and suffered opiate
withdrawal upon his birth. Consequently, Monroe County Children
and Youth Services commenced an investigation into the
circumstances surrounding J. V.' s birth and - s addiction.
As a result, on May 21, 2015, the Monroe County Children and Youth
Services Agency took custody of J.V. and placed him into emergency
shelter care.1 On May 22, 2015, an emergency shelter care hearing
was held at which time only - appeared and expressed an
interest in taking custody of J.V. and would participated in any
genetic testing to establish if he was in fact J. V.' s father.
Pending that testing, J. V. was maintained in emergency shelter
care.2
On May 28, 2015, Monroe County Children and Youth Services
learned that - began suboxone treatment to address her
addiction and had also provided a clean urine test. Despite this,
she maintained that she did not want anything to do with J.V.
A dependency hearing was held on May 29, 2015. As of that
1
During this investigation, named two possible fathers, one of whom
was • ; however since nothing was conclusive on the identity of the
father, the Child was placed into emergency shelter care.
2 Due to physical condition, J.V. remained in the hospital until June 8, 2015.
[FM-10-19)
2
date, - had not received back any .r e su Lt. from the paternity
testing. Accordingly, J.V. was adjudicated a dependent child; On
June 1, 2015, - s private genetic t e s t inq established that he
was the presumptive father of J. V. On June 8, 2015, J.V. was
discharged from the hospital and into llllllllll's custody. On July
13, 2015, the genetic testing ordered by the Court at the emergency
shelter care proceeding confirmed that - was the presumptive
father.
On September 10, 2015, a further hearing on the dependency
status of J.V. was held. Based upon the testimony provided, the
Master, Todd W. Weitzmann, Esquire, recommended that the child's
dependency status be terminated and that legal and physical custody
of J.V. be awarded to-, with whom J.V. had been with since
June 8, 2015. At all times, up to and including that hearing,
- showed no interest in J.V.'s situation. J.V. has been in
the physical and legal custody of his father.
At some time in the latter part of 2015, J. V. 's maternal
grandmother, - - (hereinafter "Grandmother") commenced a
3
custody action against both - and -· As a result of a
custody conciliation conference which occurred on or about
September 23, 2016, it was recommended that 1111111111 be granted sole
legal custody and primary physical custody, while Grandmother was
3 Originally, Grandmother named Monroe County Children and Youth Services as a
defendant as well, however, as per Order of Court dated October 13, 2016, they
were removed as a defendant in· that action. ·
[FM-10-19]
3
to receive partial physical custody every second and fourth
Saturdays from 9:00 A.M. until 5:00 P.M. Other periods of partial
physical custody were also afforded Grandmother on certain
holidays. This recommendation also suggested that "the partial
physical custody rights of mother (111111111) are hereby suspended
until she files a petition with this court and attends a
conciliation conference in the future. "4 In fact, throughout the
entire calendar year 2016, - did not see or inquire about
J.V. from-·
Testimony presented by both - and Grandmother revealed
that on most occasions in anticipation of Grandmother's periods of
partial physical custody, - inqui•red of Grandmother whether
-was going to be present. Up through the October 14, 2017
visit, Grandmother regularly responded to - and intimated
that "Erica does not now, nor has she ever had any visit with
Jamie." It was not until meeting with an attorney herself did
Grandmother cease in including that sentence in �-mails responding
to-. It was around this time period when - began to
appear at Grandmother's residence during her periods of partial
physical custody with J.V. In fact, Grandmother's response was
now, "As stated in Barry Cohen's5 letter to you dated July 6, 2017,
4 It was noted in the recommendation that failed to appear for this
conference and ha� not participated as a parent since J.V.'s birth.
5 Barry Cohen, Esquire was Grandmother's counsel in the Monroe County custody
case.
[FM-10-19]
4
your inquiries about 0here Jamie will be and with whom durin1 my
shared·custody are uncalled for and do not require answers."
At some point 'in 2017, -' a resident o f Albrightsville,
Carbon County, sought and was successful in transferring the
custody case to Carbon County. Thereafter on January 12, 2018,
Grandmother filed a custody action seeking partial physical
custody of J.V. here in Carbon County pursuant to a Monroe County
Order. This action resulted in an Interim Order dated March 9,
2018 mirroring that which was issued by Monroe County on October
13, 2016, including language which required - to file a
petition to reinstate6 which - eventually did on April 17,
2018.7
From November, 2017 until at least the filing of the instant
petition to terminate parental rights filed on February 13, 2018,
11111111 had been present at her Mother's home while Grandmother
was exercising her partial physical custody rights in and to J.V.
on the second and fourth Saturdays each month. She spent these
times with J. V., unbeknownst to - . One of the reasons she
never told - that she was present was due to the hostilities
between - and Grandmother. She acknowledged that she had a
6 While the term "reinstate" and "suspended" were used in the March 9, 2018 and
October 13, 2016 order respectively, this Court could not identify any evidence
to indicate had any custody of J.V. to actually "suspend."
7 This filing was dismissed by Order of Court dated April 30, 2018 as a result
of another Order cif even date which granted 's preliminary objections to
Grandmother's standing to pursue partial physical custody in the first instance.
[FM-10-i9j ..
5
substance abuse disorder most of her adult life but was clean and
sober since May, 2017. She also testified that she had not gotten
involved with J.V. and visiting him before November, 2017 nor
contacting - because she did not feel five ( 5) months or so
was sufficient enough time to re-engage with J.V. Further, until
such time as she went with Grandmother to see Attorney Nicholas
Masington, she believed that she would be breaking the law visiting
with J.V. On cross-examine from - s Attorney, -
admitted that she wanted more clean time under her belt before
seeing J.V. because she felt that would be in his best interests.
- also testified that, absent the Saturday visits while J.V.
was visiting with Grandmother, she had done nothing else to provide
for J.V. nor perform parental duties on his behalf.
The testimony presented and the exhibits offered and admitted
did not prohibit - from seeing J.V. while he was in the
custody of Grandmother.
When questioned on the issue of whether an adoption was
contemplated, -· despite the overruling of his counsel's
objection to this testimony, provided vague and nominal testimony
on this issue and specifically on the person who "contemplated"
adopting J.V. should-'s parental rights be terminated. All
- testified to was the identity of his girlfriend who lived
in New York. - also testified that he has been seeing her
"on weekends" during the course of their one plus year long
[FM-10-19)
6
relationship. · Na· t e sti rnony was p r e s e'n t e d by this person, nor on
the issue of any rel�tionship ·between this person
and J.V.
In the midst of contentious custody p roc e ed i nq s involving
1111111 and Grandmother, 1111111 filed· the. instant petition.
Hearings took place on September 21, 2018 and October 23, 2018.
Proposed findings of fact and conclusions of law were filed· by
Counsel for 1111111111 and for 1111111111 as well as the Court appointed
Guardian ad Litem for J.V.
This case is now ripe for an appropriate disposition.
LEGAL DISCUSSION
1111111111 filed this petition for involuntary termination of the
parental rights of the maternal mother, 1111111111 on February 13,
2018. At that time, 1111111111 alleged that 1111111111' s parental rights
should be terminated pursuant to one of the several grounds
outlined in the statute, to wit: 23 Pa. C. S.A. § 2511 (a) (1) (6) and
( 8). 8 These grounds alleged by 1111111111 are as follows:
(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.
8 After a long and somewhat confusing discussion at the hearing on September
21, 2018, it was determined that , despite initially claiming other
grounds as a basis for terminating s parental rights to J.V., ultimately
agreed that only these three sections would be the grounds upon which he would
present his case for termination.
[FM.:.10-i9]
7
(6) In the case of a newborn child, the parent knows or has
reason to know of the child's birth, does not reside with
the child, has not married the child's other parent, has
failed for a period of four months immediately preceding
the filing of the petition to make reasonable efforts to
maintain substantial and continuing contact with the child
and has failed during the same four-month period to provide
substantial financial support for the child.
(8) The child has been removed from the care of the parent by
the court or under a voluntary agreement with an agency, 12
months or more have elapsed from the date of removal or
placement, the conditions which led to the removal or
placement of the child continue to exist and termination of
parental rights would best serve the needs and welfare of
the child.
In order to properly adjudicate .... s claims on each of
these grounds, this Court will address each separately noting that
- only needs to establish one such grounds by clear and
convincing evidence in order to succeed on his petition. In Re:
B.L.W., 843 A.2d 380, 384 (Pa. Super. Ct. 2004) (en bane); In Re:
T.R., 465 A.2d 642 (Pa. 1983). Such 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 hesitancy, of the truth of the precise facts
in issue." Matter of Sylvester, 555 A.2d 1202, 1203-04 (Pa. 1989).
In a termination' proceeding, "the initial focus is on the
conduct of the parent whose rights are at issue." In Re: E.M. I.,
57 A.3d 1278, 1287 (Pa. Super. Ct. 2012). Should - succeed
on this first prong under any of the alleged grounds identified
[FM-10-19)
8
above, the Court must also analyze the needs arid welfare of the
child as this is the second prong of the termination test.· In Re:
A.P., 994 A.2d 1108, 1121 (Pa: Super. Ct. 2010). This includes
determining whether termination would best serve the
developmental, physical and emotional needs and welfare of the
child while examining such tangibles as "love, comfort, security,
and stability." In Re: E.M.I., Supra at 1287 (internal citations
omitted).
Additionally, in In re: E.M.I., the court stated,
"current case law indicates that while an averment of a
contemplated adoption might be sufficient to obtain a
hearing on the termination petition, at the termination
hearing the petitioning parent must demonstrate the
planned adoption is also in the child's best interests,
before the court will terminate the parental rights of
the responding parent. See In re Adoption of L. J.B.,
supra at 232, 18 A.3d at 1110-11 (implying no gain to
child or society is achieved by terminating one parent's
rights to permit adoption by another who is unwilling or
unqualified to adopt). Thus, as part of its Section
2511(b) analysis of the needs and welfare of the child
in this context, the court must address and evaluate the
"proposed adoption" that was averred n the termination
petition.
Supra at 1287.
In this case, - claims that he has averred in his
petition in paragraph 9 that an adoption is presently contemplated
and /:hat this simple averment is sufficient to. show that a proposed
adoption is in the best interests of J.V. without inquiring into
the person who would actually be in a position to adopt the child
should llllllll's parental rights be terminated. At the hearing,
[FM-10-19]
9
counsel for-' while cross-examining-' inquired of the
proposed adoptive mother should termination be granted. This line
of questioning was met with an objection by -s counsel who
argued that 2 3 Pa. C. S. A. §2504. 1 which reads: "The Court shall
take such steps as are reasonably necessary to assure that the
identity of the adoptive parent or parents is not disclosed without
their consent in any proceeding under this subchapter or Subchapter
B (relating to involuntary termination)u. and "the Supreme Court
may prescribe uniform rules under this section relating to such
confidentiality", prohibits the identity of the proposed adoptive
mother without her consent. Further, 11111111 argues that since 23
Pa.C.S.A. §2531 (report of intention to adopt) is equally
inapplicable, disclosure is likewise not appropriate. 11111111
accurately cites to subsection (c) of this statute which indicates
that "no report shall be required when the child is the child,
grandchild, stepchild, brother, or sister of the whole or half
blood, or niece or nephew by blood, marriage or adoption of the
person receiving or retaining custody or physical care." However,
his reliance on the subsection as the means to preclude questions
as to the identity, relationship, and possible character of the
proposed adoptive mother is misplaced. Accordingly, - s
objection into this specific line of questioning was overruled and
[FM-10-19]
10
counsel for - was permitted to inquire regarding the proposed
adoptive mother.9
During direct examination, -never even·mentioned that
an adoption was contemplated nor who that person might be. On
cross-examination by -' s counsel, over the objection of
-··
-·s counsel, the following colloquoy took place:
Q. You may answer the question, Mr.
A. And that question again?
Q. Who is the person who is adopting? You don't have to adopt
the child. Is there another person that's contemplated
in this termination?
9 "A termination of parental rights petition filed by one parent against the
other must occur in the context of an anticipated adoption." In Re: Adoption
of M.R.D., 145 A.3d 1117, 1120 (2016). In those cases, not only must the parent
establish the requirements set forth in 23 Pa. C.S.A. §2517, but also that the
proposed adoptive mother is authorized to adopt the subject child pursuant to
the Adoption Act. 23 Pa. C.S.A. §2512(b); In Re: M.R.D., Supra. Further, the
court stated that the Adoption Act explicitly allows only a stepparent to be an
adoptive resource for the subject child when it is a biological parent filing
the termination petition against the other biological parent. See 23 Pa. C.S.A.
§2903. If the proposed adoptive parent is someone other than a stepparent, the
Adoption Act requires the biological parent who is filing the termination
petition to relinquish his parental rights. Id. These requirements, however,
can be waived "for good cause shown.'' See 23 Pa. C.S.A. §2901.
In In re.T.R., 465 A.2d 642, 644 n.10 (Pa. 1983), the Supreme Court observed
that, "the ·'singular concern' of the Adoption Act" is to "establish a new
'parent-child relationship.'" Accordingly, it reasoned that the trial court is
required to "consider, and not merely accept on its face," the putative adoption
parent's declaration of intent to adopt in order to confirm that the purpose of
the involuntary termination of parental rights is genuine, i.e., to establish
a new parent-child relationship.
As it relates to the "contemplated adoption" as averred by , the Cour.t.
must also examine the record to ascertain whether the proposed adoption of J.V.
by the proposed adoptive mother is to establish a new family unit. Accordingly,
the Court is required to analyze the integrity of the proposed adoption and
whether the adoption was likely to happen. See In re T.R., 465 A.2d 642, 644
n.10 (1983).
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11
A. Yes, there is.
Q. And what is the name of that person?
The Witness: Your Honor, may I speak on behalf of my
Counsel?
The Court: No. Your Counsel speaks on behalf of your Counsel.
You answer questions presented by counsel when asked.
The Witness:
By Mr. Sebelin:
Q. And who is�?
A.� is my girlfriend.
Q. How long have you been together?
A. Over a year.
Q. Okay. Does she live with the child?
A. Not at this time.
Q. Where does she live?
A. In New York.
Q. New York State?
A. The state of New York.
Q. Where in New York? It is a big state.
A. Long Island.
Q. How frequently are the two of you together?
A. On weekends.
The Court: Could you spell her last name?
The Witness:-·
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By Mr. Sebelin:
Q. - - hasn't filed a consent to · adopt the child,
correct?
A. That's correct.
Q. You and_..... are not married, correct? I know you said
it is your girlfriend. You are not married, correct?
A.-.
A. That is correct.
Q. What does the child call 111111111111?
Q. How many times - you said on the weekends and you have
been dating a year? So -
At that point,-· s counsel objected, claiming it was not
necessary to further inquire into what was otherwise an area of
inquiry he should have delved into on the issue presented above.
In other words, - s. counsel did not want -· s counsel to
ask any further questions of - on an issue - had an
obligation to present testimony on in the first instance.10
Further, nowhere on re-direct was - asked any further
questions into the proposed adoptive mother.
It is necessary to address this testimony for two reasons: 1)
to determine whether to strike this testimony at -s request
10 As the Court did not believe it was 's · obligation to present this
testimony but rather 's obligation and since I apparently did not
want any evidence presented to satisfy his burden, this Court granted s
request to cease inquiry.
[FM-10-19] ·
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as violative of 23 Pa. C.S.A. §2504.1; and 2) in furtherance of
the analysis required on this issue of a contemplated adoption/new
parent-child relationship vis-a-vis the integrity of the proposed
adoption. Since the Court believes it is truly necessary to
analyze the person, character and in vol vemen t of the proposed
adoptive mother, in addressing - s objections and request to
strike that portion of -' s testimony the phrase "be careful
what you wish for" comes to mind. Should the Court strike this
testimony, this Court would have no evidence before it to address
the integrity of the proposed adoption.11 All that the Court would
have before it is the single averment that, "an adoption was
contemplated." In the case of In re T.R., Supra, the court
determined that it should not merely accept the "adoption as
contemplated" averment on its face, but must actually consider
adoptive parent's intent to adopt. Here, the proposed adoptive
mother, was never called to testify. In fact, the only evidence
established about her was her name ) , the length of
the relationship 11111111 had with her (over a year), the fact that
she does not live with - or the child (lives in Long Island,
New York), the frequency of their contact (on weekends), that
- is not married to-, that the child calls her -
and that -- has not filed a consent to adopt the child. This
11Perhaps it was the intent of to avoid presenting this evidence knowing
full well such evidence was unsubstantial vis-a-vis this issue.
[FM-10-19)
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testimony, limited by' the sustained objection- of - s counsel,
is unconvincing to the Court that any relationship exists between
the child and - and that an adoption was truly con t ernp Lat ed ;
Further, and as a result, it cannot be said that adoption would
foster the creation of a new family unit12 nor serve the best
interest of the child.u
23 Pa. C.S.A. §25ll(a) claims
Notwithstanding the fact that 1111111111 has failed to establish
an appropriate ''contemplated adoption," the Court feels obligated
to address also the 25ll(a) claims he raised in his petition. As
12 In addition to the lack of evidence to establish an appropriately
characterized "contemplated adoption," the Court also would be otherwise
constrained to find that the relationship between and 1111, a
boyfriend/girlfriend relationship, is not one contemplated by the statute to
form a new "family unit."
13As duly noted by the Superior Court in In re E.M.I., 57 A.3d 1278, 1290 (Pa.
Super. 2012),"
(a] s the petitioner, it was incumbent upon Mother to present
adequate evidence in support of the petition. Mother must now bear
the responsibility for any complaint that the court issued a
decision on an incomplete record, as it was her burden to offer
unequivocal factual support for S.S.'s potential adoption of Child.
Although the hearings contained ample testimony on Father's
parenting deficiencies, there was a noticeable absence of solid
facts about the "contemplated adoption" element required under the
Adoption Act and how the "proposed adoption" would foster a new
family unit in Child's best interests. Quite simply, Mother did not
carry her evidentiary burden. Contrary to the contention of Child's
GAL, the court had no duty to require S.S. to file an intention to
adopt or otherwise expand the record. Ultimately, the court
correctly centered its analysis on the primary goals of the Adoption
Act - the best interests of Child and the creation of a new family
unit through adoption. On this record, we cannot fault the court's
decision to deny Mother's petition to terminate Father's parental
rights to Child."
While the Petitioner in the E.M.I case presented more than that presented by
111111 in the case subjudice, it, like here, failed to meet petitioner's burden.
[FM-10-i9]''
15
he has raised three (3) separate claims, (a) (1), (a) (6) and (a) (8),
we will address each seriatim.
I. §2511 (a) (8) - Monroe County Children & Youth Involvement
1111111 first contends that -'s parental rights should
be terminated pursuant to 2511 (a) (8) of the statute. This
subsection reads as follows:
The child has been removed from the care of the
parent by the court or under a voluntary agreement with
an agency, 12 months or more have elapsed from the date
or removal or placement, the conditions which led to the
removal or placement of the child continue to exist and
termination of parental rights would best serve the
needs and welfare of the child."
This Court agrees that J.V. was removed from his mother by
the Monroe County Office of Children and Youth Services
(hereinafter "Agency") because of -' s drug use, and placed
into Emergency Shelter Care and that pending lllllll's confirmation
as J.V.'s father, was the subject of a dependency petition in which
the Agency alleged that J.V. was "without proper p�rental care of
control." Once 1111111 was able to establish himself as the Father,
the Monroe County Courts, upon the recommendation of the Master,
Todd W. Weitzman, Esquire, terminated placement through the Agency
finding that the circumstances which necessitated the dependency
adjudication have been alleviated." Thereafter and as a result,
on September 17, 2015, J.V. was released from the Agency's custody
and placed with 11111111.
[FM-10-19]
16
This Court first finds that. (a) ('8) is one of the subsections
of the statute utilized by Children and Youth·Agencies to terminate
parental·.rights of parents, and riot uti·lized by a biological parent
who has custody .of the subject child, and is when see king to
terminate the other biological parent's rights to that child as is
the case here. Secondly, even if applicable to "private termination
proceedings", -'s attempt under this subsection fails as the
conditions which led to J.V. being removed from 111111111 no longer
exist and in fact ceased to exist when - was given custody on
September 17, 2015. Therefore, - would fail to terminate
111111111 s parental rights under 23 Pa. C.S.A. §2511 (a) (8).
II. 2511 (a) (6) - Newborn Child
- further alleges in his petition that 111111111• s
parental rights should be terminated pursuant to (a) ( 6) of the
statute which reads:
In the case of a newborn child, the parent knows
or has reason to know of the child's birth, does not
reside with the child, has not married the child's other
parent, has _failed for a period of four months
immediately preceding the filing of the petition to make
reasonable efforts to maintain substantial and
continuing contact with the child and has failed during
the same four-month period to provide substantial
financial support for the child." (Emphasis ours)
Without getting into the specific evidence presented at the hearing
by. - on . this ·claim, we can end the analysis by -s i mpl y
addressing the fact the J.V. is not a newborn child, nor was he on
crn...:10-191
17 ·
the date of the filing of this petition.14 Pursuant to 23 Pa. C.S.
A. §2102, a newborn child is defined as "[A) child who is six
months of age or younger at the time of the filing of any petition
pursuant to chapter 25 (relating to proceedings prior to petition
to adopt)." Since J.V. was approximately thirty-three months old
at the time of the filing of the instant petition, 2511 (a) (6) is
inapplicable.
III. 25ll(a) (1)- Settled Purpose to Relinquish Rights/Failed or
Refused to Perform Parental Rights
The remaining subsection of the statute which llll!llt. believed
entitles him to terminate -, s parental rights is 23 Pa.
C.S.A. §25ll(a) (1) This section reads as follows:
"the parent by conduct continuing for a period of at least
six months 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.A. §25ll(a).
Under this subsection,� may prove his claims in one of
two different ways: 1) that - has, for at least six months
prior to the filing of the instant petition, conducted herself in
such a way that she has shown that she wants to relinquish her
parental rights to J.V.; or 2) that - has for at least six
(6}months prior to the filing of the instant· petition, refused cir
failed to perform parental duties for and on behalf of J.V. Thus,
14 J.V. was born on May 19, 2015. ••• s petition was filed on February 13,
2018 .
[FM-10-19]
18
the minimal operative ti me frame within which to examine-' s
conduct vis-a-vis J.V. .i s s i x months prior to February 13,.2018.
v
In other words, the Court is to examine what did - do or not
do from August 13, 2017 until February 13, 2018 to warrant the
possible termination of her parental rights in and to J.V.
There was sufficient testimony presented by - that
during the course of a custody action involving J.V.'s maternal
grandmother, �11111111, he expressed concern about whether the
biological mother was to have or had any contact with J.V. during
maternal grandmother's periods of partial physical custody of the
subject child. �s testimony regarding the numerous
conversations with or emails to and from maternal grandmother on
the issue of whether - was present suggested that he was
infatuated with ensuring that - played no role in the child's
life.
- herself testified that at the time of J.V.'s birth
she wanted nothing to do with him and instantly thought that
adoption may be the best for him. - also testified that she
did not see J.V. at all throughout the remainder of 2015 nor at
all in 2016 and that it was not until late 2017 that she started
to visit with J.V. when her mother had partial physical custody of
J.V. When asked why she had not spoken to - during this time
frame, she intimated that it was due to the hostility he had shown
to the. maternal grandmother regarding her periods of partial
[FM-10-19]
19 .
physical custody and, not wanting to jeopardize that, was afraid
to contact him.
- further. testified that she had a serious substance
use disorder for the majority of her adult life. In fact, J. V.
was born with illegal substances in his system due to - s
addiction. - testified that she was sober for five (5)
months after J. V.' s birth but relapsed and got in trouble in
January, 2017. -testified that in May 2018, she had reached
one year of sobriety. When asked why she had not sought time with
J.V. once she became sober, she testified that she did not feel as
if she had enough clean time to prove to anyone she was a fit
parent. It was only after November, 2017 did she feel she wanted
to become a bigger part of J.V.'s life when she would appear at
her mother's house when J.V. was visiting there.
- testified that she saw J.V. at her mother's home from
November 2017 to February 13, 2018 approximately eight to ten
times. During these visits, - stated that she would play
with J.V., color with him, draw with him, and read to him. Also
during this time frame, she began to reach out to an attorney to
see if there was anything she could do to restore the custodial
rights that were suspended per the Order of Court dated October
13, 2016. - admitted that, other than these visits, which
occurred without 11111111 knowing about them and her attempt to have
her custodial rights reinstated, she did nothing more in the way
[FM-10-19)
20
of financial cir emotional support for J.V. Bottom line,· -
felt that, while she considered herself an "unfit" parent, she did
not want to be involved in J.V.'s life. When she felt the time was
right, she began to reappear in J.V.'s life albeit through secret
visits while J.V. was at his maternal grandmother's home .
. - also testified that he felt - s issues of drug
use and homele5sness were the two primary causes for concern and
reasons he was seeking termination of her parental rights in
addition to his belief that J.V. deserved a parent who is fit and
willing to provide emotional, mental and physical support for this
child, and that - was not that person.
A. Relinguishing Parental Claims
- argues that - relinquished her rights to J.V.
from the time she gave up custody of him at birth. This Court
agrees with - insofar as his analysis of -· s conduct
for the better part of two years (birth through approximately
November, 2 01 7) . However, thereafter, albeit sur rep ti tiously,
-·s conduct insofar as wanting to be involved in J.V.'s life
can no longer equate to contact tantamount to relinquishing her
parental rights to· him which occurred within the six (6) month
period prior to -'s filing.
- also argues .t ha t; even if - did see J. V. during
this six month period, she did so· in violation of the October 13,··
2016 custody order and she should not be "rewarded" for this
(FM-10-19]
21
illegal and improper conduct in ignoring the Court's concerns that
resulted in llllllll's custodial rights being suspended. However,
in reviewing the recommendation which led to the issuance of the
October 13, 2016 custody order, this Court finds nothing that
prohibits 11111111 from "having contact" with J. V. just that her
specified periods of partial physical custody were suspended
pending the filing of a petition by her. While we can presume
- raised the issue of 11111111• s substance use disorder, there
is nothing in the recommendation nor order suggesting that -
have no contact with J.V. pending the filing of a petition.
Further, there is nothing in the record to suggest that -
was in fact in contempt of court for having contact with J.V.
Therefore, we do not see these efforts by - to reengage with
her son as violative in any way of the court order, but rather
evidence of her conduct not to relinquish her rights to her child.
8. Refuse/Fail to Perform Parental Duties
This aspect of the termination statute is the most difficult
one to-analyze. Under the circumstances of this case the question
here is whether or not-· by her conduct from August, 2017
through February, 2018 shows evidence of a refusal or failure to
perform parental duties vis-a-vis J.V. There is undisputed
evidence that - did in fact have contact with J. V. from
November, 2017 through the end of January, 2018, while J.V. was
visiting with his grandmother. The testimony was also undisputed
[FM-10-19)
22
that - was· performing "some" type· of parental" duties with
J.V. in her interactions with him. Additionally; there was
testimony that - wanted to do more with regard to her
relationship with J. V. beyond these periodic visits when she
reached out to an attorney to see what to do regarding her conduct
and custodial rights. The question now becomes was this enough on
the part of - to establish that she had not failed/refused
to perform these parental duties.
In the case of In Re: B.N.M., 856 A.2d 847, 855 (Pa. Super.
2004), the court stated:
"There is not 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 pa rental 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 parent-child
relationship to the best of his 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
(FM-10-19)
23
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.u
(internal citations omitted)
Undoubtedly, lllllllll's contact with J.V. during the six (6)
month period were limited to when he was with his maternal
grandmother. Additionally, taking into consideration the fact
that she had not been involved in the child's life for a
significant period of time, her attempts to re-establish her
relationship with him needed to start small . baby steps, so
to speak. What she began to do before the petition to terminate
was filed was a re-introduction of herself into J.V.'s life, albeit
without llllllll's knowledge. The fact that she took the time to
address her addiction to better herself internally as well as
externally was progress towards vindication vis-a-vis her
abandonment of J.V. until such time as she believed it to be in
J.V.'s best interests.
"To 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: D.J.S., 737
A.2d 283, 286 (Pa. Super. Ct. 1999(quoting In Re:
Adoption of Hamilton, 549 A.2d 1291, 1295 (1988)).
[FM-10-19)
24
As· occurs· inost t i.me s in custody cases, ab s en t.e e " parents are
slowly re�introduced into children's lives. Such were the steps
taken by - to begin the process of re-establishing her
parental responsibilities towards J.V.
In conclusion, this Court does not feel that - has
failed nor refused to perform parental duties on behalf of J.V.
during the six (6) month period called for in the statute. To the
contrary, this Court finds that - has demonstrated a serious
intent, desire, and willingness to take on the role of parent.
Section 2Sll(b) Analysis
In light of the fact that this Court has determined .....
has failed to satisfy the statutory grounds for terminating
-'s parental rights in and to J.V., it is not necessary to
engage in a discussion regarding the "needs analysisu under
2Sll(b), that being or giving "primary consideration to the
developmental, physical and emotional needs and welfare of the
child." However, if pressed to do so, the conduct of - in
rekindling and recultivating a relationship with J. V. at a time
where his only other relationship was with his biological father,
in the eyes of this Court is the attempt at providing what this
child needs. "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
[FM-10-19]
25
permanently severing any such bond.u Lt: re L.M., 923 A. 2d SOS,
511 (Pa. Super. Ct. 2007) (citations omitted).
This Court believes that�'s actions are truly attempts
to establish the emotional bond between parent and child, one that
was lacking due to mother's addiction and one that should not be
severed at the whim of the father.
CONCLUSION
Based upon an exhaustive review of the record and the
applicable case law, this Court does not find that - has
satisfied his burden in regards to his petition to terminate the
parental rights of� in and to J.V. and accordingly, enters
the following order:
[FM-10-19]
26