In Re: Adoption of: A.T.I., Appeal of: C.D.M. ( 2020 )


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  • J-A01017-20
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    IN RE: ADOPTION OF: A.T.I., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
    :
    :
    APPEAL OF: C.D.M., MOTHER                  :
    :
    :
    :
    :   No. 2690 EDA 2019
    Appeal from the Order Entered August 16, 2019
    In the Court of Common Pleas of Northampton County Orphans' Court at
    No(s): No. 2019-00015
    BEFORE:      NICHOLS, J., MURRAY, J., and COLINS, J.*
    MEMORANDUM BY MURRAY, J.:                            FILED FEBRUARY 19, 2020
    C.D.M. (Mother) appeals from the order denying her petition to
    involuntarily terminate the parental rights of J.A.I. (Father), to their minor
    daughter, A.T.I. (born December 2008) (Child). We affirm.
    The trial court summarized the factual and procedural history of this
    case as follows:
    [Child], born [in December 2008], is presently 10 years of age.
    She currently resides in Bath[, Northampton County,
    Pennsylvania], with Mother and Mother’s paramour, [S.K., Jr.
    (Paramour)]. Mother and [Paramour] have been in a relationship
    for the past nine years. In addition to the [c]hild of the parties
    herein, Mother and [Paramour] are also raising a child of their own
    union. [Paramour] wishes to adopt [Child]. Father also currently
    resides in Bath, with his paramour, his paramour’s child, and the
    child of their union.
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
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    From the time [Child] was under one year of age until she was
    approximately six years of age, she was in the primary custody of
    Father. Mother relinquished physical custody of [Child] in her
    infancy to Father in order to pursue a military career, though this
    intention never came to fruition. During this time, Mother had
    little contact with [Child] for several years, until [Child] was
    approximately five years of age, when regular contact with Mother
    resumed. [Child] remained in Father’s primary custody.
    In August 2014, Father was involved in a serious accident while
    at work, resulting in severe burns to his body. As a result, Father
    was unable to work and eventually found himself both
    unemployed and homeless, without any benefits because he had
    been self-employed. When Father found himself and [Child] living
    in close quarters at the home of an acquaintance, Father became
    concerned about the safety of [Child] and decided the best
    interests of [Child] were not being served and that it would be
    best if she went to live with Mother for a period of time until he
    was able to get back on his feet with a job and housing. Mother
    agreed to take primary custody of [Child], and the parties agreed
    that they would assume a 50/50 custodial schedule when Father’s
    circumstances improved. Unbeknownst to Father until months or
    perhaps years later, Mother obtained an emergency custody Order
    on September 2, 2014[,] granting her primary legal and physical
    custody of [Child].
    Father visited with [Child] sporadically after relinquishing physical
    custody to Mother. His last visit with Child was in May 2015. After
    May 2015, Father attempted to reach Mother and [Child] via
    telephone, but Mother did not return Father’s calls and eventually
    changed her telephone number without notifying Father of the
    change. Mother also changed residences at some point in the
    months after cutting off telephone contact with Father. While
    Mother did notify the court of her change of address for purposes
    of the custody litigation on February 3, 2016, she did not notify
    Father.    When Father learned that Mother had moved, he
    attempted to locate her and [Child] by contacting Mother’s
    mother. [Child]’s maternal grandmother related that she, too,
    was unaware of Mother’s whereabouts. Father being pro se in the
    custody litigation, we do not believe it would be reasonable to
    expect him to be aware that he might learn Mother’s new address
    by consulting the court file. Father testified at trial that after he
    realized Mother was making [Child] unavailable to him, he wanted
    to wait until he was able to improve his circumstances to provide
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    a good life for [Child] before continuing to pursue his custodial
    rights in [c]ourt, and that he did not want to continue to pursue
    locating Mother out of fear of being accused of harassment.
    In March 2018, Father felt that he was in a better position to
    parent [Child] and filed a counseled Petition for Modification. A
    custody conference was scheduled for April 19, 2018, at which
    Father was not present as a result of his counsel’s failure to inform
    him of same. On June 6, 2018, Father’s counsel withdrew without
    notice to Father. On June 11, 2018, an Order of Court was entered
    dismissing Father’s petition after no one appeared for trial. Father
    credibly related that he was unaware of the scheduled trial
    because of his attorney’s failure to inform him of same. At
    present, Father has stable employment and housing and is in a
    stable relationship with his paramour, to whom he is engaged and
    with whom he is raising two children. He is now ready and willing
    to parent [Child] and wishes to regain a relationship with her. He
    has created a bedroom for [Child] in his home, and has purchased
    gifts for her for all of the holidays and birthdays that they have
    been apart.
    See Order of the Court, 8/16/19, at 2-5.
    On February 14, 2019, Mother initiated the underlying action by filing a
    petition seeking to involuntarily terminate Father’s parental rights pursuant to
    23 Pa.C.S.A. § 2511(a)(1) and (b). The court held a hearing on July 17, 2019.
    Mother and Father both testified. Additionally, Father presented the testimony
    of K.D., his paramour.        At the hearing, Child was represented by Lisa M.
    Spitale, Esquire, guardian ad litem.1 The court denied the petition on August
    16, 2019.
    ____________________________________________
    1 In her argument before the court, Attorney Spitale averred that there was
    no conflict between Child’s best and legal interests. See In re Adoption of
    L.B.M., 
    161 A.3d 172
    , 183 (Pa. 2017) (plurality); In re T.S., 
    192 A.3d 1080
    ,
    1092-93 (Pa. 2018) (holding that a GAL may serve as legal counsel where
    there is no conflict between Child’s best and legal interests). Before this Court,
    Attorney Spitale has not filed a brief, but a letter joining Mother’s brief
    requesting that this Court reverse the order denying the termination petition.
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    Thereafter, Mother filed a motion seeking to reopen the record and for
    reconsideration of the court’s denial of her petition, seeking to introduce the
    testimony of Charles E. Dutko, Jr., Esquire, Father’s custody attorney. The
    court denied the motion on September 14, 2019.
    Mother timely filed her notice of appeal and concise statement of errors
    complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
    On appeal, Mother raises the following issues for our review:
    A. Should [Father’s] parental rights be terminated in that he
    refused or failed to perform parental duties for a period of at least
    six months immediately preceding the filing of the termination
    petition?
    B. Should Father’s [t]estimony that he was waiting for a more
    suitable time excuse his failure to perform parental duties?
    C. Should the record be reopened to admit the testimony of
    Father’s custody attorney and to admit the records from that
    custody case?
    Mother’s Brief at 4 (unnecessary capitalization and suggested answers
    omitted).
    We review cases involving the termination of parental rights according
    to the following:
    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
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    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 quotations omitted).
    In addition, termination 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).
    The relevant subsections of 23 Pa.C.S.A. § 2511 provide:
    (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,
    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
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    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.
    With regard to petitions filed under Section 2511(a)(1),
    [t]o 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. In addition,
    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.
    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) (internal citations
    omitted).
    As to the six month period, this Court has stated:
    [I]t is the six months immediately preceding the filing of the
    petition that is most critical to our analysis. However, the trial
    court must consider the whole history of a given case and not
    mechanically apply the six-month statutory provisions, but
    instead consider the individual circumstances of each case.
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    In re D.J.S., 
    737 A.2d 283
    , 286 (Pa. Super. 1999) (citations 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.” In re B., N.M.,
    
    856 A.2d 847
    , 855 (Pa. Super. 2004), appeal denied, 
    872 A.2d 1200
    (Pa.
    2005) (citation omitted).
    Regarding the definition of “parental duties,” this Court has stated:
    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 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.
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    In re B., 
    N.M., 856 A.2d at 855
    (citations omitted).
    We address Mother’s first two issues concerning Section 2511(a)
    together. Mother argues that Father has not had communication with Child
    since May 2015, and has done nothing meaningful to perform his parental
    duties. See Mother’s Brief at 14. Mother argues that Father did not make
    any attempt to discover Mother’s address, and his sole attempt to re-establish
    a relationship with Child was the filing of a custody modification petition in
    2018. 
    Id. Mother argues
    that Father’s excuses, including his claim that his
    attorney did not communicate with him, and that he was waiting for a more
    suitable time to resume a relationship with Child, are unbelievable. 
    Id. at 14-
    18.
    However, the trial court opined:
    The [c]ourt finds it commendable that Father recognized the
    inappropriateness of his living situation for a young girl and
    reached out to Mother to provide [Child] with a more suitable
    living arrangement. While Father had an affirmative duty to
    maintain his relationship with [Child] during the time that he was
    working to get back on his feet, his best attempts to do so were
    thwarted by Mother. In considering a parent’s absence from a
    child’s life, we “must consider the non-custodial parent’s
    explanation, if any, for the apparent neglect [of parental duty],
    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.” In re B.,
    N.M., [
    856 A.2d 847
    ,] 855-856. It is clear to the [c]ourt in this
    case that Mother, while not taking extreme measures to hide
    [Child] from Father, did take actions to thwart the relationship
    between [Child] and Father by making herself and [Child]
    disappear from Father’s life. With respect to Father’s attempts to
    preserve his relationship with [Child], his “performance must be
    measured in light of what would be expected of an individual in
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    circumstances which the parent under examination finds
    [himself].” In re Adoption of Sabrina, 
    47 A.2d 624
    , 627 (Pa.
    Super. 1984). Under the circumstances of the case, we believe
    that Father did as much as he was capable of doing in order to
    maintain a relationship with [Child]. Mother clearly worked to
    interfere with the relationship between Father and [Child], taking
    advantage of Father’s circumstances to shut Father out of [Child]’s
    life. Mother changed her address without directly notifying Father,
    and even cut off contact with her own mother, making it more
    difficult for Father to locate her and [Child]. We find it quite telling
    that Mother testified at trial that she did not think that it was
    important for Father to have a role in [Child]’s life.
    We accordingly find that Father exercised reasonable firmness
    under the circumstances in maintaining a relationship with [Child],
    and thus find that Mother has failed to meet her burden of proving,
    by clear and convincing evidence, that Father’s parental rights
    should be terminated. In re G.P.-R., 
    851 A.2d 967
    , 976 (Pa.
    Super. 2004).
    Trial Court Opinion, 8/16/19, at 5-7.
    The court’s findings are supported by the record. Mother’s argument is
    essentially a challenge to the weight the trial court placed upon certain
    evidence, and a challenge to the trial court’s credibility determinations. It is
    well-settled that this Court may not re-weigh evidence. 
    T.S.M., 71 A.3d at 267
    .   Thus, consistent with the foregoing, we discern no error in the trial
    court’s determination that Mother failed to prove by clear and convincing
    evidence that termination was warranted. B., 
    N.M., 856 A.2d at 855
    .
    In Mother’s second issue, she contends that the court erred in denying
    her request to open the record, admit the testimony of Father’s attorney, and
    admit custody records. See Mother’s Brief at 21-22. Mother argues that it
    was “unreasonable” for the trial court to credit Father’s testimony about his
    attorney’s failure to communicate with him. 
    Id. Mother cites
    generally to law
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    regarding post-trial motions and the admission of post-trial evidence in civil
    and criminal cases, but does not cite to cases involving orphans’ court,
    domestic relations, or involuntary termination of parental rights. 
    Id. at 22.
    The trial court rebutted Mother’s claim as follows:
    Mother asserts no legal authority for an entitlement to open the
    record – nor is the [c]ourt aware of any such authority – but
    merely argues that she should have been permitted to do so after
    the issuance of our August 16, 2019 Order, to offer evidence
    contrary to Father’s testimony. If Mother was surprised by
    Father’s testimony and wished to offer evidence in rebuttal, she
    was certainly aware of his testimony prior to the conclusion of the
    trial and could have requested an adjournment at that time in
    order to gather the necessary evidence, but did not do so. Mother
    had her day in [c]ourt to present all of the evidence she felt that
    she needed to present in order to prevail on her petition, and is
    not entitled to reopen the record simply because she does not
    agree with the [c]ourt’s conclusion. Notably, Mother is not forever
    foreclosed from seeking termination of Father’s parental rights,
    and we specifically noted that she may file a new petition after
    one year if Father continued to be absent from [Child’s] life.
    Mother’s apparent position that her rights have somehow been
    violated or that a great injustice has been done by our refusal to
    terminate Father’s parental rights at this time plainly echoes her
    actions in thwarting Father’s attempts to see [Child] over the last
    four years – and supports our conclusion that those actions were
    intentional – as well as her statement at trial that Father did not
    have an important role to fulfill in [Child’s] life, and is entirely
    misplaced. Nothing is lost by permitting Father a modicum of
    additional time to reconnect with [Child] and perform parental
    duties, now that he has recovered physically and financially and
    has retained capable counsel. Conversely, much could be lost by
    terminating Father’s parental rights in a case where the record is
    far from clear that such action is warranted.
    Trial Court Opinion, 9/16/19, at 2-4.
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    Again, we see no error in the trial court’s determination, and thus
    conclude that Mother’s issue regarding her request to re-open the record does
    not merit relief. 
    T.S.M., 71 A.3d at 267
    .
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/19/20
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Document Info

Docket Number: 2690 EDA 2019

Filed Date: 2/19/2020

Precedential Status: Non-Precedential

Modified Date: 12/13/2024