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

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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APPEAL OF: C.D.M., MOTHER :
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: 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.
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* 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.
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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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