In Re: Adopt of: C.S. Appeal of: J.S.R & A.J.B. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: C.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.S.R. AND A.J.B., : No. 28 MDA 2015
:
Appellants :
Appeal from the Order Entered December 4, 2014,
in the Court of Common Pleas of Franklin County
Orphans’ Court Division at No. 52 Adopt 2014
IN RE ADOPTION OF: C.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: M.S., FATHER, : No. 164 MDA 2015
:
Appellant :
Appeal from the Order Entered December 4, 2014,
in the Court of Common Pleas of Franklin County
Orphans’ Court Division at No. 52-Adopt-2014
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 10, 2015
This matter concerns the trial court’s order denying the petition for the
involuntary termination of M.S.’s (“Natural Father”) parental rights to C.S.
(“Child”) filed by A.J.B. (“Natural Mother”) and J.S.R. (“Proposed Adoptive
Father”) (collectively “Appellants”). Appellants filed an appeal from the trial
court’s December 4, 2014 order at No. 28 MDA 2015. Natural Father filed a
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cross-appeal from the trial court’s December 4, 2014 order at No. 164 MDA
2015. On March 4, 2015, this court consolidated the appeals.
We first address the motion to quash filed by Natural Father. Natural
Father argues Appellants’ appeal should be quashed due to their failure to
file a statement of errors complained of on appeal with their notice of appeal
as is required in children’s fast track appeals. The record indicates
Appellants filed a timely notice of appeal on January 2, 2015, from the
December 4th order. On January 5, 2015, the trial court entered an order
finding that Appellants had not filed a concise statement as required by
Pa.R.A.P. 905(a)(2) and 1925(a)(2)(i). That order, however, did not direct
Appellants to file a concise statement. On January 16, 2015, Natural Father
filed his timely cross-appeal from the December 4th order and concurrently
filed his concise statement.
On February 20, 2015, after docketing statement review, this court
issued an order directing Appellants to file the requisite concise statement in
the trial court, to serve the concise statement on the trial judge and other
parties, and to file a copy of their concise statement with the Superior
Court’s Prothonotary’s Office by March 2, 2015. On February 27, 2015,
counsel for Appellants filed a copy of their concise statement with the
Prothonotary of the Superior Court. The statement was time-stamped as
having been filed in the Court of Common Pleas on February 27, 2015. The
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proof of service represented that counsel served opposing counsel by mail
and served the trial judge by personal service.
Although Appellants did not file their concise statement with their
notice of appeal, we note that this court’s decision in In re K.T.E.L., 983
A.2d 745 (Pa.Super. 2009), makes clear that a failure to file a Rule 1925(b)
statement concomitantly with the notice of appeal will result in a defective
notice of appeal, but is not necessarily a basis for quashal. Id. at 747.
Instead, whether this transgression results in quashal of the appeal should
be determined on a case-by-case basis taking into consideration, among
other factors, prejudice to the other parties in the case. Id. at 748.
Natural Father argues that he will be prejudiced by allowing Appellants’
appeal to proceed because neither he nor the trial court knew of the basis
for their appeal when the trial court filed its opinion and when he submitted
his brief. Clearly, the trial court did not have the benefit of Appellants’
statement. Nonetheless, this case concerns the trial court’s order denying
Appellants’ petition to involuntarily terminate Natural Father’s parental rights
to Child. The trial court’s opinion addresses the relevant sections,
23 Pa.C.S.A. § 2511(a)(1), (2), and (b), of the Adoption Act under which
Appellants sought to terminate Natural Father’s parental rights. The only
issue raised by Appellants in their brief concerns Section 2511(b). The trial
court addressed this issue. Consequently, we find no prejudice to Natural
Father’s interests. Furthermore, Appellants complied with this court’s order
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directing them to file their Rule 1925(b) statement by March 2, 2015.
Accordingly, Natural Father’s motion to quash is denied. We can now
proceed to address the merits of the appeals filed by Appellants and Natural
Father.
We adopt the factual history of the matter as summarized by the trial
court:
Father filed a complaint in custody on
September 5, 2014. As of the time of hearing,
Father had had no contact with his minor child since
April 2013, a span of approximately 15 months.
Father has an arrearage of approximately $2,000.00
in child support, which he asserted was due to
periods of unemployment of approximately three
months, and other difficulties making payments, but
that he has been consistently making payments as
required under a Domestic Relations order. His
payments total what he is required to pay by the
Domestic Relations support order. Father has never
sought to contest the support amount, nor has he
made efforts to refuse employment in an effort to
avoid paying support.
The Court finds that following the child’s
conception, Mother and Father initially lived for
approximately three to four months in
Chambersburg, Pennsylvania. Due to financial
difficulties, they ultimately lived with [Mother’s]
parents for approximately ten months. Father was
suspected of “cheating” on Mother, and so Father
was thrown out of Mother’s home. Father testified
that he was physically threatened at the time that he
left by maternal grandfather. He left without his
personal belongings and walked approximately
13 miles to Shippensburg, Pennsylvania. Maternal
grandfather denied claims that he referenced a hand
gun or ever produced one when ordering [Father] to
leave the maternal grandparents’ home.
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Subsequent to [Father] and Mother’s
separation, Father briefly lived in Carlisle,
Pennsylvania. He would exercise at least two
periods of custody per week, although the parties
never entered into a formal custody arrangement.
Father continued to see the child and provide the
child gifts. Subsequent to the parties’ separation,
Father testified that due to his financial
circumstances, he moved to Harrisburg,
Pennsylvania and had roommates. Mother objected
to his living arrangements. Father briefly lived with
his mother for three or four months. Since his
mother is a smoker and the child’s mother did not
approve of her smoking, Father did not exercise
overnight custody with the child while residing with
his mother. When Mother would protest about
Father’s living arrangements, the parties would work
out alternate arrangements to meet in supervised
locations or settings, including public venues.
At one point Mother and Father attempted to
reconcile, but ultimately they were unable to
reconcile, and Father found a new relationship with
[C.B.]. Both counsel for Father and counsel for the
child assert and argue that this information is
relevant to the Court’s determination when
considering Father’s conduct in the six months prior
to the filing of the petition. Father asserts Mother’s
dissatisfaction with Father’s new relationship resulted
in a pattern of conduct by Mother and her family in
which they placed obstructions in the path of
Father’s efforts to exercise custody with the child.
Mother testified that Father had not supplied any
gifts, cards, or other information to the child in the
preceding six months, and that the last time that
Father presented any type of significant gifts to the
child would have been outside the six month period.
Father acknowledged that for Christmas 2013, he
may have bought gifts, but that he did not supply
them to the child as prior gifts to the child in 2012
had been returned, specifically a scooter that
Father’s girlfriend [C.B.] supplied to the child.
Mother testified that she did not attempt to block
Father from contacting her, that she continued to
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remain and live in the same location, that she did
not change her phone number, and that even if she
had changed her phone number, Father was
certainly aware of her family’s residence and could
have reached out to her or attempted to see the
minor child by contacting them. Father testified that
he was in fear of returning to Mother’s home, as he
had been forced to leave due to threats by maternal
grandfather. He testified that Mother had blocked
Father’s phone access, Facebook, social medial [sic],
and any other ability to contact her. Father
acknowledged he was aware of where Mother’s
family lived.
Mother and her fiancé, [J.R.], as well as
Mother’s sister, all testified that they were able to
access the Facebook account of [Father], as well as
that of [Father]’s girlfriend, [C.B.]. They obtained
photographs and information of Father’s conduct
from approximately August 6, 2012 up through the
end of September, 2014. The Court notes that the
Facebook postings of [Father] are essentially
completely devoid of any reference to his son, and
principally focus on his relationship with [C.B.]. The
Court notes that the postings reveal multiple trips
and excursions, including trips to New York Giant
football games at Met Life Stadium and FedEx Field,
a New York Yankees baseball game at Yankee
Stadium, trips to Atlantic City, and to the Outer
Banks. Father testified the trip to the Outer Banks
was paid for by his mother as a gift to [C.B.] for her
success in graduating from law school. The
Facebook postings also reveal gifts to [C.B.] such as
a Tiffany necklace and a Coach bag. Father testified
that he essentially did not pay for any of these
excursions, trips, or other items. He was in essence
supported by [C.B.] in their social activities. He
denied the assertion by Mother and proposed
adoptive father that he had resources to pay for legal
services to attempt to secure custody of his son
since he was denied custodial access in April 2013.
Father testified that he used Facebook as a social
forum to post matters relating to his relationship
with [C.B.], but chose to not post items about his
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son, which he characterized as a different type of
relationship that was inappropriate for social media
postings. Father testified generally that he did not
have the financial wherewithal to secure an attorney,
and could not even afford to consult with an
attorney. He also testified that it “took him awhile to
figure out the paperwork” to ultimately file a custody
complaint as a self-represented litigant
approximately 13 months after the last time he had
exercised custody with his son. Father testified that
he generally has always been employed, that he
traveled to Pittsburgh, Pennsylvania for the purpose
of interviewing for a managerial position with
Applebee’s, which is the explanation for another trip
that he took with [C.B.].
Proposed adoptive father, [J.R.], testified that
he is currently employed at Letterkenny and he has
stable employment. He also testified that he and the
minor child have developed a bond and that on
occasion the child has called him Daddy. Both he
and natural Mother deny that they have encouraged
the child to refer to him as Daddy, and that he is
often referred to as [J.] by the minor child. He
testified that he and the child interact, play games,
travel, and do things together. He has been very
involved in the child’s life, and it is his intent to
marry natural Mother. He testified that the decision
to seek involuntary termination of parental rights
was only thought about and made known to him and
Mother once they consulted with an attorney after
Father had filed the complaint for custody. He also
testified that the bond between [him] and the child
[has] become so strong that “the child cried
significantly and was fearful that he would not return
from a business trip that he was taking.”
Although counsel for the minor child asserted
that natural Father would never win a father of the
year award, [] it was his opinion that the minor
child’s welfare was dependent upon a relationship
with natural Father, and that natural Father’s failings
in pursuing custody had more to do with Mother’s
efforts to deny him access to the child and Father’s
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past experiences with Mother’s family than it did with
Father’s neglecting or not wanting to perform
parental duties.
Trial court opinion, 12/4/14 at 2-6.
Appellants’ petition for involuntary termination of Natural Father’s
parental rights was filed two weeks after Father filed his complaint for
custody on September 5, 2014. Two days of hearings took place on
November 7 and 24, 2014. On December 4, 2014, the trial court entered an
order accompanied by an opinion. The trial court found that “Father did not
act affirmatively, and that it is likely that his actions could constitute a
failure to perform parental duties under subsection (a)(1), or that he was
neglectful of the child under subsection (a)(2).” (Trial court opinion,
12/4/14/ at 13.) The trial court then proceeded to analyze Section 2511(b)
and determined it would serve Child’s needs and welfare to permit Father to
re-establish a custodial relationship. (Id. at 13-16.) Hence, the trial court
denied Appellants’ petition. Appellants appealed the order; Natural Father
filed a cross-appeal.
Appellants raise one issue for our consideration:
A. The trial court abused its discretion in not
finding that Petitioners met their burden of
proving that the welfare of the child would be
adversely affected by said Court’s denial of
their Petition for involuntary termination of the
parental rights of Respondent under
23 Pa.C.S.A. 2511(b).
Appellants’ brief at 4.
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We review the determination of the orphans’ court for an abuse of
discretion. In re D.C.D., 105 A.3d 662, 670 (Pa. 2014) (“When reviewing a
trial court’s decision to grant or deny a termination of parental rights
petition, an appellate court should apply an abuse of discretion standard,
accepting the findings of fact and credibility determinations if they are
supported by the record, and reversing only if the trial court made an error
of law or abused its discretion.”). This is a highly deferential standard, and
to the extent that the record supports the court’s decision, we must affirm
even though evidence exists that would also support a contrary
determination. In re A.S., 11 A.3d 473, 477 (Pa.Super. 2010). Appellants
have the burden of proving the statutory grounds for termination by clear
and convincing evidence. In re Adoption of L.J.B., 18 A.3d 1098, 1107
(Pa. 2011).
Requests to terminate the parental rights of a biological parent are
governed by 23 Pa.C.S.A. § 2511(a) and (b). Instantly, Appellants’
argument only implicates the orphans’ court analysis pursuant to
Section 2511(b). That section provides as follows:
(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
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filed pursuant to subsection (a)(1), (6) or (8),
the court shall not consider any efforts by the
parent to remedy the conditions described
therein which are first initiated subsequent to
the giving of notice of the filing of the petition.
23 Pa.C.S.A. § 2511(b).
In reviewing the evidence in support of termination under
Section 2511(b), we consider whether termination of parental rights would
best serve the developmental, physical, and emotional needs and welfare of
the child. See In re C.M.S., 884 A.2d 1284, 1286-1287 (Pa.Super. 2005),
appeal denied, sub nom. C.M.S. v. D.E.H., Jr., 897 A.2d 1183 (Pa.
2006).
“Intangibles such as love, comfort, security, and stability are involved
in the inquiry into the needs and welfare of the child. The court must also
discern the nature and status of the parent-child bond, with utmost attention
to the effect on the child of permanently severing that bond.” Id. at 1287
(citation omitted).
Instantly, Appellants argue Natural Father did not perform any
parental duties with respect to Child from June 2013 to September 2014.
(Appellants’ brief at 17-18.) Appellants also assert that Natural Father did
little to exert himself to maintain a parent/child relationship with Child. (Id.
at 18.) It is Appellants’ contention that the overall welfare of Child would be
advanced by the termination of Natural Father’s parental rights. (Id. at 19.)
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Our review of Appellants’ argument reveals much of it revolves around
Father’s failure to perform his parental duties. The trial court indeed found
that Father had failed to perform parental duties under Section 2511(a)(1)
and was neglectful under Section 2511(a)(2). Be that as it may, the trial
court determined, under Section 2511(b), Appellants had failed to carry their
burden. We reiterate that the focus in terminating parental rights under
Section 2511(a) is on the parent, but it is on the child pursuant to
Section 2511(b). In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa.Super.
2008) (en banc).
Appellants’ sole claim in advancing an argument under
Section 2511(b) is that they fear Child will suffer significant harm if Natural
Father is permitted to retain his rights to Child and then disappear from
Child’s life. (Appellants’ brief at 19.) Appellants’ argument is sorely lacking
as it fails to discuss pertinent case law or any statutory authority. As we
noted in In re Estate of Whitley, 50 A.3d 203, 209-210 (Pa.Super. 2012)
(citations omitted):
The argument portion of an appellate brief must
include a pertinent discussion of the particular point
raised along with discussion and citation of pertinent
authorities. This Court will not consider the merits of
an argument which fails to cite relevant case or
statutory authority. Failure to cite relevant legal
authority constitutes waiver of the claim on appeal.
See also In re S.T.S., Jr., 76 A.3d 24, 42 (Pa.Super. 2013) (citation
omitted) (noting that “mere issue spotting without analysis or legal citation
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to support an assertion precludes our appellate review of a matter”);
Pa.R.A.P. 2119(a) (argument portion of brief must contain discussion and
citation to pertinent authorities). Clearly, we could find Appellants’
argument waived. However, we will instead rely on the following analysis by
the trial court in finding no merit to Appellants’ contention that Child will
suffer any harm by having Natural Father involved in his life.
In the context of determining the welfare of the
child, the Court must take into account whether a
bond exists between child and parent, and whether
termination would destroy an existing, necessary and
beneficial relationship. This Court finds that based
upon the evidence presented that Father did have a
bond with his son that is evident by the testimony
and the efforts that he made to maintain a bond with
his son up to and including April 2013. . . . The
Court received an impassioned argument from the
child’s counsel, Matthew Sembach, Esquire, who
testified that he had met with the child and had met
with each of the parents, that there was a bond
between Father and son, and that the Father and son
bond should not be terminated simply because of the
availability of another person standing ready, willing,
and able to serve as a father to the minor child. The
Court notes that Mother’s fiancé indicated that while
the child may have called him father on occasion,
and that they had developed a bond, he did call
Mother’s fiancé [J.S.R.] on multiple occasions, thus
indicating that he had not fully developed an
understanding or concept that [J.S.R.] was his
father.
....
. . . There was no testimony in the record to indicate
that somehow the child had reservations or would be
in any way harmed by efforts to restore the custodial
relationship between Father and son. There was no
testimony offered either professionally or by other
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observers with experience in these types of matters
to convince this Court that the child resuming a
parental bond with Father would somehow destroy
the happy bond that he is developing with his
Mother’s fiancé. Furthermore, this Court accepts
that if Mother’s fiancé truly loves the minor child as
he stated, that he will continue to involve himself in
a way to provide a positive parental influence in the
child’s life, while being respectful of the child’s needs
to have a beneficial relationship with Father to
ensure that the welfare of the child is one in which
he has the strongest relationships possible with both
Mother and Father.
Trial court opinion, 12/4/14 at 13-15.
As there is competent evidence in the record that supports the trial
court’s credibility and weight assessments regarding Child’s needs and
welfare, we conclude that the trial court did not abuse its discretion as to
Section 2511(b).
Natural Father filed a cross-appeal raising seven issues for our review.
Because we are affirming the trial court’s order denying Appellants’ petition
to involuntarily terminate Natural Father’s parental rights, it is unnecessary
to address those issues. The relief sought is denied as moot.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/10/2015
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