In Re: Adoption of K.S., Appeal of: N.S. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF K.S., A MINOR IN THE SUPERIOR COURT OF
CHILD PENNSYLVANIA
APPEAL OF: N.S., NATURAL MOTHER
No. 1016 WDA 2014
Appeal from the Order Entered May 29, 2014
In the Court of Common Pleas of Fayette County
Orphans' Court at No(s): 9 ADOPT 2014
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 22, 2014
N.S. (“Mother”) appeals from the order involuntarily terminating her
parental rights to K.S. (born in January of 2005) (“Child”), pursuant to 23
Pa.C.S. § 2511 (a)(1) and (b). We affirm.
This appeal arises from a petition requesting the court to order the
involuntary termination of Mother’s parental rights to Child. The petition
was filed by N.J.M. and her husband, J.N.L. (“Paternal Aunt and Uncle”),
with whom Child has lived since November 2, 2011. Parental Aunt and
Uncle seek to adopt Child. A hearing was held on May 27, 2014. The
orphans’ court’s opinion and order, dated May 27, 2014, provides an
extensive factual and procedural history of this case. In that document, the
court states:
1. [A.M.] is the biological father of [Child], and he has executed
a consent to adoption, wherein he consents that the minor child
will be adopted by his sister, [N.J.M.], and her husband, [J.N.L.].
2. [Child] is presently nine years of age, and she is the oldest
child of [Mother’s] five children. In addition to [Child], the minor
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children of [Mother] are [L.S.], born June [of] 2007; [P.S.], born
August [of] 2008; [L.L.], born December [of] 2010; and [W.S.],
born December [of] 2013.
3. [Mother] has custody of her youngest child, [W.S.], and her
other three minor children are in the custody of their
grandmother.
4. Fayette County Children and Youth Services (hereinafter
“CYS”) has had involvement with [Mother] and her children since
December 14, 2010.
5. CYS accepted a case for service, which involved [Child] and
her three siblings, on February 16, 2011.
6. On October 3, 2011, [Child] was removed from the care of
[Mother]….
7. Although services were offered to [Mother] through CYS in
2011, [Mother] failed to comply with a permanency plan for
reunification with her minor children, and on April 24, 2012, the
Honorable Nancy D. Vernon authorized CYS to terminate its case
involving [Child], and Judge Vernon's Order further awarded
legal and physical custody of [Child] to [Paternal Aunt].
8. [Child] has been in the custody of [Paternal Aunt and Uncle]
since November 2, 2011. At the time [Paternal Aunt and Uncle]
assumed custody of [Child], she had significant medical (missed
immunizations and head lice), dental (six rotted teeth down to
the gum line, with infection) and emotional (fear of being left
alone and alleged sexual abuse) challenges. [Paternal Aunt and
Uncle] took immediate action to correct the medical and dental
issues and [Child’s] counseling sessions are ongoing.
9. [Mother] has struggled with drug addiction since 2009; and
she served time in jail from August 1, 2012, through March 5,
2013, after entering a guilty plea to felony charges.
10. The last contact between [Mother] and [Child] was July,
2012.
11. Upon her release from jail in 2013, [Mother] contacted
[Paternal Aunt] in an attempt to establish visits with [Child].
[Paternal Aunt] informed [Mother] that visits would have to be
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facilitated through the Crime Victims Center in Uniontown,
Fayette County, Pennsylvania.
12. The testimony is undisputed that after June, 2013, there
were no attempts by [Mother] to foster any relationship
whatsoever with [Child]. Specifically, [Mother] did not call to
inquire about her daughter, she did not send cards or gifts, nor
did she consult with any legal advisor or agency concerning
[Child].
13. Attorney Marianne Miele, guardian ad litem for [Child],
reported to the Court that [Child] is doing well in her home with
the [Paternal Aunt and Uncle]. [Child] talks excitedly about her
family and the gatherings she enjoys with her family. [Child’s]
developmental, physical, and emotional needs are being met by
the [Paternal Aunt and Uncle], and an adoption will be in the
best interest of the child.
14. [Paternal Aunt and Uncle] confirmed their present intention
to adopt [Child].
Orphans’ Court Opinion (OCO), 5/27/14, at 1-4. Based upon these facts,
the court ordered the termination of Mother’s parental rights to Child.
Mother filed a timely notice of appeal and a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
She raises the following issue:
Did the [t]rial [c]ourt err by abusing its discretion in terminating
the natural parent’s rights as petitioner failed to sustain its
burden of proof by clear and convincing evidence to show that
the parent evidenced a settled purpose of relinquishing a settled
claim to the child or refused to perform parental duties?
Mother’s brief at 6.
Our standard of review regarding orders terminating parental rights is
as follows:
When reviewing an appeal from a decree terminating parental
rights, we are limited to determining whether the decision of the
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trial court is supported by competent evidence. Absent an abuse
of discretion, an error of law, or insufficient evidentiary support
for the trial court’s decision, the decree must stand. Where a
trial court has granted a petition to involuntarily terminate
parental rights, this Court must accord the hearing judge’s
decision the same deference that we would give to a jury
verdict. We must employ a broad, comprehensive review of the
record in order to determine whether the trial court’s decision is
supported by competent evidence.
In re S.H., 879 A.2d 802, 805 (Pa. Super. 2005). In termination cases, the
burden is upon the petitioner to prove by clear and convincing evidence that
the asserted grounds for seeking the termination of parental rights are valid.
Id. at 806. We have previously stated:
The standard of 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
hesitance, of the truth of the precise facts in issue.”
In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).
The trial court is free to believe all, part, or none of the evidence
presented and is likewise free to make all credibility determinations and
resolve conflicts in the evidence. In re M.G., 855 A.2d 68, 73-74 (Pa.
Super. 2004). If competent evidence supports the trial court’s findings, we
will affirm even if the record could also support the opposite result. In re
Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003).
The termination of parental rights is controlled by 23 Pa.C.S. § 2511.
Under this statute, the trial court must engage in a bifurcated process in
which it initially focuses on the conduct of the parent under section 2511(a).
See In the Interest of B.C., 36 A.3d 601 (Pa. Super. 2012). If the trial
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court determines that the parent’s conduct warrants termination under
section 2511(a), it must then engage in an analysis of the best interests of
the child under section 2511(b). See id. Here, the court terminated
Mother’s parental rights under section 2511(a)(1) and (b). These pertinent
parts of the statute 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.
23 Pa.C.S. § 2511(a)(1), (b).
We have interpreted section 2511(a)(1) as follows:
To 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 re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008).
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Regarding the definition of “parental duties,” this Court has stated the
following:
[Our] Supreme Court has defined parental duty as follows:
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 his or her physical and emotional
needs.
* * *
Although a parent is not required to perform the impossible, he
must act affirmatively to maintain his relationship with his child,
even in difficult circumstances. A parent has the duty to exert
himself, to take and maintain a place of importance in the child’s
life.
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Thus, a parent’s basic constitutional right to the custody
and rearing of his or her child is converted, upon the failure to
fulfill his or her parental duties, to the child’s right to have
proper parenting and fulfillment of his or her potential in a
permanent, healthy, safe environment. A parent cannot protect
his parental rights by merely stating that he does not wish to
have his rights terminated.
In re: B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (quotation marks and
citations omitted).
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 the Matter of the Adoption of Charles E.D. M., II, 708 A.2d 88, 91-
92 (Pa. 1998).
Initially, we note that the argument section of Mother’s brief provides
pertinent citations to case law involving the termination of parental rights
and an explanation of this Court’s standard and scope of review. However,
the entirety of Mother’s argument consists of the following:
The Trial Court Transcript reflects that Mother’s efforts to both
see and parent her child were frustrated by the Aunt. (N.T. at
26 through 30). Furthermore, after losing her daughter to
Children and Youth Services of Fayette County, the mother had
righted her life and her conduct by passing drug tests, securing
housing, maintaining her sobriety, obtaining a sponsor, and
further raising a family of her own. (N.T. at 16 through 19 and
29).
Mother’s brief at 11.
Pertinent to Mother’s argument, the orphans’ court explained the
following:
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After [Mother] was released from jail on March 5, 2013,
she made minimal attempts to see [Child]. After June, 2013,
the testimony is clear that she made no efforts whatsoever to
see her daughter or to establish any maternal bond with her
daughter. Therefore, not only for the six months immediately
preceding the filing of the petition, but for the past several
years, [Mother] has not maintained a parental bond with [Child].
Since [Child] was removed from the custody of [Mother] on
October 3, 2011, [Mother] succumbed to drug addiction and
offered no parental support or interest toward [Child]. [Mother]
has not offered even the smallest token of love or support,
directly or indirectly, to [Child], and her phone calls in June of
2013, do not display any intention to maintain or promote any
significant role in the life of her child.
[Mother] asserts that she stopped making phone calls to
see [Child] because her calls were not being returned, and she
just kept leaving voicemails. However, this Court does not find
that [Paternal Aunt and Uncle] have obstructed the potential for
a relationship between [Mother] and [Child]. If [Mother] had a
settled purpose of maintaining a relationship with [Child], she
could have continued to make calls, or send letters, and she
certainly could have sought legal advice in an effort to assert her
parental rights. [Mother] has not made any efforts whatsoever
since June, 2013, to preserve any relationship with [Child].
OCO at 5. Additionally, the court found credible the testimony provided by
Paternal Aunt and Uncle, noting their “eagerness and sincerity” in regard to
their desire to adopt Child. Id. at 6. Also, based upon the testimony of
Child’s guardian ad litem, the court found Child to be “doing well” in Paternal
Aunt and Uncle’s home and that Child’s best interests would be “promoted
by the proposed termination in preparation for adoption.” Id.
Our review of the record (particularly, noting the testimony cited by
Mother) reveals that the court’s findings are supported by clear and
convincing evidence. Moreover, we defer to the trial court’s determinations
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of credibility, despite what we deem to be a request by Mother to re-find
facts and re-weigh evidence in her favor. We conclude that the court did not
abuse its discretion nor err as a matter of law in its application of section
2511(a)(1) and (b). Accordingly, we affirm the court’s order terminating
Mother’s parental rights to Child.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/2014
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