In Re: Adoption of: I.W., Appeal of: J.N.W., Jr. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN RE: THE ADOPTION OF: I.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: J.N.W., JR., FATHER :
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:
:
: No. 423 WDA 2023
Appeal from the Order Entered March 8, 2023
In the Court of Common Pleas of Westmoreland County
Orphans' Court at No(s): No. 66 of 2022
BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED: October 31, 2023
J.W. (“Father”) and A.B. (“Mother”) are the biological parents of I.W.,
born in 2013. Mother and Father ended their relationship days after I.W.’s
birth, and I.W. lived with Mother. Mother and Father did not have any legal
custody agreement at that point, and although Father initially visited I.W., he
did not have any contact with I.W. after she turned two years old. Father
eventually filed a custody action in 2020, but he failed to meet the court-
ordered prerequisites which would have allowed for visitation with I.W.
In September 2022, Mother filed a petition seeking to involuntarily
terminate the parental rights of Father as Father, by that point, had not seen
I.W. for at least six years. The Westmoreland County Court of Common Pleas
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* Former Justice specially assigned to the Superior Court.
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held a hearing on the petition, at which both Mother and Father testified.
Following the hearing, the orphans’ court entered a decree granting Mother’s
termination petition and Father appealed. Father argues the orphans’ court
abused its discretion by granting the termination petition because it was
Mother’s actions which prevented him from seeing and having contact with
I.W. over the years and because he has consistently paid child support for
I.W. We do not agree. Instead, mindful of the great deference we are required
to give orphans’ courts in termination matters, we affirm.
While the certified record is relatively sparse, we note that it is
undisputed that Father had no contact with I.W. for the majority of her life.
The primary factual dispute in this case concerns the reasons why Father had
no contact.
I.W. was born in Allegheny County in November 2013. Mother and
Father lived together at the time. However, Mother and Father ended their
relationship five days after I.W. was born, and Mother and I.W. moved out.
Father visited I.W. several times but Mother then moved out of the area.
Father has not seen I.W. since she was approximately two years old.
Mother began living with M.B. (“Stepfather”) right after she left Father’s
residence, and Mother and Stepfather married in 2014. Mother and I.W. have
lived with Stepfather almost the entirety of I.W.’s life, except for one brief
period in which Mother and Stepfather were separated. The family, which also
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includes Mother and Stepfather’s five biological children, has moved several
times.
Although Mother and Father initially communicated through Facebook,
in early 2015, Mother blocked Father as Mother became uneasy
communicating with Father. Mother has since blocked Father on Facebook
numerous times and in fact, “Father has been blocked from Mother’s Facebook
for the majority of the past few years.” Trial Court Opinion, 3/8/2023, at 7.
Father filed a petition seeking custody of I.W. for the first time in August
2020, when I.W. was approaching seven years old. Following a custody
conciliation conference, the trial court entered an order in November 2020
awarding Mother primary physical custody but shared legal custody between
Mother and Father. The court ordered Father to participate in parent-child
reunification therapy as a prerequisite to starting visitation with I.W.
Specifically, the court ordered the parties to engage in reunification therapy
with William Bush, Ed.D., and further ordered Father and I.W. to participate
in a minimum of four therapy sessions.1
Father and Mother eventually completed their intake requirements with
Dr. Bush. However, because of scheduling difficulties with Dr. Bush, the trial
court entered an order on September 22, 2021, changing the parties’
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1 This custody order is not in the certified record. However, none of the parties
dispute the order’s content.
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reunification therapist to Bethanne Petrylak, LMFT. Father was to contact
Counselor Petrylak within 48 hours to schedule an intake appointment.2
Father did not do the intake and Mother filed a petition for custody
modification in October 2021, seeking primary physical and legal custody. The
court held a custody conciliation conference and entered an order on January
7, 2022. The order maintained shared legal custody with Mother and Father
but directed Father to complete an intake session with Counselor Petrylak on
January 13, 2022 so that reunification counseling with I.W. could begin. Father
was to pay for his intake session, and Mother and Father were to share the
costs of the reunification therapy.
Again, Father did not complete the intake session as directed, and on
January 20, 2022, Mother filed a praecipe for a pretrial conference. The court
held a conference in March 2022, but Father failed to appear. The court
therefore entered an order on March 22, 2022, granting sole legal custody of
I.W. to Mother. However, the court also gave Father 30 days to request a
second pretrial conference before the order became final. Father did not file
any such request. He also did not complete his intake with Counselor Petrylak.
On September 9, 2022, Mother filed the petition to involuntarily
terminate Father’s parental rights, seeking to terminate Father’s rights
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2 Again, this order is not in the certified record but once again, the parties do
not dispute the content of this order.
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pursuant to 23 Pa.C.S.A. § 2511(a)(1), (a)(2), (a)(5), (a)(8) and (b). Father
contested the petition.
The court held a hearing on the petition, which was attended by both
Mother and Father and their counsel. Mother testified first. She explained that
she lives with Stepfather, their five children, and I.W. See N.T., 2/21/2023,
at 4. Mother explained that Father had not seen I.W. since I.W. was one and
one-half or two years old. See id. at 10. I.W., according to Mother, has no
idea who Father is. See id. at 23.
Mother testified that Father does not know who I.W.’s doctor is, does
not know what school I.W. attends, and has never been to a parent-teacher
conference for I.W. See id. at 16. Mother further stated that Father has never
attended a birthday party for I.W., has never sent her a gift for her birthday
or Christmas, and has never visited her over any holiday. See id. at 17-18.
According to Mother, Father has never sent I.W. a card or a gift. See id. at
40-41. Mother acknowledged Father has paid child support for I.W. “off and
on” since she sought it in 2015 or 2016. See id. at 15, 35.
Mother stated she blocked Father on Facebook in early 2015 but
unblocked him when she asked Father to care for I.W., who was approximately
one and one-half years old at the time, while Mother was in the hospital. See
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id. at 28-29.3 Mother conceded she “kept unblocking [Father] and blocking
[Father]” on Facebook over the years. Id. at 29. She testified she “opened
the lines of communication” with Father after the first custody hearing and
Father did ask for pictures of I.W. through Facebook. See id. at 18. However,
Mother stated that after sole legal custody was returned to her in March 2022,
she decided not to send pictures and once again blocked Father on Facebook.
See id. at 18, 31.
Mother explained that although Father filed for custody, he never
received visitation rights to I.W. because reunification therapy had never been
completed. See id. 14-15. Mother confirmed that Father failed to comply with
the court orders regarding reunification therapy. See id. at 19.
Mother stated that I.W. has lived with Stepfather since she was five days
old, and Stepfather has been I.W.’s “father figure [for] literally [her] entire
life.” Id. at 11, 20. Stepfather attends I.W.’s parent-teacher conferences,
drives her to softball practices, and is the person I.W. goes to when she is
scared. See id. at 20. I.W. calls Stepfather “dad,” and “she is a dad’s girl.”
Id. at 21, 23. Stepfather takes the children, including I.W., to the bus stop on
school mornings. See id. at 22. Stepfather wants to adopt I.W., and I.W.
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3 Mother testified that she originally “blocked [Father] after repeated
messages of him stating that he would sign his rights away to [I.W.] for
provocative pictures and videos of [Mother and Stepfather”]. Id. at 28.
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wants Stepfather to adopt her and to have the same last name as Stepfather,
Mother, and her siblings. See id. at 24, 44.
Mother testified she and Stepfather have moved a number of times in-
state over the last several years. See id. at 33. She also testified she and
Father did not leave on good terms, so she did not want to give him her
address. See id. at 36. She clarified that “it wasn’t that we didn’t let him know
where we were, it was more the fact that we [moved to] where was best for
our family at the time.” Id. at 27.
Father testified next. He testified he currently lives in West Virginia and
has primary physical custody of one of his sons, C.W, and partial custody of
two of his other children, E.W. and H.W. He agreed he has seen “very little”
of I.W. since she was five days old, though I.W. and Mother did stay with him
for about one week when I.W. was around nine months old. Id. at 51-52.
According to Father, after Mother moved to Butler, Pennsylvania when I.W.
was about nine months old, Father did not have any consistent contact
information for Mother. See id. at 53. Father maintained Mother frequently
blocked him on Facebook over the years. See id. at 53-54, 69.
Father stated that he learned of Mother’s address from his former
paramour in August 2020, and he filed the custody petition for I.W. See id.
at 54-55. Father testified that, after the court ordered him to participate in
reunification therapy, Father did his intake with Dr. Bush. See id. at 55.
However, Father testified he had scheduling issues with Dr. Bush, and the
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orphans’ court eventually issued an order directing the parties to do
reunification therapy with another counselor, Counselor Petrylak. See id. at
56.
Father explained that he did not follow through with intake or
reunification therapy with Counselor Petrylak because he had lost his job and
could not afford to do so. See id. at 56-57. Father maintained that he also
could not afford to pay his attorney in the custody case for I.W., and the
attorney withdrew. See id. at 56-57. Father further explained that he had
failed to appear at the March 2022 hearing on Mother’s petition to modify
custody of I.W. because it conflicted with a custody hearing involving two of
his other children. See id. at 71.
Father conceded that once he filed the petition seeking custody of I.W.
and knew Mother’s and I.W.’s address, he still did not send any cards, letters,
or gifts to I.W. See id. at 61, 74. He claimed he was unsure whether Mother
would give them to I.W. See id. at 61. Father said he did ask Mother on
Facebook in January 2022 to send pictures of I.W., and although Mother
initially indicated she would do so, she then blocked him on Facebook without
sending him any pictures. See id. at 63-64.
Father testified that he did not seek relief from the court when Mother
blocked him on Facebook, did not petition the court for funds to complete the
reunification therapy and did not request a continuance of the March 2022
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custody hearing for I.W. because he was unaware he could ask the court for
any of this relief. See id. at 69-72, 75.
At the close of Father’s testimony, the court asked I.W.’s attorney if she
had met with I.W. She responded that she had, and she shared that I.W.
wanted Father’s rights to be terminated, and I.W. wanted to be adopted by
Stepfather. See id. at 76. Similarly, the guardian ad litem (“GAL”) reported
that I.W. does not even know Father, and that “has to do with [Father].” Id.
at 78. Rather, the only dad I.W. has known is Stepfather, and that is who she
seeks out for support, comfort, and love. See id. at 77. I.W. wants to be
adopted and wants to have the same last name as Mother, Stepfather, and
her siblings. See id.
The court entered a decree granting Mother’s petition and involuntarily
terminating Father’s parental rights to I.W. pursuant to Section 2511(a)(1)
and (b). Father filed a notice of appeal and a Pa.R.A.P. 1925 statement of
errors complained of on appeal. The orphans’ court filed its Pa.R.A.P. 1925
opinion, asserting it had not abused its discretion in granting Mother’s
termination petition and directing this Court to its previous opinion in support
of its decree for its reasoning substantiating its decision to terminate Father’s
rights.
When this Court reviews an order of an orphans’ court terminating
parental rights, we must accept the findings of fact and credibility
determinations of the court as long as the record supports them. See In the
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Interest of D.R.-W., 227 A.3d 905, 911 (Pa. Super. 2020). If the findings of
fact are supported by the record, this Court may reverse the order only if the
orphans’ court made an error of law or abused its discretion. See id. We may
not reverse merely because the record could support an alternate result. See
id. Instead, we give great deference to the orphans’ court because those
courts often have the opportunity to observe the parties first-hand. See In re
Adoption of K.M.G., 219 A.3d 662, 670 (Pa. Super. 2019). Further, the
orphans’ court, as the fact-finder, is free to believe all, part or none of the
evidence presented and is likewise free to resolve any conflicts in the
evidence. See id.Termination of parental rights is controlled by Section 2511 of the
Adoption Act. See 23 Pa.C.S.A. § 2511. Under Section 2511, the orphans’
court must engage in a bifurcated process prior to terminating parental rights.
See In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007). Initially, the court must
find that the party seeking termination has proven by clear and convincing
evidence that the conduct of the parent whose rights are at stake satisfies any
one of the eleven statutory grounds set forth for termination under Section
2511 (a). See id.; 23 Pa. C.S.A. § 2511 (a)(1-11). If the orphans’ court finds
that one of those subsections has been satisfied, it must then, pursuant to
Section 2511(b), make a determination of the needs and the welfare of the
child under the best interests of the child standard. See In re L.M., 923 A.2d
at 511; 23 Pa.C.S.A. § 2511(b).
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Here, regarding the first prong of the analysis, the orphans' court found
Mother had proven by clear and convincing evidence that Father’s conduct
met the grounds for termination of her parental rights to I.W. under Section
2511(a)(1), which provides that parental rights may involuntarily be
terminated on the grounds that:
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.
23 Pa. C.S.A. § 2511(a)(1).
In defining what constitutes parental duties, this Court has focused on
the child’s needs:
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. ... [Rather,] the parental
obligation is a positive duty which requires affirmative
performance.
In re Z.P., 994 A.2d 1108, 1118-1119 (Pa. Super. 2010) (citation omitted)
In re Z.P. also made clear that “[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.” 994 A.2d at 1119; see also In re K.Z.S., 946 A.2d 753,
759 (Pa. Super. 2008) (stating it is incumbent upon parents separated from
their child to maintain steady and consistent contact with the child).
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Given the record before us, we fail to see how the orphans' court abused
its discretion by reaching the conclusion that Father had not done so here.
The court explained:
Father testified that prior to filing for custody, he did not see
or contact [I.W.] because he was often blocked [on Facebook] by
Mother or unaware of where she was living. Although Father may
not have had Mother’s exact address, Mother testified that she did
not block Father until February 2015. Father could have arranged
to see [I.W.] prior to being blocked or could have initiated custody
proceedings in order to see [I.W.] when he was initially blocked in
2015.
Mother contacted Father in 2015 and asked if he would be
able to watch the child since she was in the hospital. Father did
not make any further attempts to see [I.W.] or arrange visits with
Mother after she contacted him.
After Father filed for custody in 2020, Mother’s address
appeared on various Court Orders and documents. Father did not
send [I.W.] any cards, gifts or further correspondence when he
had Mother’s address. He has not attended any school functions
or birthday parties for the child. Father has not attempted to
contact Stepfather in order to see or speak to [I.W.].
Father did not participate in reunification services with
[Bethanne Petrylak] which was necessary to begin visits with
[I.W.]. While we understand Father’s financial situation during
that time, Father could have petitioned the Court for relief to assist
with reunification efforts [but he did not]. Additionally, Father did
not appear at the Pretrial Conference and did not request a second
conference, which would have been necessary for Father to
expand his custodial time.
Father has not seen [I.W.] in over six years. Father is not
involved in the child’s life in any measurable way other than
paying child support. It is clear that Father has not performed any
parental duties for the child throughout her life. Mother has met
her burden under [Section 2511(a)(1)].
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Trial Court Opinion, 3/8/2023, at 8-9 (first and second original paragraph
divided into two paragraphs).
The court’s findings are supported by the record and based on that
record, we cannot conclude that the trial court abused its discretion by
determining that Mother had established that Father’s parental rights should
be terminated pursuant to Section 2511(a)(1).
Father’s arguments do not convince us otherwise. Father first argues
the court abused its discretion because, although Father had not seen or
contacted I.W. in over six years, this failure to maintain contact with I.W. was
a result of Mother blocking him from Facebook and moving around the state
without disclosing her address. However, the orphans’ court clearly considered
these circumstances in its decision and found, in essence, that Father’s
minimal efforts in attempting to maintain contact with I.W. despite these
circumstances were not sufficient.
We see no abuse of discretion in this determination. As this Court has
stated, “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.” In re Z.P., 994 A.2d at 1119 (citation omitted). Here, Father
did not offer any evidence of affirmative efforts on his part to locate I.W. and
did not attempt to get the courts involved until I.W. was close to seven years
old. And although the record reflects that Mother regularly blocked Father on
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Facebook, Father did not offer any evidence that he took any steps to find
alternative ways to contact Mother or to get the court involved to preserve his
right to see his child.
Father also argues that once he did learn of Mother’s address, he filed
for custody and “the only reason that the custody action was not successful
was that Father lost his job, and lost his custody attorney. Father also did not
have the ability to follow through with Court-ordered reunification services at
the time, due to his financial situation.” Appellant’s Brief at 24.
As an initial matter, we note that Father’s filing of the custody petition
and failure to comply with the court-ordered therapy came only after Father
had not had any contact with I.W. for over six years. In any event, Father
claims that he would have followed through with the custody action and
reunification therapy had he not lost his job and his ability to pay for them.
Again, the orphans’ court explicitly considered Father’s financial situation.
While sympathizing with Father, the court noted that Father did not take any
steps to notify the court that his financial situation was impeding his ability to
comply with the court’s order mandating reunification therapy. Father testified
that he was aware that reunification therapy with I.W. was necessary before
the court would allow him to proceed to visitation with I.W. See N.T.
2/21/2023, at 56. When he lost his job and he could not afford the therapy
he needed to see his child, as the orphans’ court said, “Father could have
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petitioned the Court for relief to assist with reunification efforts,” but he did
not. Trial Court Opinion, 3/8/2023, at 9.
Father states repeatedly in his brief that he has remedied his financial
difficulties and can now pay for reunification therapy. He also testified to that
at trial, so the orphans’ court was clearly aware of Father’s asserted ability to
now be able to pay for the therapy he needs to reunify with I.W. In the first
place, this Court cannot look to the efforts of a parent to remedy the conditions
underlying the termination petition after the petition has been filed. See 23
Pa.C.S.A. § 2511(b). Even if we could, as this Court has often indicated, a
child should not be made to wait indefinitely for a parent to do what is
necessary to establish a parent-child relationship and to assume parental
responsibilities for that child. See In re Z.P., 994 A.2d at 1119 (citation
omitted) (stating “[p]arental 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 the child’s physical and emotional needs”
(brackets omitted)).
Father also argues the trial court should not have terminated his
parental rights because he has regularly paid child support to I.W. Again, the
trial court clearly factored Father’s payment of child support into its decision,
finding that Father’s financial support of I.W., without anything more, was not
sufficient to preserve his parental rights. We see no abuse of discretion in this
determination. See in re Z.P., 994 A.2d at 1119 (holding that parental “duty
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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.”).
Based on all of the above, we see no abuse of discretion in the court’s
conclusion that Father’s parental rights were properly terminated pursuant to
Section 2511 (a)(1).
We must therefore turn to the orphans’ court’s conclusion that
terminating Father’s parental rights to I.W. would best serve I.W.’s needs and
welfare, as required by Section 2511(b). We also find this conclusion is
supported by the record and does not amount to an abuse of discretion.
“Intangibles such as love, comfort, security, and stability are involved
in the inquiry into [the] needs and welfare of the child.” In re C.M.S., 884
A.2d 1284, 1287 (Pa. Super. 2005) (citation omitted). In determining a child’s
needs and welfare, the orphans’ court is required to consider “whatever bonds
may exist between the children and [the natural parent], as well as the
emotional effect that termination will have upon the children.” In re Adoption
of A.C.H., 803 A.2d 224, 229 (Pa. Super. 2002) (citation omitted). At the
same time, the court should also consider the intangibles, such as the “love,
comfort, security, safety, and stability,” the child might have with the person
wishing to adopt the child. Interest of K.T., 296 A.3d 1085, 1113 (Pa. 2023).
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Here, there is no dispute that I.W. does not have a bond with Father.
She has not seen him or had any contact with him since she was two years
old. As Mother and the GAL said, I.W. does not even know who Father is. The
only father I.W. has ever known is Stepfather, who wants to adopt I.W. I.W.,
in turn, has expressed her clear desire to be adopted by Stepfather. Mother,
the GAL, and I.W.’s attorney all testified as to the bond I.W. has with her
Stepfather, who is the one who has been parenting I.W. her entire life in
Father’s absence.
Of course, this is not to say that Father does not love or care for I.W.
But he does not know her, and she does not know him. Father has not
performed any non-financial parental duties for I.W. except for during what
perhaps amounts to a total of a few weeks of I.W.’s life, who is now nine,
almost ten, years old. The orphans’ court stated that it was “convinced that
termination of Father’s parental rights would best serve the needs and welfare
of [I.W.]” and based on the record before us, we can discern no abuse of
discretion in that conclusion.
Decree affirmed.
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DATE: 10/31/2023
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