In Re: K.S.D., Appeal of: K.S. & B.K.S. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: K.S.D. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF:K.A.S. AND B.K.S. :
:
:
:
:
: No. 899 WDA 2020
Appeal from the Order Entered July 28, 2020
In the Court of Common Pleas of Somerset County Orphans' Court at
No(s): 15 Adoption 2019
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
DISSENTING MEMORANDUM BY BOWES, J.: FILED: JUNE 2, 2021
I believe that the orphans’ court erred in finding that K.A.S. and B.A.S.
(collectively “Maternal Grandparents”) did not present clear and convincing
evidence to involuntarily terminate the parental rights of K.S.D. (“Mother”)
and J.K. (“Putative Father”). Rather than affirming the orphans’ court order
that denied their petition, I would vacate the order and remand for a needs-
and-welfare analysis in accordance with 23 Pa.C.S. § 2511(b). 1 Hence, I
respectfully dissent.
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1 As the orphans’ court found that Maternal Grandparents failed to establish
the statutory grounds to terminate the parental rights of Mother and Putative
Father pursuant to § 2511(a), it did not engage in the subsequent analysis
mandated in § 2511(b). See In re P.Z., 113 A.3d 840, 850 (Pa.Super. 2015)
(“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
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The majority accurately summarized the facts and procedural history.
Thus, I do not revisit those matters here. However, I note that since
September 2018, Maternal Grandparents have exercised sole legal and
physical custody of K.S.D. and they also maintain custody of Mother’s younger
child through Somerset County Children and Youth Services, who suspended
Mother’s in-home visitation with that child due to a cockroach infestation in
Mother’s home. N.T., 7/23/20, at 179.
As it relates to the orphans’ court’s ultimate conclusions regarding the
lack of sufficient evidence to establish the statutory grounds for terminating
parental rights, this Court defined clear and convincing evidence as that which
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 C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc)
(quoting Matter of Adoption of Charles E.D.M. II, 708 A.2d 88, 91 (Pa.
1998)).
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analysis pursuant to Section 2511(b): determination of the needs and welfare
of the child under the standard of best interests of the child.”). Since the
orphans’ court was not required to conduct the § 2511(b) analysis in light of
its predicate finding under § 2511(a), I reject the suggestion that Maternal
Grandparents waived the necessity of subsection (b) by failing to challenge
the omission in this appeal. See Majority Memorandum at 7 n.8 (“Maternal
Grandparents failed to include discussion of subsections (a)(2) and (b) in their
brief, such that they failed to preserve, and therefore waived, any challenge
with regard to subsections (a)(2) and (b).”).
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In my view, the orphans’ court erred in concluding that Maternal
Grandparents failed to prove the elements of § 2511(a)(1) in relation to
Mother and Putative Father by clear and convincing evidence. Significantly,
§2511 (a)(1) requires either the intent to relinquish rights or the failure to
perform parental duties, not both. See In re Adoption of R.J.S., 901 A.2d
502, 510 n.5 (Pa.Super. 2006) (“Under Section 2511(a)(1), parental rights
may be terminated if, for a period of at least six months, a parent either
demonstrates a settled purpose of relinquishing parental claim to a child or
fails to perform parental duties.”) (emphasis in original). Contrary to the
majority’s perspective, the certified record demonstrates that Maternal
Grandparents presented evidence, which the court accepted as true, that
Mother and Putative Father both refused or failed to perform their parental
duties for the period outlined in the statute.2 See 23 Pa.C.S. § 2511(a)(1). I
reach this conclusion cognizant of our deference to the orphans’ court’s role
as the ultimate arbiter of fact. Indeed, it is beyond cavil that “[t]he 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) (citations
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2 As to both parents, the orphans’ court discounted the clear and convincing
evidence of their respective failure to perform parental duties, ostensibly,
because that evidence did not also establish their outright refusal. For the
reasons that I explain in the body of this dissent, that analysis is a
misapplication of the law.
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omitted). Phrased differently, “we may reject [the orphans’ court’s]
conclusions only if they involve errors of law or are clearly unreasonable in
light of the trial court's sustainable findings.” Id. at 74.
Instantly, the orphans’ court’s conclusion is clearly unreasonable
because, having specifically found that both Mother and Putative Father failed
to perform parental duties and to provide parental care for a period of at least
six months preceding the petition to terminate parental rights, it nevertheless
determined that the evidence was insufficient to attain the stature of clear and
convincing evidence since both parents maintained some level of contact with
their daughter.
As we previously explained, a parent does not perform his or her
parental duties by displaying a merely passive interest in the development of
a child. In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004).
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.
In re Adoption of B.G.S., 245 A.3d 700, 706–07 (Pa.Super. 2021) (citation
omitted).
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First, as to Putative Father, the orphans’ court concluded that Maternal
Grandparents presented “a strong case” to support the finding that Putative
Father evidenced a settled purpose of relinquishing his parental claim,
including testimony that he refused to confirm paternity and assented to the
termination of parental rights, but it nonetheless elected to forgo terminating
parental rights because Putative Father was not entirely absent from K.S.D.’s
life. N.T., 7/23/20, at 214. Thus, based entirely on the limited weekly contact
that Putative Father exercised at Maternal Grandparents’ home and the “very
minimal financial assistance” that he sporadically provided, the orphans’ court
declined to terminate his parental right involuntarily. The court opined, “I
think the more appropriate method would be for him to voluntarily relinquish
his parental rights, if that is what he intends to do.” Id.As there is no light in which to view Putative Father’s meager
interactions with K.S.D. that would amount to the performance of his parental
duties or the provision of parental care, I believe that the orphans’ court erred
in disregarding the clear and convincing evidence that established that
statutory grounds to terminate his parental rights pursuant to § 2511(a). See
In re B.,N.M., supra at 855 (a parent does not perform parental duties by
displaying passive interest in child’s development). Moreover, the fact that
Putative Father possess the option of voluntarily relinquishing his parental
rights to K.S.D. does not negate the uncontested evidence that Maternal
Grandparents presented in favor of terminating his parental rights
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involuntarily, and the orphans’ court erred in denying the petition based on
the assumption that it does.
Next, as to the reasons for denying the petition to terminate Mother’s
parental rights, the orphans’ court found that Maternal Grandparents erected
barriers that impeded Mother’s ability to perform her parental duties and to
provide parental care. See N.T., 7/23/20, at 212. The court first
characterized a dysfunctional relationship between Mother and Maternal
Grandparents and then opined that Maternal Grandparents hindered Mother’s
efforts to contact K.S.D. Id. It reasoned that, while Maternal Grandparents
demonstrated that Mother failed to perform her parental duties, “there clearly
is evidence that she has, on many occasions, attempted to have contact with
her daughter. And it appears that those requests were denied or ignored on
many occasions.” Id. Hence, the court concluded, “that [interference] causes
me to not be able to find clearly and convincingly that it’s appropriate to
terminate [M]other’s rights at this time.” Id.The majority endorses this basis for denying relief, stating: “The
orphans’ court determined that Mother testified credibly in that she made
numerous contacts to request visits with Child that Maternal Grandmother
denied or ignored. Mother further stated that she provided some gifts and
supplies.” Majority Memorandum at 14 (citations omitted). However, in
adopting the orphans’ court’s position based on the evidence of “numerous
contact requests” and “some gifts and supplies,” the majority overlooks the
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core tenant that Mother cannot simply succumb to obstacles, like Maternal
Grandparents’ alleged reclusiveness, that impede her ability to maintain the
parent-child relationship. In re Adoption of B.G.S., supra 707.
It is well-settled that a parent must utilize all available resources to
preserve the parental relationship, and exercise reasonable firmness in
resisting obstacles. Id. Furthermore, as it relates to the facts of this case,
where Maternal Grandparents are motivated by Mother’s history of drug abuse
and neglect of K.D.S. and her younger sibling, “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.” Id. Hence, the orphans’ court erred in concluding that
it was constrained to deny Maternal Grandparents’ petition to terminate
Mother’s parental rights because K.A.S. impeded Mother’s attempts to contact
the child. In actuality, the purported impediment is not a basis to deny the
petition ipso facto, and it is relevant only in gauging Mother’s determination
in overcoming the obstacle. See id. (“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.”).
Hence, the fundamental question, which neither the orphans’ court nor
the majority addressed, was whether Mother exercised reasonable firmness in
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resisting the obstacles that limited her ability to maintain the parent/child
relationship. From my perspective, she did not.
The certified record is bereft of any evidence that Mother exercised
reasonable firmness to overcome the impediments that Maternal
Grandparents supposedly erected. Mother introduced myriad texts where she
requested visitation with her daughter and she testified to the orphans’ court’s
satisfaction that those entreaties were either ignored or denied.3 Significantly,
however, Mother failed to disclose what, if anything, she did in response to
Maternal Grandparents’ rejection of her request to visit K.S.D. There is no
evidence that she approached Maternal Grandparents in an attempt to
alleviate their safety concerns, visited the child unannounced, or engaged a
third party to advocate on her behalf. Most importantly, Mother did not pursue
child custody litigation or attempt to utilize the court system to enforce any
residual custody rights that she might have retained after Maternal
Grandparents obtained physical custody.
Furthermore, to the extent that Mother justifies her inaction as a desire
to wait until she obtained adequate housing and reliable transportation before
pursing custody litigation, she neglects to explain what she did to improve
those circumstances. As of the July 2020 hearing, Mother’s car has remained
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3 Notwithstanding the array of texts that she choose to present to the court,
Mother conceded that she failed to produce any texts sent to Maternal
Grandparents between February 2019 and April 2020, more than twice the
time required by the statute. N.T., 7/23/20, at 200-01.
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inoperable since 2018, and Mother continues to reside in the same home that
CYS previously refused to sanction for in-home visitation. See N.T., 7/23/20,
at 125-26, 180-81. Thus, as framed by her own evidence and arguments,
Mother failed to utilize any resources or exercise reasonable firmness to
overcome Maternal Grandparents’ unsympathetic treatment. She simply
continued the futile practice of sending texts.
As the totality of the evidence presented at trial established that
Mother’s conduct between at least February 2019 and August 2019, the
relevant six-month period, evidenced her settled purpose of relinquishing her
parental rights pursuant to 23 Pa.C.S § 2511(a)(1), I would vacate the
orphans’ court’s order and remanded the matter for that court to conduct the
mandated needs-and-welfare analysis in accordance with § 2511(b).
Accordingly, I respectfully dissent.
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