In Re: Adoption of: J.M.W., a Minor

J-S79002-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: J.M.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: D.W., FATHER :
:
:
:
: No. 2855 EDA 2017
Appeal from the Decree August 22, 2017
In the Court of Common Pleas of Montgomery County Orphans’ Court at
No(s): 2017-A0012
BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 28, 2017
D.W. (“Father”) appeals from the order, entered in the Court of Common
Pleas of Montgomery County, granting the Montgomery County Office of
Children and Youth’s (“OCY”) petition requesting termination of Father’s
parental rights to J.M.W. (“Child”) (born April 2011), pursuant to 23 Pa.C.S.A.
§ 2511(a)(1) and (2). After careful review, we affirm.
K.L.W. (“Mother”)1 and Father are not married, and Child was born while
Father was incarcerated; Father has never met Child. On February 2, 2017,
OCY filed a petition requesting termination of Father’s parental rights to Child
pursuant to sections 2511(a)(1) and (2). On June 15, 2017, the Honorable
Lois E. Murphy met and interviewed Child. On June 21, 2017, the trial court
____________________________________________
1 Mother, who suffers from mental health issues, is unable to sustain herself
and live independently and has not been able to meet the needs of Child
throughout Child’s life; consequently, the trial court terminated her parental
rights on August 21, 2107. N.T. Termination Hearing, 8/22/17, at 25-26.
J-S79002-17
held a permanency review hearing and granted OCY’s request to change
Child’s goal to adoption, and, on the same day, the trial court held an
evidentiary hearing on OCY’s petition to terminate Father’s parental rights.
On August 22, 2017, the trial court terminated Father’s parental rights to
Child. Father filed a timely notice of appeal on September 19, 2017. Both
Father and the trial court have complied with Pa.R.A.P. 1925.2 On appeal,
Father raises the following issue: Whether the trial court committed an error
of law and/or abuse of discretion when it terminated Father’s parental rights
pursuant to sections 2511(a)(1) and (2).
Section 2511 governs the termination of parental rights:
§ 2511. Grounds for involuntary termination
(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.
(2) The repeated and continued incapacity, abuse, neglect
or refusal of the parent has caused the child to be without
essential parental care, control or subsistence necessary for
his physical or mental well-being and the conditions and
____________________________________________
2 Judge Murphy’s Pa.R.A.P. 1925(a) opinion was verbally set forth in the record
on August 22, 2017. N.T. Termination Hearing, 8/22/17. Judge Murphy’s on-
record verbal declaration of her reasoning for terminating Father’s parental
rights to Child satisfies Rule 1925(a) and Pa.R.A.P. 905(a)(2) for the purpose
of this appeal.
-2-
J-S79002-17
causes of the incapacity, abuse, neglect or refusal cannot or
will not be remedied by the parent.
******
(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
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(a)(1) and (2), (b). See In the Interest of C.S., 761
A.2d 1197, 1201 (Pa. Super. 2000).
In a proceeding to terminate parental rights involuntarily, the
burden of proof is on the party seeking termination to establish
by clear and convincing evidence the existence of grounds for
doing so. 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. It is well
established that a court must examine the individual
circumstances of each and every case and consider all
explanations offered by the parent to determine if the evidence in
light of the totality of the circumstances clearly warrants
termination.
In re Adoption of S.M., 816 A.2d 1117, 1122 (Pa. Super. 2003) (citation
and quotation marks omitted). See also In re C.P., 901 A.2d 516, 520 (Pa.
Super. 2006) (party seeking termination of parental rights bears burden of
proving by clear and convincing evidence that at least one of eight grounds
for termination under 23 Pa.C.S.A. § 2511(a) exists and that termination
-3-
J-S79002-17
promotes emotional needs and welfare of child set as forth in 23 Pa.C.S.A. §
2511(b)).
Termination under section 2511(a)(1) involves the following:
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 Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super.
2006). 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 citation omitted).
The focus of the termination proceeding is on the conduct of the parent
and whether his conduct justifies termination of parental rights. In re B.L.L.,
787 A.2d 1007, 1013 (Pa. Super. 2001); In re Child M., 681 A.2d 793, 797
(Pa. Super. 1996). Although it is the six months immediately preceding the
filing of the petition that is most critical to the analysis, the trial court must
consider the whole history of a given case and not mechanically apply the six-
month statutory provision. In re D.J.S., 737 A.2d 283, 286 (Pa. Super.
-4-
J-S79002-17
1999). 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. Id. at 285. See
Adoption of M.S., 644 A.2d 1370 (Pa. Super. 1995) (failure of parent to have
contact with child for six months will not automatically forfeit that parent’s
rights). See also In re Shives, 525 A.2d 801, 803 (Pa. Super. 1987) (where
non-custodial parent faces termination of parental rights, court must consider
non-custodial parent’s explanation for apparent neglect, including whether
custodial parent has deliberately created obstacles and erected barriers
intended to impede communication and association between non-custodial
parent and child).
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 conduct; (2) the
post-abandonment contact between parent and child; and (3) consideration
of the effect of termination of parental right on the child pursuant to section
2511(b). Matter of Adoption of Charles E.D.M., II, 70 A.2d 88, 91 (Pa.
1998).
The grounds for termination of parental rights under section 2511(a)(2),
due to parental incapacity that cannot be remedied, are not limited to
affirmative misconduct; to the contrary, those grounds may include acts of
refusal as well as incapacity to perform parental duties. In re A.L.D., 797
-5-
J-S79002-17
A.2d 326 (Pa. Super. 2002). “Parents are required to make diligent efforts
towards the reasonably prompt assumption of full parental responsibilities.”
Id. at 340. Furthermore, under section 2511(a)(2), the petition for
involuntary termination must prove (1) repeated and continued incapacity,
abuse, neglect or refusal; (2) that such incapacity, abuse, neglect or refusal
caused the child to be without essential parental care, control or subsistence;
and (3) that the cause of the incapacity, abuse, neglect or refusal cannot or
will not be remedied. In Interest of Lilley, 719 A.2d 327, 330 (Pa. Super.
1998).
Instantly, Father has never met with, provided financial resources for,
or corresponded or sent gifts to Child. Father avers that he attempted to
contact Mother when he was released from prison in July 2015, but that
maternal grandmother and law enforcement prevented him from contacting
Child due to his probation status.3 When Father completed his probation and
parole on March 21, 2016, he did not contact Mother or Child for more than a
year afterward. Furthermore, Father did not attempt to file a custody petition,
did not contact OCY, did not request visits with Child and did not provide
support for Child. See In re J.W., A.W., V.W. and J.W., 578 A.2d 952 (Pa.
Super. 1990) (“[A] parent who cannot or will not meet the irreducible
minimum requirement set by the Juvenile Act within a reasonable time
____________________________________________
3Father has a criminal record for terroristic threats, 18 Pa.C.S.A. § 2706, and
two misdemeanors, one of which was for corruption of minors, 18 Pa.C.S.A. §
6301.
-6-
J-S79002-17
following state intervention may properly . . . have parental rights
terminated.”).
Presently, Father has completed parenting classes, found employment
as a full-time landscaping contractor, acquired health insurance and maintains
a stable residence in a rented room in North Wales. However, beyond these
measures, Father failed to demonstrate to the trial court that he is prepared
and ready to fulfill a parental role. Father does not live in a home that includes
space for a child; his residence is not ready for parenting or providing safety
and stability for Child. Additionally, Father has not addressed his substance
abuse and depression issues as is necessary to prepare him to parent Child.
Father, in summary, is unable to provide the basic minimum needs that Child
is entitled to, including adequate housing, clothing, food, love and supervision.
See In re Diaz, 669 A.2d 372 (Pa. Super. 1995).
Additionally, the fact that Father was frequently incarcerated between
2011 and 2015 does not excuse his failure to contact or provide support for
Child. The trial court, in addressing Father’s periods of incarceration, stated
that “‘a parent has an affirmative duty to love, protect and support his child
and to make an effort to maintain communication and association with that
child.’” N.T. Termination Hearing, 8/22/17, at 21, quoting In re Adoption of
S.P., 47 A.3d 817, 828 (Pa. 2012). Although Father is no longer incarcerated,
the lengthy term of his incarcerations and his failure to contact Child or OCY
following his release from probation and parole indicate that he has failed to
provide for Child. The trial court may properly reject as untimely or
-7-
J-S79002-17
disingenuous Father’s present desire to cooperate and provide for Child after
a long period of uncooperativeness and absence from Child’s life. See In re
Adoption of K.J., 936 A.2d 1128 (Pa. Super. 2007).
Moreover, Kristen Caprara, Ph.D., a licensed clinical psychologist who
has been treating Child since January 18, 2017, met with Father on May 5,
2017. After meeting with both Father and Child, Dr. Caprara believes that
Father should focus solely on his own mental health treatment, and that it
would not be in Child’s best interest for Father to assume the role of Child’s
full-time permanent caregiver. N.T. Evidentiary Hearing, 6/21/17, at 64.
Furthermore, Dr. Caprara stated that Child’s foster parents have exhibited the
ability to provide all of Child’s needs, nurturance and support and have
developed a healthy and safe bond with Child. Id. at 64-65.
After a thorough review of the record, the parties’ briefs, the applicable
law, and the well-reasoned oral opinion of the Judge Murphy, we conclude that
the record supports the court’s determination that OCY met its statutory
burden of establishing that Father evidenced a settled purpose of relinquishing
his parental claim to Child. Therefore, termination would best serve Child’s
needs and welfare. 23 Pa.C.S.A. §§ 2511(a)(1),(a)(2), and (b). Accordingly,
we affirm as to Father’s issues based on the court’s oral opinion issued at the
termination proceeding. In the event of further proceedings, we direct the
parties to attach a copy of the notes of testimony from Father’s August 21,
2017 termination hearing in which Judge Murphy set forth a verbal 1925(a)
opinion.
-8-
J-S79002-17
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/28/17
-9-