In Re: Adoption of K.M.P. Appeal of: T.M.P.

J-A31039-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: K.M.P., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: T.M.P., MOTHER No. 883 MDA 2014
Appeal from the Decree Entered April 21, 2014,
in the Court of Common Pleas of Huntingdon County
Orphans’Court at No: CP-31-OC-2-2014
BEFORE: BOWES, OTT, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED JANUARY 12, 2015
T.M.P. (Mother) appeals from the decree entered April 21, 2014, in the
Court of Common Pleas of Huntingdon County, which involuntarily
terminated her parental rights to her minor daughter, K.M.P. (Child), born in
October of 2011.1 We affirm.
At the time Child was born, Mother was incarcerated in a state
correctional institution. Two days after birth, Child was placed in the care of
her paternal Great-Aunt, R.L.L. (Great-Aunt). Great-Aunt later married
R.D.S. (Great-Uncle), who assists her in raising Child. Great-Aunt and
Great-Uncle filed petitions to involuntarily terminate the parental rights of
Mother and Father to Child on February 12, 2014. Great-Aunt and Great-
Uncle filed a report of intention to adopt Child that same day. A hearing was
1
The orphans’ court issued a separate decree, also entered April 21, 2014,
which terminated the parental rights of Child’s father, D.E.L. (Father).
During the termination hearing in this matter, Father agreed to relinquish his
parental rights voluntarily. N.T., 4/16/14, at 6-8. On appeal, Father has
submitted a brief as an appellee, in which he argues in support of the
termination of Mother’s parental rights.
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held on April 16, 2014, during which the orphans’ court heard the testimony
of Father; Great-Aunt; Great-Uncle; Mother; and Great-Aunt’s Sister-in-Law,
L.M.L. (Sister-in-Law). The court also heard a statement from Child’s
guardian ad litem.
Following the hearing, on April 21, 2014, the orphans’ court
involuntarily terminated the parental rights of Mother to Child. On May 20,
2014, Mother filed a notice of appeal. Mother failed to concomitantly file a
concise statement of errors complained of on appeal, as required by
Pa.R.A.P. 1925(a)(2)(i). By order dated May 21, 2014, the orphans’ court
instructed Mother to file a concise statement. Mother complied on June 3,
2014.2
Mother now raises the following issue for our review.
The question before this Court is whether [Great-Aunt and
Great-Uncle] overcame the evidence indicating that they and
their family members actively prevented [Mother] from
contacting [Child], and proved by clear and convincing evidence
that, for a period of at least six months immediately preceding
the filing of the petition, [Mother] either evidenced a settled
purposes of relinquished parental claim to her daughter [Child],
or refused or failed to perform parental duties.
2
As Great-Aunt and Great-Uncle have not claimed any prejudice as a result
of this late filing, we have accepted Mother’s concise statement in reliance
on our decision in In re K.T.E.L., 983 A.2d 745, 748 (Pa. Super. 2009)
(holding that an appellant’s failure to strictly comply with Pa.R.A.P.
1925(a)(2)(i) did not warrant waiver of the appellant’s claims, as there was
no prejudice to any party). Cf. J.P. v. S.P., 991 A.2d 904, 908 (Pa. Super.
2010) (stating that, where the appellant not only failed to simultaneously file
a concise statement with her notice of appeal but also failed to comply with
the trial court’s order to file concise statement within 21 days, she waived
her issues on appeal).
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Mother’s Brief at 3.
We consider Mother’s claim mindful of our well-settled standard of
review.
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely
because the record would support a different result. We have
previously emphasized our deference to trial courts that often
have first-hand observations of the parties spanning multiple
hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated
analysis.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing
evidence that the parent’s conduct satisfies the statutory
grounds for termination delineated in Section 2511(a). 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 analysis pursuant to Section 2511(b):
determination of the needs and welfare of the child under the
standard of best interests of the child. One major aspect of the
needs and welfare analysis concerns the nature and status of the
emotional bond between parent and child, with close attention
paid to the effect on the child of permanently severing any such
bond.
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In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
In this case, the orphans’ court terminated Mother’s parental rights
pursuant to Sections 2511(a)(1) and (b), which provide as follows.
(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. 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), (b).
We first address whether the orphans’ court abused its discretion by
terminating Mother’s parental rights pursuant to Section 2511(a)(1). To
meet the requirements of this section, “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
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duties.” In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citing In re
Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super. 2006)). The court must
then consider “the parent’s explanation for his or her conduct” and “the
post-abandonment contact between parent and child” before analyzing
Section 2511(b). Id. (quoting In re Adoption of Charles E.D.M., 708
A.2d 88, 91 (Pa. 1998)).
This Court has emphasized that a parent does not perform his or her
parental duties by displaying a “merely passive interest in the development
of the child.” In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004), appeal
denied, 872 A.2d 1200 (Pa. 2005) (quoting In re C.M.S., 832 A.2d 457, 462
(Pa. Super. 2003), appeal denied, 859 A.2d 767 (Pa. 2004)). Rather,
“[p]arental 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.” Id. (citation omitted). Critically, incarceration does not
relieve a parent of the obligation to perform parental duties. An
incarcerated parent must “utilize available resources to continue a
relationship” with his or her child. In re Adoption of S.P., 47 A.3d 817,
828 (Pa. 2012) (discussing In re Adoption of McCray, 331 A.2d 652 (Pa.
1975)).
Instantly, Mother contends that the evidence presented at her
termination hearing “indicated that [she] intended to maintain a parent-child
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relationship with her daughter, and consistently expressed that intention” by
writing to Child, visiting with Child on Easter of 2012, calling Great-Aunt and
Great-Uncle, and expressing to Great-Aunt and Great-Uncle her desire to
continue visiting with Child. Mother’s Brief at 11. In so doing, Mother
ultimately sought to obtain custody of Child. Id. Mother further claims that
she “worked to overcome” the obstacles she faced that prevented her from
maintaining a relationship with Child. Id. Specifically, Mother indicates that
she attempted to call Child, but that Great-Aunt and Great-Uncle refused to
accept her calls. Id. Mother also states she lost Great-Aunt and Great-
Uncle’s mailing address, and that this “not only prevented [Mother] from
writing to them, but also from calling them, due to restrictions imposed by
the prison.” Id. Mother claims that she sought to retrieve the mailing
address, and that she also attempted to send mail to Child through Sister-in-
Law. Id.
Mother also argues that Great-Aunt and Great-Uncle “actively
interfered” with her attempts to maintain a relationship with Child. Id. at
12. Mother states, for example, that Great-Aunt failed to provide Mother’s
mother with her mailing address when requested, refused to accept
messages that Mother attempted to pass through her mother, and that
Great-Aunt and Great-Uncle’s family “assisted them in preventing [Mother]
from having contact with [Child].” Id. at 12-13. Mother asserts that “[t]his
Court cannot condone or allow [Mother’s] rights to be terminated on the
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basis of [Great-Aunt and Great-Uncle’s] interference,” and that the orphans’
court “failed to give proper consideration” to this interference. Id. at 13,
19.3
In contrast, the orphans’ court concluded that Mother “made no effort
whatsoever to maintain a place of importance in [Child’s] life” during the six
months prior to the filing of Great-Aunt and Great-Uncle’s petition to
terminate. Orphans’ Court Opinion, 6/16/14, at 4 (unpaginated). The court
reasoned that Mother’s parental responsibilities were not tolled while she
was imprisoned, and that, while she “gave many excuses for her failures in
maintaining a relationship with [Child],” Mother has “failed to succeed in any
of her parental responsibilities.” Id. at 4-5. The court explained that
Mother’s “claims of attempting to write the [C]hild but not having [Great-
Aunt and Great-Uncle’s] address just cannot be believed.” Id.
Our review of the record supports the orphans’ court’s conclusions. At
Mother’s termination hearing, Great-Aunt testified that Mother has seen
3
In her reply brief, Mother states that Great-Aunt and Great-Uncle’s
appellee brief contains various factual misstatements, and that the factual
history presented in the brief should be disregarded. Mother’s Reply Brief at
1-3. Mother also contends that Great-Aunt and Great-Uncle’s brief does not
include citations to the record in support of these misstatements, and that
the brief therefore violates our Rules of Appellate Procedure. Id. at 3-4.
Mother suggests that, “[g]iven [Great-Aunt and Great-Uncle’s] failure to
comply with these rules, their arguments should be deemed waived and
ignored.” Id. at 4 (citations omitted). We note that our decision to affirm
the decree of the orphans’ court is based upon our own thorough review of
the record in this matter, and that we do not rely on the factual history or
the arguments contained within Great-Aunt and Great-Uncle’s brief in
reaching our conclusions.
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Child only once since her birth, on Easter of 2012. N.T., 4/16/14, at 10, 39.
Great-Aunt acknowledged that she has received letters from Mother for
Child, including one dated November 7, 2011, another from Easter 2012,
and a Christmas card.4 Id. at 26-29, 32-33. Great-Aunt stated that she last
received a text message from Mother on April 15, 2013. Id. at 21. Great-
Aunt indicated that Mother last attempted to call her on March 21, 2013.
Id. at 33-34. However, Great-Aunt testified that she had not heard from
Mother in the six months prior to the filing of the petition to involuntarily
terminate Mother’s rights on February 12, 2014. Id. at 10. Mother did not
call, send a letter, or have someone else contact Great-Aunt on Mother’s
behalf during this period. Id. Great-Aunt and Great-Uncle were responsible
for supporting Child financially during that time period, and did not receive
any assistance from Mother. Id. at 40.
On cross-examination, Great-Aunt was asked about a letter she
received from Mother, dated February 7, 2013. Id. at 22. In the letter,
Mother indicated, inter alia, that she wanted to “start getting [Child] at the
end of May. . . .” Id. at 24. Mother stated that she was “upset” and “mad”
that she didn’t know what Child looked like and didn’t have a picture of Child
until recently, and that “I can’t wait until she can call me and know me as
mommy.” Id. Mother thanked Great-Aunt for her assistance, and cautioned
4
Great-Aunt did not testify as to when she received the Christmas card, but
Mother contends in her brief that the card was sent in 2012. Mother’s Brief
at 5.
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that Great-Aunt would still get to see Child, and that “[s]he will always be
part of you and [Great-Uncle] as long as you all don’t try to take her from
me in any way.” Id. Mother asked how Child was doing, and what Child
was like, and expressed her desire to call Child more often and, “as I can
make more than two phone calls a week I’ll be able to call more.” Id. at 25.
Mother noted that, “the last few times I called you never answered.” Id.
Great-Aunt conceded that she disagreed with Mother’s attempt to
assert her status as Child’s mother, and that this letter made her “furious.”
Id. at 19, 23. Great-Aunt testified that the letter upset her because, inter
alia, Child was 17 months old at the time, and did not know Mother. Id. at
17. She stated, “I am not just gonna let her go with her[.] That would be
like her going with a stranger.” Id. Great-Aunt admitted that she “had no
clue as to how to deal with” Mother gaining custody of Child. Id. She
explained that she did not encourage Child to view Mother as her mother
because Child was too young to understand the situation. Id. at 17, 35.
Great-Aunt was also asked about a series of text messages that were
sent between her and Mother during March and April of 2013. In one text
message, Great-Aunt complained to Mother about her letter, stating “[w]ell
your letter really upset me. Seriously, [Mother]. She don’t even know you.
So at this point the only thing I know to do is when you get out, we go back
in front of the judge.” Id. at 15. In another text message, Mother stated
that she had tried to call Great-Aunt, and that she wanted to talk about the
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situation with Child. Id. at 18. Mother expressed concern that Great-Aunt
was attempting to “get custody” of Child, and requested that Great-Aunt
answer her phone. Id. Great-Aunt responded by saying, “[Mother], I have
had custody since January 2012. You got the same paper I’m sure. I have
no clue how to introduce her to you.” Id. at 19. In a text message
concerning Mother’s desire to see Child on Easter of 2013, Great-Aunt
stated, “Do you realize I do have custody? I’ve had [it] since January 2012.
And [Mother], I can’t even put you on speaker phone and you’re saying
Mommy loves you. I let it slide when she was too young to understand now
she’s older and thinks I am mommy.” Id. at 20. Great-Aunt expressed
concern that introducing Child to Mother “would just confuse her at this
point.” Id.
Additionally, Great-Aunt testified that she communicated regularly with
Mother’s mother. Id. at 34. Great-Aunt indicated that Mother’s mother had
inquired about her address “about a year ago,” because “[Mother] was
gonna write but she didn’t have the address.” Id. at 34-45. Great-Aunt did
not provide an address because she “assumed [Mother] knew it” because
“she had letters from me.” Id. at 35. Great-Aunt explained that she had
not moved or changed her address in 12 years, and that she had the same
phone number for 23 years. Id. at 42. Great-Aunt stated that the text
messages she received from Mother were sent to a phone number that she
continues to possess, and that the mail she received from Mother was sent
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to the same address at which she continues to reside. Id. Great-Aunt
denied that Mother attempted to call her and was ignored. Id. at 34.
Mother testified that she was incarcerated at SCI Cambridge Springs at
the time Child was born. Id. at 48. At the time of the hearing, Mother was
residing at SCI Muncy. Id. Mother was also incarcerated in Blair County for
a period of time in 2013. Id. at 53. Mother anticipated that she would be
paroled soon after the termination hearing “[b]ecause I did everything I had
to do,” and stated that, upon her release, she intended to “get [Child] back.”
Id. at 52-53. Mother conceded that Great-Aunt had been caring for Child
since birth, and that she did not send Great-Aunt and Great-Uncle money or
gifts for Child. Id. at 54, 56. Mother admitted that the last time she saw
Child was Easter of 2012, at her father’s residence. Id. at 50. Mother
agreed that she had no contact with Child, or contact with Great-Aunt about
Child, since April 15, 2013. Id. at 48. Mother testified, however, that she
had attempted to make contact with Great-Aunt since that date. Id. at 49.
Specifically, Mother explained that she “tried to get [Great-Aunt’s]
address off three different people. And I tried to call her three times in
July,” but no one answered her calls. Id. at 49, 51. Mother stated she
intended to send Child “cards and letters and stuff,” but could not do so
without Great-Aunt’s address. Id. at 49-50. Mother admitted that she had
Great-Aunt’s address previously, but explained that she lost it because
“[w]hen I got sent back up state, I didn’t have any of my stuff.” Id. at 49.
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Mother indicated that her “stuff” with the address was at her mother’s home,
but that her mother claimed not to have the address. Id. at 55-56. Mother
testified that, since she could not send anything to Great-Aunt, she began
sending mail for Child to Sister-in-Law, who had adopted two of Mother’s
other children. Id. at 55, 59-60. Mother indicated that she wrote a
separate letter or card for Child every time she wrote to her other children
who live with Sister-in-Law, but that Sister-in-Law “blocked my address like
a month ago.” Id. at 58. Mother stated that she did not know if Child ever
received any of her letters or cards. Id. at 57.
Mother also claimed that she could not call Great-Aunt from SCI Muncy
because she needed Great-Aunt’s “address or birth date to add it to my
phone list.” Id. at 55. She explained that she was able to call in July of
2013 because she was incarcerated in Blair County at the time, and that in
“Blair County you don’t have to have an address or a birth date. You can
just call the number.” Id. at 54. Mother testified that she speaks to her
mother on the phone “[e]very other week.” Id. at 51. However, Mother
claimed that she no longer tries to pass messages along to Child by way of
her mother because she knew that Great-Aunt would not allow them to
reach Child. Id.
Sister-in-Law was called to testify as a rebuttal witness. Sister-in-Law
noted that Mother sent cards for Child in 2012. Id. at 60-61. She
elaborated that the cards were received on “Christmas maybe or Easter. It
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was a colored paper, like three of them. But I haven’t had anything since.”
Id. at 60. Sister-in-Law admitted that she blocked mail from Mother from
coming to her house in 2012, “when she went back to jail.” Id. at 61.
In sum, the record confirms that Mother had no contact with Child
during the six months prior to the filing of the petition to terminate her
parental rights. While Mother was incarcerated during this time, that does
not excuse Mother’s failure to perform parental duties. S.P., 47 A.3d at
828. While Mother claims that she could not call or write to Child directly
because she lacked Great-Aunt’s address, and that she attempted to send
letters to Child by way of Sister-in-Law, the orphans’ court was free to reject
this testimony as incredible and conclude, as it did, that Mother made no
effort to maintain a relationship with Child. Finally, while it is true that
Great-Aunt was resistant to Mother’s attempt during the spring of 2013 to
assert her rights as to Child, Mother’s efforts occurred prior to the critical
six-month window. The record reveals that, after facing this initial
resistance, Mother simply gave up and abandoned Child. We therefore
conclude that the orphans’ court did not abuse its discretion by terminating
Mother’s parental rights pursuant to Section 2511(a)(1).
Next, we consider whether termination was proper under Section
2511(b).5 The requisite analysis is as follows.
5
Mother makes no specific argument in her brief with respect to Section
2511(b). However, in light of the requisite bifurcated analysis, we consider
whether the orphans’ court abused its discretion. See In re C.L.G., 956
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Subsection 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. In In re C.M.S., 884
A.2d 1284, 1287 (Pa. Super. 2005), this Court stated,
“Intangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of the child.”
In addition, we instructed that the trial 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. However, in cases where there is no evidence of a bond
between a parent and child, it is reasonable to infer that no bond
exists. Accordingly, the extent of the bond-effect analysis
necessarily depends on the circumstances of the particular case.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010) (some
citations omitted).
With respect to the bond analysis pursuant to section 2511(b), our
Supreme Court has stated, “[c]ommon sense dictates that courts
considering termination must also consider whether the children are in a
pre-adoptive home and whether they have a bond with their foster parents.”
T.S.M., 71 A.3d at 268 (citation omitted). Moreover, the court directed
that, in weighing the bond considerations pursuant to section 2511(b),
“courts must keep the ticking clock of childhood ever in mind.” Id. at 269.
The T.S.M. court observed, “[c]hildren are young for a scant number of
years, and we have an obligation to see to their healthy development
quickly. When courts fail . . . the result, all too often, is catastrophically
maladjusted children.” Id.
A.2d 999, 1010 (Pa. Super. 2008) (en banc) (considering Section 2511(b)
despite the appellant’s failure to challenge the trial court’s analysis).
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Here, the orphans’ court concluded that it would be in Child’s best
interests for Mother’s parental rights to be terminated. The court
emphasized that Child has seen Mother only once since her birth, and that
Child was “thriving” in the care of Great-Aunt and Great-Uncle. Orphans’
Court Opinion, 6/16/14, at 6 (unpaginated). The court reasoned that “[a]ny
decision other than to terminate parental rights would clearly be detrimental
to the developmental, physical and emotional needs of [Child].” Id.
Again, our review of the record supports the orphans’ court’s decision.
During the termination hearing, Great-Aunt testified that that Child “thinks
I’m her Mother,” and that she thinks of Child “like she is my daughter.”
N.T., 4/16/14, at 10-11. Great-Aunt noted that Child calls her “mom,” and
that they are “bonded.” Id. at 17, 35. Great-Aunt indicated that Child has a
similar relationship with Great-Uncle. Specifically, she testified that Great-
Uncle treats Child “[l]ike his daughter,” and that Child thinks of Great-Uncle
like “[h]e is God.” Id. at 11. Great-Aunt stated that she wished to adopt
Child. Id. Great-Aunt testified that she no longer works, but that Great-
Uncle is employed, and that they are able to continue providing for Child.
Id. at 44.
Great-Uncle also testified, and agreed with Great-Aunt’s testimony
fully. Id. at 45. Great-Uncle explained that Great-Aunt is Child’s primary
caretaker, and that Great-Aunt treats Child as though she is Child’s mother.
Id. at 45-46. When asked about his own relationship with Child, Great-
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Uncle stated, “I feel like she is my daughter.” Id. at 45. Great-Uncle
agreed that he and Child have a “father and child” relationship, and that
Child is a “daddy’s girl.” Id. at 47. He expressed his intention to adopt
Child should Mother’s parental rights be terminated. Id. at 46.
Finally, Child’s guardian ad litem offered his assessment. The
guardian ad litem confirmed that Child is bonded with Great-Aunt and
“hangs most especially on [Great-Uncle]. Wherever he goes she follows.”
Id. at 62. The guardian ad litem noted that Great-Aunt and Great-Uncle’s
home was “quite adequate,” and expressed his support for the involuntary
termination of Mother’s parental rights. Id. at 62-63.
Thus, the testimony presented during Mother’s termination hearing
confirms that it would be in Child’s best interest if Mother’s parental rights
were terminated. Given that Mother has only seen Child once since her
birth, it is clear that Mother and Child have no bond. See In re K.Z.S., 946
A.2d 753, 762-63 (Pa. Super. 2008) (“In cases where there is no evidence of
any bond between the parent and child, it is reasonable to infer that no bond
exists.”). Instead, Child is bonded with Great-Aunt and Great-Uncle, who
act as her parents and who have provided for her for nearly her entire life.
We agree with the orphans’ court that any decision other than termination
would be detrimental to Child, as it would deny her a place in the only family
she has ever known.
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Accordingly, because we conclude that the orphans’ court did not
abuse its discretion by terminating the parental rights of Mother pursuant to
Sections 2511(a)(1) and (b), we affirm the decree of the orphans’ court.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/2015
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