Adoption of: A.A.P., Appeal of: N.G.P.

J-S45037-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: A.A.P., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: N.G.P., FATHER :
:
:
:
: No. 503 MDA 2017
Appeal from the Decree January 31, 2017
in the Court of Common Pleas of Bradford County
Orphans’ Court at No: 24 Adopt 2016
IN RE: ADOPTION OF: M.M.P., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: N.G.P., FATHER :
:
:
:
: No. 504 MDA 2017
Appeal from the Decree January 31, 2017
in the Court of Common Pleas of Bradford County
Orphans’ Court at No.: 25 Adopt 2016
IN RE: ADOPTION OF: P.E.P., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: N.G.P., FATHER :
:
:
:
: No. 505 MDA 2017
J-S45037-18
Appeal from the Decree January 31, 2017
in the Court of Common Pleas of Bradford County
Orphans’ Court at No.: 26 Adopt 2016
BEFORE: PANELLA, J., OTT, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 12, 2018
N.G.P. (“Father”) appeals from the decrees entered January 31, 2017,
which granted the petition of M.O. (“Mother”) and J.S.O. (“Stepfather”), and
terminated his parental rights to M.M.P., born October 2003, and A.A.P. and
P.E.P., born February 2007 (collectively, “the Children”), pursuant to section
2511(a)(1) and (b) of the Adoption Act, 23 Pa.C.S.A. § 2511. We affirm.
We adopt the following statement of facts and procedural history from
the trial court’s decree of January 31, 2017, and from the notes of testimony.
(See Decree, 1/31/17, at 1-6; Notes of Testimony (N.T.), 1/12/17, at 1-287).
M.M.P. was born in October 2003 to Mother and Father; the parents
married in November 2004. Twins A.A.P. and P.E.P. were born in February
2007. Father was incarcerated several times in 2009 and 2010. Mother and
Father separated in August 2010, and were divorced thereafter. After their
separation, no formal custody agreement was entered and no complaint in
custody filed. Mother impliedly assumed primary legal and physical custody
of the Children. Since the separation, Father has paid no child support,
although J.P. (“Paternal Grandmother”) signed a child support agreement and
paid approximately $10,000.00 per year to Mother in support thereof.
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* Retired Senior Judge assigned to the Superior Court.
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Mother moved to New York State with the Children to pursue further
schooling. Until December 2012, Father had little to no contact with the
Children, and spent extended time in Ohio. Despite Father’s lack of
involvement, the Children had a good relationship with Paternal Grandmother
and engaged in occasional visitation with her. In the time since the divorce,
Mother became romantically involved with Stepfather, upsetting Father, who
began making verbal threats by telephone. The threats were so numerous
and disturbing that Mother blocked the number Father called from, which was
Paternal Grandmother’s landline.
In December 2012, Father was concerned about the Mayan calendar and
the end of the world predicted for that year. As a result of his concerns, Father
stole a truck and was arrested trying to reach Mother’s house to take the
Children. Father was incarcerated for approximately eight months in 2013
following this incident. During his incarceration, Mother removed the block on
his number.
Mother and Stepfather married in July 2013, and have been living
together with their blended family in Pennsylvania since October 2013. The
Children have two step-siblings from Stepfather’s previous marriage, and view
Stepfather as their father and the step-siblings as their brothers.1 Stepfather
supports the Children, attends their extracurricular activities, assists with
hospital and medical visits, and treats them as his own.
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1 Additionally, Stepfather and Mother have a sixth child together, W.O., born
January 2016.
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In 2014 and 2015, Paternal Grandmother continued visitation with the
Children. She admitted to placing calls to Father while engaging in that
visitation, allowing him to speak with the Children. If Mother was present,
she would wait until she was alone with the Children to call Father. In 2015,
Paternal Grandmother took the Children to a renaissance fair and Father,
without the knowledge of Mother, participated in the day trip. In July 2016,
G.P. (“Paternal Grandfather”) took the Children to a family reunion; testimony
conflicted as to whether they stayed overnight at the family farm and whether
Father was present.
In September 2016, Father pro se filed a petition to modify custody. In
October 2016, Paternal Grandmother took the Children to Knoebel’s Grove for
a day trip, and Father joined them on that trip.
In November 2016, Mother and Stepfather filed a petition seeking to
involuntarily terminate the parental rights of Father, so that Stepfather could
adopt the children. In December 2016, the court convened a hearing on
Father’s petition to modify custody but ordered that matters remain in status
quo at that time.
Fred N. Smith, Esquire, was appointed as guardian ad litem (“GAL”),2
interviewed the Children, and prepared a thorough report noting that none of
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2 We note that the trial court properly did not appoint a separate attorney to
represent the Children’s legal interests (i.e., preferred outcome) where the
record reflects that there was no conflict between their legal and best
interests. See In Re: T.S., E.S., 2018 WL 4001825, at *10 (Pa. filed Aug.
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the Children has a bond or even casual relationship with Father, and that they
consider Stepfather to fulfill the paternal role in their lives. Attorney Smith
additionally recommended no contact between Father and the Children until
after the termination petition was decided and that, if the termination petition
was denied, Father should have no visitation until submitting to a mental
health evaluation.
An evidentiary hearing was convened on the termination petition on
January 12, 2017. Father, represented by counsel, testified on his own behalf.
He presented the testimony of Paternal Grandmother, Paternal Grandfather,
and his sister, N.N.P. Mother and Stepfather, represented by counsel, testified
on their own behalves. Mother also presented the testimony of J.L., the
Children’s babysitter. The Children were represented by Attorney Smith.
Prior to the hearing, the court conducted an in camera interview with
M.M.P., thirteen years old at the time. M.M.P. unequivocally indicated that he
preferred to be adopted, and adoption was the preference of his nine-year-old
siblings. M.M.P. also testified that his younger siblings barely know Father,
and about his own “bad memories” of Father. (N.T. in camera interview of
M.M.P., 1/12/17, at 17). This included an incident where Father took M.M.P.’s
glasses and slapped M.M.P. in the face when he asked for the glasses back,
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22, 2018) (“[D]uring contested termination-of-parental-rights proceedings,
where there is no conflict between a child’s legal and best interests, an
attorney-guardian ad litem representing the child’s best interests can also
represent the child’s legal interests.”).
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and other incidents, such as where Mother had given M.M.P. video games as
a gift, and Father took the games from M.M.P.
Father, represented by counsel, testified on his own behalf. He stated
that he had many pictures of the Children enjoying time together as a family,
but he did not provide this evidence to the court. Many of the pictures he did
bring with him were either several years old, or were pictures Mother had
taken and sent to Paternal Grandmother. Father also claimed that he routinely
came with Paternal Grandmother to pick up the Children, spoke with the
Children on the phone, and provided the Children with cell phones so that they
could call him. Father also claimed he had no way to contact the Children
because Mother had blocked his phone number. Much of Father’s testimony
was contradicted by testimony from Mother, the Children, Stepfather, and J.L.,
who has been watching the Children and their step-siblings since 2013.
At the conclusion of the hearing, the court held the matter under
advisement and on January 31, 2017 issued findings of fact, conclusions of
law, and decrees terminating Father’s parental rights to the Children.
On March 3, 2017, Father, proceeding pro se, contemporaneously filed
notices of appeal and concise statements of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i). The trial court entered an order on March
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17, 2017, advising that the reasons for its decision are contained in the order
appealed from. See Pa.R.A.P. 1925(a)(2)(ii).3
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3 Father pro se filed his notices of appeal in this Court and, from the beginning,
has purported to represent himself. On November 14, 2017, we remanded to
the trial court so that Father could be appointed counsel. (See In Re:
Adoption of A.A.P., M.M.P., and P.E.P., Nos. 503-05 MDA 2017,
unpublished Judgment Order at *4 (Pa. Super. filed Nov. 14, 2017)). In that
judgment order, this Court explained that Father’s March 3, 2017 notices of
appeal were timely, because although the decrees were entered on the docket
on January 31, 2017, notice pursuant to Pennsylvania Rule of Civil Procedure
236 was not sent until February 3, 2017. (See id. at *2 n.2); see also
Pa.R.C.P. 236(b); In re L.M., 923 A.2d 505, 508-09 (Pa. Super. 2007) (thirty-
day appeal period does not begin to run until such notice is given).
In accordance with this Court’s directive, the trial court appointed counsel to
represent Father, and Father subsequently pro se filed a waiver of counsel in
this Court. We once again remanded on May 8, 2018, for the trial court to
determine whether Father wished to proceed with appointed counsel or pro
se.
On June 1, 2018, the trial court held a hearing to determine whether Father
had knowingly, intelligently, and voluntarily waived his right to counsel, and
allowed him to proceed pro se. (See N.T. Hearing, 6/01/18, at 1-15; Order,
6/01/18). Because hybrid representation is prohibited, we will not consider
the brief counsel filed on Father’s behalf, where Father objected to counsel’s
representation and counsel subsequently withdrew. See, e.g.,
Commonwealth v. Jette, 23 A.3d 1032, 1040 (Pa. 2011).
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On appeal, Father purports to raise three issues, which we collectively
interpret as a claim that the trial court abused its discretion in terminating his
parental rights. (See Father’s Brief, at 4).4‚ 5
We review cases involving the termination of parental rights according
to the following standards.
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
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4 Father’s pro se brief is rambling and fails to develop a cogent legal argument
supported by pertinent authority. See Pa.R.A.P. 2119(a)-(c). Additionally,
the issues addressed in the argument section of his brief do not follow his
statement of questions presented, (see Father’s Brief, at 4, 11, 13, 16). We
nonetheless address his claims as we interpret them, keeping in mind that we
construe liberally filings by pro se litigants. See, e.g., Commonwealth v.
Lyons, 833 A.2d 245, 251-52 (Pa. Super. 2003), appeal denied, 879 A.2d
782 (Pa. 2005).
5 We also note that Mother contends that because she was not served
concurrently with the filing of the notices of appeal and statements of errors,
the appeal should be dismissed. (See Mother’s Brief, at 20-23); see also
Pa.R.A.P. 905(a)(2), Pa.R.A.P. 1925(a)(2)(i) (appellants are required to file
and serve concise statements concurrently with notice of appeal); In re
K.T.E.L., 983 A.2d 745, 747 (Pa. Super. 2009) (noting that this Court may
resolve defective notices of appeal on a case-by-case basis). Here, the trial
court received the notices of appeal and concise statements, and ultimately,
so did Mother. We decline to quash the appeal because Mother was not
prejudiced. See K.T.E.L., supra at 748.
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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 quotations marks
omitted).
Here, the court terminated Father’s parental rights pursuant to 23
Pa.C.S.A. § 2511(a)(1) and (b). Termination 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.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
The relevant sections of 23 Pa.C.S.A. § 2511 provide that:
(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,
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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).
First, we address the court’s findings under subsection 2511(a)(1). We
note that “[a] court may terminate parental rights under Section 2511(a)(1)
where the parent demonstrates a settled purpose to relinquish parental claim
to a child or fails to perform parental duties for at least the six months prior
to the filing of the termination petition.” In re Z.P., 994 A.2d 1108, 1117
(Pa. Super. 2010) (case citation and emphasis omitted). With respect to
Section 2511(a)(1),
[o]nce 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).
Further,
the trial court must consider the whole history of a
given case and not mechanically apply the six-month
statutory provision. 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.
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In Interest of: T.J.J.M., 2018 WL 2947885, at *7 (Pa. Super. filed June 13,
2018) (emphasis and citations omitted).
Here, the evidence established Father’s failure to perform his parental
duties in both the six months prior to termination and beyond. The trial court
appropriately noted the following: 1) Father had virtually no contact with the
Children from August 2010 until December 2012; 2) all of Father’s contact
with the Children, minimal at best, was coordinated through Paternal
Grandmother; 3) Paternal Grandmother paid all child support herself; 4)
Father has never been involved in the Children’s extracurricular activities with
the exception of one chorus event in 2016; 5) Father has not regularly
involved himself in the Children’s lives and has not sent letters, cards, or
communications, has not called the Children, and has not arranged for visits;
6) Father has not supported the Children financially, emotionally,
developmentally, mentally, or psychologically in any way; 7) many of Father’s
photographs, which he alleged showed contact with the Children, were
photographs taken by Mother and shared with Paternal Grandmother; 8)
Father’s self-serving evidence and testimony was contradicted by other
credible testimony.
Accordingly, the trial court appropriately determined that Father’s
parental rights should be terminated pursuant to Section 2511(a)(1), as he
had for a period of six months failed to perform his parental duties, and that
this decision was supported by the competent, clear, and convincing evidence
of record. See In re K.Z.S., 946 A.2d 753, 756-57 (Pa. Super. 2008).
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Next, we must consider whether the child’s needs and welfare will be
met by termination pursuant to Subsection (b). See Z.P., supra at 1121.
“In this context, the court must take into account whether a bond exists
between child and parent, and whether termination would destroy an existing,
necessary and beneficial relationship.” Id. (citation omitted). The court is
not required to use expert testimony, and social workers and caseworkers
may offer evaluations as well. See id. Ultimately, the concern is the needs
and welfare of a child. See id. Where there is no evidence of a bond between
the parent and child, it is reasonable to infer that no bond exists. See K.Z.S.,
supra at 762-63.
We have noted that
[b]efore granting a petition to terminate parental rights, it is
imperative that a trial court carefully consider the intangible
dimension of the needs and welfare of a child—the love, comfort,
security, and closeness—entailed in a parent-child relationship, as
well as the tangible dimension. Continuity of relationships is also
important to a child, for whom severance of close parental ties is
usually extremely painful. The trial court, in considering what
situation would best serve the child[ren]’s needs and welfare,
must examine the status of the natural parental bond to consider
whether terminating the natural parents’ rights would destroy
something in existence that is necessary and beneficial.
Z.P., supra at 1121 (citation omitted). We may not consider any effort by
the parent to remedy the conditions in subsection (a)(1) if that remedy was
initiated after the parent was given notice of the filing of the termination
petition, and this evidentiary limitation applies to the entire termination
analysis. See id.- 12 -
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Here, the trial court accepted as credible the testimony of Mother,
Stepfather, J.L., and M.M.P. that Father was not involved in the Children’s
lives. The trial court further accepted as credible M.M.P.’s own testimony that
he had only a few contacts with Father over the last two years, could not recall
phone calls from Father, and had made only two visits with Father, both in the
company of Parental Grandmother. M.M.P. was “unequivocal” in considering
Stepfather to be his “real dad” and he was eager and hopeful that he could be
adopted. (Decree, 1/31/17, at 3 ¶ 18). M.M.P. stated that Father had no
bond with the twins, who also wished to be adopted. Further, the trial court
accepted as credible the report of Attorney Smith, who interviewed all three
Children, and concluded that none of the Children had a bond or even a casual
relationship with Father, that he had not been involved except in two visits,
and that the Children do not consider Father to fill any kind of parental role in
their lives. Attorney Smith concluded that Father had been estranged for six
years from M.M.P. and is a virtual stranger to A.A.P. and P.E.P. All three
Children were hopeful to be adopted by Stepfather so that they could remain
in their stable, loving, blended family.
Thus, we conclude that the clear and convincing evidence of record
supports the termination of Father’s parental rights under Section 2511(a)(1),
as well as the Section 2511(b) findings that there was no bond between Father
and the Children, and that adoption would best serve their needs and welfare.
See Z.P., supra at 1121. Accordingly, we affirm.
Decrees affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/12/2018
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