In Re: Adoption of S.N.L., Appeal of: E.L.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF S.N.L., A MINOR IN THE SUPERIOR COURT OF
CHILD PENNSYLVANIA
APPEAL OF: E.L., NATURAL FATHER No. 1646 WDA 2014
Appeal from the Decree entered September 22, 2014,
in the Court of Common Pleas of Fayette County, Orphans’
Division, at No: 18 ADOPT 2014
BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED APRIL 06, 2015
E.L. (Father) appeals from the decree entered September 22, 2014, in
the Fayette County Court of Common Pleas, which involuntarily terminated
his parental rights to his minor daughter, S.N.L. (Child). We affirm.
Child was born in Fayette County, Pennsylvania, in September of
2008. At the time of Child’s birth, Father was residing with Child’s mother,
C.D. (Mother). When Child was about a year old, Father, Mother, and Child
moved to Virginia. However, Father left Virginia after approximately one
month and returned to Fayette County. Mother and Child returned to
Fayette County in 2010.
On May 12, 2014, Mother filed a petition to involuntarily terminate
Father’s parental rights to Child. In the petition, Mother indicated that
Father was presently incarcerated in Lehigh County. Father responded by
mailing letters, dated June 8, 2014, to Mother’s counsel, the orphans’ court,
and to the orphans’ court clerk. In the letters, Father confirmed that he was
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incarcerated, and requested that his parental rights not be terminated. A
termination hearing was held on August 14, 2014, during which the court
heard the testimony of Mother and her fiancé, L.R. (Fiancé). At the
beginning of the hearing, Father’s court-appointed counsel indicated that he
had attempted to get in contact with Father, but that he had not been able
to do so until that morning. N.T., 8/14/14, at 3-4. While Father did not
participate in the hearing, Father’s counsel did participate, and cross-
examined Mother. At the conclusion of the hearing, the court requested that
an additional hearing be scheduled so that Father could have the opportunity
to testify. Id. at 24-25. The hearing was held on September 16, 2014,
during which Father participated remotely using a videoconferencing system.
Mother was recalled to the stand as a rebuttal witness following Father’s
testimony.
On September 22, 2014, the orphans’ court entered its decree
terminating Father’s parental rights. Father timely filed a notice of appeal
on October 7, 2014, along with a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
Father now raises the following issue for our review.
Did the [t]rial [c]ourt err by abusing its discretion in terminating
[Father’s] rights as [Mother] failed to sustain [her] burden of
proof by clear and convincing evidence to show that [Father]
evidenced a settled purpose of relinquishing a settled claim to
the child or refused or failed to perform parental duties?
Father’s Brief at 6.
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We consider Father’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.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
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In this case, the orphans’ court terminated Father’s parental rights
pursuant to Sections 2511(a)(1), (2), 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.
(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 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)-(2), (b).
We need only agree with the orphans’ court as to any one subsection
of Section 2511(a) in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa.
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Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Here,
we analyze the court’s decision to terminate under Sections 2511(a)(1). 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 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 moving on to analyze Section 2511(b). Id. (quoting In re Adoption
of Charles E.D.M., 708 A.2d 88, 92 (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
1
Because Father only challenges the orphans’ court’s analysis with respect
to Section 2511(a)(1), we need not consider whether the court abused its
discretion by finding that termination was warranted under Section 2511(b).
See In re Adoption of R.K.Y., 72 A.3d 669, 679 n.4 (Pa. Super. 2013),
appeal denied, 76 A.3d 540 (Pa. 2013) (declining to address Section 2511(b)
where the appellant did not make an argument concerning that section).
Additionally, we note that the orphans’ court was only permitted to
terminate Father’s parental rights if it found that an adoption of Child was
anticipated. In re E.M.I., 57 A.3d 1278, 1285 (Pa. Super. 2012); 23
Pa.C.S.A. § 2512(b). Generally, an individual may not adopt the child of a
non-spouse unless that non-spouse relinquishes his or her parental rights, or
unless the individual and the non-spouse are able to show cause pursuant to
23 Pa.C.S.A. § 2901. In re Adoption of R.B.F., 803 A.2d 1195, 1199-1202
(Pa. 2002). Here, Father does not challenge the feasibility of Fiancé’s
proposed adoption of Child. Thus, we express no opinion on the issue
whether cause was shown to permit Mother’s fiancée to adopt Child.
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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, the orphans’ court found that Father had abandoned Child
prior to being incarcerated in 2011, and that he made almost no effort to
maintain a relationship with Child thereafter. Orphans’ Court Opinion,
10/24/14, at 6-7. Thus, the court concluded that Father had refused and
failed to perform his parental duties for a period of four years prior to the
filing of the petition to terminate his parental rights. Id. at 7. Father
argues that his efforts at parenting Child were hampered by Mother.
Father’s Brief at 11. Father also contends that Mother made no effort to
make Child available to Father, that Mother made no effort to keep in
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contact with Father, and that Mother “left the jurisdiction where they last
resided together.” Id.
After a thorough review of the record in this matter, we conclude that
the orphans’ court did not abuse its discretion. At the August 14, 2014,
termination hearing, Mother testified that she and Fiancé have been together
for nearly four years, and that they have a child, L.R., who also resides with
them. N.T., 8/14/14, at 6, 11. Mother testified that the last time she had
any contact with Father about Child was in November of 2009, when Father
spoke to Mother over the phone and sent her a “twenty dollar money order
that said it was child support.” Id. at 8. Mother testified that, upon
returning to Fayette County in 2010, she and Child first lived with her
grandmother. Id. at 9. According to Mother, Father knew Mother’s
grandmother, as well as Mother’s other family members in the area. Id.
However, Father made no effort to contact Mother or Child. Id. Mother
testified that she received a message from Father’s mother in December of
2009, indicating that Father would not be in contact with Child during the
Christmas holiday because he had been incarcerated. Id. at 15. This
resulted in an argument between Father’s mother and Mother. Id. Mother
stated that she has not been in contact with Father’s mother since. Id.
Mother also testified that she had not paid Father to stay away from Child,
or threatened him. Id. at 10.
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Fiancé testified that he has never received a phone call from Father or
received any financial support for the care of Child from Father. Id. at 22.
He stated he has never seen or spoken to Father, and that he never
threatened Father to keep him away from Child. Id. Fiancé indicated that
he wanted to adopt Child, stating, “Like she is my daughter. She is one of
my best friends.” Id. at 22. Following Fiancé’s testimony, at the conclusion
of the August 14, 2014, hearing, the orphans’ court admitted into evidence
the letter that Father sent in response to Mother’s petition to terminate his
parental rights. Id. at 24. In the letter, Father admitted that he was active
in Child’s life for “almost the first two years,” but that, “[d]ue to my prior
immaturities and a failed relationship with [Child’s] mother, I lost the bond I
had with my daughter.” Petitioner’s Exhibit 1.
During the September 16, 2014, hearing, Father testified that he is
facing a first degree felony aggravated assault charge, and that he plans on
pleading guilty and serving a prison sentence “in the near future.” N.T.,
9/16/14, at 4-5, 19-20. Father admitted that his relationship with Mother
ended “around May of 2009,” and that he had only seen Child once since
that time. Id. at 6-7. Father stated that, around or shortly before
November of 2009, he had Child in his care in Fayette County for about five
or six days. Id. at 7, 13.
Father explained that he moved to Lehigh County in early 2010. Id.
at 8. He claimed that “from early 2010 to mid 2010” he sent Mother twenty
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dollars each week and called “almost every other day.” Id. Father also
stated that he obtained a job in May of 2010 and sent Child letters and a
pair of shoes. Id. at 14. Father testified that he and Mother had agreed
that Father’s aunt would transport Child to Lehigh County, but that Mother
rejected this idea at the “last minute.” Id. at 8. Father stated that he last
spoke with Mother about Child when he visited Fayette County in May of
2011. Id. at 8-9. Father alleged that he called Mother, and that Mother told
him that he would never see Child again. Id. at 9.2 Father explained that
he was then incarcerated in Lehigh County for drug possession from August
4, 2011, until July 28, 2013. Id. at 9, 15. He stated that he lost track of
Mother’s whereabouts after his incarceration. Id. at 22. Father testified
that he sent a card for Child to Mother’s aunt in 2012 because it was “the
only address I knew of [Mother’s] family.” Id. at 15, 21.
Father stated that he was again incarcerated on January 30, 2014.
Id. at 9. Father claimed that, prior to this second period of incarceration, he
had “no clue” where Mother and Child were and had “no way of getting in
contact with them through social media or her family.” Id. at 16. Father
asserted that he spoke with to Child’s “little cousin . . . . maybe once or
twice over social media to ask him about [Child].” Id. at 9-10. Reportedly,
the cousin stated to Father that he did not know where Mother was living
2
Father later claimed on re-cross examination that Mother made this
statement in “early, mid 2010.” N.T., 9/16/14, at 23. Reportedly, Mother
became angry at Father after he missed some of his scheduled phone calls
with Child. Id.
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“because she wasn’t in immediate contact with the family.” Id. at 10.
Father indicated that he wanted a chance to reconnect with Child, and
suggested that he could do this by writing to Child “on occasion, whenever
necessary,” by sending her a picture, by sending financial support, and by
talking on the phone. Id. at 11.
After being recalled as a rebuttal witness, Mother denied that she
spoke to Father at any point after December of 2009. Id. at 26.3 Mother
agreed that Father wanted Mother to send Child to Allentown with an aunt,
but that she rejected Father’s plan because she “did not know about their
whereabouts . . . .” Id. She further denied that Father was ever scheduled
to call Child every day, that he ever did call Child every day, that he sent her
money more than once, that she ever had an argument with him over the
phone, and that she told him that he would not see Child again. Id. at 27.
Mother stated that she did not receive gifts from Father or his family, other
than “a box” from Father’s mother in 2009. Id. at 28.
Mother also testified that, during the approximately six months when
Father was out of jail between July of 2013 to January of 2014, she was still
living with her grandmother in Uniontown. Id. at 29. She stated that this
was the same house where she was residing when Father first met her. Id.
Mother indicated that she did not know what cousin Father allegedly
contacted via social media, but that she always kept in touch with her
3
This was slightly inconsistent with Mother’s earlier testimony that she last
spoke with Father about Child in November of 2009. N.T., 8/14/14, at 8.
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family, and that her family was aware of her address after she moved out of
her grandmother’s home. Id. at 28-29.
Accordingly, the record supports the orphans’ court’s determination
that Father refused or failed to perform parental duties during the six
months prior to the filing of the termination petition on May 12, 2014.
Indeed, Father did not testify that he made any attempts at contacting
Mother or Child during this period. At best, Father indicated that he
contacted Child’s cousin sometime between July of 2013 and January of
2014. This minimal effort by Father is insufficient to preserve his parental
rights. While Father now complains that Mother did not exert herself to
make Child available to him, it was Father’s duty, not Mother’s, to ensure
that he maintained his parent/child relationship. B.,N.M., 856 A.2d at 855.
While Father testified that Mother was resistant to his attempts at contacting
Child in 2010 and 2011, the orphans’ court was free to reject this testimony
as not credible. Even if Father’s statements were accurate, Father was
required to make a good faith effort in face of this resistance in order to
retain his parental rights. Id. He did not do so.
Thus, because we conclude that the orphans’ court did not abuse its
discretion by involuntarily terminating Father’s parental rights pursuant to
Section 2511(a)(1), we affirm the decree of the orphans’ court.
Decree affirmed.
Judge Donohue joins the memorandum.
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Judge Shogan files a concurring memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2015
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