In Re: M.S.H., Appeal of: L.M.H.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: M.S.H., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: L.M.H., MOTHER :
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: No. 1270 MDA 2019
Appeal from the Order Entered July 1, 2019
In the Court of Common Pleas of Dauphin County Orphans' Court at
No(s): 27-AD-2019
BEFORE: DUBOW, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY DUBOW, J.: FILED JANUARY 07, 2020
Appellant, L.M.H. (“Mother”), appeals from the July 1, 2019 Order that
denied Mother’s Petition to Involuntarily Terminate the Parental Rights (“TPR
Petition”) of R.S. (“Father”). Upon careful review, we affirm.
The relevant procedural and factual history is as follows. In 2011,
Mother and T.F.H. (“Stepmother”) began a romantic relationship and they
briefly separated from April 2015 until January 2016. During that time,
Mother and R.S. (“Father”) conceived now three-year-old M.S.H. (“Child”),
who was born in July 2016. Mother and Stepmother reconciled prior to Child’s
birth and married in September 2016. Father moved to South Dakota shortly
after Child’s birth and has not seen Child since.
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* Retired Senior Judge assigned to the Superior Court.
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On March 14, 2019, Mother and Stepmother filed a TPR Petition against
Father, alleging that he evidenced a settled purpose of relinquishing parental
rights pursuant to 23 Pa.C.S. § 2511(a)(1). On July 1, 2019, the trial court
held a hearing on the TPR Petition.
In its Pa.R.A.P. 1925(a) Opinion, the trial court sets forth an accurate
and thorough summary of the relevant evidence presented during the hearing,
which we adopt as our own. Trial Ct. Op., filed 8/27/19, at 2-3. In sum,
Mother testified that Father has not seen Child since the day she was born and
that Child has not received any gifts from Father. Mother explained that
Father sent her threatening messages prior to and after Child’s birth, and that
she has blocked him on social media because she is scared of him. Mother
testified that Father paid court-ordered child support, but that she stopped
the support after a few months because it was too much of a “hassle.” N.T.
Hearing, 7/1/19, at 15, 24. Stepmother, likewise, testified that Father sent
threatening messages to Mother and has not seen Child since birth.
Father testified that he moved to South Dakota four months after Child’s
birth to be with his other biological child. He explained that after Mother
cancelled court-ordered child support, he attempted to pay Mother voluntary
child support, which Mother refused to accept. Father also attempted to set
up a monetary account for Child’s education, but Mother refused to provide
Child’s social security number. Father testified that he bought toys and clothes
for Child, which he sent to Child’s grandparents. Father stated that he
attempted to contact Mother and Stepmother repeatedly only to be blocked
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on social media. Father also attempted to contact Mother’s relatives to get
updates on Child.
At the conclusion of the hearing, the trial court denied the TPR Petition.
Mother timely appealed. Mother and the trial court complied with Pa.R.A.P.
1925.1
Mother raises the following issue on appeal: “Whether [Father] failed
or refused to perform parental duties on behalf of the minor child for the six
month period prior to the filing of the involuntary termination of parental rights
petition?” Mother’s Br. at 2.
When we review a trial court’s decision to grant or deny a petition to
involuntarily terminate parental rights, we must accept the findings of fact and
credibility determinations of the trial court if the record supports them. In re
T.S.M., 71 A.3d 251, 267 (Pa. 2013). “If the factual findings are supported,
appellate courts review to determine if the trial court made an error of law or
abused its discretion.” Id. (citation omitted). “Absent an abuse of discretion,
an error of law, or insufficient evidentiary support for the trial court’s decision,
the decree must stand.” In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009)
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1 In her Pa.R.A.P. 1925(b) Statement, Mother alleged the following error:
“The [t]rial [c]ourt erred in refusing to grant [Mother]’s [TPR Petition].”
1925(b) Statement, filed 7/29/19. In its Pa.R.A.P. 1925(a) Opinion, the trial
court determined that Mother’s claim of error should be waived because it is
overly vague; the trial court then proceeded to address the merits of Mother’s
claim. Instantly, because the trial court was able to address Mother’s claim,
we decline to find waiver. See Commonwealth v. Laboy, 936 A.2d 1058,
1060 (Pa. 2007) (declining to find waiver for vague 1925(b) statement when
the lower court “readily apprehended Appellant’s claim and addressed it in
substantial detail”).
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(citation omitted). We may not reverse merely because the record could
support a different result. In re T.S.M., 71 A.3d at 267. We give great
deference to the trial courts “that often have first-hand observations of the
parties spanning multiple hearings.” Id. Moreover, “[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) (citation omitted).
Section 2511 of the Adoption Act, 23 Pa.C.S. § 2511, governs
termination of parental rights, and requires a bifurcated analysis. “Initially,
the focus is on the conduct of the parent.” In re Adoption of A.C., 162 A.3d
1123, 1128 (Pa. Super. 2017) (citation omitted). “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).” Id. (citation omitted). If the court determines that the parent’s
conduct warrants termination of his or her parental rights, the court then
engages 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.” Id. (citation omitted).
In her sole issue, Mother avers that the trial court abused its discretion
when it determined that Mother did not present clear and convincing evidence
to involuntarily terminate Father’s parental rights. Mother’s Br. at 4. Mother
argues that Father did not have any obstacles in his way to perform his
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parental duties and, despite this, failed to perform parental duties over the
course of Child’s entire life. Id. at 6-7.
Section 2511(a)(1) provides that the trial court may terminate parental
rights if the Petitioner establishes that “[t]he 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.” 23 Pa.C.S. §
2511(a)(1). The focus of involuntary termination proceedings is on the
conduct of the parent and whether that conduct justifies a termination of
parental rights. In re B.L.L., 787 A.2d 1007, 1013 (Pa. Super. 2001).
Although the statute focuses on an analysis of the six months immediately
preceding the filing of the petition, the court must consider the whole history
of a given case and may consider a parent’s inaction before the six-month
statutory provision. In re K.Z.S., 946 A.2d 753, 758 (Pa. Super. 2008).
Additionally, “[t]he court must examine the individual circumstances of each
case and consider all explanations offered by the parent facing termination of
his parental rights, to determine if the evidence, in light of the totality of the
circumstances, clearly warrants the involuntary termination.” Id. (citations
omitted).
This Court has repeatedly defined “parental duties” in general as the
affirmative obligation to provide consistently for the physical and emotional
needs of a child:
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There is no simple or easy definition of parental duties.
Parental duty is best understood in relation to the needs of
a child. A child needs love, protection, guidance, and
support. These needs, physical and emotional, cannot be
met by a merely passive interest in the development of the
child. Thus, this [C]ourt has held that the parental
obligation is a positive duty which requires affirmative
performance. This affirmative duty . . . requires continuing
interest in the child and a genuine effort to maintain
communication and association with the child. Because a
child needs more than a benefactor, parental duty requires
that a parent exert himself to take and maintain a place of
importance in the child’s life.
In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations, internal
quotation marks, and internal paragraph breaks omitted).
Moreover, “[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). “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.” Id. (citation omitted). And most importantly,
“[p]arental 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. (citation omitted).
Our review of the record reveals that the trial court did not abuse its
discretion when it concluded that Mother failed to present clear and convincing
evidence to terminate Father’s parental rights under Section 2511(a)(1). The
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trial court looked at the totality of the circumstances, based on the evidence
presented by Mother, and concluded that Mother took actions to prevent
Father from having contact with Child, and that Mother was the obstacle that
prevented Father from performing his parental duties.
The trial court found Father’s testimony to be credible that he made
frequent attempts through the years to contact Child and perform parental
duties, but Mother and Stepmother averted these efforts. The trial court
placed great weight on Father’s explanations that he repeatedly attempted to
contact Mother and Stepmother, pay court-ordered and voluntary child
support, send clothes and toys to Child, and contact relatives to receive
updates on Child. See Trial Ct. Op., filed 8/27/19, at 3. In turn, the trial
court did not believe Mother and Stepmother’s testimony that they prevented
Father from seeing Child because Father threatened Mother. Id.
The trial court opined:
[T]he court found that Mother’s claims were not credible, and that
Mother took actions to prevent Father from having contact with
[Child] and performing his parental duties. The trial court found
Father’s testimony to be credible. Father was using the resources
available to him and was exercising reasonable firmness in
resisting the obstacles placed in his path of maintain a parent-
child relationship.
Id. at 1. The record supports the trial court’s findings. We decline to reweigh
the evidence or interfere with the trial court’s credibility determinations.
Since the only evidence Mother presented to establish that Father had
demonstrated “a settled purpose of relinquishing a parental claim to a child”
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was Father’s failure to visit or contact Child, and Mother prevented Father
from doing so, we find no abuse of discretion in the trial court’s denial of
Mother’s Petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/07/2020
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