Adoption of: S.D., Appeal of: T.M.A.

J-A30012-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ADOPTION OF: S.D., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: T.M.A., MOTHER :
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: No. 1273 MDA 2019
Appeal from the Decree Entered July 3, 2019
In the Court of Common Pleas of York County Orphans' Court at No(s):
2019-0009a
BEFORE: DUBOW, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 26, 2020
Appellant, T.M.A. (“Mother”), appeals from the July 3, 2019 Decree that
granted the Petition for Involuntary Termination of Parental Rights (“TPR
Petition”) filed by D.D. (“Father”) and involuntarily terminated Mother’s
parental rights to S.D. (“Child”). Upon careful review, we affirm.
The lower court has provided this Court with a well-written, thorough,
and comprehensive Pa.R.A.P. 1925(a) Opinion, which sets forth the relevant
factual and procedural history of this case, and we adopt its detailed recitation
for purposes of this appeal. See Trial Ct. Op., filed 8/19/19, at 1-8. In sum,
Mother and Father are parents to ten-year-old Child. Mother has a history of
substance abuse, including a 2015 guilty plea to a drug offense. Since 2015,
Father has had primary physical custody of Child and Mother has had partial
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* Retired Senior Judge assigned to the Superior Court.
J-A30012-19
physical custody every other weekend. The stipulated custody order provided
that, upon Father’s request, Mother shall take a drug test within forty-eight
hours and in the event she fails the requested drug test, her custody rights
will be automatically suspended until further order of the court. In June 2018,
after Mother failed to exercise her partial physical custody with Child, Father
requested that Mother take a drug test and Mother refused.
Father filed a Petition for Special Relief and a Petition to Modify Custody,
and on July 23, 2018, after a hearing, the custody court made a finding that
Mother failed or refused to take a drug test and scheduled a custody
conciliation conference, which Mother failed to attend. On August 28, 2018,
the custody court issued an Interim Order, which awarded Father sole legal
and physical custody of Child, suspended Mother’s partial physical custody
rights pending a scheduled custody trial, ordered Mother to attend a custody
workshop, and ordered Mother to undergo a threat of harm evaluation
pursuant to 23 Pa.C.S. § 5329 to determine whether she posed a threat of
harm to Child because of her 2015 drug conviction.
Mother failed to appear at the pre-trial conference and to provide
documentation that she attended the custody workshop or participated in a
threat of harm evaluation. On January 11, 2019, the custody hearing began.
Mother appeared, and the custody court reinstated her shared legal and partial
physical custody rights to Child. The custody court scheduled the hearing to
resume on March 29, 2019. Notably, Mother failed a drug test on February
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27, 2019, and on March 22, 2019, the custody court once again suspended
her custody rights pending the conclusion of the custody trial.
On the same day the custody trial began, January 11, 2019, Father filed
a TPR Petition pursuant to 23 Pa.C.S. § 2511(a)(1), asserting that Mother had
failed to perform parental duties for the six months immediately preceding the
filing of the Petition. The court scheduled a hearing and continued the custody
proceedings pending the outcome of the hearing.
At the TPR hearing, the court heard testimony from Child; Father;
Mother; Ashley Turgeon Milspaw, Psy.D., expert in Psychology and bonding
assessment evaluator; Joshua Talarico, Ph.D, drug and alcohol counselor; and
K.S., Mother’s boyfriend’s mother.
In sum, Father testified that Mother has not seen or contacted Child in
the past six months. Father further testified that Mother did not contact him
to request visitation, call to speak to Child, send or drop off gifts for Child,
write letters to Child, or participate in Child’s educational or medical care
during that time. Father acknowledged that Mother contacted him via text
message one time in October 2018 to ask if she could drop off a gift for Child
and he did not respond. See Trial Ct. Op., filed 8/19/19, at 5.
Mother testified that she did not check her mail for four months to
receive information about court proceedings, re-engaged in drug and alcohol
counseling and a methadone treatment program in October but still used
marijuana recreationally, asked Father for visitation with Child in August 2018
and Father denied her request, and hired an attorney to pursue visitation with
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Child as soon as she had enough money. Mother admitted that she did not
have contact with Child from June 2018 until January 2019 and stated that
she was not in her right state of mind during that time. See id. at 6-7.
Child testified that he calls his stepmother “Mom” and calls Mother by
her first name. Child stated that Mother has treated him awfully, lies to him
all the time, and has not seen him in six or seven months. Child expressed
that he does not have a close relationship with Mother and does not want her
to be his mother anymore. See id at 4; N.T. Hearing, 4/24/19, at 5-10.
The court also heard testimony from Dr. Milspaw, who stated that Child
had a bond with Father and his stepmother but did not have a strong bond
with Mother, and Child would not experience emotional harm if the court
terminated Mother’s parental rights. Dr. Talarico testified that since October
2018, Mother was compliant with her methadone treatment program and
drug, and alcohol counseling, but that the program did not test for marijuana
use. See Trial Ct. Op. at 6, 16.
On July 2, 2019, the court issued a Decree terminating Mother’s parental
rights to Child.
Mother timely appealed. Both Mother and the trial court complied with
Pa.R.A.P. 1925.
Mother raises the following issues on appeal:
1. Whether the [c]ourt improperly found that Father met his
burden by establishing clear and convincing evidence to
involuntarily terminate parental rights.
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2. Whether Mother’s actions toward sobriety and regaining her
custody rights, which began prior to the petition to terminate
her rights, and continued after the petition, should be
considered.
3. Whether Father’s campaign to keep Mother away from [C]hild
should be considered in Mother’s favor when weighing the
actions taken by Mother to made contact with [C]hild.
4. Whether evidence of the sibling’s strong bond with [C]hild
should be considered.
5. Whether the court improperly relied on Father’s bonding
assessment regarding step[]mother and [C]hild, when the
expert did not review any collateral resources from Mother or
reach out to Mother for input.
6. Whether the [c]ourt improperly considered a “needs and
welfare analysis prior to fully determining whether Mother’s
actions justified termination.
Mother’s Br. at 3 (numbering added for ease of disposition).
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)
(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
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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).
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
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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:
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
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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).
In her first issue, Mother challenges both the sufficiency and weight of
the evidence. Mother avers that the trial court abused its discretion when it
determined that Father presented clear and convincing evidence to
involuntarily terminate her parental rights. Mother’s Br. at 3, 11. Mother
concedes that she had “little contact” with Child over a six-month period but
argues that the lower court failed to consider that she made efforts to re-
engage in drug and alcohol treatment preceding the filing of the TPR Petition,
her visitation with Child was suspended via a custody order, and Father
disallowed contact with Child. Id. at 12-18. Finally, Mother argues that the
court placed too much focus on Mother’s failed drug test rather than her efforts
to maintain sobriety. Id.
In her next five issues, Mother raises additional challenges to the weight
of the evidence. Mother argues that the court failed to consider her efforts
towards sobriety, Father’s actions to keep Mother away from Child, and Child’s
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bond with his sibling. Id. at 3, 18-22. Mother also contends that the court
placed undue weight on a bonding analysis that did not include an interview
with Mother. Id. at 3, 23-25. Finally, Mother asserts that the court placed
too much weight on a “needs and welfare” analysis rather than focusing on
whether Mother evidenced a settled purpose of relinquishing her parental
claim to Child. Id. at 3, 25-26.
After a careful review of the parties’ arguments and the record, we
conclude that the record supports the trial court’s findings. We decline to
reweigh the evidence or usurp the lower court’s credibility determinations.
See In re T.S.M., 71 A.3d at 267; In re M.G., 855 A.2d at 73-74.
Accordingly, we adopt the well-written, thorough, and comprehensive Opinion
of the Honorable N. Christopher Menges as our own. See Trial Ct. Op., filed
8/19/19, at 8-23 (finding that for the six months prior to the filing of the
petition, Mother had no contact with Child, failed to perform parental duties
for Child, made minimal attempts to contact Father or his counsel, and re-
engaged in drug and alcohol counseling but continued to illegally use
marijuana, and concluding that it would be in Child’s best interest to terminate
Mother’s parental rights pursuant to Section 2511(a)(1) and (b)).
Decree affirmed. We direct the parties to attach a copy of the trial
court’s August 19, 2019 Pa.R.A.P 1925(a) Opinion to any future filings.
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Judge Colins joins the memorandum.
Judge Nichols notes dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/26/2020
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Circulated 01/28/2020 02:59 PM
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MEMORANDUM OPINION IN SUPPORT OF ORDER PURSUANT RULE TO
192S{a)(2)(ii) OF THE PENNSYLVANIA RULES OF APJ,>�LLATE PROCEDURE
AND NOW, this l 91h day of August, 2019, the Court is !in receipt of Mother's
Notice of Appeal and Statement of'Errors Complained of Under Pa.R.A.P. 1925(b), as
required by the Rules of Appellate Procedure for a Children's Fast Track Appeal.
;
Pa.R.A.P l 925(a)(2)(i). Th� Co�irt hereby reaffirms its Order �ted July 2, 2019,
terminating Mother's parental rights to the minor Child,
i
FACTUAL AND PROCEDURAL HISTORY
In 2009, ("Child"), was born on Christmas Day to
("Father"), an� ("Mother"). Two ye_ars later, tn December 9, 2011, the
first custody order between the parties was entered by this Honorable Court and docketed
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at 2011-FC-001479-03. The most recent Stipulated Custody Order was entered on July
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7, 2015 (the ..Stipulated Order"). Therein, the parties agreed tpat Father would have
primary physical custody of the Child, subject to Mother's rig�-ts of partial physical
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custody on alternating weekends from Friday at 6:00 p.m. until Sunday when Father
picks the Child up after work or until 6:00 p.m., if Father doe� not have work.
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Additionally, Mother was given partial physical custody right� on Saturdays when Father
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AUG 2 1 2019
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was working, from 6:30 a.m, until 6:00 p.m. The Stipulated Order further provided that
upon Father's request, Mother will take a drug test within 48 hours, and in the event
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Mother fails a drug test, then her rights of partial physical custody will be automatically
suspended until further order of court.
On July 23, 2018, following a hearing on-Father's Petition for Special Relief filed
July 16, 20 I 8, the Court entered an Order stating that Mother had failed or refused to take
a drug test that Father requested, Mother did not exercise her custody rights for a
weekend, and the matter was remanded to a conciliation conference, On August 16,
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2018, a Conciliation Conference was held, but Mother did not appear either in person, by
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telephone, or through counsel. By Interim Order for Custody, Fending Trial dated
August 28, 2018, Mother's lights of legal and physical custody were
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suspended pending
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a determination being made by the Court as to whether she poses a threat of harm to the
Child as a result of her past drug conviction in 2015, and alleged continued drug use. Per
the said Interim Order, Father was granted sole legal and pr'irnary physical custody of the
. .
Child, and Mother was required to undergo a threat of harm evaluation. It was noted in
the Interim Order that the parties had an enforcement conference with Domestic
Relations scheduled earlier in the same day as the Concillation.Ccnference, and Father
reported that Mother failed to appear (or that conference as well.
On October 23, 2018, a Pre-Trial Custody Conference was held, and a Custody
Trial was scheduled for December 19, 2018. Again, Mother f�iled to appear before the
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Court either in person, by telephone, or through counsel. The Order Scheduling Custody
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Trial dated October 23, 2018 also indicated that Mother had not Ned a Criminal
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Record/Abuse History Verification Affidavit, and had not completed the Custody
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Workshop, as required by the August 28, 2018 Interim Order fo1i Custody, Pending Trial.
By Order dated December 12, 2018, the Custody Trial was rescheduled to January 11,
2019.
The Custody Trial began, but was not completed, and th� second day of the
Custody Trial was scheduled for March 29, 2019. At the conclusion of the first day of
the Custody Trial, the Court entered an Order dated January 11, 2019, wherein the
suspension of Mother's custodial rights was vacated, and the parties were to follow the
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custody schedule as set forth in the Stipulated Order. Additionally, the parties were
directed to arrange for Mother to obtain a Threat of Harm Evaluation.
On January 11, 2019, the same day the Custody Trial began, Father filed a
Petition for Involuntary Termination of Parental Rights, seeking to terminate Mother's
rtgnts to the Child. Father filed another Petition for Special Refief on February 8, 2019,
again raising concerns over Mother's continued drug use. By Order dated February 20,
2019, Mother was directed to take a drug test at Father's expense. After a hearing on
March 22, 2019, an Order was entered the same day indicating that Mother had in fact,
failed a drug test on February 27, 2019, and thus, her custodial.rights were again
suspended until the final day of the Custody Trial 011 March 29:, 2019. In the meantime, a
Termination of Parental Hearing ("TPR Hearing") was scheduled for April 29, 2019. An
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Order was entered on March 26, 2019) continuing the custody proceedings until further
order of court pending the outcome of the TPR Hearing.
to 19, and the second half
;
The first half of the TPR Hearing was held on April 29 >
was held on July 2, 2019. At the TPR Hearing held on April 29� 2019, the Court
interviewed the Child with the parties' respective counsel present, as well the Child's
GAL. During the interview, the Child referred to Mother as '11'9', and his step-mother,
- as "Mom." When asked what he calls Mother when he's around her, he said
"Mom" because he didn't want to hurt her feelings. The Child further stated that Mother
lies to him repeatedly and he had not seen Mother in six or seven months.
Following the Child's interview, the Court heard testimony from Ashley Turgeon
Milspaw, Psychologist, of Gallant Psychological and Forensic $ervices. Father retained
the services of Dr. Milspaw to conduct a bonding assessment in February> 2019.
Dr. Milpaw's report was provided to the Court as Father's Exh�bit 2; the documentation
reviewed by her in asaisting in her findings was also provided ti> the Court as Father's
Exhibit 9. In sum, Dr. Milspaw testified that the Child was well bonded with Father and
his step-mother, but was not bonded with Mother and would not be harmed if the parent-
child relationship between Mother and the Child was terminated. Dr. Milspaw further
testified that just as the Child had done when the Child was interviewed by the Court, the
Child referred to Mother as ., stat�d that she had lied to him in the past, and he
preferred not to be around her.
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Lastly, Father testified at the TPR Hearing on April 29, 2p19. In brief summary,
Father testified that the following events occurred during the six months
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leading up to the
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filing of the Petition for Involuntary Termination of Parental Rights:
Mother had been evicted from her residence on more than one occasion.
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Mother failed to exercise her weekend of custody in early June 2018 due
to her own self-reported mental health issues. ·
Mother's last period of custody prior to having her rights suspended was
Father's Day weekend 2018. ·
In late June/early July 2018, Mother told Father that she was in New York
at a funeral and could not exercise custody of the Child, 1Nhe11 in fact, she was in
Ocean City, New Jersey.
On July 11, 2018, Father requested that Mother take a drug test and she
failed to do so. ·
Mother did not participated in the Child's education or medical care in any
way.
From July 11, 2018 to on or about October 61 2�18, Mother had no
contact with Father or the Child, either face to face, by telephone, text message, e-
mail, or otherwise. When Mother did contact Father on or about October 6, 2018,
she requested to bring a gift to the Child, not to exercise custody of the Child.
Father did not respond to Mother's request.
Mother did not attempt to contact Father directly; between October 2018
and January 2019.
Mother saw the Child in person for the first time.since Father's Day
weekend 2018 in January 2019 when this Court reinstated Mother's lights.
At the second part of the TPR hearing held on July 2, 2019, Attorney Erika Lauer,
Father's former legal counsel, testified that she entered her appearance in this matter on
September 12, 2018. During the course of her representation, Attorney Lauer stated that
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Mother contacted her office once in October of 2018, and though Attorney Lauer
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returned her call, she was unable to speak with Mother. Attorney Lauer indicated that on
or about December 19, 2018, Mother obtained counsel, who she pad one e-mail
correspondence with regarding Mother having contact with the qhild. Attorney Lauer
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stated that based on her belief and her client's belief that MotheJ's rights were suspended,
Mother's failure to obtain a threat of harm evaluation, and Mother's failure to complete
parenting classes, Mother's request to have contact with the Child was denied.
Additionally, Dr. Josh Talarico from Pyramid Health testified that he worked with
Mother regarding her substance abuse problems as a counselor. fHe began treating
Mother in September of 2017. Mother also participated in a methadone treatment
program with Dr. Talarico, and he reported her "clean date" as being October 16, 2018.
Mother had used illegal substances in May, July, August and September of 2018. Even
though Mother is on methadone, she uses marijuana recreationally on and off.
Dr. Talarico stated that as part of the program, Mother had a self-harm assessment
completed, and Mother had never reported a desire to harm herself or others.
Finally, Mother testified to her version of events as follows:
That the Child was well bonded with his half-sibling,•• who was 4
years old. ·
Mother testified that she believed that there was.a strong bond between
herself and the Child. '
Mother stated that she did not take the drug test 1requested by Father in the
summer of 2018, because she was afraid that Father would not approve of her
methadone use.
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On or about August 7, 2018, Mother reached out lo Father and requested
to see the Child, Father denied her request. Father told Mother that her tights
were forfeited during this time. ·
;
Mother reached out to Father again in early October of 2018, but Father
did not respond.
Mother also contacted Father's then attorney, Erika Lauer, but did not
speak directly with her. ·
She testified that she had not received prior notices of court proceedings,
because she had not picked up her mail from her former residence nor from her
mother in approximately 4 months.
Mother completed her risk of harm evaluation 011 January 3, 2019, and she
paid for the FCR child resources class on January 8, 201\9.
Mother goes on to admit that she did not have contact with the Child
during the months between Father's Day weekend in 2018 and January 1 l,_2019.
Mother states that she simply was not in her right state of mind at the time.
Attorney David Worley, the Child's GAL, informed the.Court that he had met
with the Child without anyone else being present on June 27, 2(H9, and that the Child
again asserted the same information and feelings as he had during the in-camera
interview with the Court on April 24, 2019.
At the conclusion of the hearing, the undersigned dictated an order on the record
terminating Mother's parental rights to the Child. Several findings of facts were also put
on the record in open court as follows:
Mother had not seen the Child from Father's Daly weekend 2018 until
sometime in mid-January 2019. ·
Mother did not have telephone contact with the! Child, did not send gifts
to the Child, made very minimal attempts to contact Father or his counsel, and did
not file for relief with the Court. In fact, until December 2019 when mother
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retained legal counsel, Mother had .no contact with the dourt in this matter since
2017.
Mother has trouble maintaining sobriety.
The Court goes on to opine that most of the custody isst�es in this matter center
around Mother's drug use. Mother chose a drug lifestyle over tjer son. And thus,
through her own actions, Mother has failed to or refused to perform parental duties with
respect to the Child.
ISSUES ON APPEAL
Mother raises the following issues in her l 92S(b) Statement, each will be
discussed in turn below.
1 The Court did not meet its burden ofestablishing clear and convincing
evidence to involuntarily terminate parental rights.
IL Clear and convincing evidence was not established to show that Mother,
by conduct continuing for a period ofat least six months immediately
preceding the filing of a petition either has evidenced a settled purpose of
relinquishing parental claim to the child or refused or failed to perform
parental duties. ·
Ill Whether the evidence established that Mother destred to retain her rights
and attempted to exercise her rights, despite Fai:her refusing to allow
Mother to have contact. ·
IV. Whether the Court can terminate parental right$ during an active custody
matter, after a parent's rights have been improperly suspended and
Mother was seeking to re-establish the suspended rights.
V. Whether Mother's actions towards sobriety and regaining her custody
rights, which began prior to the petition to terminate her rights, and
continued ajier the petition, should be considered.
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VI. Whether Father's campaign to keep Mother awa�from the child should be
rewarded by terminating Mother's rights.
VIL Whether Mother 's misunderstanding of the custody matter should be used
against her in terminating her parental rights. · .
VJIL Whether the Court's attempt to expedite the heastng and minimize
testimony was a violation ofMother's Due Process rights, and additional
hearing testimony should be taken. ·
IX Whether evidence of the sibling's strong bond with the child should be
considered: ·
X Whether the Court improperly relied on Father 'f bonding assessment
regarding step-mother and child, when the expert did not review any
collateral resources from Mother or reach out tq Mother for input.
XI Whether the Court improperly relied on factors other than the actions of
Mother within the six months prior to the petition.
X/1 Whether the Court improperly considered a "needs and welfare analysis"
prior to fully determining whether Mother's actions justified termination.
Statement of Errors Complained of Under Pa.R.A.F.. l 925{b), filed July 30,
2ru� ·
DISCUSSION
The Pennsylvania Superior Court has previously held ttat in reviewing an appeal
from a decree terminating parental rights, the reviewing court rs limited to "determining
whether the decision of the trial court is supported by competent evidence. Absent an
abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's
decision, the decree must stand." In the Matter of B.L. W, 843:A.2d 380 (Pa. Super.
;
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2004). When a trial court has involuntarily terminated parental! rights, the reviewing
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court "must accord the hearing judge's decision the same deference that [it] would give to
a jury verdict." Id The reviewing court "must employ a broadj comprehensive review
'
of the record in order to determine whether the trial court's decision is supported by
competent evidence." Id.'
The termination of parental rights is based on 23 Pa. C.S.¥\.. §2511, generally.
Specific to this case, the relevant parts of the statute is as follows:
(a) General rule - The rights of a parent in regard to a child may be
terminated after a petition filed on any ofthe 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 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) (I), (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. §251 J(a) and (b).
I. The Court did not meet its burden ofestablishing clear and convincing
evidence to involunmrily terminate parental rigl,ts.
It is denied that the Court did not meet its burden of establishing clear and
convincing evidence to involuntarily terminate Mother's parental rights. As provided in
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23 Pa. C.S.A. §2511 (a)(J), Mother's continuing conduct for a period of at least six (6)
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months immediately preceding the filing of the petition evidenc�d Mother's refusal or
failure to perform parental duties for the Child, because between Father's Day weekend,
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2018 and January 11, 2019, Mother had no telephone contact with the Child, did not send
gifts to the Child, performed no parental duties for the Child (sJch as attending to the .
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Child's educational or medical needs), made very minimal attempts to contact Father or
his counsel, and did not file for relief with the Court.
The language in the Stipulated Order is clear and unambiguous. Specific to drug
testing, the Stipulated Order provides that "upon Father's reque�t, Mother will take a
drug test within 48 hours .. .if Mother fails a drug test, then her rights of partial physical
custody will be automatically suspended until further order of court." Stipulatedfor
Custody Order, p. 3, July 7, 2015. While it is admitted that Mother did not fail the drug
test requested by Father in the summer of 2018, she did refuse, and/or failed to take the
drug test. This Court chooses not to split hairs on failing a test o] failing to take a test. ·
Mother's refusal to take the drug test leads the Court to believe �hat Mother would have
probably failed the drug test had she taken it at that time. Mother's own testimony that
she had relapsed around that time and was using methadone confirms the Court's
suspicions. Mother also testified that she did not take the drug test, because she did not
want Father to know that she was using methadone. The suspen�ion of Mother's rights
during the months between June 2018 and January 2019 were a consequence of Mother's
own poor decision making and failure to remedy the problem simply by complying with
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the drug test that Father had requested. Furthermore, while Mother's rights of partial
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physical custody were suspended, no language in the Stipulated Order prevented Mother
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from having telephone contact with the Child or sending the Chi}d gifts during that time.
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Therefore, the Court did meet its burden of establishing clear and
convincing evidence to involuntarily terminate Mother's parental rights, because
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Mother's continuing conduct for a period of at least six (6) months immediately
preceding the filing of the petition evidenced Mother's refusal or/ failure to perform
parental duties for the Child.
II. Clear and convincing evidence was not established to show that Motlier,
by conduct continuing fora period of at least siximonths immediately
preceding the filing of a petition either has evidenced a settled purpose
of relinquishlng parental claim to the child or refused or/ailed to
perform parental duties. ·
It is denied that the Court did not establish clear and convincing evidence to show
that Mother by her own conduct evidenced a settled purpose of relinquishing parental
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claim to the Child or refused or failed to perform parental duties. \Father and Mother both
testified that Mother did not have contact with the Child from approximately June 17,
2018 to January 11, 2019. Prior to not complying with the drug test Father requested,
Mother declined to exercise her period of custody in late June/early July of 2018. As
previously stated, the language of the Stipulated Order is clear. Yet, Mother took no
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steps to correct the situation she created for herself. She did not advise Father at any time
that she was willing to take another drug test, nor did she seek reli�f from the Court. In
fact, Mother testified that she did not receive notice of the proceedings following Father's
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first petition for special relief because she did not collect her mail for four (4) months.
This is not how reasonable and responsible adults act.· Mother ind Father also both
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testified that from June 17, 2018 to January 11, 2019, Mother failed to or refused to
perform parental duties for the Child, because Mother did not attend to the Child's
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mental, emotional, physical needs; and Mother did not perform !daily caregiving duties
for the Child, such as preparing meals, bathing, and the like.
Therefore, the Court did establish clear and convincing evidence to show that
Mother evidenced a settled purpose of relinquishing parental claim to the Child or
refused or failed to perform parental duties, because ample evidence was presented at the
TPR hearing to demonstrate that Mother refused or failed to attend to the Child's mental,
emotional, and physical needs for a period of at least six (6) months.
III. Whether tile evidence established that Mother desired to retain her
riglzts and attempted to exercise Iler rights, despite Father refusing to
allow Mother to have contact.
It is denied that there was sufficient evidence to established that Mother desired to
retain her rights and attempted to exercise her rights, despite Father refusing to allow
Mother to have contact. While the Court does not doubt that Mother loves the Child, her
actions are quite inconsistent with a "desire to retain her rights"! to the Child. Being a
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parent is not a part-time job; one cannot simply pick and choose when itis convenient to
be a parent, which is exactly how Mother behaves. Based on the evidence presented,
Mother made no attempts to exercise her parental rights from June 17, 2018 through
January 11, 2019. Mother declined to exercise at least one of'her custodial periods,
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Mother violated the Stipulated Order causing her rights to be suspended, and Mother did
not seek relief to have her rights be re-instated. While it is not relevant to the time period
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required by statute for termination of parental rights, this Court wants to note that it gave
Mother the benefit of the doubt and reinstated her rights on J anuary 11, 2019, and Mother
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failed yet another drug test in February of 2019, thus, suspending her rights again.
Mother has chosen drugs over the Child and shows a continuing pattern of doing so.
Mother mischaracterizes the suspension of her parental tights as Father not
allowing her contact with the Child. The provision regarding drug testing in the
Stipulated Order is self-enforcing, Mother has no one to blame but herself for her
conduct. Father did not prevent Mother from mailing gifts or letters to the Child, and
Father did not prevent Mother from pursuing her own legal action if she felt Father was
acting unfairly in restricting her access to the Child.
Therefore, there was sufficient evidence presented at the TPR hearing to establish
that Mother did not desired to retain her rights and that she fail�d to attempt to exercise
her custodial rights, because she failed to make any remedial measures to have her
custodial rights reinstated.
IV. Whether the Court can terminate parental rights during an active
custody matter, after a parent's rights have been improperly suspended
and Mother was seeking to re-establish the suste1ide