Term. of Par. Rights to H.O.C., Appeal of: J.E.C.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF THE : IN THE SUPERIOR COURT OF
INVOLUNTARY TERMINATION OF : PENNSYLVANIA
PARENTAL RIGHTS TO H.O.C. :
:
:
APPEAL OF: J.E.C. :
:
:
: No. 118 WDA 2020
Appeal from the Order Dated December 27, 2019
In the Court of Common Pleas of Venango County Orphans' Court at
No(s): O.C.D. No. 124-2018
BEFORE: MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 19, 2020
J.E.C. (“Father”) appeals from the order terminating his parental rights
to H.O.C. (“Child”). He argues that the trial court abused its discretion in
granting Venango County Children, Youth and Family Services Agency’s
(“CYS”) petition to terminate his parental rights. We affirm.
CYS filed a petition in September 2018, seeking to terminate Father’s
parental rights to H.O.C., alleging that Father’s whereabouts were unknown.
See Petition for Involuntary Termination of Parental Rights, filed 9/7/18 at
¶ 3. It alleged that Father’s parental rights should be terminated under 23
Pa.C.S.A. § 2511(a)(1) and (2).
6. The said father, . . . , has by conduct continuing for a
period of time in excess of six (6) months to the date hereof:
____________________________________________
* Former Justice specially assigned to the Superior Court.
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a. Evidenced a settled purpose of relinquishing parental
claim to his minor child, [H.O.C.], and/or has refused or
failed to perform parental duties for and during the
period of time aforesaid; and/or
b. By reason of the continued incapacity, neglected or
refusal, has caused [H.O.C.] to be without essential
parental care, care or subsistence necessary for her
physical or mental well-being and the conditions and
causes of such incapacity, neglect, or refusal, cannot or
will not be remedied.
c. Continuously and repeatedly neglected the child, which
have caused her to be without parental care, control or
subsistence necessary for her physical or mental
wellbeing; and the conditions and causes of such neglect
or refusal to perform parental care cannot or will not be
remedied.
Id. at ¶ 6.
At a hearing on the termination petition, a CYS supervisor overseeing
Child’s dependency case, Valerie Zitterbart, testified that child came into CYS’s
care in December 2016, at the age of 12. N.T., Involuntary Termination of
Parental Rights Hearing, 8/15/19 at 15, 16. CYS became aware of Child
initially due to Child having missed six days of school. Id. at 17. CYS sought
an adjudication of dependency because Child’s mother could not be found. Id.
at 18. Zitterbart testified that when CYS took Child into custody, Child reported
“that as far as she was aware that her father was deceased.” Id.
Zitterbart said that the agency investigated whether father was in fact
deceased, and Child’s caseworker spoke to Child’s half-sister, who is also
Father’s child. She told Child’s caseworker that “[Father] moved to California
three years prior and that from her understanding she believed that he had
been deceased.” Id. at 19. Child’s half-sister said that the coroner’s office told
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her that “they had an individual who fit his description and his tattoos and
that this individual could possibly have been him, so they could state to her
that they presume that he is possibly deceased, however, they could not
confirm.” Id. at 20.
However, Zitterbart testified that CYS learned in December 2017 that
Father had contacted child’s foster family. Id. at 21. Child’s caseworker
“contacted the phone number that [Father] had called from and left a voice
mail and requested a call back,” but did not receive a return call. Id.
Approximately four months later, in March 2018, Child received a text
message from Father. Child’s caseworker obtained the number from which the
text came and again left a message requesting a call back. This time, Father
called and “basically stated that I am [Child’s] father. I know that the family
has told you that I am deceased, however, I’m not.” Id. at 22. He further
explained that he was living in California and had last seen Child when she
was three or five years old. Id. at 22, 23. Child received a letter from Father
in June 2018 stating that Child should face her fears in meeting with Father.
Id. at 113.1
Zitterbart testified that in May 2018, Father moved back to
Pennsylvania. Id. at 28. She said that from the time of his first contact with
the foster care parents in December 2017 until the termination hearing in
August 2019, Father contacted the Agency or the foster parents a total of
____________________________________________
1 The letter from Father to Child is not included in the certified record.
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seven times. Id. at 34. Zitterbart also testified that by December 2017, the
Agency had ceased efforts at reunification and did not resume them. See id.
at 40.
Child’s therapist, Michelle Hayman, testified that she saw Child between
November 2017 and May 2019. She said that that “[Child] only wants to lash
out at [Father]. She doesn’t want to feel abandonment more than she’s
already experienced. Her focus is on why he’s stepping up now when he had
years to show and he didn’t want to be in her life before.” Id. at 9, 11. Child’s
foster mother, C.D., testified that Child has been in her care since December
2017 and that her plan was to adopt Child. Id. at 54.
Child, who was nearly 15 years old at the time of the hearing, also
testified and said that she did not know that Father was her biological father
until she found her birth certificate when she was 11 years old. Id. at 108.
She explained that she did have an opportunity to speak with Father in
December 2017, and Father told her that he had not been in her life because
of his drug addiction and because her mother had not known where he was.
Id. at 112, 114. Child also testified that Father’s letter “really upset me and
bothered me” and that he had misspelled her name. Id. at 110. She testified
that Father’s opinion in the letter that she should face her fears upset her
“[b]ecause I’m not afraid of talking to him. I’m not afraid of being here. I just
don’t want to.” Id. at 113. She said that she wanted Father’s rights to be
terminated so that she could be adopted. Id.
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Q [Counsel for Father]: What do you want to happen
today?
A [Child]: I want [Father’s] rights to be terminated, and
I don’t want him to appeal it and then have to wait
several more months to get adopted.
Q: What is your goal regarding this permanency?
A: To get adopted.
Q: Is there anything else you would like the Court to
consider today?
A: Termination.
Id. Child also testified that she has lived with foster parents for two years. Id.
at 107. She testified that she cared for them and acknowledged them as her
“parents.” Id.
Father testified that at the time of the hearing, the last time he had
spoken to Child was in 2018, and prior to that was in 2012. Id. at 66. He said
that Child had lived with him and Child’s mother in South Carolina in 2011,
when Child was about five and a half years old. Id. at 83. He stated that “while
I was out of town working on a Thursday evening [Child’s] mother . . .
abducted her and brought her to Pennsylvania.” Id. at 67. Father claimed that
in South Carolina “the mother has first rights and because I didn’t take
advantage - - or take the opportunity to secure my rights in any way by getting
assistance or anything like that there was nothing I could do about it at the
time.” Id. at 67. He explained that for the next four or five years, he tried to
find Child and her mother.
Q [Counsel for Father]: Were you able to maintain contact
with [Mother]?
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A [Father]: I tried to uh – throughout the course of several
years, four or five years I came back up to Pennsylvania
from South Carolina in 2014 or ’15 and tried to track down
[Child], her whereabouts, her mother whereabouts. When
her mother was in a financial position where she can be in
a different state at any time, Your Honor. She can be at a
different county at any time, Your Honor.
Q: Did you have any success in trying to find her?
A: I had no success. And every time I would get anywhere
close to her I would be an hour or 20 minutes late and she’d
be gone somewhere else.
Id. at 67-68.
Father said he eventually moved to California “for a job opportunity and
as a means to secure my ongoing [drug addiction] recovery[.]” Id. at 68.
Father then testified that he was first informed that Child was in CYS’s custody
from a friend. Id. at 70. He said that the friend said “he wasn’t sure exactly
what was [going] on with my child. He knew her mother had been arrested
on apparently some kind of charges and that [Child] was in temporary custody
of the state and they were looking for housing for her.” Id.
Father said that he then called Child’s foster mother who said she did
not know him. Id. at 71. Father testified that he then returned to Pennsylvania
in May 2018, contacted CYS and explained that he now lived in Pennsylvania,
he loved Child, he was her biological father, and “would very much appreciate
some kind of assistance in being a mediator.” Id. at 72, 85. He “spoke to
different workers there probably six times in the last two years” and “went to
their office at least three times.” Id. at 72-73. In June 2018, he also attended
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the Permanency Review Hearing and had the opportunity to write a letter to
Child. Id. at 75.
Father also testified about his interactions with CYS. He maintained that
CYS “pretty much conveyed to me, for lack of words, they felt I was a day late
and a dollar short and that anything I had to contribute they weren’t really
interested in receiving.” Id. at 73. He stated that CYS “felt that [Child’s]
maturity at 14 is mature enough – or 13 – was mature enough for her to make
her own decisions.” Id. He also said that it was his belief that [Child] had been
told for years that he was deceased and had not received letters and gifts he
allegedly sent her. See id. at 74.
From my understanding as of last week when I got a chance
my first overview of this whole case she’s been lied to for a
number of years. She has no idea that during them years
she has been sent gifts. She has been sent letters. I’ve tried
numerous times to speak to her mother. I mean, she’s old
enough and aware of the fact that she knew [Mother’s
boyfriend] was abusive to her mother. . . .
Id.
Following the hearing, the trial court terminated Father’s parental rights.
Findings of Facts and Conclusions of Law, filed 12/27/19 at 8. This timely
appeal followed.
Father raises the following claims before this Court:
I. Whether the trial court erred as a matter of law or abused
its discretion in determining that [Father’s] parental rights
should be terminated as being in the best interest of the
minor child was against the weight of the evidence
presented because the evidence presented at trial
established that once the Father was located and informed
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of the dependency matter regarding the minor child, the
father made every effort to return to Venango County,
Pennsylvania, and parent the minor child?
II. Whether the trial court erred as a matter of law or abused
its discretion in determining [Father’s] parental rights
should be terminated when failing to adequately consider
the father’s efforts to create contact and a relationship with
the minor child and barriers set up by the Venango County
Children, Youth and Family Services Agency to prevent
father’s attempt to create contact and a relationship with
the minor child?
Father’s Br. at 6.
In his first issue, Father maintains that CYS failed to carry its burden of
proving by clear and convincing evidence that Father evidenced a settled
purpose of relinquishing his parental rights. He alleges that “[f]rom December
of 2017 until the filing of the Petition on September 7, 2018, [Father] took
every step and made every request possible in this matter.” Father’s Br. at
17.
Section 2511 of the Adoption Act governs the termination of parental
rights. Here, CYS sought termination of Father’s rights pursuant to subsections
2511(a)(1) and (2).
(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
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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.
23 Pa.C.S.A § 2511(a)(1), (2).
A party seeking termination of parental rights must plead and prove by
clear and convincing evidence that termination is warranted under section
2511(a). See In re B.J.Z., 207 A.3d 914, 921 (Pa.Super. 2019). Clear and
convincing evidence for purposes of terminating parental rights “is defined as
testimony that is so clear, direct, weighty, and convincing as to enable the
trier of fact to come to a clear conviction, without hesitance, of the truth of
the precise facts in issue.” In re G.P.-R., 851 A.2d 967, 973 (Pa.Super. 2004)
(quoting In re A.L.D., 797 A.2d 326, 336 (Pa.Super. 2002)). “[P]arental
rights may be terminated pursuant to Section 2511(a)(1) if the parent either
demonstrates a settled purpose of relinquishing parental claim to a child or
fails to perform parental duties.” In re Adoption of Charles E.D.M., II, 708
A.2d 88, 91 (Pa. 1998).
“Parental duty is best understood in relation to the needs of a child.” In
re C.M.S., 832 A.2d 457, 462 (Pa.Super. 2003) (citation omitted). The needs
of a child include love, protection, guidance, and support. See id. “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.” In re B.,N.M., 856 A.2d 847, 855
(Pa.Super. 2004).
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In determining whether a parent has demonstrated a settled purpose of
relinquishing parental claim to a child or failed to perform parental duties, the
trial court must engage in a three part 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).” Matter of Adoption of Charles
E.D.M., II, 708 A.2d at 92.
When the trial court considers termination under subsection (a)(1), “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(b). In terminating the rights
of a parent the trial court must also give consideration to “the developmental,
physical and emotional needs and welfare of the child” and determine if
termination is warranted under Section 2511(b). Id. Upon appellate review,
this Court need only agree with the trial court as to one of the subsections for
termination under Section 2511(a), along with Section 2511(b). In Re B.J.Z.,
207 A.3d at 922.
Here, the trial court found that CYS proved by clear and convincing
evidence that termination of Father’s rights were warranted under subsections
2511(a)(1) and (a)(2). Conclusions of Law at 7.
This [c]ourt finds that for a period of at least (6) months
immediately preceding the filing of the Petition that the
father, . . . , has either evidenced a settled purpose of
relinquishing his parental claim to this child or has
refused or failed to perform parental duties as required
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in 23 Pa.C.S.A. § 2511(a)(1) and has evidenced a
repeated and continued incapacity that has left the child
without essential parental care, control or subsistence
necessary for her physical and mental well-being as
required by 23 Pa.C.S.A. § [2511](a)(2).
Id. at 7.
We agree that CYS met its burden under subsection 2511(a)(1). That
subsection required CYS to show by clear and convincing evidence that during
the six months before the filing of the termination petition, Father either
demonstrated a settled purpose of relinquishing parental rights to Child or
failed to perform parental duties. See In re Z.S.W., 946 A.2d 726, 730
(Pa.Super. 2008) (quoting In re Adoption of Charles E.D.M., 708 A.2d at
91).
Here, the evidence supports that Father failed to perform his parental
duties, in that within the six month look-back period, from March 7, 2018 until
September 7, 2018, Father failed to provide for the needs of Child. We
acknowledge that Father has made efforts to develop a relationship with Child
and has tried to contact Child. These efforts included texting Child; contacting
CYS or the foster parents several times; making sure CYS knew that he was
not dead as Child believed; writing a letter to Child; and moving back to
Pennsylvania, where Child resides. However, these efforts by Father do not
amount to actually performing his parental duties to provide for the physical
and emotional needs of Child. See In re C.M.S., 832 A.2d at 462. Father
maintained at the hearing that he searched for Child for four or five years after
Child was allegedly abducted by Mother, but did not testify regarding any other
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efforts he made between that time and the time of the termination petition.
As the trial court concluded, “[Father] has had no contact with [Child], since
she was the age of 5 . . . . Even after [Father] communicated with [Child] in
December of 2017, [Father] did not take steps to immediately assume any
parental role.” Trial Ct. Op. at 6.
The evidence was also sufficient to establish, under subsection 2511(b),
that “the developmental, physical and emotional needs and welfare of the
child” would be best met by the termination of Father’s rights. There is no
meaningful parent-child bond between Father and Child. Child, who at the
time of the termination hearing was nearly 15 years old, had not seen Father
since the age of five. Additionally, Child did not know that Father was her
biological Father until she was 11 years old. Child also believed that Father
was deceased and when she finally learned that Father in fact was alive, she
did not want to have a relationship with him. Child also expressed that it was
her desire to have Father’s rights terminated so that she could be adopted.
The trial court did not abuse its discretion in concluding that CYS presented
clear and convincing evidence to satisfy Section 2511.
Next, Father argues that the trial court “abused its discretion in
determining that [Father’s] parental rights should be terminated when failing
to adequately consider the Father’s efforts to create contact and a relationship
with the minor child and the barriers set up by [CYS] to prevent Father’s
attempts to create contact and a relationship with [Child]?” Father’s Br. at 6.
This argument is similar to the one Father makes in support of his first issue,
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in that he argues that his testimony showed that he made efforts to create a
relationship with Child.
The certified record belies Father’s claim that the trial court failed to
adequately consider his efforts or CYS’s alleged failure to help Father develop
a relationship with Child. In its findings of facts the trial court listed every
effort made by Father since the time of Child being placed in CYS’s custody.
These efforts included his first contact with Child’s foster mom in December
2017; texting Child in March 2018; contacting CYS a total of three times
between April and May 2018; and his attendance at the Permanency Review
Hearing. Findings of Facts and Conclusions of Law at 2-4. The trial court also
noted emails between CYS caseworkers showing a desire to have Child
adopted and for Father to be out of Child’s life. Id. at 2-3.
However, having recognized Father’s efforts and CYS’s position, the trial
court nevertheless concluded that Father’s actions during the six months
preceding the filing of the petition did not undermine its conclusion that Father
“failed to perform parental duties” for Child. In re Adoption of Charles
E.D.M., II, 708 A.2d at 91. This was not error. As explained above, despite
his efforts, Father has not provided for the needs of Child emotionally or
physically. We thus affirm the order of the trial court terminating Father’s
parental rights.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/2020
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