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

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: S.L.M. IN RE: T.L.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: T.L.M. :
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:
:
:
: No. 3 WDA 2020
Appeal from the Order Entered December 3, 2019
In the Court of Common Pleas of Blair County Orphans' Court at No(s):
2018 AD 37,
2018 AD 37A
BEFORE: LAZARUS, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 13, 2020
T.L.M. (“Mother”) appeals from the Order entered in the Blair County
Court of Common Pleas involuntarily terminating her parental rights to her
daughters, S.L.M., born in October 2004, and T.L.M., born in April 2008
(collectively, “Children”). Because the record supports the decision of the
orphan’s court, we affirm the Order.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
We glean the following and procedural history from the orphans’ court’s
Opinion, which is supported by the certified record. Mother and R.M.
(“Father”) met in 2001 and subsequently married. Mother struggled with
substance abuse issues. The parties separated in November 2015 and
divorced in April 2019. Following the parties’ separation, Mother was
incarcerated on several occasions. In 2017, Father’s fiancée, A.J., as well as
her two children, began living with Father and Children. After approximately
September 2017, Mother had no contact with Children.
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On October 12, 2018, Father filed Petitions to Involuntarily Terminate
Mother’s Parental Rights to Children (“TPR Petitions”). The orphans’ court
conducted hearings on the TPR Petitions on May 13, 2019, June 19, 2019, and
August 21, 2019.1 Father testified on his own behalf and presented the
testimony of Laurie Kephart, Children’s therapist; A.J.; and K.B., Mother’s
daughter. Moreover, Children testified in camera.2
On December 3, 2019, the orphans’ court entered an Order involuntarily
terminating Mother’s parental rights to Children pursuant to 23 Pa.C.S. §
2511(a)(1) and (b). Thereafter, Mother filed a timely Notice of Appeal and
Concise Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b).3
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1 The orphans’ court appointed Attorney Maryann Bistline to serve as legal
counsel for Children.
2 Mother failed to appear for the hearing on August 21, 2019.
3 Mother did not file separate Notices of Appeal regarding each of the children
as required by Pa.R.A.P. 341 (stating where “one or more orders resolves
issues arising on more than one docket or relating to more than one judgment,
separate notices of appeal must be filed”) and Commonwealth v. Walker,
185 A.3d 969, 971 (Pa. 2018) (holding “where a single order resolve issues
arising on more than one docket, separate notices of appeal must be filed for
each case.”).
However, we decline to quash this appeal because the only difference in the
docket numbers for each child is the addition of a handwritten “A” following
the docket number on the docket pertaining to S.L.M., and the orphans’ court
misinformed Mother that if “she intends to appeal this Order . . . said appeal
must be filed [within thirty days],” amounting to a breakdown in the court
system which excuses Mother’s lack of compliance with Rule 341 and Walker.
Orphans’ Court Order, 12/3/19, at 2. See Commonwealth v. Larkin, 235
A.3d 350 (Pa. Super. 2020) (declining to quash an appeal pursuant to Walker
where a defendant filed one Notice of Appeal listing two docket numbers
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ISSUES ON APPEAL
Mother raises the following issues on appeal:
1. Whether or not the [orphans’] [c]ourt erred when it determined
that [] Father was not required to strictly comply with the
provisions of the Adoption Act in that [] Father failed to
demonstrate that a valid adoptive resource existed[?]
2. Whether or not the [orphans’] [c]ourt erred when it determined
that “cause” existed and therefore [] Father was not required
to strictly comply with the provisions of the Adoption Act and
otherwise excused the requirement of a valid adoptive
resource[?]
3. Whether or not [] Father presented sufficient evidence to
demonstrate to the [orphans’] [c]ourt by clear and convincing
evidence that [] Mother’s conduct demonstrated a settled
purpose of relinquishing parental claim to the child or that she
failed to perform parental duties for at least six months[?]
4. Whether or not [] Mother’s parental rights should be
terminat[ed] pursuant to 23 Pa.C.S.A. § 2511(a)(1) when []
Father actively erected barriers and obstacles between []
Mother and [C]hildren, which impeded her ability to
communicate and associate with [C]hildren?
Mother’s Brief at 5-6 (suggested answers omitted).
LEGAL ANALYSIS
In reviewing cases in which the orphans’ court involuntarily terminated
parental rights, appellate courts must accept the findings of fact and credibility
determinations of the orphans’ court if the record supports them. In re
T.S.M., 71 A.3d 251, 267 (Pa. 2013). If the record supports the factual
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because the trial court had misinformed the defendant that he could file “a
written notice of appeal to the Superior Court,” which amounted to a
“breakdown in the court system” and excused the defendant’s lack of
compliance with Walker.)
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findings, appellate courts then determine if the orphans’ court made an error
of law or abused its discretion. Id. Where the competent record evidence
supports the court’s findings, we must affirm the orphans’ court even though
the record could support an opposite result. In re Adoption of Atencio, 650
A.2d 1064, 1066 (Pa. 1994).
“The 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) (citations omitted). Appellate courts defer to the orphans’ court that
often has “first-hand observations of the parties spanning multiple
hearings.” In re T.S.M., supra at 267 (citations and quotation marks
omitted).
In addressing petitions to terminate parental rights involuntarily, the
Adoption Act requires the court to conduct a bifurcated analysis. See 23
Pa.C.S. § 2511(a) and (b). Courts first focus on the conduct of the parent,
and, if the party seeking termination presents clear and convincing evidence
that the parent’s conduct meets one of the grounds for termination set forth
in Section 2511(a), then the court will analyze whether termination of parental
rights will meet the needs and welfare of the child, i.e., the best interests of
the child, as provided in Section 2511(b). Courts particularly focus on the
existence of the child’s bond with the parent, if any, and the potential effect
on the child of severing such bond. In re L.M., 923 A.2d 505, 511 (Pa. Super.
2007). A parent’s basic constitutional right to the custody and rearing of his
child is converted, upon the failure to fulfill his parental duties, to the child’s
right to have proper parenting and fulfillment of the child’s potential in a
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permanent, healthy, safe environment. In re B.N.M., 856 A.2d 847, 856 (Pa.
Super. 2004) (internal citations omitted).
When a parent, instead of a child welfare agency, files a TPR Petition,
the filing parent must establish not only the requirements set forth in 23
Pa.C.S. § 2511, but also aver in the TPR petition that an adoption is
contemplated and establish that the prospective adoptive parent is authorized
to adopt pursuant to the Adoption Act. 23 Pa.C.S. § 2512; In Re: Adoption
of M.R.D., 145 A.3d 1117, 1120 (Pa. 2016).
Section 2903 of the Adoption Act explicitly authorizes only a stepparent
to be the adoptive resource when it is a biological parent who is filing a TPR
Petition against the other biological parent. See 23 Pa.C.S. § 2903. If,
however, the adoptive resource is someone other than a stepparent, the
Adoption Act requires the biological parent who is filing the TPR Petition to
relinquish his parental rights. 23 Pa.C.S. § 2711(a)(3); In Re: Adoption of
M.R.D., supra at 1120.
Finally, Section 2901 permits the trial court to waive requirements set
forth in the Adoption Act for “cause shown[.]” 23 Pa.C.S. § 2901; In Re:
Adoption of M.R.D., supra at 1127.
Orphans’ Court Properly Found that Father Showed Cause for his
Noncompliance with Adoption Act Provisions
Mother combines her first and second issues in her brief, contending
that Father failed to strictly comply with the Adoption Act in filing the TPR
Petitions. Mother argues that the Adoption Act does not permit Father to
terminate her parental rights and have Children adopted by A.J. when Father
and A.J. are not married. Mother’s Brief at 13-16. Mother contends that,
without a viable stepparent adoption, it was improper to terminate her
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parental rights. Id. at 15-19. Mother further argues that Father failed to aver
that a valid adoption was anticipated, as A.J. is not a stepparent capable of
adopting Children and the trial court incorrectly found “cause.” Id. at 21-22.
We disagree. In M.R.D, supra, our Supreme Court held that it was proper
for a trial court to find “cause shown” to waive the requirements of the
Adoption Act in cases in which “the parent and the prospective adoptive parent
are committed partners—that is, they are involved in a horizontal relationship,
are equals as between each other, and are equals with respect to the child.”
Id. at 1128. Our Supreme Court has also concluded, “[t]here is no language
in the Adoption Act precluding two unmarried same-sex partners (or
unmarried heterosexual partners) from adopting a child who had no legal
parents. It is therefore absurd to prohibit their adoptions merely because
their children were either the biological or adopted children of one of the
partners prior to the filing of the adoption petition.” In re Adoption of
R.B.F., 803 A.2d 1195, 1202–03 (Pa. 2002).
Here, the orphans’ court determined that “cause” existed for Father’s
failure to strictly comply with the provisions of the Adoption Act. Orphans’ Ct.
Op., 12/3/19, at 14. The orphans’ court acknowledged that Father’s TPR
Petitions do not aver that an adoption is contemplated. Id. However, the
court credited the testimony of Father and A.J. that they live together as a
family unit, intend to be married, and that A.J. desires to adopt Children. Id.
at 14-15. Further, the court credited Children’s testimony that they have a
mother/daughter relationship with A.J. and desire to be adopted by A.J. Id.
at 15. The court considered both In re: Adoption of R.B.F., supra, and In
re: Adoption of M.R.D., supra, and opined that the cases “suggest that the
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[c]ourt is permitted to find that cause exists to allow an adoption to move
forward when the third party seeking to adopt the children in not a stepparent
but lives with the Petitioner in an intimate, committed, relationship and as
part of a family unit. . . and we find that cause exists in this matter[.] Id.
We discern no error of law or abuse of discretion in the orphans’ court’s
analysis. Based on the credited testimony, the court did not commit an error
of law or abuse its discretion when it concluded that Father had shown cause
for his failure to strictly comply with the Adoption Act.
Termination Pursuant to Section 2511(a)(1)
We next conclude that the orphans’ court properly exercised its discretion
by terminating Mother’s parental rights pursuant to Section
2511(a)(1). Section 2511(a)(1) provides that the orphans’ court may
terminate parental rights if the Petitioner establishes that “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.”
23 Pa.C.S. § 2511(a)(1). 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 not mechanically apply the six-
month statutory provision.” In re K.Z.S., 946 A.2d 753, 758 (Pa. Super.
2008) (citation omitted). Rather, “[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).
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With regard to “parental duties”:
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 Court 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 and internal
paragraph breaks omitted).
In her final two issues, Mother contends that Father failed to establish
grounds for termination because he erected barriers that precluded her from
contacting Children. Mother’s Brief at 24, 28-30. Mother argues that she
visited Children in February 2017 and saw T.L.M. when Mother went to the
family home in September 2017. Id. at 26. Thereafter, Mother asserts that
she was prevented from seeing Children because Father obtained a protection
from abuse order that Mother contends was improper and “devious.” Id. at
27, 29-31. After the order expired, Mother asserts that she attempted to
communicate with Children through her oldest daughter, K.B., but Father and
A.J. prevented the messages from reaching Children. Id. at 27-28.
In addressing Section 2511(a)(1), the orphans’ court credited testimony
that Mother’s last contact with Children occurred in 2017 and consisted of a
birthday card sent to T.L.M. approximately two years prior to the termination
hearing and some incidental contact with T.L.M. around that time. Orphans’
Ct. Op.at 16. Further, the court noted that Mother was “in and out of jail
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several times during the past several years but failed to maintain a parental
relationship with Children.” Id. The court credited the testimony of K.B. that
Mother occasionally told her to relay messages to Children, but never asked
her to help facilitate any visits or contact with Children. Id. Moreover, the
court observed that no evidence was presented to establish that anyone
erected barriers or obstacles between Mother and Children. Rule 1925(a)
Opinion, 1/8/20, at 4. Due to the failure of Mother to maintain any contact
with Children for a period of two years, and her failure to engage in any
activities to maintain the parent/child relationship, the court involuntarily
terminated Mother’s parental rights pursuant to Section 2511(a)(1). Orphans’
Ct. Op. at 16.
Our review of the record supports the orphans’ 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. Accordingly, we find no
abuse of discretion and affirm the orphans’ court’s Order.4
In sum, the orphans’ court did not commit an error of law or abuse its
discretion when it concluded that Father had shown cause for his failure to
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4 Mother waived any argument regarding Section 2511(b) because she did not
include such an argument in the Statement of Questions Involved or the
Argument sections of her Brief. See In re M.Z.T.M.W., 163 A.3d 462 (Pa.
Super. 2017) (finding the appellant waived her challenge to Section 2511(b)
by failing to include it in her concise statement and statement of questions
involved section of her brief). Had Mother not waived this issue, we would
conclude that it lacked merit. The orphans’ court determined that Children no
longer have a bond with Mother and that they desire to be adopted by A.J.
Orphans’ Ct. Op. at 17. These findings are supported by the record, and the
court did not abuse its discretion by concluding that terminating Mother’s
parental rights met Children’s needs and welfare. Id.
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strictly comply with the Adoption Act and terminated Mother’s parental rights
to Children pursuant to Sections 2511(a) and (b).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/2020
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