In Re: Adoption of M.C.H. Appeal of: R.I.H.

J-A23032-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: M.C.H. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: R.I.H. No. 396 WDA 2014
Appeal from the Order entered February 12, 2014,
in the Court of Common Pleas of Washington County,
Orphans’ Court, at No. 63-13-0616
IN RE: ADOPTION OF: J.R.H. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: R.I.H. No. 397 WDA 2014
Appeal from the Order dated February 12, 2014,
in the Court of Common Pleas of Washington County,
Orphans’ Court, at No. 63-13-0617
BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 31, 2014
R.I.H. (“Father”) appeals from the Order involuntarily terminating his
parental rights to his son, M.C.H. (d.o.b. 6/7/99), and daughter, J.R.H.
(d.o.b. 7/28/01) (collectively referred to as “the Children”) pursuant to a
Petition for involuntary termination (hereinafter referred to as “the
Termination Petition”) filed by the Children’s mother, K.C.M. (“Mother”), and
her husband, M.C.M. (“Stepfather”). See 23 Pa.C.S.A. § 2511(a)(1) and
(b). We affirm.
J-A23032-14
The trial court thoroughly set forth the relevant facts and procedural
history underlying this appeal in its Pa.R.A.P. 1925(a) Opinion, which we
incorporate herein by reference. See Trial Court Opinion, 4/17/14, at 1-8.1
Following the filing of the Termination Petition, the trial court
appointed a Guardian ad litem (“GAL”) to interview the Children, review the
record, and submit to the court a recommendation as to whether termination
of Father’s parental rights would serve the Children’s best interests. The
GAL met separately with Mother, Stepfather, Father, and the Children. On
January 27, 2014, the GAL issued her written Recommendation
(“Recommendation”), wherein she stated that “several issues give [her]
pause as to whether it would be in the best interests of the [] Children to
terminate [Father’s] parental rights,” explaining, inter alia, as follows:
First, although Mother testified that there is no bond between
the Children and Father, it seems highly implausible that two
Children who are quite old enough to have developed a loving
bond with their Father[,] and appear to have done so, no longer
have any bond because they have not seen him in over a year.
… To this Counsel, [J.R.H.’s] desire to tell [] Father of the gift
she had received despite having not seen him for several
months[,] and [M.C.H.’s] desire to keep [] Father’s [last]
name[,] demonstrate that the Children do have a bond with
Father. So, based on the evidence[,] is it in the Children’s best
interest to forever cut off all contact with their Father, thereby
severing the bond that exists? Would not the psychological
ramifications of termination be devastating and lasting, if the
Children knew that their Father had been attempting to get back
in their lives before this proceeding began?
1
Although the trial court’s factual recitation continues onto page 9, we do
not incorporate that portion herein.
-2-
J-A23032-14
… There is no doubt that Father has repeatedly demonstrated a
dismal lack of effort to maintain a strong relationship with the
Children. … Were Father’s actions likely disappointing and
perhaps angering to the Children? Most definitely. However,
there was no testimony, and this Counsel did not gather from
her conversations with the Children, that the Children have
written Father off, so to speak, or that they harbor some deep-
rooted resentment that makes continuing contact with Father
contrary to their best interests. In fact, the Children seem to
still maintain the natural desire to know and be loved by their
biological father. They certainly may feel disappointed by
Father[;] however, it seems that considering Father’s apparent
renewed will to fight for some contact with the Children, which
interest began before the threat of losing them forever arose,
there is a chance of an improvement in their relationship.
Third, there was no testimony that Father ever acted in a way to
harm the Children or mistreat them. There was no testimony,
nor was there mention in the private interviews, of anything
other than a loving relationship between the Children and Father
when they were together.
On the other hand, what is the benefit to termination? Mother
and [Stepfather] testified that it would benefit the Children to
have the stability and security of being adopted by [Stepfather]
and making his position as a father-figure in their life official.
Stability and cohesiveness of a family are absolutely important
considerations. [Stepfather’s] actions in stepping up as a father
to these Children is admirable in two respects: one, in that he
has filled in the gap of a very vital part in the [C]hildren’s life,
and two, he has provided the Children with a good example of a
loving and supportive parent that they will hopefully emulate
some day. … He has formed a lasting and loving bond with the
Children, both of whom view him as a father-figure in their lives.
But despite all of his flaws, Father[] is still [the Children’s]
biological father and they still appear to love him ….
Without a doubt[,] the Children are both flourishing in the care
of [Mother and Stepfather], and undersigned Counsel does not
believe that the Children should be anywhere else. What causes
this Counsel hesitation and concern are the circumstances that
seem to indicate a desire of the Children to maintain a bond with
their Father, and Father’s possible renewed desire for the same.
It is therefore a recommendation of this Counsel that perhaps
[the trial c]ourt would wish to have the opportunity to meet with
-3-
J-A23032-14
the Children in chambers to assist in determining whether
termination would be in their best interest.
Recommendation, 1/27/14, at 6, 7-9 (unnumbered).
In response to the Recommendation, on January 28, 2014, the trial
court conducted an in camera interview with the Children, wherein the court
questioned them about their relationships and bonds with Father and
Stepfather, their feelings regarding the proposed adoption, and how they
would feel if they would never see Father again.2 Both of the Children
discussed the parental duties that Stepfather performs for them, their bond
with him, and stated that they call him “Dad” and view him as a father
figure. See N.T., 1/28/14, at 14-16, 29-32, 41-49. Concerning the
proposed adoption, J.R.H. testified “I want [Stepfather] to adopt me.” Id. at
31. She explained that she would like to be adopted “because [Stepfather
is] more of a father to me because [Father] … hadn’t really done anything to
be with me.” Id. at 32. Upon being asked how she would feel if she would
never see Father again, J.R.H. stated “I guess I’d be a little bit upset, but
I’m not used to seeing him now because it’s been a long time since I’ve seen
him.” Id.; see also id. (wherein J.R.H. explained her remark that she
would be “a little bit upset” by stating “I guess every once in a while, I’d be
2
Prior to the in camera interview, Father’s counsel gave the trial court a list
of questions (hereinafter “Proposed Questions”) for the court to ask the
Children. See N.T., 1/28/14, Exhibit 1. The trial court declined to ask the
Proposed Questions that pertained to whether the Children wanted to have a
relationship with their paternal extended family, and whether the Children
were aware that Father was contesting the termination proceedings. See
id.; see also id. at 7-9.
-4-
J-A23032-14
like maybe we should invite [Father,] but he probably won’t come or
something.”). M.C.H. also testified that he wanted to be adopted by
Stepfather. Id. at 48; see also id. (wherein M.C.H. stated that adoption
would “be a good thing.”). When the judge asked M.C.H. how he would feel
if he never saw Father again, he replied, “I would just sort of feel normal
because we don’t really talk anymore anyway.” Id. at 52. Finally, the GAL
also testified at the in camera interview, essentially reiterating her opinion
set forth in the Recommendation. Id. at 58-67.
Following the entry of the trial court’s February 12, 2014 Order
terminating Father’s parental rights, Father timely filed a Notice of Appeal.
On appeal, Father presents the following issue for our review:
Contrary to the mandates of 23 Pa.C.S.A. § 2511(b), did the
Trial Court abuse[] its discretion and commit [a] reversible error
of law when it disregarded both the unrefuted, competent
evidence that a loving and affectionate parent-child bond exists
between [Father] and [the] Children, and the Re[commendation]
and testimony of the [GAL] that termination of Father’s parental
rights is not in the best interests of the [] Children[?]
Father’s Brief at 5.
Our standard of review is well-settled:
[A]ppellate courts must apply an abuse of discretion standard
when considering a trial court’s determination of a petition for
termination of parental rights. As in dependency cases, our
standard of review requires an appellate court 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. As has been often
stated, an abuse of discretion does not result merely because
the reviewing court might have reached a different conclusion.
Instead, a decision may be reversed for an abuse of discretion
-5-
J-A23032-14
only upon demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will.
In re Adoption of S.P., 47 A.3d 817, 827 (Pa. 2012) (citations omitted).
The burden is on the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, we have explained that the standard of clear and convincing
evidence is defined as “testimony that is so clear, direct, weighty and
convincing” as to enable the fact-finder to come to a clear conviction,
“without hesitance, of the truth of the precise facts in issue.” Id. (citation
omitted).
In determining whether a trial court properly exercised its discretion in
terminating parental rights, this Court must engage in a bifurcated analysis,
first addressing whether the parent’s conduct warrants termination of his or
her parental rights, pursuant to 23 Pa.C.S.A. § 2511(a). See In re
Adoption of C.L.G., 956 A.2d 999, 1008-09 (Pa. Super. 2008) (en banc).
“[O]nly if a court determines that the parent’s conduct warrants termination
of his or her parental rights, pursuant to Section 2511(a), does a 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.” Id. at 1009 (citation and quotation marks
omitted). This Court may affirm a trial court’s decision regarding the
-6-
J-A23032-14
termination of parental rights with regard to any one subsection of 2511(a).
See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
In the instant case, the trial court determined that there was sufficient
clear and convincing evidence presented to warrant termination of Father’s
parental rights under subsection 2511(a)(1).3 See Trial Court Opinion,
4/17/14, at 14 (stating that “[t]here is little question that Father has failed
and refused to perform parental duties for [the C]hildren. Father could not
recite one instance within the year preceding the filing of the [Termination
P]etition … in which he acted in a parental role to [the C]hildren.”); see also
id. at 14-15 (stating that “[o]ther than expressing his love for the
[C]hildren, and relating his decision to hire an[] attorney to fight for his
parental rights, Father could not testify to any affirmative act which he
undertook to act as a parent to [the C]hildren.”); see id. at 16 (finding that
“Father offered no credible excuse for his failure and neglect as a parent.”).4
On appeal, Father does not dispute the trial court’s finding that the
requirements of subsection 2511(a)(1) have been met. Moreover, our
review reveals that the record contains sufficient clear and convincing
3
Subsection 2511(a)(1) provides grounds for termination of parental rights
where “[t]he parent[,] by conduct continuing for a period of at least six
months immediately preceding the filing of the [termination] 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.A.
§ 2511(a)(1).
4
The trial court fully set forth its rationale regarding subsection 2511(a)(1)
in its Opinion. See Trial Court Opinion, 4/17/14, at 14-19. The trial court’s
rationale is supported by the record.
-7-
J-A23032-14
evidence to support the trial court’s determination that termination of
Father’s parental rights under subsection 2511(a)(1) was warranted. See
Trial Court Opinion, 4/17/14, at 14-19.
Having determined that the requirements of section 2511(a) are
satisfied, we must determine whether the requirements of section 2511(b)
are satisfied. See In re Adoption of C.L.G., supra. Section 2511(b)
provides as follows:
(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(b). This Court has stated that, whereas the focus in
terminating parental rights under section 2511(a) is on the parent, under
section 2511(b), it is on the children. In re Adoption of C.L.G., 956 A.2d
at 1008.
In reviewing the evidence in support of termination under section
2511(b), the Pennsylvania Supreme Court has stated as follows:
[I]f the grounds for termination under subsection (a) are
met, a court “shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child.” 23 Pa.C.S.[A.] § 2511(b). The emotional needs and
welfare of the child have been properly interpreted to include
“intangibles such as love, comfort, security, and stability.” [T]he
-8-
J-A23032-14
determination of the child’s “needs and welfare” requires
consideration of the emotional bonds between the parent and
child. The “utmost attention” should be paid to discerning the
effect on the child of permanently severing the parental bond.
In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and brackets
omitted). However, the mere existence of a bond attachment between the
children and their parent will not necessarily result in the denial of a
termination petition. Id. at 267. Additionally, a trial court must consider
whether the children are in a pre-adoptive home and whether they have a
bond with their putative adoptive parents. Id. at 268; see also In re I.J.,
972 A.2d 5, 13 (Pa. Super. 2009) (stating that “the strength of emotional
bond between a child and a potential adoptive parent is an important
consideration in a ‘best interests’ analysis.”). Finally, it is well-settled that a
child’s life “simply cannot be put on hold in the hope that [a parent] will
summon the ability to handle the responsibilities of parenting.” In re Z.P.,
994 A.2d 1108, 1125 (Pa. Super. 2010).
Here, Father argues that the evidence was insufficient to establish,
under section 2511(b), that termination of his parental rights was in the best
interests of the Children. See Father’s Brief at 14-23. Father points to the
GAL’s Recommendation and her testimony at the in camera interview that
she had reasons to question whether termination of Father’s parental rights
served their best interests. See id. at 15-17 (citing Recommendation,
1/27/14, at 9 (wherein the GAL stated that the Children appear to love
Father and have a bond with him)). According to Father, the trial court
-9-
J-A23032-14
erred by allegedly ignoring the GAL’s opinion, and other evidence of record,
that the Children and Father are bonded and have a loving relationship. See
Father’s Brief at 15. Father also alleges that the trial court erred in refusing
to ask the Children all of the Proposed Questions that his counsel presented
at the in camera interview. See id. at 17.
In its Opinion, the trial court discussed the best interests of the
Children under section 2511(b), and stated its reasons for determining that
there was sufficient clear and convincing evidence to establish that (1)
termination of Father’s parental rights, and adoption of the Children by
Stepfather, served the Children’s best interests; (2) the Children have a
strong bond with Stepfather, who they view as a positive father figure; (3)
the Children will not be adversely impacted by the termination of Father’s
parental rights; and (4) even if there is some minor bond between the
Children and Father, this alone is not a sufficient reason to deny the Children
the permanency of adoption. See Trial Court Opinion, 4/17/14, at 19-20.
Further, in his Pa.R.A.P. 1925(a) Opinion, the trial court judge who
presided over the in camera interview and observed the Children’s
demeanor, found that “neither child expressed any hesitation, reservation or
anxiety over this circumstance[,]” i.e., adoption by Stepfather and never
seeing Father again. Id. at 20. This Court has stated that
unlike trial courts, appellate courts are not equipped to make the
fact-specific determinations on a cold record, where the trial
judges are observing the parties during the relevant hearing and
often presiding over numerous other hearings regarding the child
and parents. Therefore, even where the facts could support an
- 10 -
J-A23032-14
opposite result, as is often the case in dependency and
termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the
record and the court’s legal conclusions are not the result of an
error of law or an abuse of discretion.
In re Adoption of S.P., 47 A.3d at 826-27 (citations omitted). Accordingly,
in the instant case, we must defer to the trial court’s credibility
determinations and its factual findings, which are supported by the record,
even though the facts could arguably support an opposite result. See Trial
Court Opinion, 4/17/14, at 19-20.
In its Opinion, the trial court also correctly rejected Father’s claim that
the court failed to adequately consider the GAL’s Recommendation. See id.
at 20-23. We agree with the trial court’s rationale and incorporate it herein
by reference. See id.; see also In re Adoption of R.J.S., 889 A.2d 92,
100 n.8 (Pa. Super. 2005) (observing that a GAL’s recommendation is purely
advisory).
Moreover, the trial court points out that “since Father was offering to
maintain only limited contact with the [C]hildren if his parental rights were
not terminated, Mother was willing to agree to an open adoption under Act
101 [“Act 101”],5 allowing some limited contact. Father, through his
counsel, summarily rejected this offer.” Trial Court Opinion, 4/17/14, at 13
(footnote added); see also Opinion and Order, 2/12/14, at 10 (same). The
5
See 23 Pa.C.S.A. § 2731, et seq.
- 11 -
J-A23032-14
trial court further stated as follows regarding the proposal of an open
adoption:
[W]hile the [GAL], in her [Recommendation], placed significant
emphasis on the fact that Father is only seeking limited visitation
and contact, and that Father has no desire to displace the
[C]hildren from their current home, Father did not express this
limitation on the record, and there is no binding effect of any
such expression. … [The offered open adoption a]greement
could have resolved the issues of all concerned, providing
permanency for the [C]hildren by maintaining Father’s limited
and infrequent contact in their lives. That Father would
summarily reject this proposal makes suspect his claim that he is
willing to accept a limited role in the [C]hildren’s lives that would
serve their best interests.
Trial Court Opinion, 4/17/14, at 13-14; but see also id. at 13 (stating that
“the fact that Father was unwilling to consent to an ‘open adoption’ … was
not, by any means, part of the [c]ourt’s consideration in finding that Father
had failed to perform his parental duties, or in its finding that termination
would serve the best interests of the [C]hildren.”).
Additionally, Father extensively relies upon the Supreme Court of
Pennsylvania’s decision in In re Adoption of Charles E.D.M., 708 A.2d 88
(Pa. 1998), in support of his claim that the trial court failed to engage in a
proper analysis regarding how terminating Father’s relationship with the
Children would affect their needs and welfare, and improperly overlooked
the fact that Father does not seek to take the Children away from the home
of Mother and Stepfather. See Father’s Brief at 17-19, 21. In E.D.M., the
Supreme Court held that termination of the mother’s parental rights was
improper because the record lacked sufficient evidence to establish that
- 12 -
J-A23032-14
termination would be in the best interests of the children. E.D.M., 708 A.2d
at 92-93. In so holding, the Court stated that
[w]e cannot underestimate the importance of a child’s
relationship with his or her biological parent. Here, [the mother]
does not seek to take the children from their home or family, but
she is requesting visitation rights through which she may
maintain a presence in the children’s lives. This contact will
allow the children to continue to feel loved by their mother and
receive her guidance and nurturing. Further, it may preclude the
children’s painful search for their biological mother as a teen or
an adult and the emotional injuries caused by the separation.
Id. at 93.
In its Opinion, the trial court in this case determined that E.D.M. was
unavailing to Father, stating as follows:
The [trial c]ourt finds unpersuasive Father’s reliance on [E.D.M.]
In that case[,] the Supreme Court found that the record was
devoid of evidence with respect to how the termination would
affect either child’s well-being, and how termination would serve
the children’s best interests. In the instant case, Mother and the
[C]hildren have testified as to the lack of any meaningful
relationship with Father. Both of [the C]hildren have expressed
their desire to be adopted and to be formal members of
Stepfather’s family. Moreover, unlike the instant case, the
mother in [] E.D.M. was faced with extraordinary antagonism
from the father[,] who was seeking termination of her rights.
That is not the case here. Although Father, on one hand, would
claim that Mother would dictate the terms of his visitation with
the [C]hildren and eventually force him to sever his contact
completely, on the other hand[,] he would admit that he would
continue to text and call his daughter, and that he would “but[t]
heads” with Mother. The [trial c]ourt did not find credible
Father’s claim that Mother’s contact impeded his ability to be a
parent to his children. There was no testimony of any efforts
that Father put forward to fulfill his parental role or to overcome
any alleged barriers. The [trial c]ourt found nothing which would
justify Father’s lack of interest in [the C]hildren’s daily lives, and
in their health, safety, education and welfare.
- 13 -
J-A23032-14
Furthermore, [] E.D.M. was decided long before the
enactment of Act 101, which would have allowed for post-
termination contact by the mother in that case, and likely would
have allayed the concern expressed by the Supreme Court that
reversal of termination and maintaining the mother’s limited
presence in the children’s lives “may preclude the children’s
painful search for their biological mother as a teen or an adult
and the emotional injuries caused by the separation.” [E.D.M.],
708 A.2d at [93]. The [C]hildren in [the instant] case displayed
no fear of emotional injury at the prospect of being separated
permanently from Father. On the contrary, the [C]hildren feel
that they have been separated from Father already as a result of
his gradual evaporation from their lives.
Trial Court Opinion, 4/17/14, at 17-18 (footnotes omitted). We agree with
the trial court’s analysis and its determination that E.D.M. is inapposite.
Finally, we find no merit to Father’s argument that the trial court
abused its discretion by refusing to ask the Children, at the in camera
interview, all of the Proposed Questions submitted by Father’s counsel. As
noted above, the only Proposed Questions that the trial court refused to ask
pertained to whether the Children wanted to have a continued relationship
with their paternal extended family, and whether the Children were aware
that Father was contesting the termination proceedings. See N.T., 1/28/14,
Exhibit 1; see also id. at 7-9. The trial court did, in fact, ask the Children
the relevant Proposed Questions, which pertained to the Children’s bond
with Father and how they would feel if they no longer were to see Father.
See id. at 8-9, 31-31, 48, 52.
In summary, our review discloses that the trial court’s analysis and
factual findings in its Opinion are supported by the record, which contains
sufficient competent evidence to sustain the trial court’s determination that
- 14 -
J-A23032-14
termination of Father’s parental rights would serve the Children’s best
interests by allowing them to be adopted by Stepfather, with whom they are
undisputedly bonded. Accordingly, we affirm the trial court’s Order
terminating Father’s parental rights to the Children.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/31/2014
- 15 -
Circulated 10/09/2014 03:24 PM
Circulated 10/09/2014 03:24 PM
Circulated 10/09/2014 03:24 PM
Circulated 10/09/2014 03:24 PM
Circulated 10/09/2014 03:24 PM
Circulated 10/09/2014 03:24 PM
Circulated 10/09/2014 03:24 PM
Circulated 10/09/2014 03:24 PM
Circulated 10/09/2014 03:24 PM
Circulated 10/09/2014 03:24 PM
Circulated 10/09/2014 03:24 PM
Circulated 10/09/2014 03:24 PM
Circulated 10/09/2014 03:24 PM
Circulated 10/09/2014 03:24 PM
Circulated 10/09/2014 03:24 PM
Circulated 10/09/2014 03:24 PM
Circulated 10/09/2014 03:24 PM
Circulated 10/09/2014 03:24 PM
Circulated 10/09/2014 03:24 PM
Circulated 10/09/2014 03:24 PM
Circulated 10/09/2014 03:24 PM
Circulated 10/09/2014 03:24 PM
Circulated 10/09/2014 03:24 PM