In Re: A.M.H., a Minor Appeal of M.H., Father

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: A.M.H., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: M.H., FATHER :
:
:
:
:
: No. 1450 MDA 2021
Appeal from the Decree Entered October 11, 2021
In the Court of Common Pleas of Lycoming County Orphans' Court at
No(s): 2021-6749
BEFORE: BOWES, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: MARCH 10, 2022
M.H. (Father) appeals from the decree entered in the Lycoming County
Orphans’ Court involuntarily terminating his parental rights to his son, A.M.H.
(Child) born in January of 2018. Because we discern no error or abuse of
discretion in the orphans’ court ruling, we affirm.
The orphans’ court provided the following findings of fact in its opinion
accompanying the order terminating Father’s parental rights:
1. [Child] was born [in] January [of] 2018[, and] currently resides
with . . . Mother . . . and Mother’s Husband, [C.G. (Husband) in]
Jersey Shore, Pennsylvania. Mother and Husband have been
married since September 4, 2021.
2. [ ]Child’s biological Father is [Father]. Father resides [in]
Millville, Pennsylvania.
3. At the time of [ ] Child’s birth, Mother and Father were
unmarried, but in a relationship.
4. When Mother returned to work after giving birth, Father stayed
at home with [ ] Child.
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5. Mother and Father began having issues in their relationship
when [ ] Child was approximately 6 months old. The last time
Mother and Father lived together was in July of 2019.
6. Father attended the Child’s doctor appointments until he was a
year [and a half] old.
7. Mother and Husband started dating in September 2019, and
began residing together in November of 2019.
8. When Mother and Father separated, Father did not have
transportation[, or a driver’s license,] and would see the Child
when Mother would pick him up or when his cousin would take
him to Mother’s house.
9. Father had the Child for one overnight after the parties
separated in 2019.
10. When Mother and Father first separated, they agreed that
Father would pay Mother $150 per month to help with day care
expenses. Father testified that he stopped making this payment
after a few months because Mother stopped allowing him to see [
] Child.
11. Father saw [ ] Child around Easter of 2020. Father’s cousin
made the arrangements with Mother for the visit.
12. Father brought [ ] Child gifts for Easter but had minimal other
interactions with the Child during the visit.
13. Father next saw [ ] Child in November of 2020, when Mother
visited Father’s cousin and Father was living there. Father did not
request this visit, and Mother testified that he was more interested
in his phone than interacting with [ ] Child.
14. November 2020 was the last in-person contact Father had with
[ ] Child.
15. On February 2, 2021, Father sent Mother $150, which Mother
said would go towards [ ] Child’s insurance.
16. Father testified that he made payments of $150 in January,
February, and March of 2021.
17. In May of 2021, Mother attempted to notify Father about [ ]
Child’s potential exposure to Covid. Mother testified that Father
and his girlfriend reported her to the police and accused her of
harassment. Mother further testified that upon the advice of the
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police, she blocked Father from her social media at that time, but
that she did not block him from calling or texting her.
18. On May 27, 2021, Mother filed the Petition for Involuntary
Termination of Parental Rights and Petition for Adoption.
19. Also on May 27, 2021, Mother filed a Complaint for Custody
and Petition for Special Relief at Lycoming County docket #21-
20467.
20. A custody conference was held on June 16, 2021. Mother
attended and was represented by Sharon McLaughlin, Esquire.
Father attended and was represented by John Gummo, Esquire.
21. Following the conference, a custody Order was entered on
June 16, 2021, which granted Mother sole legal and physical
custody. A pre-trial conference was scheduled for August 5, 2021,
and subsequently continued until September 8, 2021.
22. However, on July 19, 2021, counsel for Mother and Father filed
a Joint Stipulation to Stay Proceedings, and the pre-trial
conference was canceled pending the outcome of the hearing on
the Petition for Involuntary Termination of Parental Rights.
23. Mother and Father had multiple previous conversations about
the possibility of Mother’s Husband adopting [ ] Child, with the
last one occurring in August of 2020.
24. On August 5, 2021, Father texted Mother to ask about [ ]
Child. Mother responded that Father had the wrong number,
despite the fact that the number Father texted was still her phone
number.
25. [ ] Child has not asked about Father since their last contact in
November of 2020.
26. Father has not provided [ ] Child with gifts or cards for
Christmas or his birthday since [ ] Mother and Father separated.
27. The Child refers to Mother’s Husband as “Daddy.” They have
a very close relationship.
28. The Child refers to Father [by his first name]. Father testified
that he corrected [ ] Child one time. Mother testified that Father
refers to Mother's Husband as “Daddy” when speaking to the Child
about him.
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29. Mother’s Husband desires to proceed with adopting the Child
if the Petition for Involuntary Termination of Father’s Parental
Rights is granted.
Orphans’ Ct. Op. and Order, 10/11/21, at 2-5 (record citation omitted).
As noted above, Child has lived with Mother since she and Father
separated in July of 2019. Mother began living with her now Husband in
November of 2019, and they later married in September of 2021. Thus, Child
has lived with Mother and Husband since November of 2019, when he was 23
months old.
On May 27, 2021, Mother filed both a petition seeking to involuntarily
terminate Father’s parental rights and a complaint for custody.
Concomitantly, Husband filed a petition seeking to adopt Child. As the
orphans’ court explained, Mother was awarded sole legal and physical custody
of Child at a conference held on June 16, 2021.1 Although a pre-trial
conference was scheduled for September 2021, on July 19, 2021, counsel for
both parties filed a joint stipulation to stay the custody proceedings pending
the outcome of the termination proceedings. The orphans’ court conducted
the termination hearing on October 5, 2021, at which time Mother, Husband
and Father testified. Thereafter, on October 11, 2021, the court entered an
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1The record of the custody matter is not included in the certified record on
appeal.
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opinion and decree involuntarily terminating Father’s parental rights pursuant
to 23 Pa.C.S. § 2511(a)(1) and (b). This timely appeal follows.2
Father presents one issue on appeal:
Whether the [orphans’] court erred in terminating the parental
rights of [Father] pursuant to 23 Pa.C.S. § 2511(a)(1) when, in
the six months preceding the filing of the petition, [Father] offered
support within his limited means and has not shown an intent to
lose his place in [Child’s] life[?]
Father’s Brief at 6.
Our review in termination cases is well-settled:
Appellate review in cases involving involuntary termination of
parental rights is limited to determining whether the trial court’s
determination is supported by competent evidence. When
applying this standard of review, an appellate court must accept
the findings of fact and credibility determinations of the trial court
if they are supported by evidence of record. Where the trial
court’s factual findings are supported by the evidence, an
appellate court may not disturb the trial court’s ruling unless it
has discerned an error of law or abuse of discretion. An abuse of
discretion is found where there is a demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill will. It matters
not that an appellate court might have reached a different
conclusion, as it is well-established that 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 Adoption of L.A.K., 265 A.3d 580, 591 (Pa. 2021) (citations and
internal quotation marks omitted). The Supreme Court has emphasized that
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2Father properly filed a Pa.R.A.P. 1925(b) statement of errors complained of
on appeal with his notice of appeal. See Pa.R.A.P. 1925(a)(2)(i) (requiring a
concise statement be filed with notice of appeal in children’s fast track
appeals).
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“in termination cases involving close calls, deference to the trial court’s
determination is particularly crucial.” Id. at 597. Further,
even where the facts could support an 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 817, 826–27 (Pa. 2012) (citation omitted).
The Pennsylvania Supreme Court has explicitly acknowledged the
“significant gravity of a termination of parental rights, which has far-reaching
and intentionally irreversible consequences for the parents and the child.” In
re Adoption of C.M., 255 A.3d 343, 358 (Pa. 2021). Thus, with this in mind,
the burden of proof is upon the party seeking termination to
establish by clear and convincing evidence the existence of the
statutory grounds for doing so. [C]lear and convincing evidence
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. Because of this serious impact attending the termination
of parental rights, it is important that a judicial decree
extinguishing such rights be based solely on competent evidence.
Id. (citations and internal quotation marks omitted).
Section 2511 of the Adoption Code3 sets forth the proper grounds for
the involuntary termination of parental rights. See 23 Pa.C.S. § 2511(a)(1)-
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3 23 Pa.C.S. §§ 2101-2938.
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(11). Here, the orphans’ court found there was clear and convincing evidence
to terminate Father’s parental rights under subsection (a)(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.
23 Pa.C.S. § 2511(a)(1). In determining whether grounds for termination
exist under subsection 2511(a)(1), we must bear in mind:
Although the six month period immediately preceding the filing of
the petition is most critical to the analysis, the court must consider
the whole history of the case and not mechanically apply the six-
month statutory provision. The trial court must examine the
individual circumstances of each case and consider all of the
explanations of the parent to decide if the evidence, under the
totality of the circumstances, requires involuntary termination.
In re S.S.W., 125 A.3d 413, 416 (Pa. Super. 2015) (citation omitted).
With regard to the determination of whether a parent has failed to
perform parental duties, the Supreme Court has explained:
“Parental duties” are not defined in the Adoption Act, but our
courts long have interpreted parental duties “in relation to the
needs of a child[,]” such as “love, protection, guidance and
support.” Parental duties are carried out through
affirmative actions that develop and maintain the parent-
child relationship. The roster of such positive actions
undoubtedly includes communication and association. The
performance of parental duties “requires that a parent exert
himself to take and maintain a place of importance in the child’s
life.” Fortitude is required, as a parent must act with “reasonable
firmness” to overcome obstacles that stand in the way of
preserving a parent-child relationship and may not wait for a more
suitable time to perform parental responsibilities. . . .
L.A.K., 265 A.3d at 592 (emphases added). “This affirmative duty
encompasses more than a financial obligation; it requires continuing interest
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in the child and a genuine effort to maintain communication and association
with the child.” In re Adoption of N.N.H., 197 A.3d 777, 784 (Pa. Super.
2018) (citation omitted). Further, a court may not predicate “a finding of
abandonment . . . upon parental conduct which is reasonably explained or
which resulted from circumstances beyond the parent’s control[; rather, i]t
may only result when a parent has failed to utilize all available resources to
preserve the parental relationship.” L.A.K., 265 A.3d at 592 (citation
omitted).
If the evidence establishes that a parent failed to perform parental
duties or demonstrated a settled purpose to relinquishing parental rights
under subsection 2511(a)(1),
the court must engage in three lines of 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).
In re J.R.E., 218 A.3d 920, 925 (Pa. Super. 2019) (citation omitted).
Pursuant to Section 2511(b), the trial court must
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), .
. . 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. § 2511(b).
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The subsection 2511(b) analysis — which is required only if the court
determines there are grounds for termination under subsection 2511(a) —
includes consideration of “the emotional bond, if any, between parent and
child[.]” In re G.M.S., 193 A.3d 395, 401 (Pa. Super. 2018) (citation
omitted). Moreover:
[I]n addition to a bond examination, the trial court can equally
emphasize the safety needs of the child, and should also consider
the intangibles, such as the love, comfort, security, and stability[.]
Additionally, . . . the trial court should consider the importance of
continuity of relationships and whether any existing parent-child
bond can be severed without detrimental effects on the child.
Id. (citation omitted).
With this background in mind, we turn to Father’s argument on appeal.
Father contends the orphans’ court erred in involuntarily terminating his
parental rights to Child when he “offered support within his limited means and
has not shown an intent to lose his place in [Child’s] life.” Father’s Brief at
12. He maintains he has “made reasonable efforts to overcome obstacles” to
preserve their relationship, and that Mother’s evidence consisted of a “mere
showing that he could have or should have done more.” Id. at 13. However,
Father insists that “is not enough to terminate [his] parental rights.” Id.
Father emphasizes that he has “limited means” — he does not work, he
receives Social Security, and he has struggled “to find a long-term residence.”
Id. at 12-13. He acknowledges that he stopped sending Mother money for
Child when “he believed [Child] was being kept from him,” but that he
resumed doing so within the requisite six-month period prior to the filing of
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the petition. Id. at 13. Father contends that the testimony at the termination
hearing established that although he believed Child should “remain in Mother’s
care, [he] never had the purpose or intent to sever his ties” with Child, and
that his “decision not to ask [Child] to call him ‘Dad’” did not evidence his
disinterest in their relationship. Id. at 14. Indeed, he insists that his “initial
receptiveness” to Mother’s discussions regarding termination and custody
“was because he did not think that he would be losing his parental rights.”
Id. Thus, Father requests that we vacate the trial court’s order and remand
for further proceedings.
Upon our review of the record, the parties’ briefs, and the relevant
statutory and case law, we detect no error or abuse of discretion in the
orphans’ court ruling. In concluding termination of Father’s parental rights
was warranted under Subsection 2511(a)(1), the orphans’ court opined:
Father has evidenced both a settled purpose of relinquishing
parental claim to [ ] Child and has failed to perform his parental
duties in excess of six (6) months. Father’s last in-person contact
with [ ] Child was approximately 10 months ago, and that contact
was neither requested nor arranged by Father.
A parent has an affirmative duty [to] maintain a place of
importance in a child’s life and Father has clearly not met this
affirmative duty. Although Father stayed home with [ ] Child when
Mother returned to work after his birth, Father has shown — at
most — a passive interest in [ ] Child for most of the Child’s life.
This Court is cognizant of the fact that Father has limited financial
means, and transportation is an issue for him. However, Father
saw [ ] Child only two times in 2020, and neither visit was initiated
by him. Father’s one and only overnight with [ ] Child occurred in
2019. Despite testifying that he made attempts to see [ ] Child
and was denied by Mother, Father never filed a Complaint for
Custody to establish or enforce his custodial rights. Father was
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content to depend on Mother and/or his cousin to make
arrangements for him to see [ ] Child. Other than an occasional
monetary contribution, Father has failed to perform any basic
parental duties for [ ] Child such as feeding, bathing, and
providing a safe and secure residence since the parties separated.
During this time, Father was content to have someone else be
responsible for attending the child’s medical appointments,
tucking him into bed each night, and comforting him when he was
scared or hurt.
Orphans’ Ct. Op. at 6-7. The court also noted that while it did not “condone
Mother’s actions” in responding to Father’s text message inquiries about Child
that Father had the wrong number, it emphasized that this incident occurred
in August of 2021 — “well after the filing of the Petition for Involuntary
Termination of Parental Rights and at a time when Mother has sole legal and
sole physical custody of the Child[.]” Id. at 7.
We conclude the record supports the orphans’ court’s findings. Mother
testified that Father’s involvement with Child from July until December of 2019
was “[v]ery hit or miss.” N.T., 10/5/21, at 7. She stated that he asked to
“come see” Child “once or twice” in 2020. Id. at 8. Mother testified Father
visited with Child “a little after Easter” that year, but had “[v]ery minimal”
interaction with Child at that time, and then saw him again in November of
2020 when Mother visited Father’s cousin, and Father was present. Id. at 9-
10. She emphasized that Father “had not asked” for that visit, and “was more
interested with what was going on with his phone” than playing with Child.
Id. at 9.
Father’s testimony confirmed that he has not seen Child since November
of 2020 — six months prior to Mother’s filing to the termination petition — and
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that his cousin had arranged that visit. N.T. Termination H’rg, 10/5/21, at 40.
He claimed he asked to see Child “a couple of times” in 2020, but that Mother
“said [Child] was busy doing something.” Id. at 37. When asked if he was
“trying to see” Child between November of 2020 and May of 2021, Father
replied, “I asked about him.” Id. at 41. He did not provide any further
specifics. See In re Adoption of C.J.A., 204 A.3d 496, 503-04 (Pa. Super.
2019) (“A parent does not perform parental duties by displaying a merely
passive interest in the development of his or her child.”) (citation omitted).
Thus, we are compelled to conclude the record supports the trial court’s
findings that Father “evidenced both a settled purpose of relinquishing
parental claim to [ ] Child and has failed to perform his parental duties in
excess of six (6) months.” See Orphans’ Ct. Op. at 6. Father’s only effort to
maintain his relationship with Child since November of 2020 was to send three
payments of $150, and “ask[ ] about” Child. See N.T., Termination H’rg, at
41. We reiterate that his affirmative duty to maintain his relationship with
child “encompasses more than a financial obligation[.]” N.N.H., 197 A.3d at
784 (citation omitted). Recognizing Father’s limited finances and
transportation difficulties, we point out that Father had a cell phone, but there
was no testimony he attempted to call or video chat with Child during the
relevant 6-month period, or, for that matter, at any time during the prior year.
Simply put, the record supports the trial court’s determination that Father
failed to demonstrate a “continuing interest in [C]hild and a genuine effort to
maintain communication and association with” him, and that Father “failed to
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utilize all available resources to preserve the parental relationship.” Id.
(citation omitted); L.A.K., 256 A.3d at 592 (citation omitted). Thus, Father’s
challenge to the involuntary termination of his parental rights under
subsection 2511(a)(1) fails.4
Once a trial court determines that termination is warranted under
subsection 2511(a), it must then proceed to consider the needs and welfare
of the child under subsection (b). In re D.W., 856 A.2d 1231, 1234 (Pa.
Super. 2004). Although the orphans’ court properly did so in the present case,
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4Although we conclude the trial court’s decision is supported by the record,
we acknowledge the comments of Child’s attorney — Jennifer Ayers, Esquire
— at the conclusion of the termination hearing. When the court asked her
position on the termination proceedings, Attorney Ayers responded:
[M]y concern is it’s obvious that [Child] has three people who love
him very much sitting in this room. . . . [Father] is on SSI. He
has demonstrated complete . . . difficulties for him personally to
make [visits] happen with his son, but I don’t think he’s
demonstrated a settle[d] pattern of not pursing or trying to pursue
his parental rights. . . . I think that he has done the best that he
can in this situation that he finds himself in.
I am troubled and concerned that Mom is purposefully trying
to dissuade him from contacting her by telling him that he no
longer has the correct number after these proceedings have been
filed.
So . . . I am of the opinion that this may be best suited for
custody court and not termination at this point.
N.T., Termination H’rg, at 55. Nonetheless, the orphans’ court specifically
considered Attorney Ayers’ argument in its opinion, before noting that “a
parent’s love for the child is not the statutory standard . . . when determining
whether to terminate that parent’s right.” Orphans’ Ct. Op. at 8. We are
constrained to agree.
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Father did not challenge the court’s subsection 2511(b) determination in
either his Pa.R.A.P. 1925 concise statement5 or his brief. For that reason, this
issue is waived.6 See In re M.Z.T.M.W., 163 A.3d 462, 466 (Pa. Super.
2017) (waiving Mother’s argument regarding Section 2511(b) when she failed
to include it in her statement of questions involved or concise statement).
Thus, because we conclude the orphans’ court’s findings are supported
by the record, we affirm the decree involuntarily terminating Father’s parental
rights.
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5 Father’s Rule 1925(b) statement raised the following two claims:
1. The Court’s ruling was against the weight of the evidence
because insufficient evidence was presented to establish that
[Father] demonstrated a settled purpose to relinquish his
parental claim over the prior six months.
2. The Court’s ruling was against the weight of the evidence
because insufficient evidence was presented to establish that
[Father] refused to perform parental duties over the prior six
months.
Father’s Concise Statement of Matters Complained of on Appeal Pursuant to
Rule 1925(b), 11/10/21.
6 Nevertheless, we note that even if we were to review the orphans’ court’s
subsection 2511(b) analysis, Father would be entitled to no relief. See
Orphans’ Ct. Op. at 9 (finding Father has no bond with less than four-year-old
Child he has seen “only a handful of times since Mother and Father separated
approximately two years ago[;]” Child has not asked about Father since his
last visit in November of 2020; Child calls Husband “Daddy[;]” Husband, “who
has been in Child’s life since he was 1.5 years old, . . . is the only father-figure
the Child knows.”).
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Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2022
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