Opinion
J-A13044-18 No. 81 WDA 2018
07-25-2018
IN RE: ADOPTION OF C.M.T.C. APPEAL OF: M.C. AND C.C.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order December 4, 2017 in the Court of Common Pleas of Westmoreland County, Orphans' Court at No(s): 8 of 2017 BEFORE: OLSON, J., DUBOW, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
M.C. ("Father") and his wife, C.C. ("Stepmother") (collectively, the "Appellants"), appeal from the Order denying their Petition seeking to involuntarily terminate the parental rights of H.C. ("Mother") to her minor, male child with Father, C.M.T.C. (the "Child") (born in December 2007), pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2), and (b). We affirm.
On January 18, 2017, Appellants filed a Petition to involuntarily terminate Mother's parental rights to Child (hereinafter the "TPR Petition"). The trial court held a hearing (hereinafter the "termination hearing") on the TPR Petition on October 19, 2017. At that hearing, Child appeared, represented by legal counsel and separate counsel as his guardian ad litem ("GAL"). Both Child's legal counsel and his GAL questioned Child regarding his preferred outcome and best interests, as did the trial court. Father and Stepmother appeared, represented by counsel, and testified on their own behalf. Stepmother's father, D.W., also testified on Appellants' behalf, as did Father's friend, D.C. Counsel for Appellants also presented the testimony of T.C., who is Child's maternal grandfather. Mother appeared and testified on her own behalf. Mother also presented the testimony of A.H., her mother, and B.R., her counselor at her place of residence, New Life for Girls (hereinafter "New Life"), a Bible-based halfway house located in Maryland.
In In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) (plurality), our Supreme Court held that 23 Pa.C.S.A. § 2313(a) requires that counsel be appointed to represent the legal interests of any child involved in a contested involuntary termination proceeding. L.B.M., 161 A.3d at 180. The Court defined a child's legal interest as synonymous with his or her preferred outcome. Id. at 174. However, the L.B.M. Court did not overrule this Court's holding in In re K.M., 53 A.3d 781, 788 (Pa. Super. 2012), that a GAL who is an attorney may act as counsel pursuant to section 2313(a), so long as the dual roles do not create a conflict between the child's best interests and legal interest. In the instant case, the trial court appointed separate counsel to represent Child as his legal counsel and his GAL. Cf. In re T.M.L.M., 2018 PA Super 87 at 4 (Pa. Super. 2018) (in a mother's appeal from an order terminating her parental rights to her six-year-old child, remanding for further proceedings where the child's preference was equivocal and the sole attorney appointed to represent the child neglected to interview him to determine whether his legal and best interests were in conflict).
We will hereinafter collectively refer to Mother's parents, T.C. and A.H., as "Maternal Grandparents."
Based on the evidence adduced at the termination hearing, the trial court set forth the relevant factual background and procedural history of this appeal, and made findings, in its Pa.R.A.P. 1925(a) Opinion, which we incorporate as though fully set forth herein. See Trial Court Opinion, 2/2/18, at 1-4.
Our review discloses that the trial court's findings are supported by competent evidence in the record.
To the extent that the trial court states, in paragraph 11 of its Opinion, that Father offered to enter into an "Act 101 agreement," the Act in question, codified at 23 Pa.C.S.A. §§ 2731-2742, provides biological parents, who voluntarily relinquish their parental rights to their children, the potential ability to remain a part of their children's lives after the children have been adopted, in certain circumstances.
On December 4, 2017, the trial court entered an Order denying the TPR Petition. Appellants thereafter timely filed a Notice of Appeal, along with a Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal. The trial court then issued its Rule 1925(a) Opinion.
Appellants now present the following issues for our review:
I. [Whether] the trial court's denial of Appellant[s'] request for the termination of Mother's parental rights under 23 Pa.[]C.S.A. [§] 2511[](a)[](1) was error because the evidence shows that Mother engaged in no parental duties whatsoever in the six months prior to the filing of the [TPR] [P]etition[,] since writing [] letter(s) to [] [C]hild from jail, speaking to him from the jail via phone occasionally up until September 2016, and calling [] [C]hild one time [i]n December [] 2016 to wish him happy birthday[,] are not "parental duties" as defined by case law and statute[?]Brief for Appellants at 4 (capitalization omitted).
II. [Whether] the trial court errored [sic] in denying Appellant[s'] request to terminate the parental rights of [Mother] under 23 Pa.C.S.A. [§] 2511(a)(2) because the evidence shows that [Mother's] refusal to perform parental duties are [sic] ongoing and will not be remedied[?]
Appellants set forth their issues somewhat differently in their Rule 1925(b) Concise Statement and their Statement of Questions Involved portion of their brief. We, nevertheless, deem their challenges to the trial court's determination that there was insufficient evidence to terminate Mother's parental rights under subsections 2511(a)(1) and (a)(2) preserved. However, Appellants have waived any challenge to the denial of their TPR Petition in relation to section 2511(b), for failing to raise a challenge to the sufficiency of the evidence under section 2511(b) in their Concise Statement and Statement of Questions Involved section of their brief. See In re M.Z.T.M.W., 163 A.3d 462, 466 (Pa. Super. 2017) (citing Krebs v. United Ref. Co. of Pa., 893 A.2d 776, 797 (Pa. Super. 2006) (holding that an appellant waives issues that are not raised in both his or her Rule 1925(b) concise statement and the statement of questions involved portion of his or her brief on appeal)); see also In re W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011) (stating that "[w]here an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived." (citation omitted)). Nevertheless, we need not review whether the requirements of section 2511(b) have been satisfied unless the requirements of section 2511(a) have first been satisfied. See In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa. Super. 2008) (en banc); see also M.Z.T.M.W., 163 A.3d at 466 n.3.
We begin our analysis by observing that
the right to conceive and raise one's children has long been recognized as one of our basic civil rights. In any context, the complete and irrevocable termination of parental rights is one of the most serious and severe steps a court can take. Realizing the significance of such a decision, [the Pennsylvania Supreme] Court adheres to the view that the trial court is in the best position to determine credibility, evaluate the evidence, and make a proper ruling. The trial court's findings in a termination proceeding[,] which are supported by evidence of record[,] are entitled to the same weight given a jury verdict and must be sustained unless the court abused its discretion or committed an error of law. It is well-established that a court must examine the individual circumstances of each and every case and consider all explanations offered by the parent to determine if the evidence,
in light of the totality of the circumstances, clearly warrants the involuntary termination.In re R.I.S., 36 A.3d 567, 572 (Pa. 2011) (citations omitted).
Our Supreme Court has further explained that
there are clear reasons for applying an abuse of discretion standard of review in these cases. ... [U]nlike 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 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) (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). "The standard of clear 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." Id. (citation and internal quotation marks omitted).
Here, the TPR Petition sought the termination of Mother's parental rights under section 2511(a)(1), (a)(2), and (b), which provide as follows:
§ 2511. Grounds for involuntary termination
(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 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), (a)(2), (b).
(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.
With respect to subsection 2511(a)(1), our Supreme Court has stated as follows:
Once the evidence establishes a failure to perform parental duties or a settled purpose of relinquishing parental rights, 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 Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1988). Concerning the element of a parent's settled purpose to relinquish a parental claim, this court has explained that a petitioner must show that the parent "made a deliberate decision to terminate the parent-child relationship throughout the six-month period." Adoption of M.S., 664 A.2d 1370, 1373 (Pa. Super. 1995). Moreover,
the trial court must consider the whole history of a given case and not mechanically apply the six-month statutory provision. The court must examine the individual circumstances of each case and consider all explanations offered by the parent facing termination of his or her parental rights, to determine if the evidence, in light of the totality of the circumstances, clearly warrants the involuntary termination.In re B., N.M., 856 A.2d 847, 854-55 (Pa. Super. 2004) (citations omitted).
"Parental duty" is defined as follows:
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. ... Because a child needs more than a benefactor, parental duty requires that a parent exert h[er]self to take and maintain a place of importance in the child's life. Parental duty requires that the parent act affirmatively with good faith interest and effort, and not yield to every problem, in order to maintain the parent-child relationship to the best of his or her ability, even in difficult circumstances. 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. at 855 (citations, quotation marks, and paragraph breaks omitted).
However, this Court has emphasized that
[w]here a non-custodial parent is facing termination of his or her parental rights, the court must consider the non-custodial parent's explanation, if any, for the apparent neglect, including situations in which a custodial parent has deliberately created obstacles and has[,] by devious means[,] erected barriers intended to impede free communication and regular association between the non-custodial parent and his or her child.Id. at 855-56; see also Adoption of M.S., 664 A.2d 1370, 1374 (Pa. Super. 1995) (stating that "[w]here a parent makes reasonable attempts to overcome obstacles created by the party seeking to terminate parental right, a mere showing that the parent could conceivably have pursued legal action more promptly cannot justify termination of parental rights." (citation, emphasis, and quotation marks omitted)); accord In re Adoption of B.D.S., 431 A.2d 203, 208 (Pa. 1981) (warning that "obstructive behavior on the part of the custodial parent aimed at thwarting the other parent's maintenance of a parental relationship will not be tolerated, and certainly will not provide a sound basis for the involuntary termination of parental rights."). "The pertinent inquiry is not the degree of success a parent may have had in reaching the child, but whether, under the circumstances, the parent has utilized all available resources to preserve the parent-child relationship." In re Shives , 525 A.2d 801, 803 (Pa. Super. 1987).
Our Supreme Court has set forth our inquiry under subsection 2511(a)(2) as follows:
[Section] 2511(a)(2) provides statutory grounds for termination of parental rights where it is demonstrated by clear and convincing evidence that "[t]he repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence 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." ...
This Court has addressed incapacity sufficient for termination under § 2511(a)(2):
In re Adoption of S.P., 47 A.3d at 827 (citations omitted). "Unlike subsection (a)(1), subsection (a)(2) does not emphasize a parent's refusal or failure to perform parental duties, but instead emphasizes the child's present and future need for essential parental care, control or subsistence necessary for his physical or mental well-being." In re E.A.P., 944 A.2d 79, 82 (Pa. Super. 2008) (citation omitted).A decision to terminate parental rights, never to be made lightly or without a sense of compassion for the parent, can seldom be more difficult than when termination is based upon parental incapacity. The legislature, however, in enacting the 1970 Adoption Act, concluded that a parent who is incapable of performing parental duties is just as parentally unfit as one who refuses to perform the duties.
Here, Appellants summarize their challenge to the trial court's determination that they had failed to present clear and convincing evidence that subsections 2511(a)(1) and (a)(2) had been met, stating as follows:
The facts of this unfortunate case demonstrate that Mother, for a period of at least 6 months prior to the filing of the [TPR] [P]etition, failed to perform parental duties. Making a phone call from prison and speaking to the [C]hild solely because he "happened" to be there[, i.e., Maternal Grandparents' home,] when [Mother] called, coupled with writing letters whenever she was in prison (but doing nothing when she was out of jail) cannot possibly rise to the level of the performance of parental duties.
The complete refusal of Mother to perform parental duties has not been remedied either. Mother resides in a controlled
environment[, i.e., New Life,] where she is not permitted to leave the facility without constant supervision. She has no opportunity to turn back to drug use and she faces re-incarceration if she even leaves the [] New Life ... halfway house without permission and accompaniment. Mother's sobriety has not been tested outside of the four walls of a facility where she must stay, as a condition of her release from prison. Mother does not work for a living and, therefore, provides no financial support for the [C]hild to this day. She never has. To make matters worse, Mother has no intentions of leaving the [New Life] facility and [has] no future plans to return to the area where the [C]hild lives. Mother is content to live in another state, away from the [C]hild, with no ambition to live life outside of government control or to provide for the [C]hild's financial, physical, emotional, or social needs.Brief for Appellants at 32-33. Additionally, Appellants argue that the trial court "erroneously found that Father prevented [] contact [between Mother and Child], [and] no witnesses in the case testified that Mother ever tried to see the [C]hild. ... There was nothing to prevent because Mother simply disappeared[.]" Id. at 43 (emphasis omitted).
The parental rights of Mother should have been terminated under 23 Pa.C.S.A. [§] 2511(a)(1) and (a)(2) because Mother has refused to perform any parental duties for the [C]hild in 3 ½ years[,] and because her refusal is ongoing. Mother still has made no efforts to see the [C]hild and still allows Father and Stepmother to provide for every single need that the [C]hild has. The [C]hild desperately wants to be adopted by Stepmother[,] as there is a very strong bond between them.
In its Rule 1925(a) Opinion, the trial court thoroughly recited its reasons for rejecting Appellants' claim that termination was inappropriate under subsections 2511(a)(1) and (a)(2), which we incorporate as though fully set forth herein. See Trial Court Opinion, 2/2/18, at 4-9, 9-10. In sum, the court determined that
(1) Mother's "regular and consistent" efforts to contact Child, within the six months prior to the filing of the TPR Petition, did not evidence that she had a settled purpose to relinquish her parental claim or fail to perform parental duties (though she could have done more to protect her relationship with Child);See id.; see also Trial Court Opinion and Order, 12/4/17, at 8 (stating that Mother professes no desire to disrupt Child's present life with Appellants, but rather, merely seeks to maintain her, and Maternal Grandparents', connection with Child).
(2) Appellants actively sought to prevent Maternal Grandparents from facilitating any contact between Child and Mother while Child was in their care;
(3) Father exhibited a longstanding history of thwarting Mother's direct contact with Child;
(4) Mother credibly testified that she had overcome her drug addiction and improved her condition considerably;
(5) Mother knew and reasonably relied upon the fact that Child would be well cared for by Appellants, and that she would be able to maintain her relationship with Child (via Maternal Grandparents) while she recovered;
(6) "the conditions or causes of Mother's previous incapacity, abuse, neglect or refusal have been remedied and the only parental refusal has been on the part of Father to allow Mother contact with the Child."
After a careful review of the record, we discern no error or abuse of the trial court's discretion in concluding that Appellants have failed to meet their evidentiary burden necessary to terminate Mother's parental rights under subsections 2511(a)(1) and (a)(2). See , e.g., In re Adoption of L.J.B., 18 A.3d 1098, 1122-23 (Pa. 2011) (holding that the trial court erred in terminating a mother's parental rights under subsection 2511(a)(1), despite her relocation to Tennessee and failure to contact the child within 6 months of the filing of the termination petition, where the custodial father and stepmother had erected multiple obstacles preventing mother from contacting child, and stating that "where the custodial parent has prevented the parent whose rights are subject to termination from performing parental duties, parental performance is to be measured in light of what reasonably would be expected of an individual in similar circumstances, giving due consideration to obstacles encountered."); see also In re I.G., 939 A.2d 950, 953, 954 (Pa. Super. 2007) (reversing the trial court's order that involuntarily terminated father's parental rights to his children pursuant to, inter alia, subsections 2511(a)(1) and (a)(2), where (a) despite Father's incarceration, he "made efforts to maintain a place of importance in his children's lives[;]" (b) "this is not the case of a Father who simply doesn't care[;]" and (c) there was no clear and convincing evidence for the court to "simply assume that Father's current incapacity [to parent the children] cannot or will not be remedied."). Moreover, we cannot accept Appellants' invitation to reweigh the evidence or re-assess the credibility of the witnesses at the termination hearing, which was solely within the province of the trial court. See In re R.I.S., supra ; see also In the Interest of R.J.T., 9 A.3d 1179, 1190 (Pa. 2010) (emphasizing that even if an appellate court would have reached a different conclusion based on the cold record of a case, we may not re-weigh the evidence and the credibility determinations of the trial court). Thus, we will not disturb the trial court's refusal to terminate Mother's parental rights to Child pursuant to subsections 2511(a)(1) and (a)(2), and neither of Appellants' issues entitle them to relief.
Next, even if Appellants had not waived their challenge to the sufficiency of the evidence to terminate Mother's parental rights to Child under section 2511(b), see n.5 supra , we would nevertheless have determined that it lacked merit. Concerning section 2511(b), our Supreme Court has explained 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 "[i]ntangibles such as love, comfort, security, and stability." In re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M., 620 A.2d [481,] 485 [(Pa. 1993)], this Court held that the 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 K.M., 53 A.3d at 791.In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013); see also In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (explaining that, when evaluating a parental bond, "the court is not required to use expert testimony. ... Additionally, section 2511(b) does not require a formal bonding evaluation.") (internal citations omitted).
In its Opinion, the trial court concisely explained its reasons for determining that Appellants had failed to prove, by clear and convincing evidence, that termination would promote the needs and welfare of Child under section 2511(b). See Trial Court Opinion, 2/2/18, at 8-9 (finding that termination of Mother's parental rights is not in Child's best interests, particularly where Appellants had deliberately thwarted any relationship between Mother and Child, and it would strip Child of his beneficial relationships with Mother and Maternal Grandparents). We incorporate the court's analysis, which is supported by the record, as though fully set forth herein. See id.; see also N.T., 10/19/17, at 233-34 (wherein Child's legal counsel explained to the court that, although Child's position at the time of trial was that he was not bonded with Mother and wished to be adopted by Stepmother, only a few months prior to trial, Child had a wholly different position, which "was more predisposing to re-establishing and maintaining a relationship with [] [M]other.").
As we discern no abuse of the trial court's discretion, we will not disturb its refusal to terminate Mother's parental rights to Child and, therefore, affirm the Order denying the TPR Petition.
Order affirmed. Judgment Entered. /s/
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/25/2018
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