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A.F. v. E.B.V.

SUPERIOR COURT OF PENNSYLVANIA
Feb 12, 2020
J-S56004-19 (Pa. Super. Ct. Feb. 12, 2020)

Opinion

J-S56004-19 No. 1708 EDA 2019

02-12-2020

A.F. Appellant v. E.B.V.


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered May 24, 2019
In the Court of Common Pleas of Carbon County
Orphans' Court at No(s): No. 18-9056 BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J. MEMORANDUM BY PANELLA, P.J.:

In this appeal, A.F. ("Father") challenges the decree entered in the Court of Common Pleas of Carbon County that denied his petition for involuntary termination of parental rights. He contends the trial court should have involuntarily terminated the parental rights of E.B.V. ("Mother") to their child, J.B.V., (born May 2015) (the "Minor Child" or "Child") due to her failure to perform parental duties. After careful review, we affirm the trial court's order denying Father's petition.

Mother filed a motion to dismiss Father's appeal as wholly frivolous and vexatious. She also seeks an award of her attorney's fees pursuant to Pa.R.A.P. 2744. While we express our concern about Father's clearly meritless constitutional challenges, we decline to find that Father's challenge to the court's refusal to terminate Mother's parental rights wholly frivolous. We therefore deny Mother's motion to dismiss and her motion for sanctions. --------

The Minor Child was born in May 2015. Shortly after, Child experienced withdrawal symptoms due to Mother's drug use during pregnancy. Monroe County Children and Youth Services ("CYS") conducted an investigation into the circumstances of Child's birth and Mother's addiction. As a result, Child was placed in emergency shelter care.

The Monroe County Court of Common Pleas held an emergency shelter care hearing at which time Father appeared and expressed an interest in taking custody of Child. But, as of the hearing, Father was unable to establish paternity. The court ordered Father to undergo genetic testing. In the meantime, Child was maintained in emergency shelter care.

Thereafter, the court held a dependency hearing, during which Child was adjudicated a dependent child. The court reversed its decision soon after the results of Father's genetic testing established he was the presumptive father. As such, the court terminated Child's dependency status and awarded Father legal and physical custody. At all times up to and including the dependency hearings, Mother showed no interest in accepting parental responsibility for Child.

Even so, Mother's mother ("Maternal Grandmother") filed a custody action to obtain legal and physical custody of Child. A custody conciliation conference resulted in Maternal Grandmother receiving partial physical custody of Child. This arrangement required Father to present Child for visits with Maternal Grandmother on certain weekends and holidays. It was during these visits that Mother - now clean and sober - attempted to re-enter Child's life. Mother would appear during the visits and spend time with Child, unbeknownst to Father. Due to Mother's presence at these visits, Father filed a petition for involuntary termination of Mother's parental rights, claiming she did nothing to provide for Child nor perform parental duties on his behalf.

As a resident of Carbon County, Father successfully transferred the case to the Carbon County Court of Common Pleas. After conducting an evidentiary hearing on the petition, the court entered a decree denying Father's requested relief. Father timely filed a notice of appeal and a concise statement of errors complained of on appeal. This appeal is properly before us.

On appeal, Father raises the following issues:

(1) Did the trial court err as a matter of law and thereby infringe [on] . . . [Father's] fundamental liberty interests protected by his due process and equal protection rights under the U.S. Constitution, amend. 14, § 1, and the Pennsylvania Constitution art. I, § 1 . . . [?]

(2) Did the trial court err as a matter of law when it concluded that . . . [Mother's] parental rights could not be terminated under any of the enumerated sections of 23 Pa. C.S.A. ?

(3) Did the trial court abuse its discretion by admitting evidence identifying the potential adoptive person?

(4) Did the trial court abuse its discretion in making specific factual findings and conclusions from the testimony presented?
Appellant's Brief, at 4-5.

We review these claims under our well-settled standard of review:

The standard of review in termination of parental rights cases requires appellate courts 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. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. The trial court's decision, however, should not be reversed merely because the record would support a different result. We have previously emphasized our deference to trial courts that often have first-hand observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks omitted).

Termination of parental rights is governed by Section 2511 of the Adoption Act (the "Act"), 23 Pa.C.S.A. § 2101-2938, which requires a bifurcated analysis:

Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evidence that the parent's conduct satisfies the statutory grounds for termination delineated in Section 2511(a). Only if the court determines that the parent's conduct warrants termination of his or her parental rights does the 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. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child, with close attention paid to the effect on the child of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).

In his first issue, Father challenges the constitutionality of the Act. He alleges that in order to terminate Mother's parental rights under the Act, he "must either (a) participate in an adoption . . . or (b) relinquish his parental rights." Appellant's Brief, at 21. Father asserts that conditioning the termination of Mother's parental rights upon either a pending adoption or voluntary relinquishment interferes with his fundamental right to raise Child. See id., at 25. Furthermore, as there is no basis to impair his liberty interest, Father maintains that it is constitutionally repugnant to require marriage as a prerequisite to termination under the Act. See id., at 28. Therefore, Father contends the Act violates his due process and equal protection rights under the Fourteenth Amendment of the U.S. Constitution. See id., at 21.

Preliminarily, we must address an issue related to Father's challenge to the constitutionality of the Act. In Pennsylvania, when a party challenges the constitutionality of any statute, and the Commonwealth is not a party in the matter, the challenging party must notify the Pennsylvania Office of the Attorney General so that the Attorney General has the opportunity to be heard on the issue. See In re J.Y., 754 A.2d 5, 11 (Pa. Super. 2000); see also Pa.R.C.P. 235. Failure to file such notice results in waiver of the claim. See Pa.R.A.P. 521 (a).

The record reveals that the Commonwealth is not a party in this matter, and Father failed to notify the Office of the Attorney General of his challenge to the constitutionality of the Act. Accordingly, we are constrained to find that Father has waived any constitutional claim. Therefore, we decline to address the merits of this claim.

In addition, based on our review of the trial court opinion and the applicable law, we conclude that the trial court properly disposes of the remaining issues raised by Father. Of particular note, we agree with the court that Father's "attempt [to terminate Mother's parental rights] . . . fails as the conditions which led to . . . [Child] being removed from . . . [Mother] no longer exist and in fact ceased to exist when . . . [Father] was given custody . . . ." Trial Court Opinion, 5/24/19, at 17. Further, we cannot conclude, on this record, that it was error for the court to admit evidence regarding the proposed adoptive mother's identity. See id., at 9-15. Having averred that adoption was contemplated, Father had an obligation to present testimony on this subject, which he did not. Finally, the record supports the court's determination that Mother demonstrated a serious intent to parent Child, as evinced by the performance of her parental duties. See id., at 25.

Therefore, we affirm the order on the basis of the trial court opinion.

Order affirmed. Motion to dismiss denied. Motion for sanctions denied.

Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/12/20

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Summaries of

A.F. v. E.B.V.

SUPERIOR COURT OF PENNSYLVANIA
Feb 12, 2020
J-S56004-19 (Pa. Super. Ct. Feb. 12, 2020)
Case details for

A.F. v. E.B.V.

Case Details

Full title:A.F. Appellant v. E.B.V.

Court:SUPERIOR COURT OF PENNSYLVANIA

Date published: Feb 12, 2020

Citations

J-S56004-19 (Pa. Super. Ct. Feb. 12, 2020)