Opinion
J-S96014-16 No. 859 WDA 2016
02-09-2017
IN RE: ADOPTION OF A.M., A MINOR APPEAL OF: J.S.M., NATURAL FATHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order May 16, 2016
In the Court of Common Pleas of Washington County
Orphans' Court at No(s): 63-16-0236 BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J. MEMORANDUM BY BENDER, P.J.E.:
J.S.M. (Father) appeals from the order entered on May 16, 2016, involuntarily terminating his parental rights to his daughter, A.M. (Child), born in May of 2013. For the reasons that follow, we affirm.
A.S.C. (Mother) agreed to a voluntary termination of her parental rights and is not a party to this appeal.
On appeal, Father's brief provides the following questions for our review:
I. Whether the trial court erred in terminating Father's parental rights where the Agency failed to prove by clear and convincing evidence that Father evidenced a settled purpose of relinquishing parental claims to the child and failed to prove that Father refused or failed to perform parental duties[?]Father's brief at 4.
II. Whether the trial court erred in terminating Natural Father's parental rights pursuant to Section 2511(b) when the record is devoid of any testimony as to the Father's bond with the minor child or as to what effect the severing of any bond would have on the minor child[?]
We review an order terminating parental rights in accordance with the following standard:
When reviewing an appeal from a decree terminating parental rights, we are limited to determining whether the decision of the trial court is supported by competent evidence. Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the decree must stand. Where a trial court has granted a petition to involuntarily terminate parental rights, this Court must accord the hearing judge's decision the same deference that we would give to a jury verdict. We must employ a broad, comprehensive review of the record in order to determine whether the trial court's decision is supported by competent evidence.In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (quoting In re S.H., 879 A.2d 802, 805 (Pa. Super. 2005)). 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 trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue."Id. (quoting In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)). 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). If competent evidence supports the trial court's findings, we will affirm even if the record could also support the opposite result. In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003).
We are guided further by the following: Termination of parental rights is governed by Section 2511 of the Adoption Act, which requires a bifurcated analysis.
Our case law has made clear that under Section 2511, the court must engage in a bifurcated process prior to terminating parental rights. 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) (citing 23 Pa.C.S. § 2511, other citations omitted). The burden is upon the petitioner to prove by clear and convincing evidence that the asserted grounds for seeking the termination of parental rights are valid. R.N.J., 985 A.2d at 276.
With regard to Section 2511(b), we direct our analysis to the facts relating to that section. This Court has explained that:
Subsection 2511(b) focuses on whether termination of parental rights would best serve the developmental, physical, and emotional needs and welfare of the child. In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005), this Court stated, "Intangibles such as love, comfort, security, and stability are involved in the inquiry into the needs and welfare of the child." In addition, we instructed that the trial court must also discern the nature and status of the parent-child bond, with utmost attention to the effect on the child of permanently severing that bond. Id. However, in cases where there is no evidence of a bond between a parent and child, it is reasonable to infer that no bond exists. In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super. 2008). Accordingly, the extent of the bond-effect analysis necessarily depends on the circumstances of the particular case. Id. at 763.In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
We have reviewed the certified record, the briefs of the parties, the applicable law, and the comprehensive opinion written pursuant to Pa.R.A.P. 1925(a) that was authored by the Honorable Katherine B. Emery of the Court of Common Pleas of Washington County, and filed on August 1, 2016. We conclude that Judge Emery's well-reasoned decision correctly addresses the issue raised by Father relating to Section 2511(a)(1), and rely on it for our review of Father's first issue.
However, for the reasons stated below, we address a limited portion of Judge Emery's decision with regard to Section 2511(b). In particular, we recognize that Judge Emery's opinion references the foster parents' willingness to have Father maintain a relationship with Child. Specifically, the trial court stated:
While the [c]ourt recognizes that, with [] Father, there is no guarantee that foster parents will do so, they have already agreed to an Act 101 Agreement with [] Mother and her
voluntary relinquishment was done with that contingency. There is no doubt with the [c]ourt that the foster parents will indeed maintain contact. They pursued the Christmas visit, not [] Father, and have been very supportive of both parents. The totality of the evidence established that no adverse effect will occur if the parental bond is legally severed as the status quo will continue and that there is only a minimal bond and the termination best meets the needs and welfare of [] [C]hild.Trial Court Rule 1925(a) Opinion (TCO), 8/1/16, at 11 (citation to the N.T. omitted).
An Act 101 Agreement is based upon the language contained in 23 Pa.C.S. § 2731, which provides:
§ 2731. Purpose of subchapter23 Pa.C.S. § 2731.
The purpose of this subchapter is to provide an option for adoptive parents and birth relatives to enter into a voluntary agreement for ongoing communication or contact that:
(1) is in the best interest of the child;
(2) recognizes the parties' interests and desires for ongoing communication or contact;
(3) is appropriate given the role of the parties in the child's life; and
(4) is subject to approval by the courts.
With reference to this portion of the trial court's decision, Father contends that the trial court "should not have considered the foster parents['] willingness to maintain contact between [] [F]ather and the minor [C]hild, as there is nothing enforceable about such an agreement. Such a consideration was an improper analysis of the totality of the circumstances in this case." Father's brief at 14 (emphasis added). To support this argument, Father relies on In re Adoption of G.L.L., 124 A.2d 344, 348 (Pa. Super. 2015) (stating that "[o]pen adoption is a purely voluntary arrangement requiring the consent of the adoptive parents in order to enter into an agreement with birth relatives for ongoing communication or contact that is in the best interest of the child"); and In re K.H.B., 107 A.2d 175, 184 (Pa. Super. 2014) (explaining that open adoption agreement is optional and not required by Section 2511; that the court erred in declining to grant petition for involuntary termination because of paternal aunt's refusal to enter into voluntary agreement; and the court improperly conflated analysis of termination of parental rights with adoption). Our review of these two cases reveals that neither are exactly on point with the facts as found in the instant matter.
Again, we conclude that in its opinion, the trial court sufficiently discussed the evidence presented, specifically recognizing that no "close, strong bond" exists between Father and Child and that the sole visit between Father and Child in the ten months prior to the termination hearing occurred at the behest of the foster parents. See TCO at 9-10. Therefore, we rely on the court's discussion in its opinion, relating to Section 2511(b), as the basis for concluding that the needs and welfare of Child would best be met by terminating Father's parental rights.
Separately, we note that the trial court's discussion quoted supra, relating to an Act 101 agreement, is superfluous at this point in the process as such an agreement for continuing contact "shall be filed with the court that finalizes the adoption of the child." 23 Pa.C.S. § 2735(a). Moreover, acceptance of such an agreement by the court does not occur until after a termination petition has been granted. Thus, we conclude that Father's assertions with regard to the trial court's consideration of an after-termination contact agreement are of no moment. Sufficient support for the trial court's decision appears in the record and the court's discussion of that evidence addresses Father's claims of error. Therefore, we also rely on Judge Emery's opinion for our review of Father's second issue.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/9/2017
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