Opinion
J-A03002-20 No. 1492 MDA 2019 No. 1493 MDA 2019
02-18-2020
IN RE: P.H.J.P., A MINOR APPEAL OF: G.P., FATHER IN RE: P.J.P., A MINOR APPEAL OF: G.P., FATHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree Entered August 15, 2019
In the Court of Common Pleas of York County Orphans' Court at No(s): 2019-0088 Appeal from the Decree Entered August 15, 2019
In the Court of Common Pleas of York County Orphans' Court at No(s): 2019-0090 BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J. MEMORANDUM BY LAZARUS, J.:
G.P. (Father) appeals from the trial court's orders involuntarily terminating his parental rights to his two minor children, P.H.J.P. (born 5/2008) and P.J.P. (born 5/2010) (collectively, Children) and transferring custody of Children to K.O. (Mother). Father argues on appeal that Mother used "obstructionist" tactics to thwart his efforts to perform his parental duties and, therefore, his parental rights to Children should not have been terminated. After careful review, we affirm.
On November 19, 2019, our Court sua sponte consolidated the appeals at Nos. 1492 and 1493 MDA 2019, as both appeals involve the same appellant and similar issues. See Pa.R.A.P. 513.
We note that by filing two separate notices of appeal with one docket number on each notice, Father has complied with the dictates of Commonwealth v. Walker , 185 A.3d 969 (Pa. 2018), which held that "where a single order resolves issues arising on more than one docket, separate notices of appeal must be filed for each of those cases." See also Pa.R.A.P. 341(a).
Mother and Father were married in September 2006; they divorced in September 2016. Father has not financially supported Children since his separation from Mother in 2009. Father had a son with another woman during his separation from Mother. In September 2011, Father was convicted of endangering the welfare of children, simple assault, aggravated assault and various other charges and sentenced to 11½ to 23 months in prison. The charges arose after Father was alleged to have abused his other biological child (not with Mother). Father filed for custody of Children when he was briefly released from jail in February 2012. Father was rearrested and recommitted to jail shortly after filing for custody and, as a result, did not attend the custody hearing held in April 2012. Mother was ultimately granted full custody of Children. Father was released from jail in August 2015. Father filed petitions to modify custody in 2016 and 2017, seeking partial physical custody of Children during holidays. Father moved to Virginia in April 2018, a three-and-a-half hour drive from Children; he was still living in Virginia at the time of the termination hearing.
Mother successfully petitioned for two protection from abuse (PFA) orders against Father; the final orders were entered in August 2015 and October 2018. The second order, which was still in effect at the time of the termination hearing, permitted Father to have limited contact with Children through counsel to ascertain their health and welfare. Moreover, the order specified that once Father underwent a risk of harm evaluation pursuant to 23 Pa.C.S. § 5328 , and was determined not to pose a risk of harm to Children, he may contact counsel "to make . . . arrangements with regards to custody." PFA Order, 10/1/18, at ¶5. At the time of the termination hearing, Father still had not obtained a risk of harm evaluation that was acceptable to the court.
The court's August 2015 PFA order expired in three years, in August 2018. The court denied Mother's request to extend the order. The October 2018 PFA order expired in one year, in October 2019.
See 23 Pa.C.S. § 5328 (factors to consider when awarding custody). Specifically, when ordering any form of custody, the court shall determine the best interest of the child by considering, in part, the following: the present and past abuse committed by a party or member of the party's household; whether there is a continued risk of harm to the child or an abused party; which party can better provide adequate physical safeguards and supervision of the child; and any information relating to consideration of child abuse and involvement with protective services. See id. at § 5328(a)(2), (2.1).
On June 4, 2019, Mother petitioned to terminate Father's parental rights to Children under 23 Pa.C.S. §§ 2511(a)(1), (b) of the Adoption Act. On August 14, 2019, the trial court held a termination hearing where Mother and Father testified. The court, without counsels' objection, took judicial notice of Father's temporary and permanent PFA orders, self-reporting risk of harm evaluations, and the trial court's June 21, 2019 opinion and order as it related to the parties' custody proceedings. At the hearing, Mother testified that she had been granted sole legal and physical custody of Children in 2012, that Father has not provided any financial support for Children since the parties' separation in 2009, that Father has had almost no contact with children since 2009, that Children do not have a relationship or bond with Father, that Children have a bond with Stepfather whom they call "Dad," and that termination of his parental rights would be in Children's best interests.
Mother and Father's custody trial was held on June 7, 2019. On June 21 2019, the court entered a custody order stating that it was "unable to find that Father does not pose a risk of harm to the Children and[,] therefore[,] finds that Father should not be permitted any unsupervised contact with the Children." Opinion and Order, 6/24/19, at 2. Accordingly, the court awarded Mother sole legal and primary physical custody of Children. Father was permitted access to Children's medical, dental, religious and school records, see 23 Pa.C.S. § 5336(a), and granted supervised physical custody with Children. All communications between Father and Children were ordered to go through or be supervised by a counselor. The trial court's opinion and order reiterated that Father has failed to obtain a threat of harm evaluation since March 2012. As per the order, Father will not gain unsupervised visitation until he obtains the evaluation.
Pursuant to section 2512(a)(1),"[a] petition to terminate parental rights with respect to a child under the age of 18 years may be filed by . . . [e]ither parent when termination is sought with respect to the other parent." When a parent petitions for the involuntary termination of the other natural parent's parental rights under section 2512(a), that petitioning parent must include in his or her petition "an aver[ment] that an adoption is presently contemplated [or] that a person with a present intention to adopt exits." 23 Pa.C.S. § 2512(b). Accordingly, on the same date that Mother filed her petition to terminate, Mother and Stepfather filed a petition to adopt Children under 23 Pa.C.S. § 2701.
23 Pa.C.S. §§ 2101-2938.
Guardian ad litem Kelly McNaney, Esquire, represented Children at the termination hearing as there was no conflict between their legal and best interests. See In Re: T.S., E.S., 192 A.3d 1080, 1092 (Pa. 2018) ("[D]uring contested termination-of-parental-rights proceedings, where there is no conflict between a child's legal and best interests, an attorney-guardian ad litem representing the child's best interests can also represent the child's legal interests."); see also N.T. Termination Hearing, 8/14/19, at 88, 91.
Mother testified that Father sent her two letters for Children while he was incarcerated. N.T. Termination Hearing, 8/14/19, at 22.
At the hearing, Father testified that he wrote Children letters from jail every month from 2012-2015, but that all but two of them were "return[ed] to sender." N.T. Termination Hearing, 8/14/19, at 65. He also testified that he did nothing to support Children since the parties' separation because when he came out of jail he "didn't have a job, [had] a record, [was] wait[ing] for the PFA to [end], and Mother "was hiding with [his] kids." Id. at 75-76. At the time of the hearing, Father was working as a music producer and trying to release his own album. Id. at 78. Finally, Father testified that his goal is to "be able to raise [his] children . . . to become good model citizens in th[is] society . . . [so] that they can contribute to the society[] so they're not a burden to any taxpayer." Id. at 70.
Following the hearing, the court granted Mother's termination petition on the basis of sections 2511(a)(1) and (b), specifically finding that:
A parent's rights "in regard to a child may be terminated after a petition" proves, by clear and convincing evidence that "[t]he 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.A. § 2511(a)(1) (emphasis added). Here, Mother's attorney conceded that he would be pursuing termination under the latter portion of section 2511(a)(1), that Father has "failed to perform parental duties." N.T. Termination Petition, 8/14/19, at 28.
[Father] had not evidenced a settled purpose by virtue of his continued attempts to seek custody despite his failure to comply with multiple directives of the [c]ourt. We found that [Father] has refused or failed to perform parental duties, which [Father] admitted in his testimony. To the extent that [Father] believes [Mother's] conduct obstructed his efforts - and as noted in the record - [Mother] filed a [PFA] order to protect her children and received a one[-]year order after a hearing at which [Father] appeared self-represented.Trial Court Pa.R.A.P. 1925(a) Opinion, 9/24/19, at 3-4. Father filed pro se notices of appeal from the termination orders as well as a pro se Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
On September 12, 2019, Father's counsel of record, Farley G. Holt, Esquire, filed a praecipe for withdrawal of appearance/praecipe to enter appearance pro se. On that same date, Father petitioned for court-appointed counsel and for in forma pauperis (IFP) status and filed his notice of appeal and Rule 1925(b) concise statement of errors complained of on appeal pro se. On September 20, 2019, the court granted Father IFP status and appointed current appellate counsel, Erik Spurlin, Esquire, to represent Father "for the purpose of assisting in the Appeal." Order Appointing Counsel, 9/24/19.
On appeal, Father presents the following issue for our consideration:
Whether the trial court erred by finding clear and convincing evidence that [Father] refused or failed to perform parental duties in the six months preceding the termination petition in disregard [of] clear evidence that[:] (i) Mother engaged in obstructive behavior designed to prevent [Father] from performing such duties; (ii) performing such duties would have required [Father] to violate the terms of a Protection from Abuse Order acquired by Mother that extended to the Children and covered the entirety of the relevant six-month period; and (iii) [Father] filed for custody of the Children and completed a risk of harm evaluation in connection therewith during the relevant six-month period, thereby taking the only action he was legally permitted to take with respect to the Children during the time in question?Appellant's Brief, at 3.
We first note that Father's self-reporting evaluation and February 2019 evaluation by Luis Rivera, Ph.D., do not comply with the court's directive that he undergo an evaluation that takes into account information from Mother in order to determine, to a reasonable degree of medical certainty, whether Father is believed to be a threat to Children. Father contends that Mother employed "obstructionist" tactics to prevent him from finding Children, even necessitating him to hire a private investigator to track her and Children down. While Mother undoubtedly made it difficult for Father to locate her and Children when he was not in prison, her actions were based on her justified fear of Father as a result of his past abusive behavior. Moreover, as the court noted, Father was afforded the opportunity to communicate with counsel to inquire about the health and welfare of Children while the PFA was in place, but made no efforts to do so. He has had limited contact with Children since he separated from Mother and, when he did have contact, Father was unable to interact with them appropriately. In fact, Father's conduct caused Children to fear him. The court concluded no bond exists between Father and Children. Finally, the trial court did not find Father credible. See N.T. Termination Hearing, 8/14/19, at 96.
After reviewing the notes of testimony from the termination hearing, the remainder of the certified record, relevant case law and the parties' briefs, we rely upon the Honorable Andrea Marceca Strong's trial court opinion dated September 24, 2019, and her on-the-record decision from the termination proceedings to affirm the order terminating Father's parental rights to Children. See Termination Hearing, 8/14/19, at 97-99 (where Father failed to pay financial support, had not made recent efforts to contact children since his release from jail three years prior, had not complied with terms of PFA order in order to regain unsupervised visitation and custody of Children, exhibited alarming behavior frightening Children, never contacted counsel to ascertain health and welfare of Children while PFA order in effect, failed to send Children any letters, gifts or monetary support, and put his own desires over that of best interest of his Children, clear and convincing evidence exists to terminate parental rights under section 2511(a)(1)); see also In re D.J.S., 737 A.2d 283, 287 (Pa. Super. 1999) (It is well-settled that "[p]arental rights may not be preserved by waiting for some more suitable financial circumstance or convenient time for the performance of parental duties and responsibilities.") (citation omitted). We instruct the parties to attach a copy of Judge Strong's opinion in the event of further proceedings in the matter.
Although not raised on appeal, because termination is a two-part process, we also find that clear and convincing evidence existed to prove termination under section 2511(b) as it was in the best interest of Children and furthered their needs and welfare. See N.T. Termination Hearing, 8/14/19, at 100-102. See also In re C.P., 901 A.2d 516, 520 (Pa. Super. 2006) (party seeking termination of parental rights bears burden of proving by clear and convincing evidence that at least one of eight grounds for termination under 23 Pa.C.S. § 2511(a) exists and that termination promotes emotional needs and welfare of child set forth in 23 Pa.C.S. § 2511(b)) (emphasis added). --------
Judge Dubow joins this Memorandum.
Judge Stabile concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 02/18/2020
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