In re D.W.G.

Full title: IN RE: D.W.G., III APPEAL OF: D.W.G., JR., NATURAL FATHER IN RE: A.S.E.G…

Court: SUPERIOR COURT OF PENNSYLVANIA

Date published: May 15, 2017

J-S31015-17 (Pa. Super. Ct. May. 15, 2017)

Opinion

J-S31015-17 No. 77 WDA 2017 No. 78 WDA 2017

05-15-2017

IN RE: D.W.G., III APPEAL OF: D.W.G., JR., NATURAL FATHER IN RE: A.S.E.G. APPEAL OF: D.W.G., JR., NATURAL FATHER

MEMORANDUM BY PANELLA, J.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered December 14, 2016
In the Court of Common Pleas of Blair County
Orphans' Court at No(s): 2016 AD 11C Appeal from the Order December 14, 2016
In the Court of Common Pleas of Blair County
Orphans' Court at No(s): 2016 AD 11B BEFORE: PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY PANELLA, J.

D.W.G., Jr. ("Father") appeals from the order entered on December 14, 2016, granting the petition filed by S.D.S. ("Mother") and her husband, J.M.S., ("Stepfather") to involuntarily terminate his parental rights to his female child, A.S.E.G., born in August 2007, and his son, D.W.G., III, born in December 2005, (collectively, the "Children"), pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1) and (b). We affirm.

In its opinion, the trial court set forth the factual background and procedural history of this appeal, which we adopt herein. See Orphans' Court Opinion, 12/14/16, at 1-9. On March 16, 2016, Mother and Stepfather filed the petitions seeking to involuntarily terminate the parental rights of Father to the Children. The court held an evidentiary hearing on August 10, 2016. At the hearing, Mother and Stepfather testified on their own behalf. Father testified on his behalf, and presented the testimony of P.R., his mother.

Based on this testimony and the documentary evidence admitted at the hearing, the court entered its termination order and opinion on December 14, 2016. Father timely filed notices of appeal and concise statements pursuant to Pa.R.A.P. 1925(a)(2)(i).¹

1 This Court, acting sua sponte, consolidated the two appeals.

On appeal, Father raises four issues:

I. Whether or not the Mother has demonstrated by clear and convincing evidence that the Father's conduct over a period of at least six months immediately preceding the filing of the Petition demonstrates a settled purpose of relinquishing his parental claim?

II. Whether or not the Natural Father used all available resources to preserve the parent-child relationship such that the termination of parental rights should not have been granted?

III Whether or not the termination of the parental rights of the responding parent should be granted where the petitioning parent actively sought to undermine and obstruct the relationship between the responding parent and his children?

IV. Whether or not the Mother or the Guardian Ad Litem put forth adequate evidence to allow the Honorable Trial Court to make a constitutionally sufficient determination regarding whether or not there exists a bond between the Father and his Children that would have a detrimental impact on the Children if it were severed?

Father's Brief, at 5.

In reviewing an appeal from an order terminating parental rights, we adhere to the following standard:

[A]ppellate courts must apply an abuse of discretion standard when considering a trial court's determination of a petition for termination of parental rights. As in dependency cases, our standard of review requires an appellate court 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. As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will.

[T]here are clear reasons for applying an abuse of discretion standard of review in these cases. We observed that, unlike 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, 826-827 (Pa. 2012) (internal 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. See In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).²

2 Thus, the burden to support the petition is not on both the petitioner and the guardian ad litem, as alleged by Father. --------

Moreover, we have explained that

[t]he 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., 837 A.2d 1247, 1251 (Pa. Super. 2003)).

In his brief, Father contends that the court abused its discretion or erred as a matter of law in concluding that the evidence was sufficient to support the involuntary termination of his parental rights under § 2511(a)(1) and (b).

This Court may affirm the trial court's decision regarding the termination of parental rights with regard to any one subsection of section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Here, as noted, the court terminated Father's parental rights under § 2511(a)(1) and (b), which provides 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.


* * *

(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.

23 Pa.C.S.A. § 2511(a)(1), (b).

With respect to subsection 2511(a)(1), our Supreme Court has held that

[o]nce 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) (citation omitted).

Further, this Court has stated that

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, 854-855 (Pa. Super. 2004) (citations omitted).

Father argues that the record clearly established that the Mother failed to sufficiently demonstrate that his conduct over the six months immediately preceding the filing of the petition demonstrated that he had a settled purpose of relinquishing his parental claim. Additionally, Father asserts that he put forth reasonable and significant efforts to find and contact the Children, and to maintain his bond with them, considering all of the circumstances surrounding this case.

Specifically, Father contends that he was incarcerated, and he utilized all of the resources available to him to attempt to establish a connection with the Children. At the same time, Mother was engaging in ongoing efforts to evade Father and prevent a relationship between him and the Children. Father alleges that Mother utilized his incarceration to further these efforts by refusing to provide him with a contact address, and by moving to Pennsylvania without telling him.

Moreover, Father contends that the record also clearly established that Mother actively sought to prevent and obstruct his relationship with the Children, and that, by terminating Father's parental rights, the trial court rewarded Mother's misconduct. Father claims that, considering the totality of the circumstances and the bad faith conduct of Mother, the trial court should have excused his lack of success in contacting the Children.

Obviously, incarceration makes performance of the duty to protect, support, and maintain communication with a child much more difficult. Our Supreme Court has instructed that

a parent's absence and/or failure to support due to incarceration is not conclusive on the issue of abandonment. Nevertheless, we are not willing to completely toll a parent's responsibilities during his or her incarceration. Rather, we must inquire whether the parent has utilized those resources at his or her command while in prison in continuing a close relationship with the child. Where the parent does not exercise reasonable firmness in declining to yield to obstacles, his other rights may be forfeited.

47 A.3d at 828 (quoting In re: Adoption of McCray , 331 A.2d 652, 655 (Pa. 1975)). "[I]ncarceration neither compels nor precludes termination of parental rights." Id. (quoting In re Z.P., 994 A.2d 1108, 1120 (Pa. Super. 2010)).

Regarding subsection (b), Father argues that neither Mother nor the guardian ad litem put forth sufficient evidence to allow the trial court to make a determination as to the existence of a bond between Father and the Children that, if severed, would have a detrimental impact on them.

This Court has stated that the focus in terminating parental rights under § 2511(a) is on the parent, but it is on the child pursuant to subsection (b). See In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super 2008) (en banc).

In reviewing the evidence in support of termination under section 2511(b), our Supreme Court recently stated 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. § 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).

When evaluating a parental bond, "the court is not required to use expert testimony. Social workers and caseworkers can offer evaluations as well. Additionally, Section 2511(b) does not require a formal bonding evaluation." In re Z.P., 994 A.2d at 1121 (internal citations omitted). Although it is often wise to have a bonding evaluation and make it part of the certified record, "[t]here are some instances . . . where direct observation of the interaction between the parent and the child is not necessary and may even be detrimental to the child." In re K.Z.S., 946 A.2d 753, 762 (Pa. Super. 2008) (citation omitted).

The fact that the child "harbors affection" for a parent and that there is a biological connection is not enough "to establish [that] a de facto beneficial bond exists." In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) "The psychological aspect of parenthood is more important in terms of the development of the child and [his or her] mental and emotional health than the coincidence of biological or natural parenthood." Id. (citations omitted).

"[A] parent's basic constitutional right to the custody and rearing of . . . her child is converted, upon the failure to fulfill . . . her parental duties, to the child's right to have proper parenting and fulfillment of [the child's] potential in a permanent, healthy, safe environment." In re B., N.M., 856 A.2d 847, 856 (Pa. Super. 2004) (internal citations omitted). "[W]e will not toll the well-being and permanency of [a child] indefinitely." In re Adoption of C.L.G., 956 A.2d at 1007 (citing In re Z.S.W., 946 A.2d 726, 732 (Pa. Super. 2008) (noting that a child's life "simply cannot be put on hold in the hope that [a parent] will summon the ability to handle the responsibilities of parenting.")).

With the above standards of review in mind, we have thoroughly reviewed the record, the parties' briefs, and the applicable law. We find that the court ably and methodically considered the evidence presented at trial, and addressed Father's issues. The record supports the court's factual findings, and the court's legal conclusions are not the result of an error of law or an abuse of discretion; competent evidence supports the court's determinations. Accordingly, we affirm the court's order based on the discussion in the opinion entered on December 14, 2016. See Trial Court Opinion, 12/14/16.

Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/15/2017

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