Opinion
J-S43002-19 No. 668 MDA 2019
09-06-2019
IN RE: ADOPTION OF M.S., A MINOR APPEAL OF: T.S., FATHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree Entered March 28, 2019
In the Court of Common Pleas of Lackawanna County
Orphans' Court at No(s): A-5-2019 BEFORE: GANTMAN, P.J.E., DUBOW, J., and STEVENS, P.J.E. MEMORANDUM BY GANTMAN, P.J.E.:
Former Justice specially assigned to the Superior Court.
Appellant, T.S. ("Father"), appeals from the decree entered in the Lackawanna County Court of Common Pleas, which terminated Father's parental rights to his minor child, M.S. ("Child"). We affirm.
In its opinion, the trial court fully and correctly sets forth the relevant facts of this appeal. Therefore, we have no need to restate them. We add, on October 12, 2017, the Lackawanna County Children and Youth Services ("Agency") learned: Father may have kidnapped Child and did not have formula for Child; T.S. ("Mother") admitted using illicit drugs; and Father tested positive for marijuana and cocaine. That same day, the court entered a protective custody order, upon the Agency's petition, and placed Child in kindship care. Subsequently, the court adjudicated Child dependent on November 6, 2017.
The Agency filed a petition to terminate parents' parental rights to Child on January 24, 2019. On March 25, 2019, the court conducted a termination hearing as to both parents, where the court heard testimony from caseworker Rebecca Brojack and visitation worker Jennifer Radzwillowicz. At the hearing, one attorney represented Child as both her guardian ad litem ("GAL") and legal counsel, and indicated there was no conflict between Child's legal and best interests in light of her young age. The court terminated parents' parental rights to Child by decrees dated March 25, 2019, and entered March 28, 2019. On April 24, 2019, Father timely filed a notice of appeal and contemporaneous concise statement of errors complained of on appeal per Pa.R.A.P. 1925(a)(2)(i). Father's notice of appeal referenced both relevant dependency and adoption trial court docket numbers.
Child was 18 months old at the time of the termination hearing. See In Re: T.S., ___ Pa. ___, 192 A.3d 1080 (2018) , cert. denied, ___ U.S. ___, 139 S.Ct. 1187, 203 L.Ed.2d 220 (2019) (holding appointment of second counsel for child, in contested termination proceedings, is not required to represent separate legal interests of child, where child's legal interests and best interests do not diverge; due to child's young age (less than three years old), presumption exists that child was too young to express subjective preferred outcome of termination proceedings; therefore attorney-GAL could fulfill statutory mandate for appointment of counsel and represent both best interests and legal interests of child).
Mother did not file a notice of appeal and is not a party to this appeal.
On June 14, 2019, this Court issued a rule to show cause why Father's appeal should not be quashed for failure to comply with Commonwealth v. Walker , ___ Pa. ___, 185 A.3d 969 (2018). Appellant filed a response on June 20, 2019, explaining he intended to appeal only from the order terminating his parental rights to Child, which the court entered at the adoption docket number. On June 25, 2019, this Court discharged the rule to show cause and deferred the matter to the merits panel.
Father's concise statement and appellate issues demonstrate he is challenging on appeal only the order terminating his parental rights to Child. Thus, we see no jurisdictional impediments to our review under Walker , supra (requiring separate notices of appeal from single orders which resolve issues arising at separate trial court docket numbers).
Father raises two issues for our review:
WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW AND/OR MANIFESTLY ABUSED ITS DISCRETION IN DETERMINING THE AGENCY SUSTAINED ITS BURDEN OF PROVING THE TERMINATION OF FATHER'S PARENTAL RIGHTS IS WARRANTED UNDER SECTIONS 2511(A)(1) AND/OR 2511(A)(2) OF THE ADOPTION ACT?(Father's Brief at 10).
EVEN IF THIS COURT CONCLUDES THE AGENCY ESTABLISHED STATUTORY GROUNDS FOR THE TERMINATION OF FATHER'S PARENTAL RIGHTS, WHETHER THE TRIAL COURT NEVERTHELESS ERRED AS A MATTER OF LAW AND/OR MANIFESTLY ABUSED ITS DISCRETION IN DETERMINING THE AGENCY SUSTAINED ITS ADDITIONAL BURDEN OF PROVING THE TERMINATION OF FATHER'S PARENTAL RIGHTS IS IN THE BEST INTERESTS OF...CHILD?
As a prefatory matter, issues not raised in a Rule 1925 concise statement of errors will be deemed waived. Lineberger v. Wyeth , 894 A.2d 141 (Pa.Super. 2006). See also In re L.M., 923 A.2d 505 (Pa.Super. 2007) (applying Rule 1925 waiver standards in family law context). "Rule 1925(b) waivers may be raised by the appellate court sua sponte." Commonwealth v. Hill , 609 Pa. 410, 428, 16 A.3d 484, 494 (2011).
Here, in his first issue on appeal Father challenges the termination of his parental rights pursuant to Sections 2511(a)(1) and (a)(2) of the Adoption Act, 23 Pa.C.S.A. §§ 2101-2938. Father failed to raise in his concise statement, however, any claim regarding termination of his parental rights to Child under Section 2511(a)(2). Thus, Father failed to preserve any claim regarding Section 2511(a)(2), and his first issue is waived to the extent he attempts to present argument related to Section 2511(a)(2). See Lineberger , supra.
Appellate review of termination of parental rights cases implicates the following principles:
In cases involving termination of parental rights: "our standard of review is limited to determining whether the order of the trial court is supported by competent evidence, and whether the trial court gave adequate consideration to the effect of such a decree on the welfare of the child."In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972 A.2d 5, 8 (Pa.Super. 2009)).
Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the decree must stand. ... 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 B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004) (internal citations omitted).
Furthermore, we note that the trial court, as the finder
of fact, is the sole determiner of the credibility of witnesses and all conflicts in testimony are to be resolved by the finder of fact. The burden of proof is on the party seeking termination to establish by clear and convincing evidence the existence of grounds for doing so.
In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d 1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d 1165 (2008)).
In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super. 2002) (internal citations and quotation marks omitted). The standard of clear and convincing evidence means testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue. In re J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We may uphold a termination decision if any proper basis exists for the result reached. In re C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc). If the court's findings are supported by competent evidence, we must affirm the court's decision, even if the record could support an opposite result. In re R.L.T.M., 860 A.2d 190, 191-92 (Pa.Super. 2004).
The Adoption Act governs the involuntary termination of a parent's parental rights to a child and provides, in relevant part, 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.
23 Pa.C.S.A. § 2511(a)(1), (b). "Parental rights may be involuntarily terminated where any one subsection of Section 2511(a) is satisfied, along with consideration of the subsection 2511(b) provisions." In re Z.P., supra at 1117.
* * *
(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.
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... 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.In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).
Termination under Section 2511(a)(1) involves the following:
To satisfy the requirements of [S]ection 2511(a)(1), the moving party must produce clear and convincing evidence of conduct, sustained for at least the six months prior to the filing of the termination petition, which reveals a settled intent to relinquish parental claim to a child or a refusal or failure to perform parental duties. In addition,
Section 2511 does not require that the parent demonstrate both a settled purpose of relinquishing parental claim to a child and refusal or failure to perform parental duties. Accordingly, parental rights may be terminated pursuant to Section 2511(a)(1) if the parent either demonstrates a settled purpose of relinquishing parental claim to a child or fails to perform parental duties.
In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations omitted). Regarding the six-month period prior to filing the termination petition:
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...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).
[T]he 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...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, 855 (Pa.Super. 2004), appeal denied, 582 Pa. 718, 872 A.2d 1200 (2005) (internal citations omitted).
Under Section 2511(b), the court must consider whether termination will meet the child's needs and welfare. In re C.P., 901 A.2d 516, 520 (Pa.Super. 2006). "Intangibles such as love, comfort, security, and stability are involved when inquiring about the needs and welfare of the child. The court must also discern the nature and status of the parent-child bond, paying close attention to the effect on the child of permanently severing the bond." Id. Significantly:
In this context, the court must take into account whether a bond exists between child and parent, and whether termination would destroy an existing, necessary and beneficial relationship.In re Z.P., supra at 1121 (internal citations omitted).
When conducting a bonding analysis, 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.
"The statute permitting the termination of parental rights outlines certain irreducible minimum requirements of care that parents must provide for their children, and a parent who cannot or will not meet the requirements within a reasonable time following intervention by the state, may properly be considered unfit and have his...rights terminated." In re B.L.L., 787 A.2d 1007, 1013 (Pa.Super. 2001). This Court has said:
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.
This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child.
Because a child needs more than a benefactor, parental duty requires that a parent exert himself to take and maintain a place of importance in the child's life.In re B.,N.M., supra at 855 (internal citations and quotation marks omitted). "[A] parent's basic constitutional right to the custody and rearing of his...child is converted, upon the failure to fulfill his...parental duties, to the child's right to have proper parenting and fulfillment of [the child's] potential in a permanent, healthy, safe environment." Id. at 856.
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...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. Parental rights are not preserved by waiting for a more suitable or convenient time to perform one's parental responsibilities while others provide the child with [the child's] physical and emotional needs.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Andrew J. Jarbola, III, we conclude Father's remaining claims merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. ( See Trial Court Opinion, dated May 20, 2019, at 4-7) (finding: (1) Father failed to attend more than five visits with Child within six months before Agency filed petition to terminate his parental rights; during visits Father attended, he required significant redirection to interact appropriately with Child; Father failed to develop bond with Child and did not complete any parenting classes, which would enable him to perform his parental duties; lastly, Father failed to maintain sober lifestyle to ensure Child would be safe if returned to Father's custody and care; (2) Agency proved Child thrives within loving, foster home, and has strong, loving bond with her foster parents and foster siblings; Child refers to foster parents as mom and dad; at conclusion of March 2019 hearing, attorney/GAL for Child indicated to court there was no conflict of interest between Child's best interest and legal interest, due to Child's age; Child's counsel argued for termination and opined it was in Child's best interests; chief among concerns for Child were Child's well-being, permanency, and consistency; termination of Father's parental rights served Child's best interests). The record supports the trial court's decision. Accordingly, we affirm on the basis of the trial court opinion.
Decree affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/6/2019
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