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In re Adoption of S.D.

SUPERIOR COURT OF PENNSYLVANIA
Feb 26, 2020
No. 1273 MDA 2019 (Pa. Super. Ct. Feb. 26, 2020)

Opinion

J-A30012-19 No. 1273 MDA 2019

02-26-2020

ADOPTION OF: S.D., A MINOR APPEAL OF: T.M.A., MOTHER


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Decree Entered July 3, 2019
In the Court of Common Pleas of York County Orphans' Court at No(s): 2019-0009a BEFORE: DUBOW, J., NICHOLS, J., and COLINS, J. MEMORANDUM BY DUBOW, J.:

Retired Senior Judge assigned to the Superior Court.

Appellant, T.M.A. ("Mother"), appeals from the July 3, 2019 Decree that granted the Petition for Involuntary Termination of Parental Rights ("TPR Petition") filed by D.D. ("Father") and involuntarily terminated Mother's parental rights to S.D. ("Child"). Upon careful review, we affirm.

The lower court has provided this Court with a well-written, thorough, and comprehensive Pa.R.A.P. 1925(a) Opinion, which sets forth the relevant factual and procedural history of this case, and we adopt its detailed recitation for purposes of this appeal. See Trial Ct. Op., filed 8/19/19, at 1-8. In sum, Mother and Father are parents to ten-year-old Child. Mother has a history of substance abuse, including a 2015 guilty plea to a drug offense. Since 2015, Father has had primary physical custody of Child and Mother has had partial physical custody every other weekend. The stipulated custody order provided that, upon Father's request, Mother shall take a drug test within forty-eight hours and in the event she fails the requested drug test, her custody rights will be automatically suspended until further order of the court. In June 2018, after Mother failed to exercise her partial physical custody with Child, Father requested that Mother take a drug test and Mother refused.

Father filed a Petition for Special Relief and a Petition to Modify Custody, and on July 23, 2018, after a hearing, the custody court made a finding that Mother failed or refused to take a drug test and scheduled a custody conciliation conference, which Mother failed to attend. On August 28, 2018, the custody court issued an Interim Order, which awarded Father sole legal and physical custody of Child, suspended Mother's partial physical custody rights pending a scheduled custody trial, ordered Mother to attend a custody workshop, and ordered Mother to undergo a threat of harm evaluation pursuant to 23 Pa.C.S. § 5329 to determine whether she posed a threat of harm to Child because of her 2015 drug conviction.

Mother failed to appear at the pre-trial conference and to provide documentation that she attended the custody workshop or participated in a threat of harm evaluation. On January 11, 2019, the custody hearing began. Mother appeared, and the custody court reinstated her shared legal and partial physical custody rights to Child. The custody court scheduled the hearing to resume on March 29, 2019. Notably, Mother failed a drug test on February 27, 2019, and on March 22, 2019, the custody court once again suspended her custody rights pending the conclusion of the custody trial.

On the same day the custody trial began, January 11, 2019, Father filed a TPR Petition pursuant to 23 Pa.C.S. § 2511(a)(1), asserting that Mother had failed to perform parental duties for the six months immediately preceding the filing of the Petition. The court scheduled a hearing and continued the custody proceedings pending the outcome of the hearing.

At the TPR hearing, the court heard testimony from Child; Father; Mother; Ashley Turgeon Milspaw, Psy.D., expert in Psychology and bonding assessment evaluator; Joshua Talarico, Ph.D, drug and alcohol counselor; and K.S., Mother's boyfriend's mother.

In sum, Father testified that Mother has not seen or contacted Child in the past six months. Father further testified that Mother did not contact him to request visitation, call to speak to Child, send or drop off gifts for Child, write letters to Child, or participate in Child's educational or medical care during that time. Father acknowledged that Mother contacted him via text message one time in October 2018 to ask if she could drop off a gift for Child and he did not respond. See Trial Ct. Op., filed 8/19/19, at 5.

Mother testified that she did not check her mail for four months to receive information about court proceedings, re-engaged in drug and alcohol counseling and a methadone treatment program in October but still used marijuana recreationally, asked Father for visitation with Child in August 2018 and Father denied her request, and hired an attorney to pursue visitation with Child as soon as she had enough money. Mother admitted that she did not have contact with Child from June 2018 until January 2019 and stated that she was not in her right state of mind during that time. See id. at 6-7.

Child testified that he calls his stepmother "Mom" and calls Mother by her first name. Child stated that Mother has treated him awfully, lies to him all the time, and has not seen him in six or seven months. Child expressed that he does not have a close relationship with Mother and does not want her to be his mother anymore. See id at 4; N.T. Hearing, 4/24/19, at 5-10.

The court also heard testimony from Dr. Milspaw, who stated that Child had a bond with Father and his stepmother but did not have a strong bond with Mother, and Child would not experience emotional harm if the court terminated Mother's parental rights. Dr. Talarico testified that since October 2018, Mother was compliant with her methadone treatment program and drug, and alcohol counseling, but that the program did not test for marijuana use. See Trial Ct. Op. at 6, 16.

On July 2, 2019, the court issued a Decree terminating Mother's parental rights to Child.

Mother timely appealed. Both Mother and the trial court complied with Pa.R.A.P. 1925.

Mother raises the following issues on appeal:

1. Whether the [c]ourt improperly found that Father met his burden by establishing clear and convincing evidence to involuntarily terminate parental rights.
2. Whether Mother's actions toward sobriety and regaining her custody rights, which began prior to the petition to terminate her rights, and continued after the petition, should be considered.

3. Whether Father's campaign to keep Mother away from [C]hild should be considered in Mother's favor when weighing the actions taken by Mother to made contact with [C]hild.

4. Whether evidence of the sibling's strong bond with [C]hild should be considered.

5. Whether the court improperly relied on Father's bonding assessment regarding step[]mother and [C]hild, when the expert did not review any collateral resources from Mother or reach out to Mother for input.

6. Whether the [c]ourt improperly considered a "needs and welfare analysis prior to fully determining whether Mother's actions justified termination.
Mother's Br. at 3 (numbering added for ease of disposition).

When we review a trial court's decision to grant or deny a petition to involuntarily terminate parental rights, we must accept the findings of fact and credibility determinations of the trial court if the record supports them. In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). "If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion." Id. (citation omitted). "Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the decree must stand." In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (citation omitted). We may not reverse merely because the record could support a different result. In re T.S.M., 71 A.3d at 267. We give great deference to the trial courts "that often have first-hand observations of the parties spanning multiple hearings." Id. Moreover, "[t]he 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) (citation omitted).

Section 2511 of the Adoption Act, 23 Pa.C.S. § 2511, governs termination of parental rights, and requires a bifurcated analysis. "Initially, the focus is on the conduct of the parent." In re Adoption of A.C., 162 A.3d 1123, 1128 (Pa. Super. 2017) (citation omitted). "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)." Id. (citation omitted). If the court determines that the parent's conduct warrants termination of his or her parental rights, the court then engages 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." Id. (citation omitted).

Section 2511(a)(1) provides that the trial court may terminate parental rights if the Petitioner establishes 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. § 2511(a)(1). The focus of involuntary termination proceedings is on the conduct of the parent and whether that conduct justifies a termination of parental rights. In re B.L.L., 787 A.2d 1007, 1013 (Pa. Super. 2001). Although the statute focuses on an analysis of the six months immediately preceding the filing of the petition, the court must consider the whole history of a given case and may consider a parent's inaction before the six-month statutory provision. In re K.Z.S., 946 A.2d 753, 758 (Pa. Super. 2008). Additionally, "[t]he 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." Id. (citations omitted).

This Court has repeatedly defined "parental duties" in general as the affirmative obligation to provide consistently for the physical and emotional needs of a child:

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 . . . 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., 856 A.2d 847, 855 (Pa. Super. 2004) (citations, internal quotation marks, and internal paragraph breaks omitted).

Moreover, "[p]arental 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 or her ability, even in difficult circumstances." Id. (citation omitted). "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." Id. (citation omitted). And most importantly, "[p]arental 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 his or her physical and emotional needs." Id. (citation omitted).

In her first issue, Mother challenges both the sufficiency and weight of the evidence. Mother avers that the trial court abused its discretion when it determined that Father presented clear and convincing evidence to involuntarily terminate her parental rights. Mother's Br. at 3, 11. Mother concedes that she had "little contact" with Child over a six-month period but argues that the lower court failed to consider that she made efforts to re-engage in drug and alcohol treatment preceding the filing of the TPR Petition, her visitation with Child was suspended via a custody order, and Father disallowed contact with Child. Id. at 12-18. Finally, Mother argues that the court placed too much focus on Mother's failed drug test rather than her efforts to maintain sobriety. Id.

In her next five issues, Mother raises additional challenges to the weight of the evidence. Mother argues that the court failed to consider her efforts towards sobriety, Father's actions to keep Mother away from Child, and Child's bond with his sibling. Id. at 3, 18-22. Mother also contends that the court placed undue weight on a bonding analysis that did not include an interview with Mother. Id. at 3, 23-25. Finally, Mother asserts that the court placed too much weight on a "needs and welfare" analysis rather than focusing on whether Mother evidenced a settled purpose of relinquishing her parental claim to Child. Id. at 3, 25-26.

After a careful review of the parties' arguments and the record, we conclude that the record supports the trial court's findings. We decline to reweigh the evidence or usurp the lower court's credibility determinations. See In re T.S.M., 71 A.3d at 267; In re M.G., 855 A.2d at 73-74. Accordingly, we adopt the well-written, thorough, and comprehensive Opinion of the Honorable N. Christopher Menges as our own. See Trial Ct. Op., filed 8/19/19, at 8-23 (finding that for the six months prior to the filing of the petition, Mother had no contact with Child, failed to perform parental duties for Child, made minimal attempts to contact Father or his counsel, and re-engaged in drug and alcohol counseling but continued to illegally use marijuana, and concluding that it would be in Child's best interest to terminate Mother's parental rights pursuant to Section 2511(a)(1) and (b)).

Decree affirmed. We direct the parties to attach a copy of the trial court's August 19, 2019 Pa.R.A.P 1925(a) Opinion to any future filings.

Judge Colins joins the memorandum.

Judge Nichols notes dissent. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/26/2020

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Summaries of

In re Adoption of S.D.

SUPERIOR COURT OF PENNSYLVANIA
Feb 26, 2020
No. 1273 MDA 2019 (Pa. Super. Ct. Feb. 26, 2020)
Case details for

In re Adoption of S.D.

Case Details

Full title:ADOPTION OF: S.D., A MINOR APPEAL OF: T.M.A., MOTHER

Court:SUPERIOR COURT OF PENNSYLVANIA

Date published: Feb 26, 2020

Citations

No. 1273 MDA 2019 (Pa. Super. Ct. Feb. 26, 2020)