Opinion
J-S13015-19 No. 1121 WDA 2018
04-16-2019
IN RE: L.G.R. APPEAL OF: M.C.R., NATURAL FATHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered July 17, 2018
In the Court of Common Pleas of Butler County
Orphans' Court at No(s): OA NO. 27 of 2018 BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, MEMORANDUM BY BENDER, P.J.E.:
Retired Senior Judge assigned to the Superior Court.
M.C.R. (Father) appeals from the order, dated July 12, 2018, and entered on July 17, 2018, that involuntarily terminated his parental rights to his son, L.G.R. (Child), born in August of 2016. After review, we affirm.
J.N.G. (Mother) signed a consent to adoption in February of 2018 and has not filed an appeal, nor is she a party to the instant appeal.
On appeal, Father's brief contains the following two questions for our review:
1. The [c]ourt erred when it neither allowed nor considered testimony and evidence concerning Father's reunification efforts or explanation for lack thereof after the date Children and Youth Services filed its [p]etition for [i]nvoluntary [t]ermination. Father contends that 23 Pa.C.S. § 2511(b)[] preclusion from considering such testimony and evidence violates right to due process under the Pennsylvania and United States Constitutions.Father's brief at 11. Father combines his arguments as to both issues into one in the argument section of his brief.
2. The [c]ourt erred when it did not allow rebuttal testimony or evidence from Father that his failure to make progress towards reunification was due to violation of his due process rights in his Allegheny County criminal case.
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)). The burden is upon the petitioner to prove by clear and convincing evidence that its asserted grounds for seeking the termination of parental rights are valid. R.N.J., 958 A.2d at 276. 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 have reviewed the certified record, the briefs of the parties, the applicable law, and the comprehensive opinion authored by the Honorable Kelley T.D. Streib of the Court of Common Pleas of Butler County, filed on November 8, 2018. We have also reviewed Judge Streib's Findings of Fact and Memorandum, issued on July 12, 2018, and incorporated into the opinion filed pursuant to Pa.R.A.P. 1925(a)(2). We conclude that Judge Streib's well-reasoned opinion properly disposes of the issues raised by Father. Of particular note, Judge Streib pointed out that Father was not precluded from producing any testimony or evidence at the termination hearing and that all evidence and testimony presented was considered. Moreover, Judge Streib emphasized Father's failure to contact or take advantage of his liberal visitation schedule that was in place even before his incarceration began. Additionally, we agree that it is evident that Father's incarceration was not the sole basis for the termination of his parental rights. Accordingly, we adopt Judge Streib's opinion as our own and affirm the order appealed from on that basis.
Father should also be aware that we could find his constitutional challenge to the language contained in 23 Pa.C.S. § 2511(b) to be waived for failure to give notice to the Pennsylvania Attorney General. See Pa.R.A.P. 521 (relating to notice to attorney general of challenges to constitutionality of statute); Pa.R.C.P. 235 (same); Fotopoulos v. Fotopoulos , 185 A.3d 1047, 1055 (Pa. Super. 2018) (finding waiver of husband's constitutional challenge to a rule regarding the allowance of testimony by electronic means where there was no indication that husband gave notice to the state attorney general and his argument on appeal was poorly articulated and woefully underdeveloped).
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/16/2019
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