In Int. of : J.L.R. Appeal of: J.A.R. (memorandum)
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J-S25032-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE INTEREST OF: J.L.R., a Minor APPEAL OF: J.A.R., Father IN THE SUPERIOR COURT OF PENNSYLVANIA No. 2167 MDA 2013 Appeal from the Decree entered November 7, 2013, in the Court of Common Pleas of Lancaster County, -2012-2371 BEFORE: OTT, STABILE and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED APRIL 29, 2014 J.A.R ights, pursuant to section 2511(a)(1) and (b) of the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1) and (b), so that Maternal Uncle and Partner may adopt Child. We affirm. The trial court set forth the relevant facts as follows: [Father] was not present at [Chil was in the delivery room and cut the umbilical cord. [Father] became incarcerated on February 28, 2013. Before that, he was sentenced to serve 3 to 6 years in prison, but is hoping to be released sometime next year. birth. [Father] claimed that in 2007[,] he lived with [Child year. He claims that after they separated, he was told by J-S25032-14 anymore[,] and he did not have much contact with [Child] after that. . . . [Mother] moved around from 2007 to 2009 and - A custody action involving [Child] was commenced by [M.M.] after [Mother] granted [Maternal Uncle] guardianship of [Child] and [K.M.G.] in September of 2009. [Father] claimed that he did not know where [Child] was, but he knew that both [Maternal Uncle] and [M.M.] had shared custody of her. [Maternal Uncle] was awarded sole legal and physical custody of [Child] and [K.M.G.] by the [trial c]ourt on May 24, 2011. [Father] claimed that he received notice that [Maternal Uncle] gained sole custody of [Child] in 2011, but the papers he ntact information. [Maternal Uncle] testified that he asked [Father] at the custody conference if he wanted to see a picture of [Child], provided any financial compensation. *** [Maternal Uncle] testified that the only time that he is aware that [Father] saw [Child] after September of 2009, was at her fifth birthday party in May of 2010. According to [Maternal Uncle], this was very upsetting to [Child]. *** From May 2010-present, [Father] has had no contact with [Child]. He testified that he could not find her, despite knowing that she was with [Maternal Uncle]. [Father] stated that he tried to find [Maternal Uncle and Partner] on the internet 4 times in 20 name. Trial Court Opinion, 12/23/13, at 2-4 (footnote omitted). On November 9, 2012, Maternal Uncle and Partner filed a Petition they could -2- J-S25032-14 adopt her.1 The trial court appointed counsel for Father, and a guardian ad litem for Child.2 On November 6, 2013, the trial court conducted a termination hearing.3 At the hearing, Maternal Uncle and Partner testified on their own behalf. Father testified on his own behalf and presented the testimony of his girlfriend, A.R., and L.C. In a Decree entered on November 13, 2013, the trial court terminated the parental rights of Father to Child.4 Father filed a timely Notice of Appeal and a Concise Statement of Matters Complained of on Appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). On appeal, Father raises the following issues for our review: parental rights under 23 Pa.C.S. § 2511(a)(1) when [Maternal 1 In their Petition, Maternal Uncle and Partner also sought to terminate the parental rights of Mother to Child and to K.M.G., as well as the parental 2 The trial court appointed separate counsel for Mother and N.L.G., and a guardian ad litem for K.M.G. 3 On May 1, 2013, the trial court conducted a termination hearing as to all parties, but ultimately bifurcated the hearing rights to Child because Father, who attended the hearing from prison via telephone, was unable to remain on the line. On July 3, 2013, the trial court entered a Decree terminating the parental rights of Mother to Child, and Mother and N.L.G. to K.M.G. This Court affirmed the July 3, 2013 Decree as to Mother. See In re J.L.R. and K.M.G, 1356 MDA 2013 (Pa. Super. filed February 12, 2014). 4 7, 2013, but was not docketed until November 13, 2013. Thus, we will utilize the November 13, 2013 date when referring to the Decree. -3- J-S25032-14 Uncle and Partner] failed to proved [sic] by clear and convincing evidence that Father evidenced a settled purpose of relinquishing her [sic] parental claim to her [sic] [C]hild or failed to perform her [sic] parental duties for a period of six (6) months immediately preceeding [sic] the filing of the Petition[?] parental rights when a bonding assessment failed to done [sic] which may have indicated a bond between [C]hild and Father[?] Uncle and Partner failed to prove by clear and convincing evidence the requirements of section 2511(a)(1) and (b) of the Adoption Act. Id. at 15. In particular, Father contends that there was not enough evidence for the trial court to determine whether Father evidenced a settled purpose of relinquishing his parental claim or failed to perform parental duties. Id. Additionally, him based upon his capacity and knowledge of the judicial system and Id. at 14. Father also asserts that Maternal Uncle and Partner failed to obtain a bonding assessment, and contends that such an assessment would have proven that a bond existed between Father and Child. Id. Termination of parental rights is controlled by section 2511 of the Adoption Act. The burden i convincing evidence that its asserted grounds for seeking the termination of In re R.N.J., 985 A.2d 273, 276 (Pa. Super. -4- J-S25032-14 ony 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 Id. (citation and internal quotation marks omitted). Further, the urt 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 In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004). If competent evidence supports the t In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003). Further, satisfaction of any one subsection of section 2511(a), along with consideration of section 2511(b), is sufficient for the involuntary termination of parental rights. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). 2511(a)(1) and (b), which provide 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. *** -5- J-S25032-14 (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. of the evidence supporting the involuntary termination of pursuant to section 2511(a)(1) as follows: To satisfy the requirements of section 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. *** Once the evidence establishes a failure to perform parental duties or a settled purpose of relinquishing parental rights, the 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 Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citations omitted). [T]o be legally significant, the [post-abandonment] contact must be steady and consistent over a period of time, contribute to the psychological health of the child, and must demonstrate a serious intent on the part of the parent to recultivate a parentchild relationship and must also demonstrate a willingness and -6- J-S25032-14 capacity to undertake the parental role. The parent wishing to reestablish his parental responsibilities bears the burden of proof on this question. In re Z.P., 994 A.2d 1108, 1119 (Pa. Super. 2010) (citation omitted); see also In re Adoption of C.L.G., 956 A.2d 999, 1006 (Pa. Super. 2008) (en banc). Further, regarding the definition of stated as follows: 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 court 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 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 or her 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 others provide the child with . . . her physical and emotional needs. -7- J-S25032-14 In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations omitted); see also In re Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012). Here, the trial court thoroughly considered the facts and determined that Father had failed to perform his parental duties for the requisite sixmonth period. Trial Court Opinion, 12/23/13, at 5-6. The trial court found that, from May 2010 to the date of filing of the Petition, Father had no contact with Child, and was content to let other people parent her, despite the fact that he was in the community. Id. at 4, 6-7. The trial court also considered the fact that Father was incarcerated in 2013 for three to six years, with a minimum release date of 2016. Id. at 7-8; see also In re Adoption of S.P., 47 A.3d at 827-28, 830-31 (stating that the trial court may consider a In incumbent upon a parent when separated from his child to maintain communication and association with the child. This requires an affirmative demonstration of parental devotion, imposing upon the parent the duty to fac that Father failed to perform his parental duties with regard to Child, that his explanations for his lack of contact lacked credibility, and that he failed to -8- J-S25032-14 sustain his burden of proof with regard to the post-abandonment contact. supported by competent, clear and convincing evidence in the record. See In re Adoption of S.P., 47 A.3d at 826-27. After we determine that the requirements of section 2511(a) are satisfied, we proceed to review whether the requirements of subsection (b) are satisfied. See In re Adoption of C.L.G., 956 A.2d at 1009. This Court has stated that, whereas the focus in terminating parental rights under section 2511(a) is on the parent, it is on the child under section 2511(b). Id. at 1008. Regarding section 2511(b), the court inquires whether the termination of parental rights would best serve the developmental, physical and emotional needs and welfare of the child. See In re C.M.S., 884 A.2d 1284, 1286security, and stability are involved in the inquiry into the needs and welfare Id. at 1287 (citation omitted). The court must also discern the nature and status of the parent-child bond, with utmost attention to the effect on the child of permanently severing that bond. Id.; see also In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super. 2008) (stating that where there is no evidence of any bond between the parent and child, it is reasonable to between a child and a potential adoptive -9- parent is an important J-S25032-14 In re I.J., 972 A.2d 5, 13 (Pa. Super. 2009). Here, the trial court found that Father has had no contact with Child since at least May 2010, and has not provided for her developmental, physical, and emotional needs and welfare. Trial Court Opinion, 12/23/13, at 6with Child, there is no existing bond between Father and Child. Id. at 7; see also In re K.K.R.-S., 958 A.2d 529, 535-36 (Pa. Super. 2008) (stating that where no clear bond between the parent and the subject child was apparent, there was no requirement to prove the absence of a positive bond); In re K.Z.S., 946 A.2d at 764 (observing that no bond worth preserving is formed between a child and a natural parent where the child with the natural parent is attenuated). The evidence reflects that Father In re K.K.R.-S., 958 A.2d at 534. He did not put himself in a position to assume daily parenting responsibilities so that he could develop a real bond with Child. See In re J.L.C., 837 A.2d 1247, 1249 (Pa. Super. 2003). Additionally, as relationship with her caregivers, Maternal Uncle and Partner, who have served as her parents. Trial Court Opinion, 12/23/13, at 9; see also In re: - 10 - J-S25032-14 T.S.M., 71 A.3d 251, 267-68 (Pa. 2013) (stating that existence of a bond attachment of a child to a parent will not necessarily result in the denial of a termination petition, and the court must consider whether the child has a bond with the foster parents). Based upon the foregoing, competent See In re Z.P., t on hold in the hope that [a parent] will summon the ability to handle the see also In re Adoption of S.P., 47 A.3d at 826-27; In re B., N.M. constitutional right to the custody and rearing of his child is converted, upon proper parenting and fulfillment of his or her potential in a permanent, Based upon the trial rights. Decree affirmed. - 11 - J-S25032-14 Judgment Entered. JosephD.Seletyn,Esq. Prothonotary Date: 4/29/2014 - 12 -
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