J-A11017-19

                             2019 PA Super 269

 IN RE: INVOLUNTARY TERMINATION           :    IN THE SUPERIOR COURT OF
 OF PARENTAL RIGHTS                       :         PENNSYLVANIA
                                          :
 J.R.E., A MINOR                          :
                                          :
                                          :
 APPEAL OF: D.E., MOTHER                  :
                                          :
                                          :    No. 1674 MDA 2018

            Appeal from the Order Entered September 11, 2018
    In the Court of Common Pleas of Dauphin County Orphans' Court at
                           No(s): 22-AD-2018


BEFORE: BOWES, J., OLSON, J., and STABILE, J.

OPINION BY OLSON, J.:                         FILED: SEPTEMBER 3, 2019

     Appellant, D.E. (Mother), appeals pro se from an order entered on

September 11, 2018 in the Orphans’ Court Division of the Court of Common

Pleas of Dauphin County that involuntarily terminated her parental rights to

J.R.E. (hereinafter Child). We reverse.

     Mother and B.J. (Father) are the biological parents of Child, who was

born in November, 2006 in Florida. Following Child’s birth, Mother assumed

custody of Child and Father returned to Pennsylvania.     Child resided with

Mother without incident for approximately six months.

     In May 2007, when Child was approximately six months old, Mother

transported Child to a local hospital in Florida where he presented with

hemorrhaging in the eyes and swelling of the brain. Doctors believed Child’s

injuries were consistent with shaken baby syndrome.      Mother admitted to

Florida authorities that her paramour, T.B., caused the injuries to Child.
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Because Child was diagnosed with shaken baby syndrome and only Mother

and T.B. served as his caretakers, Florida officials determined that Child was

at great risk of harm if he continued to reside with Mother. Consequently,

Child was removed from Mother’s custody.

      Eventually, Mother received permission to have unsupervised visits with

Child on weekends, with a goal of reunification, provided that a safety plan

would be implemented. Court records from Florida show that Mother enjoyed

unsupervised visitation with Child from January 2008 through mid-March 2008

and that overnight visitation commenced on March 14, 2008.            Mother’s

visitation program proceeded well until April 28, 2008 when, during an

unannounced visit, a Florida guardian ad litem discovered an unapproved

person (believed to be Child’s abuser) in Mother’s home during one of her

visitation periods with Child.

      After   this incident, Child was placed into       Father’s   custody   in

Pennsylvania on August 8, 2008.     From that date until the present, Child has

been under the care and custody of Father and his wife, K.J. Child believes

that K.J., his step-mother, is his biological mother.

       In the years since Father acquired custody, Mother has had only

sporadic contact with Father and enjoyed only indirect contact with Child.

Mother occasionally communicated with Father by telephone and through

social media and has infrequently forwarded packages containing clothing for

Child. Father, however, has not cooperated with Mother’s efforts to contact

Child. Instead, he has declined her telephone calls and rejected her packages.

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When he allowed Child to keep some of the items sent by Mother, he did not

inform Child who forwarded the gifts.

        Presently, Mother holds a full-time job in Florida as a surgical technician

and is engaged to be married.            She also has two younger children who

understand that Mother has a child from a prior relationship.

        In   February    2017,    Mother       purchased   airfare   from   Florida   to

Pennsylvania in the hope that Father would permit Child to meet his biological

mother. Upon arrival, however, Father barred any contact between Child and

Mother.

        On March 13, 2017, Mother filed a complaint seeking custody of Child

and seeking Child’s enrollment in counseling aimed at developing and

implementing a plan for reunification with Child. Mother filed a petition for

modification of custody on September 20, 2017.               Mother’s custody action

against Father remains pending at this time.

        Father filed the instant petition to involuntarily terminate Mother’s

parental rights to Child pursuant to 23 Pa.C.S.A. § 2511(a) on March 1, 2018.1

Mother filed a responsive pleading on July 2, 2018 opposing termination. After

a continuance, the trial court convened a hearing on Father’s termination

petition on June 20, 2018. Father and Mother testified at the hearing. In

addition, an attorney-guardian ad litem (GAL) appointed to represent Child

testified. The GAL recommended that Mother’s parental rights be terminated

____________________________________________


1   On the same date, Father and K.J. filed a petition to allow K.J. to adopt Child.

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since Child did not know of Mother’s existence and since reunification would

not be in Child’s best interest.       The trial court adopted the GAL’s

recommendation and determined that Father met his burden of proof under

23 Pa.C.S.A. § 2511(a)(1). In addition, the court found that termination of

Mother’s parental rights would be in Child’s best interest under 23 Pa.C.S.A.

§ 5328(a), which identifies the relevant statutory factors governing an award

of custody. Mother’s timely appeal followed.

     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. In re: R.J.T., 9 A.3d 1179,
     1190 (Pa. 2010). 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.; R.I.S., 36 A.3d 567, 572 (Pa. 2011)
     (plurality opinion)]. As has been often stated, an abuse of
     discretion does not result merely because the reviewing court
     might have reached a different conclusion. Id.; see also Samuel
     Bassett v. Kia Motors America, Inc., 34 A.3d 1, 51 (Pa. 2011);
     Christianson v. Ely, 838 A.2d 630, 634 (Pa. 2003). Instead, a
     decision may be reversed for an abuse of discretion only upon
     demonstration     of     manifest   unreasonableness,     partiality,
     prejudice, bias, or ill-will. Id.

     As we discussed in R.J.T., there 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. R.J.T., 9 A.3d at 1190.
     Therefore, even where the facts could support an opposite result,

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      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 Atencio, 650 A.2d 1064, 1066
      (Pa. 1994).

In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).

      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.    In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

Moreover, we have explained: “[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).

      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, we first

address section 2511(a)(1) and then move on to section 2511(b), which the

trial court did not address. Section 2511 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:




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             (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 petitioner seeking termination of parental rights under Section

2511(a)(1) must demonstrate through clear and convincing evidence that, for

a period of at least six months prior to the filing of the petition, the parent’s

conduct demonstrated a settled purpose to relinquish parental rights or that

the parent refused or failed to perform parental duties. In Re Adoption of

M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003).

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

      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 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). Further,




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      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 N.M.B., 856 A.2d 847, 854-855 (Pa. Super. 2004) (citations omitted).

      This Court has long recognized that a parent is required to make diligent

efforts   toward    the   reasonably   prompt   assumption    of   full   parental

responsibilities.   In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).           A

parent’s vow to cooperate, after a long period of uncooperativeness regarding

the necessity or availability of services, may properly be rejected as untimely

or disingenuous. Id. at 340.

      In Adoption of S.P., our Supreme Court reiterated the standard with

which a parent must comply in order to avoid a finding that she abandoned

her child.

      Applying [In re Adoption of McCray, 331 A.2d 652, 655 (Pa.
      1975)] the provision for termination of parental rights based upon
      abandonment, now codified as § 2511(a)(1), we noted that a
      parent “has an affirmative duty to love, protect and support his
      child and to make an effort to maintain communication and
      association with that child.” [McCray] at 655.
                                     * * *
      Where the parent does not exercise reasonable firmness in
      declining to yield to obstacles, his other rights may be forfeited.

Adoption of S.P., 47 A.3d at 828, quoting In re: Adoption of McCray, 331

A.2d at 655 (footnotes and internal quotation marks omitted).

      The trial court reasoned as follows in finding that Father met his burden

under section 2511(a)(1):


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      [The trial c]ourt is under the belief that [Mother] has clearly failed
      to have steady and consistent contact with [Child]. Simply put,
      sending gifts through the mail and showing up unexpectedly is not
      enough to establish a consistent and steady relationship.
      [Mother’s] minimal attempts at contact were not serious enough
      to demonstrate her desire to create a lasting relationship.

Trial Court Opinion, 10/30/18, at 2.

      After careful review of the certified record, we conclude that Father has

not met his burden of showing, through clear and convincing evidence, that

Mother “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). Although the record establishes that Mother had no

contact with Child during the relevant statutory period, and very little contact

for a lengthy period prior to that timeframe, it is equally clear that the lack of

contact and support is due, in substantial part, to a lack of cooperation and

reasonable accommodation on the part of Father, the custodial parent. As the

October 30, 2018 opinion makes clear, the trial court made no effort to

examine Mother’s explanation for her conduct.           In the absence of an

individualized assessment of the explanations offered by Mother who faced

permanent severance of her parental connection to Child, there could be no

reasoned determination that the circumstances of this case clearly called for

involuntary termination. Hence, the trial court abused its discretion in finding

that the record was sufficient to support termination under section

2511(a)(1).

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         Although our discussion could end with our disposition of the section

2511(a) analysis, we turn now to discuss the second part of a termination

analysis which looks to section 2511(b). This Court has stated that “once the

statutory grounds for termination have been met under Section 2511(a), the

[trial] court must consider whether termination serves the needs and welfare

of the child, pursuant to [s]ection 2511(b).” In re Adoption of C.L.G., 956

A.2d 999, 1009 (Pa. Super. 2008) (en banc) (emphasis added). Instead of

examining section 2511(b), the court considered Child’s “best interests” under

23 Pa.C.S.A. § 5328(a). In so doing, the court failed to consider the proper

statutory provisions in terminating Mother’s parental rights to Child. This was

error.

         In reviewing the evidence in support of termination under section

2511(b), our Supreme Court 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),
         th[e Supreme] 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).

         In the exceptional circumstances presented in this case, where Child has

not been informed of Mother’s existence and believes that K.J. is his biological


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mother, the trial court elected to forgo the mandatory analysis under section

2511(b), which examines the emotional bond between a parent facing

termination and her child.           The court instead considered Child’s “best

interests” under 23 Pa.C.S.A. § 5328(a), a statutory provision that sets forth

the factors to be considered in making an award of custody.          We strongly

suspect that this clearly erroneous choice was made to avoid the disclosure of

Mother’s true identity to Child, as the court adopted the GAL’s belief that

Child’s reintroduction to Mother would be highly disruptive. See Trial Court

Opinion, 10/30/18, at 3 (“It is [the trial court’s] opinion that it is in [Child’s]

best interest to maintain the lifestyle that he has been living for approximately

the past eleven years.        Reintroducing [Mother] to [Child] as his biological

mother would be highly disruptive and detrimental to his life, considering that

he is under the belief that [K.J.] is his mother. The [GAL] also held this same

viewpoint.”). In any event, while it may be correct that, in the short term,

reintroduction may prove disruptive, it is more probable that Child’s longer

term interests in stability and security in knowing his true parentage can only

be served by a comprehensive program of counseling and accurate

identification of his biological parents.2 Permanently severing a bond between


____________________________________________


2 In In Re Adoption of L.B.M., 161 A.3d 172, 180 (Pa. 2017), our Supreme
Court held that orphans' courts must appoint counsel to represent the legal
interests of any child involved in a contested involuntary termination
proceeding pursuant to 23 Pa.C.S. § 2313(a). The Court further explained
that a child's legal interests are distinct from his or her best interests, in that



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a natural parent and a child in order to perpetuate a relationship built upon a

misrepresentation does not, clearly and convincingly, serve the long-term

well-being and emotional interests of Child. As these unique and challenging

issues were never explored by the trial court, we cannot agree that the record

would support termination under section 2511(b). Accordingly, we reverse.

       Order reversed.




____________________________________________


a child's legal interests are synonymous with the child's preferred outcome,
while a child's best interests must be determined by the court. Id. at 174.

Here, an attorney-GAL appointed to represent Child advocated solely for
Child’s best interests. At the time of the proceedings before the trial court,
Child was approximately eleven years old, had no contact with his biological
mother since he was an infant, and believed his step-mother was his biological
mother. Akin to the preferred outcome concept articulated by our Supreme
Court in L.B.M., Child might have a legal interest in learning of and developing
a relationship with his biological mother that does conflict with his best
interests. Medical issues or issues with identity may arise in the future that
necessitate identification of biological relations. Moreover, since Child was
born in November 2006, the anticipated adoption by his step-mother will not
be completed before Child’s twelfth birthday. Thus, Child must consent to it.
See 23 Pa.C.S.A. § 2711(a)(1). As these issues were never explored by either
the trial court or the GAL, Child was impermissibly deprived of his statutory
right to counsel who would protect his legal interests. See In re Adoption
of T.M.L.M., 184 A.3d 585, 590 (Pa. Super. 2018) (“[Under L.B.M.,] it is clear
that where a court appoints an attorney ostensibly as counsel, but the
attorney never attempts to ascertain the client's position directly and
advocates solely for the child's best interests, the child has been deprived
impermissibly of his statutory right to counsel [under 23 Pa.C.S.A. § 2313(a)
who serves] his legal interests.”).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/03/2019




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