J. A18006/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: C.S.                 :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
APPEAL OF: J.S.R. AND A.J.B.,            :          No. 28 MDA 2015
                                         :
                       Appellants        :


             Appeal from the Order Entered December 4, 2014,
              in the Court of Common Pleas of Franklin County
                Orphans’ Court Division at No. 52 Adopt 2014



IN RE ADOPTION OF: C.S.                  :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
APPEAL OF: M.S., FATHER,                 :         No. 164 MDA 2015
                                         :
                       Appellant         :


             Appeal from the Order Entered December 4, 2014,
              in the Court of Common Pleas of Franklin County
                Orphans’ Court Division at No. 52-Adopt-2014


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED SEPTEMBER 10, 2015

      This matter concerns the trial court’s order denying the petition for the

involuntary termination of M.S.’s (“Natural Father”) parental rights to C.S.

(“Child”) filed by A.J.B. (“Natural Mother”) and J.S.R. (“Proposed Adoptive

Father”) (collectively “Appellants”). Appellants filed an appeal from the trial

court’s December 4, 2014 order at No. 28 MDA 2015. Natural Father filed a
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cross-appeal from the trial court’s December 4, 2014 order at No. 164 MDA

2015. On March 4, 2015, this court consolidated the appeals.

      We first address the motion to quash filed by Natural Father. Natural

Father argues Appellants’ appeal should be quashed due to their failure to

file a statement of errors complained of on appeal with their notice of appeal

as is required in children’s fast track appeals.        The record indicates

Appellants filed a timely notice of appeal on January 2, 2015, from the

December 4th order. On January 5, 2015, the trial court entered an order

finding that Appellants had not filed a concise statement as required by

Pa.R.A.P. 905(a)(2) and 1925(a)(2)(i). That order, however, did not direct

Appellants to file a concise statement. On January 16, 2015, Natural Father

filed his timely cross-appeal from the December 4th order and concurrently

filed his concise statement.

      On February 20, 2015, after docketing statement review, this court

issued an order directing Appellants to file the requisite concise statement in

the trial court, to serve the concise statement on the trial judge and other

parties, and to file a copy of their concise statement with the Superior

Court’s Prothonotary’s Office by March 2, 2015.       On February 27, 2015,

counsel for Appellants filed a copy of their concise statement with the

Prothonotary of the Superior Court.     The statement was time-stamped as

having been filed in the Court of Common Pleas on February 27, 2015. The




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proof of service represented that counsel served opposing counsel by mail

and served the trial judge by personal service.

      Although Appellants did not file their concise statement with their

notice of appeal, we note that this court’s decision in In re K.T.E.L., 983

A.2d 745 (Pa.Super. 2009), makes clear that a failure to file a Rule 1925(b)

statement concomitantly with the notice of appeal will result in a defective

notice of appeal, but is not necessarily a basis for quashal.      Id. at 747.

Instead, whether this transgression results in quashal of the appeal should

be determined on a case-by-case basis taking into consideration, among

other factors, prejudice to the other parties in the case. Id. at 748.

      Natural Father argues that he will be prejudiced by allowing Appellants’

appeal to proceed because neither he nor the trial court knew of the basis

for their appeal when the trial court filed its opinion and when he submitted

his brief.   Clearly, the trial court did not have the benefit of Appellants’

statement. Nonetheless, this case concerns the trial court’s order denying

Appellants’ petition to involuntarily terminate Natural Father’s parental rights

to Child.     The trial court’s opinion addresses the relevant sections,

23 Pa.C.S.A. § 2511(a)(1), (2), and (b), of the Adoption Act under which

Appellants sought to terminate Natural Father’s parental rights.         The only

issue raised by Appellants in their brief concerns Section 2511(b). The trial

court addressed this issue.   Consequently, we find no prejudice to Natural

Father’s interests. Furthermore, Appellants complied with this court’s order



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directing them to file their Rule 1925(b) statement by March 2, 2015.

Accordingly, Natural Father’s motion to quash is denied.       We can now

proceed to address the merits of the appeals filed by Appellants and Natural

Father.

     We adopt the factual history of the matter as summarized by the trial

court:

                 Father filed a complaint in custody on
           September 5, 2014. As of the time of hearing,
           Father had had no contact with his minor child since
           April 2013, a span of approximately 15 months.
           Father has an arrearage of approximately $2,000.00
           in child support, which he asserted was due to
           periods of unemployment of approximately three
           months, and other difficulties making payments, but
           that he has been consistently making payments as
           required under a Domestic Relations order.       His
           payments total what he is required to pay by the
           Domestic Relations support order. Father has never
           sought to contest the support amount, nor has he
           made efforts to refuse employment in an effort to
           avoid paying support.

                  The Court finds that following the child’s
           conception, Mother and Father initially lived for
           approximately      three   to    four   months      in
           Chambersburg, Pennsylvania.        Due to financial
           difficulties, they ultimately lived with [Mother’s]
           parents for approximately ten months. Father was
           suspected of “cheating” on Mother, and so Father
           was thrown out of Mother’s home. Father testified
           that he was physically threatened at the time that he
           left by maternal grandfather. He left without his
           personal belongings and walked approximately
           13 miles to Shippensburg, Pennsylvania. Maternal
           grandfather denied claims that he referenced a hand
           gun or ever produced one when ordering [Father] to
           leave the maternal grandparents’ home.



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                 Subsequent       to    [Father]    and    Mother’s
          separation,      Father    briefly  lived   in    Carlisle,
          Pennsylvania.       He would exercise at least two
          periods of custody per week, although the parties
          never entered into a formal custody arrangement.
          Father continued to see the child and provide the
          child gifts. Subsequent to the parties’ separation,
          Father     testified   that    due    to   his   financial
          circumstances,       he      moved      to     Harrisburg,
          Pennsylvania and had roommates. Mother objected
          to his living arrangements. Father briefly lived with
          his mother for three or four months. Since his
          mother is a smoker and the child’s mother did not
          approve of her smoking, Father did not exercise
          overnight custody with the child while residing with
          his mother.        When Mother would protest about
          Father’s living arrangements, the parties would work
          out alternate arrangements to meet in supervised
          locations or settings, including public venues.

                 At one point Mother and Father attempted to
          reconcile, but ultimately they were unable to
          reconcile, and Father found a new relationship with
          [C.B.]. Both counsel for Father and counsel for the
          child assert and argue that this information is
          relevant to the Court’s determination when
          considering Father’s conduct in the six months prior
          to the filing of the petition. Father asserts Mother’s
          dissatisfaction with Father’s new relationship resulted
          in a pattern of conduct by Mother and her family in
          which they placed obstructions in the path of
          Father’s efforts to exercise custody with the child.
          Mother testified that Father had not supplied any
          gifts, cards, or other information to the child in the
          preceding six months, and that the last time that
          Father presented any type of significant gifts to the
          child would have been outside the six month period.
          Father acknowledged that for Christmas 2013, he
          may have bought gifts, but that he did not supply
          them to the child as prior gifts to the child in 2012
          had been returned, specifically a scooter that
          Father’s girlfriend [C.B.] supplied to the child.
          Mother testified that she did not attempt to block
          Father from contacting her, that she continued to


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          remain and live in the same location, that she did
          not change her phone number, and that even if she
          had changed her phone number, Father was
          certainly aware of her family’s residence and could
          have reached out to her or attempted to see the
          minor child by contacting them. Father testified that
          he was in fear of returning to Mother’s home, as he
          had been forced to leave due to threats by maternal
          grandfather. He testified that Mother had blocked
          Father’s phone access, Facebook, social medial [sic],
          and any other ability to contact her.          Father
          acknowledged he was aware of where Mother’s
          family lived.

                 Mother and her fiancé, [J.R.], as well as
          Mother’s sister, all testified that they were able to
          access the Facebook account of [Father], as well as
          that of [Father]’s girlfriend, [C.B.]. They obtained
          photographs and information of Father’s conduct
          from approximately August 6, 2012 up through the
          end of September, 2014. The Court notes that the
          Facebook postings of [Father] are essentially
          completely devoid of any reference to his son, and
          principally focus on his relationship with [C.B.]. The
          Court notes that the postings reveal multiple trips
          and excursions, including trips to New York Giant
          football games at Met Life Stadium and FedEx Field,
          a New York Yankees baseball game at Yankee
          Stadium, trips to Atlantic City, and to the Outer
          Banks. Father testified the trip to the Outer Banks
          was paid for by his mother as a gift to [C.B.] for her
          success in graduating from law school.             The
          Facebook postings also reveal gifts to [C.B.] such as
          a Tiffany necklace and a Coach bag. Father testified
          that he essentially did not pay for any of these
          excursions, trips, or other items. He was in essence
          supported by [C.B.] in their social activities. He
          denied the assertion by Mother and proposed
          adoptive father that he had resources to pay for legal
          services to attempt to secure custody of his son
          since he was denied custodial access in April 2013.
          Father testified that he used Facebook as a social
          forum to post matters relating to his relationship
          with [C.B.], but chose to not post items about his


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          son, which he characterized as a different type of
          relationship that was inappropriate for social media
          postings. Father testified generally that he did not
          have the financial wherewithal to secure an attorney,
          and could not even afford to consult with an
          attorney. He also testified that it “took him awhile to
          figure out the paperwork” to ultimately file a custody
          complaint     as     a     self-represented     litigant
          approximately 13 months after the last time he had
          exercised custody with his son. Father testified that
          he generally has always been employed, that he
          traveled to Pittsburgh, Pennsylvania for the purpose
          of interviewing for a managerial position with
          Applebee’s, which is the explanation for another trip
          that he took with [C.B.].

                 Proposed adoptive father, [J.R.], testified that
          he is currently employed at Letterkenny and he has
          stable employment. He also testified that he and the
          minor child have developed a bond and that on
          occasion the child has called him Daddy. Both he
          and natural Mother deny that they have encouraged
          the child to refer to him as Daddy, and that he is
          often referred to as [J.] by the minor child. He
          testified that he and the child interact, play games,
          travel, and do things together. He has been very
          involved in the child’s life, and it is his intent to
          marry natural Mother. He testified that the decision
          to seek involuntary termination of parental rights
          was only thought about and made known to him and
          Mother once they consulted with an attorney after
          Father had filed the complaint for custody. He also
          testified that the bond between [him] and the child
          [has] become so strong that “the child cried
          significantly and was fearful that he would not return
          from a business trip that he was taking.”

                 Although counsel for the minor child asserted
          that natural Father would never win a father of the
          year award, [] it was his opinion that the minor
          child’s welfare was dependent upon a relationship
          with natural Father, and that natural Father’s failings
          in pursuing custody had more to do with Mother’s
          efforts to deny him access to the child and Father’s


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            past experiences with Mother’s family than it did with
            Father’s neglecting or not wanting to perform
            parental duties.

Trial court opinion, 12/4/14 at 2-6.
      Appellants’ petition for involuntary termination of Natural Father’s

parental rights was filed two weeks after Father filed his complaint for

custody on September 5, 2014.          Two days of hearings took place on

November 7 and 24, 2014. On December 4, 2014, the trial court entered an

order accompanied by an opinion. The trial court found that “Father did not

act affirmatively, and that it is likely that his actions could constitute a

failure to perform parental duties under subsection (a)(1), or that he was

neglectful of the child under subsection (a)(2).”         (Trial court opinion,

12/4/14/ at 13.) The trial court then proceeded to analyze Section 2511(b)

and determined it would serve Child’s needs and welfare to permit Father to

re-establish a custodial relationship. (Id. at 13-16.) Hence, the trial court

denied Appellants’ petition.   Appellants appealed the order; Natural Father

filed a cross-appeal.

      Appellants raise one issue for our consideration:

            A.     The trial court abused its discretion in not
                   finding that Petitioners met their burden of
                   proving that the welfare of the child would be
                   adversely affected by said Court’s denial of
                   their Petition for involuntary termination of the
                   parental     rights    of   Respondent     under
                   23 Pa.C.S.A. 2511(b).

Appellants’ brief at 4.




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       We review the determination of the orphans’ court for an abuse of

discretion. In re D.C.D., 105 A.3d 662, 670 (Pa. 2014) (“When reviewing a

trial court’s decision to grant or deny a termination of parental rights

petition, an appellate court should apply an abuse of discretion standard,

accepting the findings of fact and credibility determinations if they are

supported by the record, and reversing only if the trial court made an error

of law or abused its discretion.”). This is a highly deferential standard, and

to the extent that the record supports the court’s decision, we must affirm

even    though       evidence   exists   that   would   also    support    a   contrary

determination. In re A.S., 11 A.3d 473, 477 (Pa.Super. 2010). Appellants

have the burden of proving the statutory grounds for termination by clear

and convincing evidence.        In re Adoption of L.J.B., 18 A.3d 1098, 1107

(Pa. 2011).

       Requests to terminate the parental rights of a biological parent are

governed by 23 Pa.C.S.A. § 2511(a) and (b).                     Instantly, Appellants’

argument      only    implicates   the   orphans’   court      analysis   pursuant   to

Section 2511(b). That section provides as follows:

              (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


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                  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(b).

      In   reviewing   the   evidence   in    support   of   termination   under

Section 2511(b), we consider whether 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, 1286-1287 (Pa.Super. 2005),

appeal denied, sub nom. C.M.S. v. D.E.H., Jr., 897 A.2d 1183 (Pa.

2006).

      “Intangibles such as love, comfort, security, and stability are involved

in the inquiry into the needs and welfare of the child. 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. at 1287

(citation omitted).

      Instantly, Appellants argue Natural Father did not perform any

parental duties with respect to Child from June 2013 to September 2014.

(Appellants’ brief at 17-18.) Appellants also assert that Natural Father did

little to exert himself to maintain a parent/child relationship with Child. (Id.

at 18.) It is Appellants’ contention that the overall welfare of Child would be

advanced by the termination of Natural Father’s parental rights. (Id. at 19.)




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      Our review of Appellants’ argument reveals much of it revolves around

Father’s failure to perform his parental duties. The trial court indeed found

that Father had failed to perform parental duties under Section 2511(a)(1)

and was neglectful under Section 2511(a)(2). Be that as it may, the trial

court determined, under Section 2511(b), Appellants had failed to carry their

burden.   We reiterate that the focus in terminating parental rights under

Section 2511(a) is on the parent, but it is on the child pursuant to

Section 2511(b). In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa.Super.

2008) (en banc).

      Appellants’      sole   claim   in   advancing   an   argument     under

Section 2511(b) is that they fear Child will suffer significant harm if Natural

Father is permitted to retain his rights to Child and then disappear from

Child’s life. (Appellants’ brief at 19.) Appellants’ argument is sorely lacking

as it fails to discuss pertinent case law or any statutory authority.   As we

noted in In re Estate of Whitley, 50 A.3d 203, 209-210 (Pa.Super. 2012)

(citations omitted):

            The argument portion of an appellate brief must
            include a pertinent discussion of the particular point
            raised along with discussion and citation of pertinent
            authorities. This Court will not consider the merits of
            an argument which fails to cite relevant case or
            statutory authority. Failure to cite relevant legal
            authority constitutes waiver of the claim on appeal.

See also In re S.T.S., Jr., 76 A.3d 24, 42 (Pa.Super. 2013) (citation

omitted) (noting that “mere issue spotting without analysis or legal citation



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to support an assertion precludes our appellate review of a matter”);

Pa.R.A.P. 2119(a) (argument portion of brief must contain discussion and

citation to pertinent authorities).     Clearly, we could find Appellants’

argument waived. However, we will instead rely on the following analysis by

the trial court in finding no merit to Appellants’ contention that Child will

suffer any harm by having Natural Father involved in his life.

            In the context of determining the welfare of the
            child, 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. This Court finds that based
            upon the evidence presented that Father did have a
            bond with his son that is evident by the testimony
            and the efforts that he made to maintain a bond with
            his son up to and including April 2013. . . . The
            Court received an impassioned argument from the
            child’s counsel, Matthew Sembach, Esquire, who
            testified that he had met with the child and had met
            with each of the parents, that there was a bond
            between Father and son, and that the Father and son
            bond should not be terminated simply because of the
            availability of another person standing ready, willing,
            and able to serve as a father to the minor child. The
            Court notes that Mother’s fiancé indicated that while
            the child may have called him father on occasion,
            and that they had developed a bond, he did call
            Mother’s fiancé [J.S.R.] on multiple occasions, thus
            indicating that he had not fully developed an
            understanding or concept that [J.S.R.] was his
            father.

            ....

            . . . There was no testimony in the record to indicate
            that somehow the child had reservations or would be
            in any way harmed by efforts to restore the custodial
            relationship between Father and son. There was no
            testimony offered either professionally or by other


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            observers with experience in these types of matters
            to convince this Court that the child resuming a
            parental bond with Father would somehow destroy
            the happy bond that he is developing with his
            Mother’s fiancé. Furthermore, this Court accepts
            that if Mother’s fiancé truly loves the minor child as
            he stated, that he will continue to involve himself in
            a way to provide a positive parental influence in the
            child’s life, while being respectful of the child’s needs
            to have a beneficial relationship with Father to
            ensure that the welfare of the child is one in which
            he has the strongest relationships possible with both
            Mother and Father.

Trial court opinion, 12/4/14 at 13-15.

      As there is competent evidence in the record that supports the trial

court’s credibility and weight assessments regarding Child’s needs and

welfare, we conclude that the trial court did not abuse its discretion as to

Section 2511(b).

      Natural Father filed a cross-appeal raising seven issues for our review.

Because we are affirming the trial court’s order denying Appellants’ petition

to involuntarily terminate Natural Father’s parental rights, it is unnecessary

to address those issues. The relief sought is denied as moot.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/10/2015



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