Opinion
J-S57030-16 No. 324 WDA 2016
09-12-2016
IN RE: R.B., A MINOR, Appellee APPEAL OF: G.B., FATHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order February 1, 2016
In the Court of Common Pleas of Crawford County
Orphans' Court at No(s): No. O.C. 2015-18 BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and STRASSBURGER, JJ. MEMORANDUM BY SHOGAN, J.:
Retired Senior Judge assigned to the Superior Court.
G.B. ("Father") appeals from the order and final decree entered February 1, 2016, granting the petition filed by A.E. ("Mother") and J.E. ("Stepfather") to involuntarily terminate Father's parental rights to R.B. ("Child"). We affirm.
We adopt the thorough recitation of facts and procedural history set forth in the orphans' court adjudication. See Orphans' Court Memorandum and Order, 2/1/16, at 1-5. As the orphans' court summarized:
Father has been in prison for all of [Child's] life besides the approximately year and a half between his terms of incarceration. Father was in prison when [Child] was born [in June of 2008], and Father is currently in prison as [Child] is seven years old. During these periods of incarceration, Father
has: visited with [Child] in person on approximately five or six occasions, all of which occurred before 2012 and none of which resulted in positive interaction between Father and [Child]; written only a few and no more than ten letters to [Child], only a few of which included meaningful content and even less of which were actually for [Child]; mailed approximately two cards and no gifts to [Child]; and spoken only sporadically with [Child] on the phone. Father's minimum date for release is May 9, 2016 with a maximum date for release being November 9, 2018. Father explained that, due to the nature of the incident surrounding his incarceration, he expects that he will be held for a period longer than his minimum date for release.Id. at 5.
At the hearing, the guardian ad litem (G.A.L.) recommended that Father's parental rights be terminated to allow for Stepfather's adoption of [Child]. The G.A.L. conveyed that [Child] is not connected with Father. [Child's] only recollections of interactions with Father are an occasion in which they watched television together and the traumatic incident in which Father fought with Mother, jumped on the moving vehicle, and shattered the car's windshield. When asked about her family, [Child] does not include Father as a member, and [Child] does not ask about nor express an interest in contacting Father. At this point, Father's absence is not impactful to [Child].
In December 2011, Father was convicted of involuntary manslaughter arising from an altercation with a prison guard. Father was sentenced to prison for a minimum term of thirty months to a maximum term of sixty months.
Mother and Stepfather filed the instant petition to terminate Father's parental rights on April 27, 2015, under 23 Pa.C.S. §§ 2511(a)(1), (a)(2), 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.
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
* * *
23 Pa.C.S. §§ 2511(a)(1), (2), and (b). Following hearings held on October 7, and October 22, 2015, the orphans' court concluded that the petitioners had "established a legal basis for the termination of parental rights of [Father]." Order, 2/1/16, at unnumbered 1. Father appealed.
(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.
Father raises the following issues for review:
1. Did the trial court commit an abuse of discretion or error of law when it concluded that the Petitioner established sufficient grounds for termination under 23 Pa.C.S.A. Section 2511(a)(1)?
2. Did the trial court commit an abuse of discretion or error of law when it concluded that the Petitioner established sufficient grounds for termination under 23 Pa.C.S.A. Section 2511(b)?Father's Brief at 3-4.
3. Was appointed counsel ineffective in her representation of father at the involuntary termination hearing for failure to call certain witnesses?
4. Whether the failure to file a concise statement of matters complained of constitutes waiver in the context of this case?
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. [O]ur 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., 608 Pa. 9, 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., [613] Pa. [371], 34 A.3d 1, 51 (2011); Christianson v. Ely , 575 Pa. 647, 654, 838 A.2d 630, 634 (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.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).
As suggested by Father's fourth issue, we initially must determine if we can consider the merits of Father's appeal when Father did not file a Pa.R.A.P. 1925(a)(2)(i) statement with his appeal. As this case arose from a petition for involuntary termination of parental rights, it is deemed a children's fast track appeal. Pa.R.A.P. 102 (Definitions). In a children's fast track appeal, "[t]he concise statement of errors complained of on appeal shall be filed and served with the notice of appeal required by Rule 905." Pa.R.A.P. 1925(a)(2)(i).
We have addressed the failure of an appellant to file a statement of errors complained of on appeal with the notice of appeal, holding:
[H]enceforth, the failure of an appellant in a children's fast track case to file contemporaneously a concise statement with the notice of appeal pursuant to rules 905(a)(2) and 1925(a)(2), will result in a defective notice of appeal. The disposition of the defective notice of appeal will then be decided on a case by case basis. . . .In re K.T.E.L., 983 A.2d 745, 747 (Pa. Super. 2009). In K.T.E.L., we declined to quash or dismiss an appeal due to a mother's failure to strictly comply with Pa.R.A.P. 1925(a)(2), where there was no "prejudice to the other parties on the case, and in light of the presumed purpose of the new amendments—to expedite the disposition of children's fast track cases." Id. at 748.
Since K.T.E.L., we have consistently overlooked an appellant's failure to comply with Rule 1925(a)(2) in the absence of prejudice. See , e.g., J.M.R. v. J.M., 1 A.3d 902, 906 (Pa. Super. 2010) (holding father's failure to comply with Pa.R.A.P. 1925(a)(2)(i) was harmless where "misstep was not prejudicial to any of the parties and did not impede trial court's ability to issue a thorough opinion"); Harrell v. Pecynski , 11 A.3d 1000, 1003 (Pa. Super. 2011) (addressing merits of appeal where father filed Rule 1925(a)(2) statement one month after notice of appeal, but mother did not object or claim prejudice, and trial court addressed father's claims of error); In re R.N.F., 52 A.3d 361, 362-363 (Pa. Super. 2012) (citing K.T.E.L. to overlook appellant's failure to comply with Rule 1925(a)(2)(i) when no court order has been violated).
As stated above, Father did not file a Rule 1925(a)(2) statement with his notice of appeal. However, neither the trial court nor this Court ordered Father to file a statement. We also consider that the trial court filed an opinion in which it thoroughly addressed its rationale for termination of Father's parental rights. Finally, Mother did not object or claim prejudice. Indeed, in her brief, Mother took "no position with respect to waiver in this case." Mother's Brief at 24. Thus, we decline to dismiss Father's appeal for failing to comply with Rule 1925(a)(2) and will discuss Father's issues.
Father first argues that the orphans' court erred when it concluded that termination of his parental rights was warranted under 23 Pa.C.S. § 2511(a)(1). Father specifically challenges the orphans' court's: 1) finding that Father's recurrent incarcerations and violent behavior witnessed by Child created the barriers that stood between Father and Child having a meaningful relationship; 2) failure to consider that Mother interfered in Father's ability to have contact with Child and thwarted his efforts to utilize the opportunities available to him to act as a parent to Child; 3) failure to credit Father's efforts to communicate with Child; and 4) incorrect analysis of Father's ability and willingness to pay child support.
The orphans' court also referenced 23 Pa.C.S. § 2511(a)(2) in the Conclusions of Law section of its Memorandum and Order. However, it is clear from the construct of its writing that the court terminated Father's parental rights pursuant to 23 Pa.C.S. §§ 2511(a)(1). This Court may affirm the orphans' court's decision regarding the termination of parental rights with regard to any one subsection of section 2511(a). In re M.T., 101 A.3d 1163, 1179 (Pa. Super. 2014) (en banc) (citation omitted).
We have reviewed these four assertions of error and conclude that the orphans' court competently addressed these allegations. Accordingly, we adopt the orphans' court's reasoning on these issues as our own. See Orphans' Court Memorandum and Order, 2/1/16, at 6-11.
We thus turn to Father's contention that the orphans' court did not credit Father's testimony at the termination hearing regarding the effects of a head injury sustained by Father in 2009 as a result of an automobile accident. The injury occurred in the brief period during Child's lifetime when Father was not incarcerated. According to Father, he was involved in a serious automobile accident in October 2009. N.T., 10/22/15, at 12. Father spent a week in the hospital in an induced coma, and another week in a rehabilitation facility. Id. Father testified that following the accident he "was a mess," "emotionally . . . kind of haywire," and experienced short term memory deficits. Id. at 17.
The orphans' court assessed Father's parenting of Child following his March 2009 release from prison, as follows:
After Father's release, the parties and [Child] lived together as a family in Crawford County, and the parties later married in the fall of 2009. While the three individuals lived under the same roof, Father focused on his own activities such as watching television or playing X-Box while Mother performed the primary parental role for [Child]. Mother testified to Father's abusive history with her at that time. This testimony was credible as Mother appeared visibly shaken and emotional while detailing accounts of Father's abuse. Although the Court does not find that [Child] was ever a victim to this abuse, the Court is satisfied that [Child] was nonetheless regularly exposed and, thus, impacted by this.
As the parties' relationship was volatile, Mother and [Child] eventually moved away from Father and into maternal uncle's home; however, the parties maintained some form of relationship and continued to see each other. On May 27, 2010, Mother responded to physical and verbal abuse from Father by involving law enforcement and filing a Protection from Abuse (P.F.A.) petition against Father. Additionally, Mother filed a Complaint for Custody that same day. In June of 2010, Mother withdrew her request for custody mediation and vacated the P.F.A. in order to attend counseling and work out any differences with Father. At this time, there was no custody order. The parties remained largely physically separated and made custody arrangements by agreement and Father's interactions with [Child] were minimal. For the most part, Father only saw [Child]
while visiting with Mother, rarely exercised his custodial rights, and had little, if any, overnight visitation.Orphans' Court Memorandum and Order, 2/1/16, at 1-2.
In late August of 2010, the parties once again aggressively argued and Father jumped onto the hood of Mother's car and broke her window while [Child] was in the backseat of the vehicle. Mother filed a second P.F.A. petition against Father, and Father was arrested and jailed for a parole violation. Father was under state parole supervision. Thus, the violation led to his imprisonment.
Father is correct that the orphans' court did not consider Father's testimony concerning the effects of his head injury in reaching its termination decision. However, the orphans' court omission in this regard does not constitute reversible error. We have reviewed the testimony concerning Father's head injury and find that it did not offer any reliable evidence that the injury compromised Father's ability to parent. Father did not relate how the injury affected his relationship with Child nor did he present any medical testimony that his mental health impaired his ability to parent. We further observe that Father did not reference either the accident or its consequences in the Proposed Findings of Fact and Conclusions of Law he submitted to the orphans' court following the termination hearing. Father's Proposed Findings of Fact and Conclusions of Law, 12/1/15, at 1-6. Accordingly, Father is not entitled to relief on this claim.
Father next takes issue with the orphans' court's analysis pursuant to 23 Pa.C.S. § 2511(b), arguing that the orphans' court disregarded certain documents evidencing Child's affection for Father and conducted its bonding assessment without the benefit of expert testimony. The orphans' court opined that the termination of Father's parental rights would serve the Child's need and welfare based on the following rationale:
After a careful reading of the record and review of evidence, this case does not yield any suggestion of a strong bond or of any bond at all. Besides a span of approximately a year and a half, Father has been incarcerated for all of [Child's] life. The record reflects that Father has not spoken with [Child] since sometime before November of 2013 when [Child] was approximately five years old. Further, Father has not seen [Child] since approximately 2011 when [Child] was approximately three years old, and the credible testimony of record indicates that [Child] did not respond positively to seeing her Father at that time. Even while Father was not in prison, Father and [Child] did not have a strong relationship as Father's interactions with [Child] usually surrounded Father's primary purpose to visit with Mother. Although Father credibly testified to his love for [Child], the analysis focuses on the parent and child's emotional bond and the effect on the child of permanently severing such bond. According to the G.A.L., [Child's] recollections of Father are[] meager; in the instance of Father's dispute with Mother in August of 2010, negative; and, presumably, traumatic. [Child] does not consider Father a part of her family nor did she express to the G.A.L. a legitimate interest in building a relationship with him.
Recognizing the lack of a parent-child bond between Father and [Child] and that the severance of their relationship would be without detriment to [Child], the Court looks to [Mother's] stated hope for Stepfather to adopt [Child]. While Father has been incarcerated and absent for [the] majority of [Child's] upbringing, Stepfather has been a part of [Child's] life since she was approximately two years old. Stepfather has cared for [Child] in a parental capacity as he is active in her daily routine. Stepfather assists with transporting [Child] to school, prepares meals for [Child], and teaches [Child]. Stepfather and [Child] have a strong, positive relationship, and [Child] perceives Stepfather's family as her own. Stepfather has long provided
financial and emotional support to [Child], and he is ready, willing, and able to adopt [Child].Orphans' Court Memorandum and Order, 2/1/16, at 11-12 (citation omitted) (emphasis in original).
The G.A.L. recommended that the termination of Father's parental rights be granted and that the petition for adoption proceed. The G.A.L. conveyed to the Court that [Child] considers Father a bad person and does not perceive him as a member of her family. The G.A.L. does not sense that [Child] is connected to Father and does not believe that severance would detrimentally affect [Child]. The Court accepts the G.A.L.'s recommendation as impactful and agrees.
After review, we conclude that the orphans' court's findings are supported by the record, and it reasonably concluded that the elements of 23 Pa.C.S. § 2511(b) were met. The orphans' court's failure to credit certain letters in which Mother noted that Child missed and loved Father was likely reasoned by the fact that they were written in 2011 and had negligible evidentiary value concerning Child's bond with Father. Further,
The orphans' court viewed these 2011 letters from Mother as demonstrating Mother's "genuine desire and encouragement for Father to have a positive relationship with [Child]." Orphans' Court Memorandum and Order, 2/1/16, at 8.
When conducting a bonding analysis, the court is not required to use expert testimony. In re K.K.R.-S., 958 A.2d 529, 533 (Pa. Super. 2008) (citing In re I.A.C., 897 A.2d 1200, 1208-09 (Pa. Super. 2006)). Social workers and caseworkers can offer evaluations as well. See In re A.R.M.F., 837 A.2d 1231 (Pa. Super. 2003) (holding court properly terminated parental rights where decision was based in part on social worker's and caseworker's testimony that children did not share significant bond with biological parents and were well bonded with their
foster parents). Additionally, Section 2511(b) does not require a formal bonding evaluation. In re K.K.R.-S., supra.In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010).
Therefore, there was no abuse of discretion or error of law in the orphans' court's section 2511(b) analysis. Father's argument that his parental rights were wrongfully terminated under 23 Pa.C.S. § 2511(b) is without merit.
Father's third argument challenges the effectiveness of his counsel. A party alleging ineffective assistance of counsel in a termination of parental rights case must show by clear and convincing evidence that it is more likely than not that the result of the proceeding would have been different, absent the alleged ineffectiveness. In re K.D., 871 A.2d 823, 829 (Pa. Super. 2005).
Based on the overwhelming evidence in favor of terminating his parental rights, Father cannot establish by clear and convincing evidence that, absent counsel's alleged ineffectiveness, the result of the hearing would have been different. Father avers that he requested counsel to call four witnesses, and counsel failed to do so because of time constraints. First, the record does not include any evidence that Father requested his counsel to present the additional witnesses; nor does Father identify such place in the record. Additionally, only one of those witnesses, Father's sister, Alexandra Brown, was present at the hearing. When Father's counsel indicated that she would not be calling Ms. Brown as a witness, Father did not challenge this decision on the record. Nor did the orphans' court preclude Ms. Brown's testimony because of time factors.
Substantively, Father cannot demonstrate that the testimony of these proposed witnesses would have changed the outcome of the termination proceeding. One suggested witness, Rodney Wise, was a police officer who responded to the scene when Father jumped on Mother's vehicle. Officer Wise would purportedly testify that Mother overstated the facts leading up to Father's incarceration and that the officer recommended that Father's parole not be revoked. However, the facts in evidence demonstrate that Father was in fact incarcerated and that the parole board revoked Father's parole.
The other three purported witnesses were Ms. Brown, and Robert Cory and Megan Cory, employees of the church Father attended. Father claims that these witnesses would have testified to a positive interaction between Child and Father. Father, however, does not identify the timeframe when these witnesses observed these interactions. Since Father has not seen Child since 2011, these alleged interactions would have been observed four years before the termination proceedings and would have dubious impact on the orphans' court's decision to terminate Father's parental rights. Father's claim of ineffective assistance of counsel is frivolous.
We thereby conclude that the orphans' court's factual findings are supported by the record and that there was no abuse of discretion or error of law underpinning the orphans' court's decision to terminate Father's parental rights. Accordingly, we affirm the termination order and final decree.
Order and Final Decree affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/12/2016
We direct the parties to include the redacted version of the Orphans' Court Memorandum and Order filed February 1, 2016, in all future filings relating to our examination of the merits of this appeal.
Image materials not available for display.