In re Adoption of G.J.W., 052820 PASUP, 1454 MDA 2019

Docket Nº:1454 MDA 2019, 1455 MDA 2019
Opinion Judge:STABILE, J.
Party Name:IN RE: ADOPTION OF G.J.W. APPEAL OF: C.M. AND J.M. IN RE: ADOPTION OF S.N.W., A MINOR APPEAL OF: C.M. AND J.M.
Judge Panel:BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.
Case Date:May 28, 2020
Court:Superior Court of Pennsylvania
 
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IN RE: ADOPTION OF G.J.W.

APPEAL OF: C.M. AND J.M.

IN RE: ADOPTION OF S.N.W., A MINOR

APPEAL OF: C.M. AND J.M.

Nos. 1454 MDA 2019, 1455 MDA 2019

Superior Court of Pennsylvania

May 28, 2020

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Decree Entered August 5, 2019 In the Court of Common Pleas of Luzerne County Orphans' Court at Nos: A-8737, A-8735

BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

MEMORANDUM

STABILE, J.

C.M. ("Mother") and her husband, J.M. (collectively, "the Petitioners"), appeal from the decree entered August 5, 2019, which denied their petitions to terminate the parental rights of J.W. ("Father") involuntarily, with respect to his minor children, S.N.W., a female born in October 2006, and G.J.W., a male born in February 2011 (collectively, "the Children"). In addition, Father's privately-retained counsel has filed a motion to withdraw her representation in this Court. After careful review, we affirm the decree and deny counsel's motion to withdraw without prejudice to her ability to request relief in the orphans' court.

Our review of the record reveals the following factual and procedural history. Mother and Father were never married but lived together from 2004 until 2013. N.T., 6/4/19, at 7. Father commenced a custody action after the parties' separation, which resulted in an order awarding him supervised partial physical custody of the Children. Id. at 7-10, 30. This arrangement lasted until 2016, when the custody court entered a new order directing that Father attend one hour of counseling with the Children each week, followed by three hours of unsupervised partial physical custody in a public location. Id. at 10.

Significantly, Father last had contact with the Children in January 2017, due to an incident that took place in the parking lot of the Children's counseling office. Id. at 13-18. According to Mother, she was sitting in her vehicle when Father drove his vehicle into hers, pushing her "down an embankment through a fence and some trees." Id. at 16. Father then exited his vehicle and began yelling and striking Mother's driver's side window with a bat. Id. Mother fled from her vehicle and "hid in an office" while calling 911.1 Id. As a result of this incident, Father was arrested and faced unspecified criminal charges. Id. at 21. He was ultimately convicted and received a sentence of incarceration in February 2018.2 Id. at 63. Meanwhile, Mother and Father agreed to modify the terms of their custody order to suspend all contact between Father and the Children. Id. at 31-32, 59. Mother also obtained a three-year Protection From Abuse ("PFA") order against Father, to which he agreed without admission of wrongdoing. Id. at 17-18, 33-34, 60. Like the custody order, the PFA order directed that Father could not have contact with the Children. Id. at 17.

The substance of this appeal focuses on what Father did, or did not do, to maintain his relationship with the Children following the incident in January 2017. After Father was arrested in January 2017, he spent two days in jail followed by either three days or "almost two weeks" in a hospital. Id. at 21, 62-63. However, Father posted bail and remained free until his sentencing in February 2018. Id. During the year that Father remained free, he did not request that the PFA court modify the order against him so that he could have contact with the Children.3 Father explained that he agreed to the PFA order, and did not attempt to modify it later, due to the advice of his criminal defense counsel, who cautioned him that PFA proceedings could affect the outcome of his criminal matter. Id. at 51, 64. After Father's sentencing and incarceration in February 2018, he once again did not request modification of the PFA order. According to Father, he did not request modification because he suffers from dyslexia and cannot read or write. Id. at 43, 52-53. Father explained that he could not represent himself in a modification proceeding because the jail and prison facilities where he resided did not offer services to assist him with his illiteracy, and that he had been unable to afford private counsel. Id. at 66-69, 71-73.

On July 19, 2018, the Petitioners filed petitions to terminate Father's parental rights to the Children involuntarily.4 The orphans' court conducted a hearing on June 4, 2019. Father retained private counsel to represent him during the hearing. He remained incarcerated at the time and participated via videoconference. Ultimately, the court entered a decree on August 5, 2019, denying termination. The Petitioners timely filed notices of appeal, along with concise statements of errors complained of on appeal, on August 30, 2019.5, 6

The Petitioners now raise the following claim for our review: Did the [orphans'] court abuse its discretion or commit an error of law in its August 2, 2019 [decree] by finding that the PFA order, Father's incarceration, reliance on counsel, dyslexia, and lack of financial means were reasonable excuses for his failure to perform parental duties in excess of six months and legitimate barriers supporting a denial of the [p]etitions to terminate his parental rights?

The Petitioners' Brief at 7.

We consider the Petitioners' claim pursuant to the following standard of review: The standard of review in termination of parental rights cases requires appellate courts to accept the findings of fact and credibility determinations of the trial court if they are supported by the record. If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. A decision may be reversed for an abuse of discretion only upon demonstration...

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