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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN RE: ADOPTION OF: K.R.W., A MINOR               IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA

APPEAL OF: R.S.W., FATHER                        No. 992 MDA 2015


                 Appeal from the Decree entered May 12, 2015,
                 in the Court of Common Pleas of York County,
                     Orphans’ Court, at No(s): 20015-0037a

BEFORE: FORD ELLIOTT, P.J.E., WECHT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 09, 2015

        Appellant, R.S.W. (“Father”), appeals from the decree entered in the

Court of Common Pleas of York County Orphans’ Court, terminating Father’s

parental rights to K.R.W. (born in May of 2004) (“Child”). We affirm.

        At the time of Child’s birth, Father was incarcerated, and he was

released from prison seven months later. After Father was paroled, he lived

with Mother, Child, and Mother’s two other children from a previous

relationship.   In April of 2006, Mother and the children moved out of the

house.     Before Child turned two years old, Father was incarcerated and

remained incarcerated until 2011. When Father was released from prison,

Father remained in contact with Child.        Mother agreed to take Child to

paternal grandfather’s home to visit Father every other weekend.        Father

last contacted Child in August of 2012.       Father was again incarcerated in

December of 2012 for retail theft, and remained incarcerated for two and

*
    Former Justice specially assigned to the Superior Court.
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one-half years. Mother has lived with D.R. (“Stepfather”) for approximately

nine years. Mother and Stepfather married in 2013.

      On April 9, 2015, Mother filed a petition to involuntarily terminate

Father’s parental rights to Child.   On May 12, 2015, the trial court held a

hearing on the termination petition. The trial court granted Father a

transport order so that he could be present for the termination hearing. At

the termination hearing, Mother, Father, and Stepfather testified. On May

12, 2015, the trial court entered its decree terminating Father’s parental

rights pursuant to 23 Pa.C.S. § 2511(a)(1) and (b).

      On June 8, 2015, Father timely filed a notice of appeal, along with a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b). Father raises the following issue on appeal.

         Whether the trial court erred as a matter of law and
         abused its discretion by granting the request of [Mother]
         to terminate [Father]’s parental rights when [Mother]
         failed to present clear and convincing evidence under 23
         Pa.C.S.A. § 2511(a)(1)?

Father’s Brief at 5.

      Our standard of review regarding orders terminating parental rights is

as follows:

         When reviewing an appeal from a decree terminating
         parental rights, we are limited to determining whether the
         decision of the trial court is supported by competent
         evidence. Absent an abuse of discretion, an error of law,
         or insufficient evidentiary support for the trial court’s
         decision, the decree must stand. Where a trial court has
         granted a petition to involuntarily terminate parental

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         rights, this Court must accord the hearing judge’s decision
         the same deference that we would give to a jury verdict.
         We must employ a broad, comprehensive review of the
         record in order to determine whether the trial court’s
         decision is supported by competent evidence.

In re S.H., 879 A.2d 802, 805 (Pa. Super. 2005). In termination cases, 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.

Id. at 806.     We have previously stated: “The 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.’” In re J.L.C.,

837 A.2d 1247, 1251 (Pa. Super. 2003).

      The trial court “is free to believe all, part, or none of the evidence

presented and is likewise free to make all credibility determinations and

resolve all conflicts in the evidence.” In re M.G., 855 A.2d 68, 73-74 (Pa.

Super. 2004). “[I]f competent evidence supports the [trial] court’s findings,

we will affirm even if the record could also support the opposite result.” In

re T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003).       Additionally, this Court

“need only agree with [the trial court’s] decision as to any one subsection in

order to affirm the termination of parental rights.” In re B.L.W., 843 A.2d

380, 384 (Pa. Super. 2004) (en banc).

      In terminating Mother’s parental rights, the trial court relied upon

Sections 2511(a)(1) and (b) of the Adoption Act which provide as follows:

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        (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.

                                *    *    *

        (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. § 2511(a)(1), (b).

     We have explained this Court’s review of a challenge to the sufficiency

of the evidence to support the involuntary termination of a parent’s rights

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. In addition,

           Section 2511 does not require that the parent
           demonstrate both a settled purpose of relinquishing
           parental claim to a child and refusal or failure to

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            perform parental duties. Accordingly, parental rights
            may be terminated pursuant to Section 2511(a)(1) if
            the parent either demonstrates a settled purpose of
            relinquishing parental claim to a child or fails to
            perform parental duties.

            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 Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (internal citations

omitted).

     Regarding the definition of “parental duties,” this Court has stated:

            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 of importance in the
            child’s life.

        Parental duty requires that the parent act affirmatively
        with good faith interest and effort, and not yield to every

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         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 convenient time to perform one’s parental
         responsibilities while others provide the child with his or
         her physical and emotional needs.

In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (internal citations

omitted).

      On appeal, Father argues that the trial court erred in terminating his

parental rights to Child.   Father’s Brief at 4.   Father asserts that the trial

court abused its discretion in holding that Father exhibited a settled purpose

to relinquish his parental rights, because, according to Father, he has used

all available resources to preserve his parental relationship, including while

he has been incarcerated.       Id. at 10-14.      With regard to a parent’s

incarceration, in In re S.P., 47 A.3d 817 (Pa. 2012), our Supreme Court

reiterated the standard of analysis pursuant to Section 2511(a)(1) for

abandonment and added as follows:

         [a]pplying [In re McCray, 331 A.2d 652 (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.” Id. at
         655. We observed that the father’s incarceration made his
         performance of this duty “more difficult.” Id.

                                  *    *    *

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              [A] parent’s absence and/or failure to support due to
              incarceration is not conclusive on the issue of
              abandonment. Nevertheless, we are not willing to
              completely toll a parent’s responsibilities during his
              or her incarceration.       Rather, we must inquire
              whether the parent has utilized those resources at
              his or her command while in prison in continuing a
              close relationship with the child. Where the parent
              does not exercise reasonable firmness in declining to
              yield to obstacles, his other rights may be forfeited.

In re S.P., 47 A.3d at 828 (citations omitted). Further, the Supreme Court

stated, “incarceration neither compels nor precludes termination of parental

rights.” Id. (citation omitted).

      The trial court found that, during six months prior to the filing of the

termination     petition,   Father     demonstrated   a   settled   purposed   of

relinquishing his parental claim to Child or failed to perform parental duties.

Trial Ct. Op., 7/9/15, at 10.        Father was incarcerated approximately eight

years of Child’s life. Id. at 2. Father also testified he has not seen Child

since September of 2012 at his grandfather’s funeral. N.T., 5/12/15, at 35.

Moreover, the trial court found that Father did not use all resources available

to him in order to maintain contact with Child. Trial Ct. Op. at 8. The trial

court found

         Father reports that his last in person contact with [Child]
         was in August 2012, at his grandfather’s funeral. He’s
         indicated that he would have sent cards and would have
         attempted to communicate, but that he did not have an
         address for [Child] or Mother. We find that Father has
         been unable to articulate any significant efforts that he
         made to attempt to get an address for Mother. It’s clear

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         that he did have Mother’s phone number and was able to
         contact her by phone, and it appears that some of his
         relatives did have some contact with Mother. Father was
         able to write and send items to maternal grandmother’s
         address during a previous incarceration, he seems to
         remember that it was located on . . . and could have made
         some attempts to utilize a phone book or ask for
         assistance from the prison staff to determine the exact
         address.     We also note that Father never pursued any
         legal action to obtain any visitation rights to [Child].
         Although Father was mostly incarcerated, there were
         periods of time in between his incarceration where he
         could have contemplated seeking legal aid.

Id.

      Mother testified that she encouraged Child to write letters to Father,

but Child did not want to send Father letters. N.T., 5/12/15, at 15.   Mother

testified that, since 2012, Father has not sent mail or gifts to Child. Id. at

9. Mother testified that she resided at their current address for a period of

nine years, and that Father knew of Mother’s address. Id. at 10-11. Mother

testified that she never withheld her address from Father even though he

made threatening statements.      Id. at 15.   Mother also stated that Father

always had maternal grandmother’s address, and maternal grandmother’s

address never changed.     Id. at 12.   Moreover, Mother testified that when

Father “goes to jail, no one in his family” contacts her. Id. at 18.

      At the hearing, Father was scheduled to be released from prison to live

in a half-way house in the state of New York. Father testified that he has a

drug addiction, but he has family support and therapy for his addiction. Id.

at 23-24. Father testified that for nine years he has not known where Child

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lived, and that Mother would not tell him the address.      Id. at 30. Father

testified that when he was not incarcerated, he had no idea where Child

lived because Mother and Child would meet Father at paternal grandfather’s

house or Old Navy Department Store parking lot. Id. at 34. While Father

had Mother’s phone number, he testified that he could not call Child from

York County Prison because he needed a valid address in order to get

approved. Id. at 27-28. Father testified that the last known address he had

for Child was maternal grandmother’s address, but Father could not

remember the full address. Id. at 29.      Father stated the first time he knew

of Child’s address was a few days before the termination hearing. Id. at 33.

Furthermore, Father testified that if he knew Child’s address he would have

stayed in contact with Child. Id. at 29.

      The record reveals that the trial court took into consideration Father’s

alleged desire to contact Child and prolonged periods of incarceration, but

found that Father’s failure to perform his parental duties was not due solely

to his incarceration since Father had contact with Mother and could have

contacted Child. Trial Ct. Op. at 8-9. The trial court found that there was no

“significant efforts that [Father] made to attempt to get an address from”

Mother.    N.T., 5/12/15, at 41.      Father’s argument regarding Section

2511(a)(1) essentially asks this Court to make credibility and weight

determinations different from those of the trial court.     While Father may

claim to love Child, a parent’s own feelings of love and affection for a child,

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alone, will not preclude termination of parental rights. In re Z.P., 994 A.2d

1108, 1121 (Pa. Super. 2010). We stated in In re Z.P., a child’s life “simply

cannot be put on hold in the hope that [a parent] will summon the ability to

handle the responsibilities of parenting.”   Id. at 1125 (citation omitted).

Rather, “a parent’s basic constitutional right to the custody and rearing of

his or her child is converted, upon the failure to fulfill his or her parental

duties, to the child’s right to have proper parenting and fulfillment of his or

her potential in a permanent, healthy, safe environment.” In re B., N.M.,

856 A.2d 847, 856 (Pa. Super. 2004).         Consequently, Father’s issue on

appeal lacks merit, and we find no abuse of discretion in the trial court’s

evaluation of Section 2511(a)(1) with respect to Father.

      The trial court must also consider how terminating Father’s parental

rights would affect the needs and welfare of Child pursuant to 23 Pa.C.S. §

2511(b). Pursuant to Section 2511(b), the trial court’s inquiry is specifically

directed to a consideration of “whether termination of parental rights would

best serve the developmental, physical and emotional needs . . . of the

child.”   In re C.M.S., 884 A.2d 1284, 1286-87 (Pa. Super. 2005).

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

inquiry into the needs and welfare of the child.”       Id. at 1287 (citation

omitted). We have instructed that 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.

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      While Father did not contest Section 2511(b) on his appeal, we will

review whether termination of parental rights would best serve the

developmental, physical and emotional needs of Child.         In re C.L.G., 956

A.2d 999, 1004 (Pa. Super. 2008) (en banc) (citation omitted) (stating that

only after determining that the parent’s conduct warrants termination under

subsection (a) must a court engage in the analysis under subsection (b)).

The trial court found that terminating Father’s parental rights would be in

the best interest of Child.     Trial Ct. Op. at 10.   The trial court found that

Child “has found permanency and stability while residing with Mother and

Stepfather.”   Id.   Child has resided with Mother and Stepfather for the

majority of Child’s life. Id.    Mother testified that Stepfather has financially

provided for the Child and performed parental duties such as aiding in

Child’s homework and taking her to activities. N.T., 5/12/15, at 10. Mother

testified that Stepfather is a father figure to Child. Id.

      In the instant case, on the issue of bonding, our review of the record

reveals no evidence of a bond between Father and Child.           The trial court

found that Father did not establish a significant bond with Child.          N.T.,

5/12/15, at 42. Mother testified that Child did not want to send letters to

Father. Id. at 15.    Father testified that his relationship with Child was “a

little rocky, but as time went on, things started getting better.” Id. at 27.

Father stated that “it took [Child] a little while to warm up to [him], get

used to [him] again, but then there [were] periods where she would get

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used to [him], and I wouldn’t see [Child] for a month or two.” Id. Father

testified that Mother impeded his visits with Child. Id. Father testified that

he loves Child and wants to be a part of her life. Id. at 29, 39. We have

stated, “In cases where there is no evidence of any bond between the parent

and child, it is reasonable to infer that no bond exists.” In re K.Z.S., 946

A.2d 753, 762-63 (Pa. Super. 2008).

     After this Court’s careful review of the record, we find that the

competent evidence in the record supports the trial court’s determination

that there was no bond between Father and Child which, if severed, would

be detrimental to Child, and that the termination of Father’s parental rights

would best serve the needs and welfare of Child. Thus, we will not disturb

the trial court’s determinations. See In re M.G., 855 A.2d at 73-74.

     After a careful review, we affirm the decree terminating Father’s

parental rights on the basis of Section 2511(a)(1) and (b).

     Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/9/2015




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