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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: A.N.H.                                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA




APPEAL OF: B.M.H., FATHER

                                                     No. 1095 WDA 2017


                  Appeal from the Order Entered June 22, 2017
               in the Court of Common Pleas of Clearfield County
                     Orphans' Court at No.: OC-3393-2016


BEFORE: BENDER, P.J.E., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED NOVEMBER 29, 2017

        Appellant, B.M.H. (Father), appeals from the order of the Court of

Common Pleas of Clearfield County (trial court), entered June 22, 2017 that

involuntarily terminated his parental rights to his daughter, A.N.H. (Child)

(born 4/04). S.L.S. (Mother), who was S.L.H. until she remarried following

her divorce from Father, filed a petition to terminate Father’s parental rights

pursuant to 23 Pa.C.S.A. § 2511(a)(1) on December 7, 2016, so that her

husband D.S., (Stepfather) could adopt Child. We affirm.

        Mother and Father married in North Carolina in September of 2006 and

moved to Clearfield, Pennsylvania in 2008, where they resided until

separating in the Fall of 2015. They resolved the question of custody by an
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*
    Retired Senior Judge assigned to the Superior Court.
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agreed order of custody entered December 10, 2015, that provided Mother

primary physical custody and Father periods of partial physical custody as

the parties might mutually agree.

        Father initially visited with Child at the marital residence but his visits

were eventually moved to (and were supervised at) the Safe Haven Program

after concerns arose for Mother’s safety.

        Mother filed for an order of protection from abuse (PFA) against Father

in January of 2016.       The trial court issued a PFA effective for one year.

Father violated the order on more than one occasion but did not initially

suffer any consequences because he left Pennsylvania for North Carolina in

May of 2016.      When Father returned to Clearfield County in December of

2016, he was incarcerated on those violations until the hearing in this

matter on March 28, 2017.

        The trial court held a hearing on Mother’s petition on March 28, 2017.

Testifying at that hearing, in addition to Mother, were Father and Stepfather.

The trial court entered its order terminating Father’s parental rights pursuant

to 23 Pa.C.S.A. § 2511(a)(1) and (b) on June 22, 2017.            Father filed his

notice of appeal and statement of errors complained of on appeal on July 13,

2017.

        Father raises the following questions for our review:

        I. Whether the trial court erred as a matter of law or abused its
        discretion by involuntarily terminating [Father’s] parental rights
        pursuant to 23 [Pa.C.S.A.] []§ 2511(a)(1)?


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      II. Whether the trial court erred as a matter of law or abused its
      discretion by finding that terminating [Father’s] parental rights
      would best serve [Child’s] needs and welfare pursuant to 23
      [Pa.C.S.A.] § 2511(b)?

(Father’s Brief, at 4) (unnecessary capitalization omitted).

      Our standard of review is well-settled:

      In an appeal from an order terminating parental rights, our
      scope of review is comprehensive: we consider all the evidence
      presented as well as the trial court’s factual findings and legal
      conclusions. However, our standard of review is narrow: we will
      reverse the trial court’s order only if we conclude that the trial
      court abused its discretion, made an error of law, or lacked
      competent evidence to support its findings. The trial judge’s
      decision is entitled to the same deference as a jury verdict.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).

      Further, we have stated:

            Where the hearing court’s findings are supported by
      competent evidence of record, we must affirm the hearing court
      even though the record could support an opposite result.

            We are bound by the findings of the trial court which have
      adequate support in the record so long as the findings do not
      evidence capricious disregard for competent and credible
      evidence. 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 conflicts in the evidence.
      Though we are not bound by the trial court’s inferences and
      deductions, we may reject its conclusions only if they involve
      errors of law or are clearly unreasonable in light of the trial
      court’s sustainable findings.

In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citations omitted).

      The trial court terminated Father’s parental rights pursuant to 23

Pa.C.S.A. § 2511(a)(1) and (b).        Requests to have a natural parent’s




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parental rights terminated are governed by 23 Pa.C.S.A. § 2511, which

provides, in pertinent part:

      § 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.

                                  *    *    *

      (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)(1), (b).

      It is well settled that a party seeking termination of a parent’s rights

bears the burden of proving the grounds to so do by “clear and convincing

evidence,” a standard which requires evidence 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 T.F., 847 A.2d 738, 742 (Pa. Super. 2004). Further,



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      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 the Interest of K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (internal

citations omitted).

      In regard to incarcerated persons, our Supreme Court has stated:

             [I]ncarceration is a factor, and indeed can be a
      determinative factor, in a court’s conclusion that grounds for
      termination exist under § 2511(a)(2) where the repeated and
      continued incapacity of a parent due to incarceration has caused
      the child to be without essential parental care, control or
      subsistence and that [sic] the causes of the incapacity cannot or
      will not be remedied.

In re Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012).

                                 *   *     *

            [W]e now definitively hold that incarceration, while not a
      litmus test for termination, can be determinative of the question
      of whether a parent is incapable of providing “essential parental
      care, control or subsistence” and the length of the remaining
      confinement can be considered as highly relevant to whether
      “the conditions and causes of the incapacity, abuse, neglect or
      refusal cannot or will not be remedied by the parent,” sufficient
      to provide grounds for termination pursuant to 23 Pa.C.S. §
      2511(a)(2). See e.g. Adoption of J.J., [511 Pa. at 605], 515
      A.2d at 891 (“[A] parent who is incapable of performing parental
      duties is just as parentally unfit as one who refuses to perform
      the duties.”); [In re:] E.A.P., [944 A.2d 79, 85 (Pa. Super.
      2008)] (holding termination under § 2511(a)(2) supported by
      mother’s repeated incarcerations and failure to be present for
      child, which caused child to be without essential care and
      subsistence for most of her life and which cannot be remedied
      despite mother’s compliance with various prison programs). If a
      court finds grounds for termination under subsection (a)(2), a

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       court must determine whether termination is in the best
       interests of the child, considering the developmental, physical,
       and emotional needs and welfare of the child pursuant to §
       2511(b). In this regard, trial courts must carefully review the
       individual circumstances for every child to determine, inter alia,
       how a parent’s incarceration will factor into an assessment of the
       child’s best interest.

Id. at 830-31.1

       To terminate parental rights pursuant to section 2511(a)(1), the

person or agency seeking termination 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 demonstrates a settled purpose to

relinquish parental rights or that the parent has refused or failed to perform

parental duties. See 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).


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1
  Our Supreme Court cited its decision in In re: Adoption of McCray, 331
A.2d 652, 655 (Pa. 1975), for the proposition that termination may be
appropriate for an incarcerated parent who has failed to perform his parental
duties for a six-month period of time (section 2511(a)(1)). See in re
Adoption of S.P., supra at 828.




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Matter of Adoption of Charles E.D.M., II, 708 A.2d 88, 92 (Pa. 1998)

(citation omitted). Further,

      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, 854-55 (Pa. Super. 2004) (citations omitted).

      The Adoption Act provides that a trial court “shall give primary

consideration to the developmental, physical and emotional needs and

welfare of the child.”   23 Pa.C.S.A. § 2511(b).     The Act does not make

specific reference to an evaluation of the bond between parent and child but

our case law requires the evaluation of any such bond. See In re E.M., 620

A.2d 481 (Pa. 1993). However, this Court has held that the trial court is not

required by statute or precedent to order a formal bonding evaluation

performed by an expert.        See In re K.K.R.-S., 958 A.2d 529, 533 (Pa.

Super. 2008).

      Here, Father first claims that the trial court erred in finding that there

was sufficient evidence to terminate his parental rights pursuant to 23

Pa.C.S.A. § 2511(a)(1). (See Father’s Brief, at 14). We disagree.

      After independent review, we agree with the trial court’s analysis of

this issue. It reasoned as follows:

            Father left the Commonwealth and moved to North
      Carolina in May of 2016. It is important to note that Father did

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      not inform Mother as to the location of his residence or how he
      could be reached for purposes of custody. Father returned to
      the Commonwealth approximately seven (7) months later;
      however, during this seven (7) month span, Father’s contact
      with the Child was nearly non-existent. With the exception of
      one (1) postcard in June, Father did not send any gifts, cards, or
      other letters to the Child. Father also did not make any attempt
      to see the Child, despite knowing where the Child resided.
             During the six (6) months preceding the filing of the
      Petition, Father did not make any phone contact with the Child.
      While it is true that the Child did not have her own cell phone,
      and Mother blocked Father’s phone number in relation to the
      aforementioned Protection from Abuse Order, Mother did provide
      a skype account through which Father could reach and
      communicate with the Child at his convenience.          However,
      Father exercised this option only once. Further, although Father
      testified that he had purchased a cell phone for the Child, it is
      important to note that it was of the prepay variety, requiring the
      purchase of usable minutes. Father testified that he never
      purchased any minutes for the phone; thus, the phone which
      Father supplied to the Child was virtually useless.
             Father also failed to perform any parental duties with
      respect to the Child or provide any financial support. Despite
      having shared legal custody, Father testified that he never
      contacted the Child’s school district to gain information regarding
      the Child’s academic progress, nor did he reach out to any of the
      Child’s doctors. Of course, Father also did not attend any
      doctor’s appointments, school events, or extracurricular activities
      of the Child, as Father resided in an unknown location in North
      Carolina, hundreds of miles away, for the seven (7) months
      preceding the filing of the Petition. Further, Mother testified that
      from May to December of 2016, Father made only one (1) child
      support payment. She also testified that in the eighteen (18)
      months preceding the hearing, Father made three (3) child
      support payments in total. In light of these facts, the Court is
      satisfied that Father had evidenced a settled purpose of
      relinquishing his parental claim to the Child and had refused or
      failed to perform any parental duties for at least six (6) months
      prior to the filing of the instant Petition.

(Trial Court Opinion, 6/22/17, at 3-4).



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      We conclude that the trial court did not err or abuse its discretion

when it terminated Father’s parental rights pursuant to 23 Pa.C.S.A. §

2511(a)(1).

      Father also claims that there was insufficient evidence to permit the

trial court to determine that the termination of his parental rights was in

Child’s best interests. (See Father’s Brief, at 14). We again disagree and

approve of the trial court’s analysis:

             In addition to the conduct of the Parent, the Court must
      also consider the needs and welfare of the Child applying a best
      interests of the child standard. During the hearing in this case,
      Mother testified that Father’s periods of partial custody have
      consistently been supervised at Safe Haven, as Mother would be
      otherwise concerned for the Child’s safety. Mother also testified
      that when the Child does communicate with Father, she becomes
      severely depressed and goes into angry rages for two (2) to
      three (3) days before being able to calm down. Finally, Mother
      stated that since Father has been absent in the Child’s life, the
      Child has been very happy and healthy overall. As evidence of
      this, Mother stated that while Father was present in the Child’s
      life, the Child was barely passing her classes in school.
      However, since Father has been away from the Child, the Child
      has been on the high honor roll each marking period.

(Trial Court Opinion, 6/22/17, at 4).

      Father’s claim that there was insufficient evidence to terminate his

parental rights pursuant to 23 Pa.C.S.A. § 2511(b) is without merit.

      Accordingly, we affirm the order of the Court of Common Pleas of

Clearfield County that terminated Father’s parental rights pursuant to 23

Pa.C.S.A. § 2511(a)(1) and (b).

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/29/2017




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