J-S73029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: J.M.M., A MINOR                          IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
APPEAL OF: J.C.M.
                                                     No. 912 WDA 2018


                Appeal from the Order Entered May 25, 2018
            In the Court of Common Pleas of Washington County
                    Orphans' Court at No(s): 63-18-295


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.

MEMORANDUM BY BENDER, P.J.E.:                  FILED FEBRUARY 1, 2019

      J.C.M. (Father) appeals from the May 25, 2018 order granting N.R.L.’s

(Mother) petition seeking the involuntary termination of Father’s parental

rights to the minor child, J.M.M. (Child), so that N.L. (Stepfather) can adopt

Child. After review, we affirm.

      The trial court summarized the background of this case as follows:

             [C]hild J.M.M. was born [i]n August [of] 2014, [and was]
      not quite four years of age [at the time the termination hearing
      was held]. At the time of [C]hild’s birth, [] Mother and Father
      were not married to each other, but were living together in
      Charleroi, Pennsylvania. Shortly thereafter, the three moved to
      Denver, Colorado to get a new start. The parents’ relationship
      was rocky and in August of 2016 they separated and [] Mother
      returned to Charleroi, Pennsylvania. [] Mother filed a Protection
      from Abuse Petition [(PFA)] on July 13, 2016 against [] Father,
      alleging that he was harassing her by phoning her at least 35
      times from Colorado and threatening to kill her for leaving. The
      [c]ourt took judicial notice that the PFA (Case No. 2016-4125) was
      served on Father by a Deputy Sheriff in Colorado on August 15,
      2016. The PFA was granted and Father was prohibited from
      having contact with [] Mother. [] Father was provided partial
      physical custody/visitation and allowed to Skype with [C]hild three
      nights a week and communicate through [] Father’s grandmother.
      Thereafter, [] Father Skyped with [C]hild, who was then two years
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      old. After Skyping a few times, [] Father decided to end that
      avenue of communication and deleted his Skype account because
      he contended that the sessions always ended in arguments
      between [] Father and Mother. [] Father sent Mother an e-mail
      telling her he was deleting Skype and September of 2016 was the
      last time Father saw [C]hild. Around that same time, Father also
      returned to this area from Denver and was living with his
      grandmother in Monessen. He had criminal charges lodged
      against him in Colorado. He was detained here in Pennsylvania
      on a Colorado warrant and was extradited to Colorado to face
      felony drug charges. He was in jail in Colorado for a month and a
      half and was released in June of 2017.           He returned to
      Pennsylvania; he had to return to Colorado to resolve his criminal
      case and is currently on parole and compliant.

            Between September of 2016 and September of 2017, []
      Father made no effort to contact his son. He contacted Attorney
      Peter Daley in September of 2017 to seek custody or visitation
      with his son. He did not know Mother’s address. At the time of
      the PFA and later in 2016, Mother blocked Father from her cell
      phone, her Facebook account and her Instagram account. Father
      knew her e-mail address and the name and address of her
      employer. He knew where her mother and grandmother lived.
      Father’s complaint for custody was filed in Westmoreland County
      on January 22, 2018. The case was subsequently transferred to
      Washington County on April 13, 2018 and docketed at 2018-2301.
      Mother was not served until after the transfer.

Trial Court Opinion (TCO), 8/10/18, at 1-3 (citations to record omitted).

      Mother filed the termination petition on March 1, 2018.       Mother and

Father both attended the May 4, 2018 termination hearing with counsel. Child

was also represented by counsel, who was also the guardian ad litem (GAL).

The court issued its memorandum order on May 25, 2018, granting Mother’s

petition pursuant to 23 Pa.C.S. § 2511(a)(1) and (b). In its opinion, the court

set forth additional findings, including the fact that Father had no contact with

nor had he provided for Child since September of 2016.         The court found


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Father’s assertion that he tried to send gifts to Child not credible.       This

determination was made by the court because Father could have emailed

Mother informing her that he was leaving gifts for Child at the home of

Mother’s grandmother. The court further noted that although Father enlisted

the services of an attorney in September of 2017, a complaint for custody was

not filed until January 2018. Although the court recognized that obstacles

were placed in Father’s path, the court found that Father’s contact with an

attorney took place only after a full year of doing nothing. Even then, four

months passed before the custody complaint was filed in the wrong county.

Additionally, the court found that at the time of the hearing, Father had not

seen or talked with Child for two years, one-half of Child’s life. As for Child’s

relationship with Stepfather, the court found that they had a good relationship,

with Stepfather performing the role of parent to Child. The GAL confirmed

Child’s good home life, and expressed that no bond existed between Child and

Father. Finally, the trial court explained that at the beginning of the hearing

Mother’s attorney showed the court a document entitled a Notice of Intention

to Adopt, signed by Stepfather on May 4, 2018, although it was not filed with

the court until August 10, 2018.

      Following the court’s May 25, 2018 order terminating Father’s parental

rights, Father filed a timely appeal and subsequently filed a statement of

errors complained of on appeal. In his brief, Father sets forth the following

six issues for our review:


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      1. Whether the [t]rial [c]ourt abused its discretion by terminating
         [] Father’s parental rights based upon insufficient evidence?

      2. Whether the [t]rial [c]ourt abused its discretion by capriciously
         disregarding [] Mother’s efforts to obstruct [] Father’s
         relationship with the minor [C]hild?

      3. Whether the [t]rial [c]ourt abused its discretion by finding that
         [] Father had not exercised reasonable firmness in overcoming
         the efforts of [] Mother to obstruct his relationship with his
         [Child] when it is undisputed that [] Father hired an attorney
         to pursue custody and had filed a [c]ustody [c]omplaint in an
         effort to maintain his relationship with the minor [C]hild?

      4. Whether the [t]rial [c]ourt erred in ruling [] Father did not have
         a bond with the minor?

      5. Whether the [t]rial [c]ourt abused its discretion when it relied
         on insufficient evidentiary support in finding that the
         termination of [] Father’s rights was in the [C]hild’s best
         interest?

      6. Whether the [t]rial [c]ourt abused its discretion when it relied
         on insufficient evidentiary support to determine that [S]tep-
         father had a present intention to adopt the minor [C]hild
         without hearing testimony from the prospective adoptive
         father?
Father’s brief at 4-5.

            Appellate review of termination of parental rights cases
      implicate the following principles:

            In cases involving termination of parental rights: “our
            standard of review is limited to determining whether
            the order of the trial court is supported by competent
            evidence, and whether the trial court gave adequate
            consideration to the effect of such a decree on the
            welfare of the child.”

      In re I.J., 972 A.2d 5, 8 (Pa. Super. 2009) (quoting In re S.D.T.,
      Jr., 934 A.2d 703 (Pa. Super. 2007), appeal denied, 597 Pa. 68
      950 A.2d 270 (2008)).



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            Absent an abuse of discretion, an error of law, or
            insufficient evidentiary support for the trial court’s
            decision, the decree must stand. … 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 B.L.W., 843 A.2d 380, 383 (Pa. Super. 2004) (en banc),
      appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004) (internal
      citations omitted).

            Furthermore, we note that the trial court, as the finder
            of fact, is the sole determiner of the credibility of
            witnesses and all conflicts in testimony are to be
            resolved by [the] finder of fact. The burden of proof
            is on the party seeking termination to establish by
            clear and convincing evidence the existence of
            grounds for doing so.

      In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa. Super. 2002)
      (internal citations and quotation marks omitted).

In re Z.P., 994 A.2d 1108, 1115-16 (Pa. Super. 2010).

      We are guided further by the following: Termination of parental rights

is governed by Section 2511 of the Adoption Act, which requires a bifurcated

analysis.

      Our case law has made clear that under Section 2511, the court
      must engage in a bifurcated process prior to terminating parental
      rights. Initially, the focus is on the conduct of the parent. The
      party seeking termination must prove by clear and convincing
      evidence that the parent’s conduct satisfies the statutory grounds
      for termination delineated in Section 2511(a). Only if the court
      determines that the parent’s conduct warrants termination of his
      or her parental rights does the court engage in the second part of
      the analysis pursuant to Section 2511(b): determination of the
      needs and welfare of the child under the standard of best interests
      of the child. One major aspect of the needs and welfare analysis
      concerns the nature and status of the emotional bond between
      parent and child, with close attention paid to the effect on the child
      of permanently severing any such bond.

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In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citing 23 Pa.C.S. § 2511,

other citations omitted). 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. R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

However, we need only agree with the trial court as to any one subsection of

Section 2511(a), as well as Section 2511(b), in order to affirm. In re B.L.W.,

843 A.2d at 384.

      With regard to Section 2511(b), we direct our analysis to the facts

relating to that section. This Court has explained that:

      Subsection 2511(b) focuses on whether termination of parental
      rights would best serve the developmental, physical, and
      emotional needs and welfare of the child. In In re C.M.S., 884
      A.2d 1284, 1287 (Pa. Super. 2005), this Court stated, “Intangibles
      such as love, comfort, security, and stability are involved in the
      inquiry into the needs and welfare of the child.” In addition, we
      instructed that the trial 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. However, in
      cases where there is no evidence of a bond between a 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). Accordingly, the extent
      of the bond-effect analysis necessarily depends on the
      circumstances of the particular case. Id. at 763.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).

      As noted above, the trial court terminated Father’s parental rights

pursuant to section 2511(a)(1) and (b), which provide:

      (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:



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            (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).

      In In re Z.P., 994 A.2d 1108 (Pa. Super. 2010), this Court provided

direction relating to what considerations need to be addressed when reviewing

a trial court’s decision to terminate parental rights under various subsections

of 2511(a). Specifically, relating to subsection (a)(1), the Z.P. Court stated:

      A court may terminate parental rights under Section 2511(a)(1)
      where the parent demonstrates a settled purpose to relinquish
      parental claim to a child or fails to perform parental duties for at
      least the six months prior to the filing of the termination petition.
      In re C.S., [761 A.2d 1197 (Pa. Super. 2000)]. The court should
      consider the entire background of the case and not simply:

            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 … parental rights,
            to determine if the evidence, in light of the totality of
            the circumstances, clearly warrants the involuntary
            termination.

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      In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004), appeal
      denied, 582 Pa. 718, 872 A.2d 1200 (2005) (citing In re D.J.S.,
      737 A.2d 283 (Pa. Super. 1999)).

In re Z.P., 994 A.2d at 1117 (emphasis in original).

      In the argument portion of Father’s brief, he discusses evidence

addressing the first three issues together. He claims that the trial court placed

emphasis on the evidence relating to what occurred in 2016, rather than on

the previous six months prior to the filing of Mother’s termination petition. He

also asserts his fear of contacting Mother because the PFA was in place and

explained his stopping of the Skype visits due to the arguments that ensued

between him and Mother.         Essentially, Father contends that he tried to

maintain his relationship with Child despite the obstacles placed in his path by

Mother, again emphasizing the six-month period preceding the filing of the

termination petition. Father also suggests that his email messages to Mother

described his love for Child and how much he wanted to be a part of Child’s

life despite the difficulties he dealt with relating to his criminal case.

      Father recognized that “parental duty requires that the parent act

affirmatively with good faith interest and effort, and not yield to every

problem, in order to maintain the parent-child relationship to the best of [his]

ability, even in difficult circumstances.” Father’s brief at 19 (quoting In re

B.,N.M., 856 A.2d at 855). However, instead of Mother offering help, Father

claims she did all she could to prevent any communication between Child and

Father. He then described his attempts to overcome the obstacles, such as

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trying to locate Mother by going to Mother’s grandmother to find out where

Mother was living. The main point that Father makes in this regard is that the

court gave Mother a pass as to her obstructive behavior. Father also notes

his hiring an attorney to pursue custody, and claims that the delay in filing of

the custody complaint was not his fault. Rather, he mentions his lack of funds

to hire the attorney in the first place and the difficulty he had in serving the

custody complaint because he did not know Mother’s address and had no way

to communicate with her. He does acknowledge that he informed his attorney

where he thought Mother worked so that she could be served with the custody

complaint at that location. However, he admits that Mother was only served

following the transfer of the case to Washington County.

      In response to Father’s first issue concerning the sufficiency of the

evidence, the trial court stated its findings and conclusions, based on the

evidence presented by the parties. Specifically, the court’s opinion provides:

             It is unrefuted that in the six[-]month period before the
      filing of the petition, [] Father had no contact at all and was not
      performing any parental duties during that period. He provided
      no financial support and had no communication at all. The
      conduct evidences a settled purpose to relinquish his parental
      rights. Strictly construing that provision, [Father], by [his] own
      testimony that he hasn’t seen or provided anything to [C]hild
      since September of 2016, established the elements of 2511(a)(1).
      However, the [c]ourt must not just mechanically apply the six-
      month statutory provision; the [c]ourt must look at the
      circumstances of the case and the explanations offered by the
      parent for his conduct. In Re: B.,N.M., supra.

            Therefore, the inquiry shifted to [] Father’s explanation for
      his absence in his [C]hild’s life. [] Father did not know where
      [Mother] lived; that is unrefuted. But that alone is not sufficient.

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      Scrutiny must also be made as to the efforts Father made to locate
      [] Mother, [and] the efforts [] Father made to obtain and maintain
      a place of importance in [C]hild’s life. Father clearly knew []
      Mother was in the Charleroi area – he last saw her in September
      of 2016 in Walmart. He knew where her mother lived and her
      mother’s phone number.           He knew her e-mail address.
      Importantly, he knew where she worked. She worked at a nursing
      facility in Canonsburg, Pennsylvania when they were together and
      when she returned from Colorado she was able to return to her
      employment and he knew that. Mother did not appear to be hiding
      from [] Father or keeping her whereabouts a secret. When they
      were together, they moved frequently and that pattern apparently
      continued with Mother. While Father said he contacted Mother’s
      grandmother and she told him that [] Mother doesn’t want
      anything to do with him, he obviously knew the grandmother’s
      residence. Father knew Mother’s e-mail address. He said he tried
      to send his son gifts. The [c]ourt did not find Father’s explanation
      credible. He could have easily e-mailed her telling her that he was
      delivering presents or financial support for his son by dropping it
      off at her grandmother’s house.

            In addition to saying he did not know where Mother was, he
      also stated he was worried that he had a PFA against him. He was
      served with the temporary Order while he was in Colorado. When
      he returned, he made no effort to determine the status of the PFA.
      Father sought the services of Attorney Daley in September of 2017
      but didn’t file the Complaint for four months. Father offered no
      explanation for the delay, and Mr. Daley mentioned money as a
      reason. Father did not seek the services of legal aid or proceed
      pro se if he was unable to afford private counsel. The [c]ourt’s
      conclusion was [that,] while obstacles were clearly in his path in
      his efforts to connect with his [C]hild, [] Father showed little
      resoluteness in overcoming those obstacles. [C]hild is entitled to
      more, to someone who will exert himself to maintain a place of
      importance in his life.

TCO at 5-6 (citations to the record omitted).

      Additionally, with regard to Father’s second and third issues considering

whether Mother obstructed Father’s relationship with Child, the court

acknowledged that there were obstacles.         However, the court emphasized


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Father’s response, noting that “the only action [he] undertook, after a full year

of doing absolutely nothing, was contacting an attorney who, after four

months, filed a custody complaint in the wrong county, still not determining

Mother’s address and not being able to do anything with that complaint for at

least three months after filing.” Id. at 7. The trial court also pointed out that

it was not the attorney’s duty, but Father’s, to locate Mother.

      Thus, the court, based on its findings and credibility determinations,

concluded that Father refused or failed to perform his parental duties for a

period of at least six months prior to the filing of the petition to terminate his

parental rights. Father’s entire argument is essentially an attack on the trial

court’s findings and credibility determinations. However, after our thorough

review of the record, we determine that the record supports the court’s

findings and it did not abuse its discretion in arriving at its conclusion.

Therefore, Father is not entitled to relief.

      The main point of Father’s fourth issue centers on the court’s finding

that Father did not have a bond with Child, which is a part of the Section

2511(b) analysis. Father cites his actions during the first two years of Child’s

life when the parties lived together and again his attempts at contact with

Child in 2017 up to the time of the termination hearing.        Most of Father’s

actions detailed in his brief refer to Facebook and email messages to Mother

requesting time to see Child and his expressions of love for Child.        Again,

Father is attempting to refute the trial court’s findings and its conclusion that


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Mother met her burden of proof that no bond existed. Specifically, the court

stated:

      At the time of the hearing, [] Father had not seen or talked with
      his son for two (2) years, half of [C]hild’s life. [] Mother stated
      that [C]hild would not recognize or remember [] Father. [C]hild’s
      attorney/GAL stated that, in his opinion, [] Father had no bond
      with [C]hild.    The evidence supported the [c]ourt’s finding.
      Because there was no father-son bond in existence at the time of
      the hearing, the [c]ourt properly found that no adverse effect
      would occur if the relationship between [] Father and [C]hild was
      terminated.

Id. at 8 (citations to the record omitted). We agree and again note that the

court’s findings and conclusion are supported by the evidence of record.

      Father addresses his last two issues together. They concern whether

the court erred by determining whether the termination of Father’s rights was

in Child’s best interests and whether there was sufficient evidence to show

that Stepfather had the present intent to adopt Child without Stepfather’s

giving testimony at the hearing. Father contends that Mother was not married

to Stepfather at the time she filed the termination petition.     Moreover, he

contends that Stepfather’s notice of intent to adopt was not made a part of

the record until August 10, 2018, even though the instant appeal from the

termination order had already been filed on June 21, 2018. Essentially, Father

argues that without evidence of Stepfather’s intent to adopt or his testimony

about the relationship between him and Child, the court erred in concluding

that the termination of Father’s parental rights was in Child’s best interests.

      In response to these arguments, the court stated:


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             At the time of the hearing, no bond was in existence
      between the Father and [C]hild. [C]hild’s [S]tepfather, who
      desires to adopt him, has a close relationship with [C]hild. []
      Mother and her husband live together and appear to have a good
      relationship with each other. [S]tepfather is performing the role
      of a parent to [C]hild. The [GAL] stated that [C]hild’s home life
      was good and that [Child] had no bond with [] Father. The
      evidence was sufficient to establish, after the finding that one or
      more grounds existed to terminate [] Father’s rights, that the
      termination was in [C]hild’s best interest.

                              . . .

            The attorney for [Mother] indicated to the [c]ourt, at the
      onset of the hearing, that [S]tepfather, [N.L.], intended to adopt
      and that he signed a Notice of Intention to Adopt and showed that
      document to the [c]ourt. The [c]ourt notes that a Report of Intent
      to Adopt was signed by [N.L.] on May 4, 2018 but was not filed
      with the Orphans’ Court until August 10, 2018.

TCO at 8-9 (citations to record omitted).

      Section 2512 of the Adoption Act, 23 Pa.C.S. § 2512, governs “who may

bring a petition to terminate parental rights and what the petition must

contain….”   In re Adoption of M.R.D., 128 A.3d 1249, 1259 (Pa. Super.

2015).

      “If the petitioner is not an agency, then the petition must include
      ‘an averment that an adoption is presently contemplated or that
      a person with a present intention to adopt exists.’” In re E.M.I.,
      [57 A.3d 1278,] 1286 [(Pa. Super. 2012)] (quoting In re
      Adoption of J.F.D., 782 A.2d 564, 567 (Pa. Super. 2001). As a
      general rule, however, the biological parent who files a petition to
      terminate the parental rights of the other biological parent, with
      the intent to retain custody or physical care of the child, does not
      have to file an accompanying report of intention to adopt. Id. at
      1286. See also 23 Pa.C.S.[] § 2631(c) (stating: “No report shall
      be required when the child is the child, grandchild, stepchild,
      brother or sister of the whole or half blood, or niece or nephew by
      blood, marriage or adoption of the person receiving or retaining
      custody or physical care”).

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             A termination petition of one biological parent against the
      other, per Section 2512(a)(1), is cognizable only if the averred
      adoption is foreseeable. 23 Pa.C.S.[] § 2512(b); In re E.M.I.,
      supra at 1286. See also In re B.E., 474 Pa. 139, 142, 377 A.2d
      153, 154 (1977) (stating plan for adoption is required, when one
      biological parent seeks involuntary termination of parental rights
      of other biological parent). Although a petition might satisfy the
      statutory requirements for termination of parental rights, a court
      still cannot grant the petition without a corresponding plan for
      adoption of the child. In re Adoption of L.J.B., [] 18 A.3d
      [1098,] 1107 [(Pa. 2011)] (reversing involuntary termination of
      mother’s parental rights, where termination decree was entered
      to make way for stepmother’s adoption of child, in light of new
      evidence that stepmother no longer wanted to adopt child). A
      contemplated adoption is required in this context because “the
      purpose of involuntary termination of parental rights is to dispense
      with the need for parental consent to an adoption when, by choice
      or neglect, a parent has failed to meet the continuing needs of the
      child. Id. at 229-30, 18 A.3d at 1108.

Id. at 1260.

      As noted in the trial court’s opinion, Stepfather’s signed Notice of Intent

to Adopt was provided to it for inspection at the beginning of the termination

hearing. Moreover, Mother’s petition included an averment that Stepfather

wished to adopt Child. Additionally, Stepfather’s attendance at the hearing

evinced his support for Mother’s petition to terminate Father’s parental rights

and his intent to adopt Child. It is troubling that the document itself was not

officially filed until August 10, 2018, but that delay does not nullify its

presentation to the court, which then had the information necessary to

conclude that Child’s adoption by Stepfather was intended. Stepfather’s intent

and the testimony provided by Mother and the GAL, relating to Stepfather’s

and Child’s relationship, supported the court’s conclusion that the termination

of Father’s parental rights would be in Child’s best interests. Therefore, we


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again conclude that the trial court did not err in this regard. Father has not

convinced us otherwise.
      Accordingly, we conclude that the court correctly terminated Father’s

parental rights to Child, which allows Stepfather’s intention to adopt to

proceed, an action that serves Child’s best interests. Therefore, we affirm the

May 25, 2018 order granting Mother’s termination petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/1/2019




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