J-S40030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: ADOPTION OF M.B.B.                :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
 APPEAL OF: C.B., FATHER                  :
                                          :
                                          :
                                          :
                                          :
                                          :   No. 519 WDA 2019

              Appeal from the Order Entered March 12, 2019
    In the Court of Common Pleas of Venango County Orphans' Court at
                            No(s): 114-2016


BEFORE:    BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY McLAUGHLIN, J.:                  FILED SEPTEMBER 24, 2019

      C.B. (“Father”) appeals from the order terminating his parental rights to

M.B.B. (“Child”). We conclude the trial court did not abuse its discretion when

it terminated his parental rights and therefore affirm.

      T.M.R. (“Mother”) and Father are the biological parents of Child (born

October 2012). Although not married, Mother and Father previously resided

together. In January 2013, when Child was three months old, Mother and Child

left Father due to his addiction to heroin. Trial Court Opinion, filed Mar. 12,

2019, at 3-4 (“Trial Ct. Op.”). Mother has since married A.G., with whom she

has been in a relationship since August 2013. Id. at 3. Mother and A.G. have

a child, E.G., born September 2017. Id.

      Custody proceedings were initiated in July 2013. Mother had primary

physical custody, and Mother and Father shared legal custody. Various

custody orders were entered, with most providing that Father would have

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S40030-19



supervised times of partial custody. The visits were supervised due to

concerns for Child’s safety because of Father’s addiction. Id. at 5.

      During the weekend of March 18-20, 2016, Father had unsupervised

custody of Child from Friday night to Sunday. Id. at 9-10. Mother testified

that, because she had a bad feeling about the weekend, she went to Father’s

residence early on Sunday to transfer custody. She testified that it was a cold

morning, but that, when she arrived, she saw Father dressed only in a t-shirt

and basketball shorts and Child on the sofa in a tank top and shorts. Id. at

10. Mother, based on her prior experience with Father’s addiction, concluded

he was under the influence of drugs. Id. He had blotches on his face that were

bloody, had pinpoint pupils, was incoherent, and incapable of safely

supervising Child. Id. Mother testified that when she went to her car to call

Father’s Mother, Father brought Child to the car in the tank top and shorts.

N.T., Jan. 29, 2019, at 81, 240.

      Father testified that on March 20, 2016, Mother arrived early, saying

Child had a play date. N.T., Jan. 30, 2019, at 109-110. Father told Mother

that Child could not leave yet, as his time had not ended. Id. However, Child

wanted to go, so he dressed Child and took her to Mother’s car. Id. at 110.

He stated he was in basketball shorts and no shirt and Child wore pajamas

because they had just woken up. Id. He testified that he was not under the

influence of narcotics that weekend. Id. at 112.

      This was the last time Father had unsupervised custody of Child. Trial

Ct. Op. at 10. After the March 2016 visit, Mother and Father agreed to an

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arrangement where Mother and A.G. would bring Child for supervised visits

with Father. Id. The first supervised visit went well, but the five additional

supervised visits between March 2016 and September 2016 did not. Id. at

10-11. Mother and A.G. testified that Father had track marks and seemed high

during the visits, and after the first visit, he was “progressively less interested

in parenting.” Id. at 11. Father testified the visits were too structured and

claimed he could not parent Child because Mother and A.G. were hovering.

Id. Father did not file any document in court to challenge the arrangement.

Id. The last visit Father had with Child was around Labor Day weekend in

2016. Id.

      Between April 2016 and September 2016, Father spoke to Child on the

phone and FaceTimed with Child. Id. at 12. However, the court credited

Mother’s testimony as to these interactions. Id. She testified that the three-

year-old Child “would not stand still for more than a couple minutes and . . .

every time Father FaceTimed with [C]hild it was for no more than a couple

minutes.” Id. She stated the longer conversations were between Mother and

Father.

      From 2013 to 2016, Father had three arrests for driving under the

influence of a controlled substance (“DUI”), including an arrest in April 2016.

Id. at 6-7. In December 2016, he was arrested for a drug-related offense.

      Mother and A.G. testified that Child views A.G. as her father, that they

are bonded, and that he is involved in her life.




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      In September 2016, Mother and A.G. filed a petition to terminate

Father’s parental rights to Child. The trial court held a hearing in May 2017,

after which the trial court terminated Father’s rights. Father appealed, and

this Court remanded because the trial court had not appointed an attorney to

represent Child.

      In March 2019, following a January 2019 hearing before a different trial

judge, the court entered a decree terminating Father’s parental rights. It

concluded that Mother and A.G. had established by clear and convincing

evidence that Father refused or failed to perform parental duties for a period

continuing for at least six months prior to the filing of the petition, and that

termination would be in Child’s best interest. See Decree, filed Mar. 12, 2019;

23 Pa.C.S.A. § 2511(a)(1), (b). Father filed a timely Notice of Appeal.

      Father raises the following issues:

         1. The trial court erred in relying upon [Mother and A.G.’s]
         testimony to alleged incidents that occurred prior to the six
         month look back period.

         2. The trial court erred in finding that Mother proved by
         clear and convincing evidence that Father evidenced a
         settled purpose of relinquishing parental claim to [Child]
         without making the requisite finding that Father made a
         deliberate decision to terminate his parent-child relationship
         throughout the statutory six-month period, as required by
         Pennsylvania law.

         3. The trial court erred in finding that Mother proved by
         clear and convincing evidence that Father had refused or
         failed to perform parental duties, especially considering
         Father’s physical custody periods continuing until three
         weeks before the petition to terminate was filed, and
         Father’s telephone calls and text messages regarding


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         [Child] during the six (6) months preceding Mother’s
         petition.

         4. The trial court erred in relying on Father’s criminal
         charges, rather than the disposition of his criminal cases,
         especially the incidents occurring in April and December
         2016.

         5. The trial court erred in finding that “where the rubber
         meets the road” is Father’s addiction, and that Father’s
         “past behavior is the best indicator of [his] future behavior,”
         and thus terminating Father’s rights solely on the basis of
         his addiction.”

         6. The trial court erred in finding that [Child’s] best interests
         were served by terminating Father’s parental rights
         pursuant to 23 Pa.C.S. § 2511(b).

Father’s Br. at 5-6. Father has abandoned his first issue in his brief and we

therefore will not address it. Id. at 5 n.1 (stating “Father is not pursuing this

issue on appeal”). Father’s remaining issues challenge the termination of his

parental rights.

      A party seeking to terminate parental rights has the burden of

establishing grounds for termination by clear and convincing evidence. In re

Adoption of K.C., 199 A.3d 470, 473 (Pa.Super. 2018). Clear and convincing

evidence means evidence “that is so clear, direct, weighty, and convincing as

to enable the trier of fact to come to a clear conviction, without hesitation, of

the truth of the precise facts in issue.” Id. (internal quotation marks and

citation omitted in In re Adoption of K.C.).

      When we review termination of parental rights cases, we “accept the

findings of fact and credibility determinations of the trial court if they are

supported by the record.” In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (quoting



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In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012)). “If the factual findings

have support in the record, we then determine if the trial court committed an

error of law or abuse of discretion.” In re Adoption of K.C., 199 A.3d at 473.

A trial court decision may be reversed for an abuse of discretion “only upon

demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-

will.” In re Adoption of S.P., 47 A.3d at 826.

      Our Supreme Court has explained the reasons for applying an abuse of

discretion standard of review in termination of parental rights cases:

            [U]nlike trial courts, appellate courts are not equipped to
         make the fact-specific determinations on a cold record,
         where the trial judges are observing the parties during the
         relevant hearing and often presiding over numerous other
         hearings regarding the child and parents. Therefore, even
         where the facts could support an opposite result, as is often
         the case in dependency and termination cases, an appellate
         court must resist the urge to second guess the trial court
         and impose its own credibility determinations and
         judgment; instead we must defer to the trial judges so long
         as the factual findings are supported by the record and the
         court’s legal conclusions are not the result of an error of law
         or an abuse of discretion.

Id. at 826-27 (citations omitted).

      Termination of parental rights is controlled by Section 2511 of the

Adoption Act. In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007). Under Section

2511, the trial court must engage in a bifurcated analysis 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


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          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.

Id. (citations omitted).

       In the present case, the trial court terminated Father’s parental rights

pursuant to 23 Pa.C.S.A. §§ 2511(a)(1) and 2511(b) of the Adoption Act.

       Father argues the trial court erred in finding he had a settled purpose of

relinquishing his parental claim to Child. The trial court, however, specifically

stated that it did not make such a finding. Trial. Ct. Op. at 15. We therefore

conclude this claim is meritless.

       Father next claims the trial court erred in finding that he refused or

failed to perform parental duties for at least six months before the filing of the

petition to terminate. He notes that he exercised physical custody of Child in

March 2016 and called or FaceTimed with Child one to two times per week.

He also notes that prior to March 2016 he continually sought more time with

Child.1 Father argues that he had sought help and had a period of sobriety

before a relapse in 2018, and that he has developed a sobriety plan.


____________________________________________


1  Father also notes that he filed a petition for custody after Mother and A.G.
filed the petition to terminate his parental rights. We cannot consider the filing
of this petition, as it happened after the filing of the petition. 23 Pa.C.S.A. §
2511(b).

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      Section 2511(a)(1) provides:

           (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.

23 Pa.C.S.A. § 2511(a)(1). Further, with respect to section 2511(a)(1), “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(b).

      “Although it is the six months immediately preceding the filing of the

petition that is most critical to the analysis, the trial court must consider the

whole history of a given case and not mechanically apply the six-month

statutory provision.” In re B., N.M., 856 A.2d 847, 855 (Pa.Super. 2004).

Further:

           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’.

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Id. (quoting In re C.M.S., 832 A.2d 457, 462 (Pa.Super. 2003)). Parental

duty requires that a 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 or her ability, even in difficult circumstances.”

Id. (quoting In re Adoption of Dale A., II, 683 A.2d 297, 302 (Pa.Super.

1996)). A parent is required to “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.” Id.

      Here, the trial court concluded:

         Where the rubber meets the road in this case . . . is that
         during that entire time and continuing, essentially right up
         to the time when the father was incarcerated on the most
         recent criminal charge (or even to the date of the hearing),
         he has been a prisoner to his addiction and has allowed his
         addiction to totally dominate his life, his judgment, and the
         lives of those persons who are closest to him. The mother’s
         testimony was compelling on how she would recognize that
         [Father] was addicted but attempted to enable him to
         parent, and the mother’s testimony was convincing that she
         made protracted and conscientious efforts to enable the
         father to remain involved in [Child’s] life. In reaching the
         findings we come to in this case, we have to conclude that
         the father did not have control of his life during the relevant
         period and, in fact, did not have control of his life through
         November of 2018 when his probation was again revoked
         for heroin use while on probation supervision and he was
         locked up in jail. We hear it frequently said that it has
         become axiomatic that “a person’s past behavior is the best
         indicator of their future behavior.” . . .

Trial Ct. Op. at 15-16. The trial court noted that “[Father] is an intelligent,

well-educated, responsible person when sober, but does not have control of

his life because of his addiction.” Id. at 16. It concluded that, although he


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maintains sobriety while incarcerated, he has demonstrated “an inability to

control his life, to control his addiction, and he has demonstrated that he is

not motivated to parent this little girl by dealing responsibly with his

addiction.” Id. at 16-17. The trial court concluded that, during the relevant

time period, Father did not make “a credible effort to parent. He has

consistently failed to perform even the most basic parental duties.” Id. at 17.

It found “that the six (6) visits, which deteriorated and grew less and less

beneficial for the child, were not a good faith effort to parent as contemplated

in the act” and that “the telephone calls, which the father made were not an

effort to parent as contemplated in the act.” Id.

      The court further addressed Father’s claim that he agreed to the

supervised format following the March 2016 visit because he did not want to

go to court. Id. It stated that Father “would have [the court] accept and find

that his desire not to go to court was beneficial for the parental relationship

of the parties and ultimately for [Child].” Id. It noted, however, that if a

parent’s rights are being impaired by the conduct of the primary custody

parent, the parent “should assert their right to get relief in court.” Id. at 18.

It noted that Father “did not seek to expand his time with the child but instead

attended just six (6) visits, lasting about an hour, with [Child] which were not

beneficial to her and which did nothing to maintain or reestablish any bond

between her and [Father].” Id. The court concluded that Father “was so

bogged down with his addiction and his additional criminal entanglements

during the relevant period that parenting [Child] was not a priority in his life

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and his parenting efforts were perfunctory.” Id. It stated that it “[did] not for

a minute doubt that the father loves his daughter and in some abstract aspect

wants to parent, but [found] he made palpable choices that impaired his ability

to parent and ultimately compelled the mother to decide to proceed to

terminate because she had been up this road time and time again with his

addiction.” Id.

      The court concluded:

         The child is entitled to permanency. And if the Court could
         plausibly make a finding today that [Father] was not going
         to re-engage in the cycle that has occurred several times
         since before the little girl was born as to his relapse due to
         addiction, we could respect his desire to parent and project
         benefit for [Child] to have her biological father involved in
         her life. We conclude that the likelihood of father
         recidivating, the likelihood of him again being unable to
         competently parent is overwhelming in this case. We
         therefore find this outcome is a function of his derelict
         behavior and the poor decisions that, he has made. The child
         deserves permanency and the father just cannot have the
         personal luxury of coming in and out of her life as his
         addiction vacillates.

Id. at 19-20.

      The record supports the trial court’s findings of fact and credibility

determinations. Further, the trial court did not abuse its discretion in finding

termination proper under Section 2511(a). Father suffers from an addiction to

heroin. Although he has made efforts to overcome this addiction, those efforts

have not yet been successful. Further, the addiction prevents Father from

being able to parent Child.




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      In his next two issues, Father argues the trial court erred in relying on

his criminal charges, rather than the criminal disposition of his cases, and

erred in finding that his “past behavior is the best indicator of [his] future

behavior,” and therefore terminating his parental rights based solely on his

addiction. Father claims that “[i]n applying the aforestated mantra,” the court

found Father demonstrated “an inability to control his life, to control his

addiction, and . . . demonstrated that he is not motivated to parent this little

girl by dealing responsibly with his addiction.” Father. Br. at 35 (quoting Trial

Ct. Op. at 35). Father argues he testified regarding the efforts he made to

obtain and maintain sobriety, which show he is motivated to parent Child. He

argues that in March 2016, when Mother claimed he was using, Father dressed

Child and took her to Mother’s car. He further argued that, even if the court

credited Mother’s version of the March incident, one “instance of improper

care is insufficient to permanently sever Father’s parental rights.” Id. at 36.

      Father’s claim lacks merit. The evidence establishes that Father

struggles with addiction, and that this addiction has prevented him from being

able to parent Child. The court did not err in considering evidence of his

addiction and finding the addiction had prevented Father from parenting Child.

      In his final issue, Father argues that the court erred in finding

termination of his parental rights would be in Child’s best interest. He argues

that he should be involved in Child’s life because she can benefit from him

intellectually, as he has obtained college and post-college degrees and “he can

help her develop the fundamentals and help her throughout the rest of her life

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with educational pursuits in performing well and her academics.” Father’s Br.

at 38 (quoting N.T., 1/30/19, at 150). He also argued he would never stop

loving Child and that she can benefit from him spiritually because of his

addiction struggles, as he can teach her about “humility, perseverance, and

integrity.” Id. (quoting N.T., 1/30/19, at 150-51).

      Under Section 2511(b), the court must consider “the developmental,

physical and emotional needs and welfare of the child” to determine if

termination of parental rights is in the child’s best interest. See 23 Pa.C.S.A.

§ 2511(b). The focus under Section 2511(b) is not on the parent, but on the

child. In re Adoption of R.J.S., 901 A.2d 502, 514 (Pa.Super. 2006). This

Court has explained that “[i]ntangibles such as love, comfort, security, and

stability are involved in the inquiry into [the] needs and welfare of the child.”

In re C.M.S., 884 A.2d 1284, 1287 (Pa.Super. 2005). 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.

Importantly, “[t]he mere existence of an emotional bond does not preclude

the termination of parental rights.” In re N.A.M., 33 A.3d 95, 103 (Pa.Super.

2011). Instead, the trial court “must examine the status of the bond to

determine whether its termination would destroy an existing, necessary and

beneficial relationship.” Id. (internal quotation marks and citation omitted).

      Here, the trial court found:

         Overwhelming evidence was presented by [Mother and
         A.G.] that [A.G.] has been . . . [Child’s] ever-present,
         dependable and loving father (figure). The record is replete

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         with evidence that [Child] is bonded with her stepfather.
         There were numerous pictures presented . . . which showed
         the relationship between the stepfather and [Child]. [Child]
         may at one point way back have had some form of a bond
         with [Father], but that has dissipated if it ever existed and
         per the mother’s credible tesmony does not exist at this
         time.

Trial Ct. Op., at 20-21. The court noted Father presented photographs showing

Child happy when with him, but found the pictures were “dated.” Id. at 21.

The court concluded there was no evidence that a bond between Father and

Child exists at this time. It concluded that:

         Weighing the needs of this child for permanency, taking into
         account her present auspicious situation in life with the very
         powerful bond with her stepfather, that the risks of allowing
         [Father] back in and his dangerous cycle of “in again, out
         again,” outweighs our taking the chance to allow him to
         continue to parent, and we find clearly that the best
         interests of [Child] are to allow the stepfather to adopt and
         become the legal parent.

Id. at 22.

      The evidence supports the trial court findings. Father has had minimal

contact with Child since March 2016, and A.G. has been a central figure in

Child’s life. The trial court did not abuse its discretion in finding termination

would be in Child’s best interest

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/24/2019

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