J-S04028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: K.M.R., A MINOR                 :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
 APPEAL OF: K.R., FATHER                :
                                        :
                                        :
                                        :
                                        :
                                        :   No. 1623 MDA 2017

                Appeal from the Decree September 14, 2017
   In the Court of Common Pleas of Huntingdon County Orphans' Court at
                           No(s): 31-2016-0045

 IN RE: B.J.S., A MINOR                 :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
 APPEAL OF: K.R., FATHER                :
                                        :
                                        :
                                        :
                                        :
                                        :   No. 1624 MDA 2017

                Appeal from the Decree September 14, 2017
   In the Court of Common Pleas of Huntingdon County Orphans' Court at
                           No(s): 31-2016-0046


BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                            FILED MARCH 29, 2018

      In these consolidated appeals, K.R. (“Father”) appeals from the Decrees

entered September 14, 2017, granting the Petitions filed by K.M.I. (“Mother”)

and involuntarily terminating Father’s parental rights to his daughter, K.M.R.,

born in April of 2009, and son, B.J.S., born in May of 2012 (collectively,

“Children”), pursuant to sections 2511(a)(1) and (b) of the Adoption Act. We

affirm.
J-S04028-18



SUMMARY OF FACTS AND PROCEDURAL HISTORY

       Mother and Father (collectively “Parents”) are the natural parents of

Children. Parents never married and separated in December 2011, shortly

before B.J.S. was born. Mother married her current spouse (“Stepfather”) in

September 2013. Children reside with Mother and Stepfather, along with their

half-sibling, R.I., and Stepfather’s daughter from a previous relationship.

       From Parents’ separation until August 2013, Father exercised periods of

partial custody of K.M.R., one day every other week. Father never exercised

any periods of custody of B.J.S. In August 2013, Father was incarcerated for

receiving stolen property and violating his probation imposed in connection

with a 2011 drug conviction. The court sentenced him to nine to twenty-three

months’ incarceration in county jail, and two and a half to five years in state

prison.

       On December 27, 2016, Mother filed a Petition to Involuntarily

Terminate Father’s parental rights to Children. On February 16, 2017, the

orphans’ court appointed counsel and a guardian ad litem for Children. The

court held a hearing on Mother’s petition on July 21, 2017.1 On September

14, 2017, the orphans’ court entered its findings of fact and Decrees

terminating Father’s parental rights. Father timely filed a Notice of Appeal on

October 16, 2017, along with concise statements of errors complained of on



____________________________________________


1At the time of the July 17, 2017 termination hearing, Father was out on
parole.

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appeal as required by Pa.R.A.P. 1925(a)(2)(i) and (b)(1). The orphans’ court

filed a Rule 1925(a) Opinion, titled “Order,” on November 3, 2017.

ISSUES ON APPEAL

       Father now raises the following issues for our review.2

       1. Did the [orphans’] court err in ordering the involuntary
          termination of Father’s parental rights in that there was no
          clear, convincing and sufficient evidence that Father had, for a
          period of at least six months immediately prior to the filing of
          the [Involuntary Termination of Parental Rights] Petition, either
          evidenced a settled purpose of relinquishing his parental rights
          to these children, or had failed or refused to perform parental
          duties?

       2. Did the [orphans’] court err in ordering the involuntary
          termination of Father’s parental rights in that there was not
          clear, convincing and sufficient evidence that the termination
          of Father’s parental rights was in the best interest of each child,
          particularly regarding the evaluation of the parent/child
          attachment (bond) and the effect of the permanent severing of
          that attachment (bond) on each child?

Father’s Brief at 3 (orphans’ court’s answers and suggested answers omitted).

LEGAL ANALYSIS

       We review an appeal from the termination of parental rights in

accordance with the following standard.

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


2Father framed his issues somewhat differently in his concise statement, but
we find them sufficiently preserved for our review.

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      unreasonableness, partiality, prejudice, bias, or ill-will. The trial
      court’s decision, however, should not be reversed merely because
      the record would support a different result. We have previously
      emphasized our deference to trial courts that often have first-hand
      observations of the parties spanning multiple hearings.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks

omitted).

      Section 2511 of the Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, governs

the termination of parental rights and requires a bifurcated analysis.

      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.

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

      In this case, the orphans’ court terminated Father’s parental rights

pursuant to Section 2511(a)(1) and (b), which provide as follows:

      (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.

                                       ...


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      (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 notice of the filing
      of the petition.

23 Pa.C.S. § 2511(a)(1), (b).

      Termination Pursuant to Section 2511(a)(1)

      To meet 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 re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008)

(citing In re Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super. 2006)). The

court must then consider “the parent’s explanation for his or her conduct” and

“the post-abandonment contact between parent and child” before moving on

to analyze Section 2511(b). Id. (quoting In re Adoption of Charles E.D.M.,

708 A.2d 88, 92 (Pa. 1998)).

      This Court has explained that a parent does not perform his or her

parental duties by displaying a “merely passive interest in the development of

the child.” In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (quoting In

re C.M.S., 832 A.2d 457, 462 (Pa. Super. 2003)). Rather,



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      [p]arental 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
      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.

Id. (citation omitted). Critically, incarceration does not relieve a parent of

the obligation to perform parental duties. An incarcerated parent must “utilize

available resources to continue a relationship” with his or her child. In re

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

of McCray, 331 A.2d 652 (Pa. 1975)).

      Instantly, Father argues that the orphans’ court erred by terminating

his parental rights because it failed to consider “the efforts that [Father] did

make while incarcerated to establish contact with his children, as well as the

role the hostility and/or indifference of Mother [ ] and her family played in

thwarting those efforts by Father.” Father’s Brief at 8. In particular, Father

asserts that he did not have Mother’s current address or phone number, but

sent a letter to Mother at a prior address asking to see Children. Father also

suggests that he did not file any custody motions or petitions with the orphans’

court because he could not afford an attorney while incarcerated. Id.

      The orphans’ court addressed Father’s issue as follows:

      [Father] points to his “periodic involuntary incarceration” as an
      explanation for his failure as a parent for over three (3) years. He

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      asserts correctly that incarceration is in itself insufficient to
      warrant termination. See [I]n re Adoption of McCray, [ ] 331
      A.2d 652, 655 ([Pa.] 1975). However, [Father] failed to note that
      Chief Justice Jones in McCray indicated that the Supreme Court
      was “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 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. See In Re: Adoption
      of J R F, 27 Somerset L.J. at 304.” [McCray, 331 A.2d at 655.].

      In this case the evidence was clear. [Father] did absolutely
      nothing while he was incarcerated to maintain a relationship with
      his daughter or to establish a relationship with his son. Nor did
      he take any steps to improve his parenting skills.

      Also, in his Rule 1925 Statement, [Father] [c]laims that [Mother]
      “actively thwarted” his efforts to be a father to his daughter and
      refused to follow the custody order. However, at [the] hearing no
      evidence was introduced that supports either claim.

Orphans’ Court Order, filed 11/3/2017, at 4-5 (some internal citations

omitted).

      After reviewing the record, we conclude that the orphans’ court did not

abuse its discretion in terminating Father’s parental rights under section

2511(a)(1). Father did very little to fulfill his parental duties since his last

contact with Children in August 2013. Specifically, the record reveals that

Father attempted to contact Mother about visits with Children on only two

occasions since his incarceration in August 2013. Father never made phone

calls to Children, sent gifts, or financially supported Children in any way.

Further, Father neither attempted to modify the existing custody order to




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permit periods of partial custody of B.J.S. nor petitioned to enforce the custody

order as it pertained to K.M.R.

      Because Father failed to act affirmatively in order to maintain his

relationship with Children, the trial court did not err in concluding that Mother

proved the statutory elements for termination under Section 2511(a)(1). See

B., N.M., 856 A.2d at 855 (explaining that a parent “must exercise reasonable

firmness in resisting obstacles” which limit his or her ability to maintain a

parent/child relationship). The record confirms that Father refused or failed

to perform parental duties during the six months immediately preceding the

filing of the termination petition. It was within the court’s discretion to accept

the testimony of Mother, and to conclude that Father made no effort to contact

Children during the relevant six months. Accordingly, we discern no abuse of

discretion.

      Termination Pursuant to Section 2511(b)

      We next consider whether the orphans’ court erred or abused its

discretion by terminating Father’s parental rights pursuant to Section 2511(b).

      Section 2511(b) focuses on whether termination of parental rights
      would best serve the developmental, physical, and emotional
      needs and welfare of the child. As this Court has explained,
      Section 2511(b) does not explicitly require a bonding analysis and
      the term ‘bond’ is not defined in the Adoption Act. Case law,
      however, provides that analysis of the emotional bond, if any,
      between parent and child is a factor to be considered as part of
      our analysis. While a parent’s emotional bond with his or her child
      is a major aspect of the subsection 2511(b) best-interest analysis,
      it is nonetheless only one of many factors to be considered by the
      court when determining what is in the best interest of the child.


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         [I]n addition to a bond examination, the trial court can
         equally emphasize the safety needs of the child, and should
         also consider the intangibles, such as the love, comfort,
         security, and stability the child might have with the foster
         parent. Additionally, this Court stated that the trial court
         should consider the importance of continuity of relationships
         and whether any existing parent-child bond can be severed
         without detrimental effects on the child.

In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting

In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)) (citations and quotation

marks omitted).

      Here, Father argues that although Children may have “developed a

positive attachment with their stepfather,” the record contains insufficient

evidence regarding the strength of Father’s bond with Children. Father’s Brief

at 11.   Father contends that “it is a reasonable conclusion to draw from

[Appellant’s] testimony and from the time line of events in this case that

Mother [K.M.]I. had exhibited a settled purpose to block K.R. from establishing

a relationship … with both children after [K.M.]I.’s 2013 marriage to W.I.” Id.

at 9. The orphans’ court found that terminating Father’s parental rights would

best serve Children’s needs and welfare. Orphans’ Court Opinion, 11/3/2017,

at 6. The court reasoned that Father has never had a relationship with B.J.S.,

and that any bond that may have existed between Father and K.M.R. faded

due to Father’s lack of contact with K.M.R. since his incarceration in August

2013. The court also concluded that Appellant failed to introduce any evidence

to support his claim that Mother “‘actively thwarted’ his efforts to be a father




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to his daughter and refused to follow the custody order.”       Orphans’ Court

Order at 5.

      We again discern no abuse of discretion.        The record supports the

conclusion that Children enjoy the intangibles of love, comfort, security, and

stability while in the custody of Mother and Stepfather. For instance, Mother

testified that K.M.R. identifies Stepfather as her father. Specifically, Mother

recalled that K.M.R.

      actually signed up for softball – it would have been last summer –
      and they gave her her shirt which, of course would say [Father’s
      last name] on the back. [K.M.R.] refused to wear it. . . . [b]ecause
      she said her last name is not [Father’s last name]. So they had
      got [sic] her a ball shirt that said [Stepfather’s last name] and she
      proudly wore it.

N.T., 7/21/2017, at 11.       Moreover, Mother testified that K.M.R. uses

Stepfather’s last name when writing her name on school papers, and that

K.M.R.’s teachers know to identify her by Stepfather’s last name. Id.

      Further, Children’s legal counsel and guardian ad litem both noted on

the record that they supported the termination of Father’s parental rights.

N.T., 7/21/2017, at 47-48. In particular, Children’s legal counsel testified that

during his interview of Children, Children identified Stepfather as their Father.

Id. at 48.

      Our review of the certified record, including the hearing testimony,

confirms the orphans’ court observation that there was no evidence presented

at the hearing to support his claim of Mother’s “actively thwarting” his

connection with Children. Although Father’s love for Children is not in

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question, along with his desire for an opportunity to serve as Children’s father,

a parent’s own feelings of love and affection for a child, alone, will not preclude

termination of parental rights. See In re Z.P., 994 A.2d 1108, 1121 (Pa.

Super. 2010). 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.”

In re Z.S.W., 946 A.2d at 732. Rather, “a parent’s basic constitutional right

to the custody and rearing of his 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 at 856.

      Instantly, the orphans’ court found that Father has not provided for

Children’s developmental, physical and emotional needs and welfare. As there

is competent evidence in the record that supports the orphans’ court’s

credibility and weight assessments regarding Children’s needs and welfare,

we conclude the orphans’ court did not abuse its discretion as to section

2511(b). As such, the orphans’ court properly granted Mother’s petition to

terminate Father’s parental rights to Children.

      Decrees affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/29/2018




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