J-S82013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ADOPTION OF C.M.W., A               :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
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    APPEAL OF: R.C.W., FATHER                  :   No. 1022 MDA 2016

                  Appeal from the Order Entered May 26, 2016
              In the Court of Common Pleas of Cumberland County
                  Orphans’ Court at No(s): 66 Adoptions 2015

BEFORE: OTT, DUBOW, and PLATT*, JJ.

MEMORANDUM BY OTT, J.:                               FILED NOVEMBER 22, 2016

        R.C.W. (“Father”) appeals from the order entered May 26, 2016, in the

Court    of   Common      Pleas    of   Cumberland   County,   which   involuntarily

terminated his parental rights to his minor daughter, C.M.W. (“Child”).1

After careful review, we affirm.

        The orphans’ court summarized the relevant factual and procedural

history of this matter as follows.

               [K.B. and J.B. (“the Petitioners”)] are the maternal great
        aunt and great uncle of Child. Child was born [in January of
        2015] and placed in the custody of [the Petitioners] [a few days
        after her birth]. Child was placed into the custody of [the
        Petitioners] by the State of Maryland’s Child Welfare Services,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  The orphans’ court terminated the parental rights of Child’s mother, H.N.B.
(“Mother”), on January 21, 2016. Mother has not filed a brief in connection
with this appeal, nor has she filed her own separate appeal.
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       pursuant to a safety plan entered into by that agency and Child’s
       Mother. . . .

             When Child was conceived, [Father] was on parole
       following a conviction for attempted armed robbery. [Father] is
       presently incarcerated in the State of Maryland, after violating
       the conditions of his parole by failing a drug test and failing to
       report to his parole officer. The earliest date [Father] could be
       paroled would be some time in October of 2016. [Father] will
       then remain on parole until 2023.

             Subsequent to receiving Child, [the Petitioners] filed for
       custody and, by Order of Court dated March 24, 2015, received
       primary physical custody and shared legal custody of Child.
       Importantly, only [the Petitioners] and Mother received any
       physical or legal custody of Child. Mother was permitted only
       supervised visitation, while [Father] was not awarded any
       custody or visitation at that time. Mother never exercised her
       periods of visitation. [Father] specifically did not receive shared
       legal custody, and was prohibited from filing a petition to review
       the custody arrangement until his release from prison and his
       completion of a drug and alcohol evaluation.

Orphans’ Court Opinion, 7/21/2016, at 1-2.

       On August 13, 2015, the Petitioners filed a petition to involuntarily

terminate Father’s parental rights to Child.       The orphans’ court held a

termination hearing on February 19, 2016, during which the court heard the

testimony of the Petitioners and Father.2 Following the hearing, on May 26,

2016, the court entered its order terminating Father’s parental rights.

Father timely filed a notice of appeal on June 23, 2016, along with a concise

statement of errors complained of on appeal.


____________________________________________


2
 Father was represented at the hearing by court-appointed counsel. Due to
Father’s incarceration, he participated in the hearing via telephone.



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      Father now raises the following issue for our review.              “Did the

[orphans’ c]ourt abuse its discretion when it determined that [Father] took

little interest in the child and that it would be in the best interest of the child

to have [Father’s] parental rights terminated?” Father’s brief at 2.

      We consider Father’s claim mindful of our well-settled standard of

review.

      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
      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).

      Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which 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):


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      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 Sections 2511(a)(1), (2), (5), and (b).     We need only agree

with the 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 380, 384 (Pa.

Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Here,

we analyze the court’s decision to terminate under Sections 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.

                                     ***

      (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

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      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).

      We first address whether the orphans’ court abused its discretion by

terminating Father’s parental rights pursuant to Section 2511(a)(1).           To

meet the requirements of this section, “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), appeal

denied, 872 A.2d 1200 (Pa. 2005) (quoting In re C.M.S., 832 A.2d 457, 462

(Pa. Super. 2003), appeal denied, 859 A.2d 767 (Pa. 2004)).               Rather,

“[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.”    Id.   (citation omitted).   Critically, incarceration does not

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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, the orphans’ court found that Father has taken little, if any,

interest in Child since her birth. Orphans’ Court Opinion, 5/26/2016, at 5-6.

The court stressed that Father has never met Child, nor has he called

Petitioners to ask about Child, sent letters to Child, or requested visits. Id.

at 5. While the court acknowledged that Father may not have had contact

information for the Petitioners, the court stressed that Father has remained

in contact with Mother, and could have requested the Petitioners’ contact

information from her. Id. at 6. In addition, the court observed that Father

had contact information for the Petitioners’ attorney. Id. at 11.

      Father argues that the orphans’ court abused its discretion because his

incarceration alone is not sufficient to support the termination of his parental

rights. Father’s brief at 6. In addition, Father claims that he displayed an

interest in Child, as he took part in naming Child and received occasional

updates and pictures from Mother and his relatives.         Id. at 6, 8.    Father

emphasizes that he did not have contact information for the Petitioners, and

that the Petitioners never attempted to reach out to him. Id. at 8. Finally,

Father insists that he would call Child on a regular basis if she were older

and able to talk. Id. at 9.

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       After a thorough review of the record in this matter, we conclude that

the orphans’ court did not abuse its discretion by involuntarily terminating

Father’s parental rights to Child.             During the termination hearing, K.B.

testified that she and her husband, J.B., have cared for Child since a few

days after her birth in January of 2015.              N.T., 2/19/2016, at 4.   K.B.

explained that she has never met Father, and only knows who Child’s father

is because Mother told her.         Id. at 5-6. K.B. stated that her address has

remained the same since the custody proceedings in March of 2015, but that

she has not received any letters or other attempts at communication from

Father. Id. at 6-7.

       Similarly, J.B. testified that he has never met Father, and that he has

not received any attempts at communication from Father in the past year.

Id. at 12-13. Father did not send letters, gifts, or text messages, nor did he

call on the phone. Id. at 13. J.B. confirmed that he and K.B. have had the

same address and phone number for the past year, and that he has not

done anything to conceal this information from Father. Id. at 14.

       While Father admitted that he has never met Child, Father testified

that he played a role in naming Child, and that he has maintained contact

with Mother, who provides him with occasional updates on Child. 3 Id. at 21-
____________________________________________


3
  Concerning Mother’s ongoing contact with the Petitioners, J.B. testified that
he and K.B. were required to text pictures of Child to Mother as a result of
the March 2015 custody proceedings. N.T., 2/19/2016, at 30-31. J.B.
reported having minimal contact with Mother since that time. Id. at 31, 33.
(Footnote Continued Next Page)


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22. Father also reported that Mother and his sister have provided him with

pictures of Child “every couple months” since Child’s birth.        Id. at 22.

Father recalled that he received paperwork as a result of the March 2015

custody proceedings, but that the paperwork did not include the Petitioners’

address. Id. at 24-25. Father stated that he did not receive an address or

phone number for the Petitioners until about three weeks prior to the

termination hearing. Id. at 24. Father acknowledged, however, that he did

have the address of the Petitioners’ attorney. Id. at 27. Father admitted

that he never wrote to or called the Petitioners’ attorney “before this past

month.”     Id. at 27-28.         As to why he did not attempt to contact the

Petitioners’ attorney, Father stated, “I had all the information I needed. . . .

I didn’t know I had to.” Id. at 27.

      Accordingly, the record confirms that Father refused or failed to

perform parental duties for a period of at least six months prior to filing of

the termination petition on August 13, 2015.          The record supports the

finding of the orphans’ court that Father has never met Child, and that

Father has expressed little, if any, interest in her. As observed by the court

in its opinion, Father had access to contact information for the Petitioners’

attorney starting in at least March of 2015. Father also kept in touch with


                       _______________________
(Footnote Continued)

J.B. explained, “the phone numbers that we had, when we got one and we
got a call or a text from her, we would try it and then a week later it would
be unavailable.” Id. at 33.



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Mother,    who     could    have    provided     Father   with   Petitioners’   contact

information.     Despite the availability of this information, Father made no

attempt to contact the Petitioners or their attorney.

       Further, we stress that Father’s incarceration did not relieve him of his

responsibility to perform parental duties.          To the contrary, as discussed

above, incarcerated parents must utilize all available resources to maintain a

relationship with their children. In re Adoption of S.P., 47 A.3d at 828.

Here, Father made no effort to utilize the resources at his disposal in order

reach out to the Petitioners and develop a relationship with Child.              While

Father complains that the Petitioners did not attempt to reach out to him, it

is clear that the Petitioners were under no obligation to do so. Father is not

entitled to relief.

       We next consider whether the orphans’ court abused its discretion by

terminating Father’s parental rights pursuant to Section 2511(b).               We will

review Section 2511(b) pursuant to In re C.L.G., 956 A.2d 999, 1010 (Pa.

Super. 2008) (en banc) (considering Section 2511(b) despite the appellant’s

failure to challenge the court’s analysis).4



____________________________________________


4
  In his statement of questions involved, Father indicates that he is
challenging the findings of the orphans’ court that he “took little interest in
the child and that it would be in the best interest of the child to have
[Father’s] parental rights terminated[.]” Father’s brief at 2. Thus, it would
appear that Father is attempting to challenge the court’s findings with
respect to both Section 2511(a) and Section 2511(b).



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      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.

               [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)) (quotation marks and

citations omitted).

      Here, the orphans’ court found that Child is thriving in the care of the

Petitioners.     Orphans’ Court Opinion, 5/26/2016, at 11-12.           The court

observed that the Petitioners have cared for Child for nearly her entire life,

that the Petitioners’ home is the only home that Child has ever known, and

that Child clearly is bonded with the Petitioners.       Id. at 10.     The court

further found that Child has no bond with Father, and that Father will be in

no position to care for Child any time soon.         Id. at 10-12.      The court

concluded that Child will not suffer any harm if Father’s parental rights are


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terminated, and that termination will best serve Child’s needs and welfare.

Id. at 12.

        We again discern no abuse of discretion.       K.B. testified during the

termination hearing that Child is thriving in her home, and has “come a long

way.”    N.T., 2/19/2016, at 8.   K.B. explained that she and J.B. have four

biological children, and that their children are bonded with Child and have

treated her like a sibling.   Id. at 3, 8.     J.B. testified that it would be in

Child’s best interest that Father’s parental rights be terminated so that he

and K.B. can adopt Child.     Id. at 15.     J.B. explained, “We have a loving,

stable home environment for her. She’s got siblings . . . that love and care

for her and a couple of parents that love and care for her[.]” Id.

        Thus, the record supports the conclusion of the orphans’ court that

Child will not suffer harm if Father’s parental rights are terminated, and that

terminating Father’s parental rights will best serve Child’s needs and

welfare. Child has no bond with Father, as Child has never even met Father.

Moreover, Father is not currently capable of caring for Child, and it is not

clear when, if ever, he will be capable.      In contrast, the Petitioners have

cared for Child since shortly after her birth, and stand ready to adopt Child

into a loving, permanent, and stable family.       As this Court has stated, “a

child’s life cannot be held in abeyance while a parent attempts to attain the

maturity necessary to assume parenting responsibilities. The court cannot

and will not subordinate indefinitely a child’s need for permanence and


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stability to a parent’s claims of progress and hope for the future.”   In re

Adoption of R.J.S., 901 A.2d at 513.

      Accordingly, because we conclude that the orphans’ court did not

abuse its discretion by involuntarily terminating Father’s parental rights to

Child, we affirm the order of the orphans’ court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/22/2016




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