J-S39045-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: S.S.W., A MINOR                     :   IN THE SUPERIOR COURT OF
    IN RE: S.F.W., A MINOR                     :        PENNSYLVANIA
                                               :
                                               :
                                               :
                                               :
                                               :
    APPEAL OF: S.P.W., NOW S.P.W.              :
    AND M.J.W.                                 :   No. 464 WDA 2017

                    Appeal from the Order February 27, 2017
               In the Court of Common Pleas of Somerset County
               Orphans’ Court at No(s): No. 15 A Adoption 2014,
                              No. 15 Adoption 2014

BEFORE:      BENDER, P.J.E., BOWES, and STRASSBURGER*, JJ.

MEMORANDUM BY STRASSBURGER, J.:                          FILED AUGUST 04, 2017

        S.P.W. (Mother) and her husband, M.J.W. (Stepfather) (collectively,

Appellants), appeal from the order entered February 27, 2017, in the Court

of Common Pleas of Somerset County, which denied their petition to

terminate involuntarily the parental rights of J.M.W. (Father) to his minor

daughters, S.S.W., born in November 2010, and S.F.W., born in September

2012     (collectively,   Children).      We   reverse   and   remand   for   further

proceedings consistent with this Memorandum.

        A prior panel of this Court summarized the relevant factual and

procedural history of this matter as follows.

        The orphans’ court set forth its findings of fact in its opinion of
        November 13, 2014. In relevant part, the court found that []
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*
    Retired Senior Judge assigned to the Superior Court.
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     Children have been in sole custody of Mother since January 4,
     2013. Father has not attempted contact with Mother or Children
     since then. Mother obtained an order pursuant to the Protection
     From Abuse (PFA) Act after a December 27, 2012 incident during
     which Father threatened to shoot himself in Mother’s presence
     and also grabbed Mother’s thigh, resulting in visible bruising. At
     a January 10, 2013 PFA hearing, Father consented to entry of an
     order without admitting the underlying facts. Pursuant to that
     order, Mother had sole physical and legal custody of [] Children
     and Father was not permitted any contact. Also, on January 10,
     2013, Father sent flowers to Mother to apologize for his conduct.
     On January 19, 2013, Father took diapers for their baby to
     Mother’s office and left them as Mother was out of town. For
     this attempted contact, police charged Father with indirect
     criminal contempt of the PFA order. Father pled guilty and
     received a 90–day suspended sentence.

     Father participated in two months of counseling in April and May
     of 2013 for which a certificate of completion was provided to the
     Somerset County probation officer. Father also underwent faith-
     based pastoral counseling....

                                    ***

     The trial court extended the PFA order to January 10, 2016
     because Father failed to appear at a December 12, 2013 PFA
     extension hearing. Father’s employer denied his request for
     time off to attend the hearing and Father did not believe his
     appearance at the hearing would alter the result because he
     could not afford counsel. Father attempted to obtain counsel for
     the custody proceeding though Legal Aid, but Legal Aid declined
     assistance due to criminal charges pending against Father.

                                    ***

     On July 31, 2014, Appellants filed a petition seeking termination
     of Father’s parental rights pursuant to 23 Pa.C.S.[] § 2511(a)(1)
     and (b). At the conclusion of an October 3, 2014 hearing on the
     petition, the orphans’ court found that Appellants failed to prove
     by clear and convincing evidence that termination of Father’s
     parental rights was appropriate under § 2511(a)(1).            The
     orphans’ court entered an order to that effect on October 6,
     2014, and Appellants filed a timely appeal.


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In re S.S.W., 125 A.3d 413, 414-15 (Pa. Super. 2015) (footnotes and

citations omitted).

       Despite the October 6, 2014 order denying Appellants’ termination

petition, Father failed to reconnect with Children.   Father filed a complaint

seeking custody of Children in October or November 2014, but the

proceedings were stayed pending the outcome of Appellants’ appeal. N.T.,

1/26/2017, at 45, 80. Meanwhile, Father was incarcerated from December

2014 until November 2015, after pleading guilty to theft by unlawful taking.

Id. at 64-65, 80; N.T., 10/3/2014, at 55.        On September 24, 2015, this

Court issued a published opinion affirming the October 6, 2014 order, which

denied Appellants’ first petition to terminate Father’s parental rights.1

S.S.W., 125 A.3d at 418. However, Father made no further efforts to have

contact with Children. N.T., 1/26/2017, at 84.

       On April 22, 2016, Appellants again filed a petition to terminate

Father’s parental rights. The parties appeared for a termination hearing on

January 26, 2017.       On February 27, 2017, the orphans’ court entered the

order complained of on appeal, in which it denied Appellant’s second




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1
   The Honorable Sallie Updyke Mundy dissented, opining that the orphans’
court erred in concluding that Father exercised reasonable firmness in
resisting obstacles to maintaining his relationship with Children. S.S.W.,
125 A.3d at 418 (Mundy, J., dissenting).



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termination petition.2 Appellants timely filed a notice of appeal on March 23,

2017, along with a concise statement of errors complained of on appeal.

       Appellants now raise the following questions for our review.

       (1) Whether the [orphans’] court erred in declining to terminate
       the parental rights of [Father]?

       (2) Whether the [orphans’] court erred in not finding by clear
       and convincing evidence that [Father] had evidenced a settled
       purpose of relinquishing his parental rights or that he had failed
       or refused to perform parental duties for a period in excess of six
       [] months?

       (3) Whether the [orphans’] court erred in not finding by clear
       and convincing evidence that the best interests of [C]hildren
       would be served by termination?

Appellants’ Brief at 4 (suggested answers omitted).

       We consider Appellants’ claims 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.
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2
   The Honorable David C. Klementik presided over the parties’ prior
termination proceedings. The Honorable Scott P. Bittner presided over the
proceedings at issue here.



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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. §§ 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 [subs]ection 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 [subs]ection
      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, Appellants petitioned to terminate Father’s parental rights

pursuant to subsections 2511(a)(1) and (b), which provides 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 of notice of the filing of the petition.

23 Pa.C.S. § 2511(a)(1), (b).

      We first address Appellants’ first and second issues, in which they

argue that the orphans’ court abused its discretion by declining to terminate

Father’s parental rights pursuant to subsection 2511(a)(1). Appellants’ Brief

at 8-18. Appellants argue that Father failed to perform parental duties, in

that he took no action at all to maintain a relationship with Children after

filing his custody complaint in 2014. Id.

      To meet the requirements of subsection 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




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child” before moving on to analyze subsection 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,

      [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)).

      In its opinion accompanying the order on appeal, the orphans’ court

explained its decision as follows.

      An initial review of the six-month period immediately preceding
      the filing of the Petition demonstrates that Father was
      incarcerated in the State Correctional System from December 2,
      2014 until November 2, 2015. After being released from prison

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     on parole on November 2, 2015, Father resided in a halfway
     house in New Kensington, PA for approximately three months.
     One of the conditions of Father’s sentence was that he not have
     contact with the victims of his crime, including Mother…. Of
     further significance is the fact that Father was the respondent in
     a PFA order that was effective from January 10, 2013 until
     January 10, 2016. The protected parties under the PFA order
     were Mother and Children and it was a “no contact” order.
     Therefore, until the PFA order expired on January 10, 2016,
     Father could not have any contact with Mother and Children for
     fear of violating the PFA order and being arrested for indirect
     criminal contempt. This served as a significant impediment to
     Father attempting to re-establish contact with his daughters for
     a substantial portion of the relevant six-month period.

            Although it is acknowledged that Father did not attempt to
     contact Mother or Children between the period of January 10,
     2016 and April 22, 2016, we find that under the circumstances
     and during this period of time that Father was attempting to get
     his life back in order so that he could once again pursue custody
     of Children…. Until he acquired employment with Verizon in late
     March/early April 2016, he struggled financially to pay his rent
     and utilities. Then the petition to terminate his parental rights
     was filed, which brought everything to a halt again.

           It is also important to consider that in November 2014,
     after the first [involuntary termination of parental rights]
     hearing, Father filed a custody complaint seeking visitation
     rights. However, due to the pending appeal to the Superior
     Court, the custody proceeding was stayed. After the Superior
     Court disposed of the appeal, no further custody proceedings
     occurred because Father became incarcerated, and then moved
     into a halfway house. Following his release from the halfway
     house Father was attempting to secure stable employment
     before he again pursued custody of Children. These actions
     evidence Father’s intent to not relinquish his parental claims to
     Children, and in fact, demonstrate his purpose of regaining
     parental contact with Children. Furthermore, the timing of the
     expiration of the PFA order and the filings of the petition leave a
     very small window, significantly less than six months, in which
     Father could have attempted to resume contact with Children….




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Orphans’ Court Opinion, 2/27/2017, at 7-9 (citations, footnotes, and

unnecessary articles omitted; capitalization and party names altered).

        Thus, the orphans’ court found that Father did little, if anything, to

perform parental duties on behalf of Children after the parties’ custody

proceeding was stayed in November 2014.             Nevertheless, the court found

Father’s    failure   to    perform     parental   duties   excusable   under   the

circumstances of this case.            The court reasoned that the PFA order

prevented Father from contacting Children until January 2016. In addition,

the court was persuaded that Father intended to resume seeking custody of

Children at some point in the future, once he got “his life back in order.” Id.

at 8.
        While the record supports the court’s factual findings, it is clear that

the court misapplied the relevant principles of law.           We first reject the

court’s conclusion that Father was excused from performing parental duties

until the PFA order expired in January 2016.            Courts are empowered to

modify the conditions of a final PFA order upon petition by either party, and

may even shorten the duration of a final PFA order. Pa.R.C.P. 1901.8 cmt.

Here, our review of the record reveals that Father never attempted to

modify the PFA order in order to have contact with Children.3 While the PFA

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3
 The record does not indicate that Father petitioned for a modification of the
PFA order as part of the 2014 custody proceedings. We observe that a trial
court may not enter a custody order that conflicts with an existing PFA
order, and that it is the PFA modification process “which may be utilized to
(Footnote Continued Next Page)


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order was an obstacle which limited Father’s ability to perform parental

duties, Father made no effort to overcome that obstacle. 4 See B.,N.M., 856

A.2d at 855 (explaining that a parent must exercise reasonable firmness in

resisting the obstacles which limit his or her ability to maintain a

parent/child relationship).

      We also reject the court’s conclusion that Father’s parental rights

should not be terminated because he planned to seek custody of Children

after he got “his life back in order.” Orphans’ Court Opinion, 2/27/2017, at

8. It is well-settled that “[p]arental 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.”

B.,N.M., 856 A.2d at 855 (citing In re D.J.S., 737 A.2d 283, 287 (Pa.

                       _______________________
(Footnote Continued)

determine whether a more liberal custody/visitation [o]rder may become
operative.” Lawrence v. Bordner, 907 A.2d 1109, 1113-14 (Pa. Super.
2006) (quoting Dye for McCoy v. McCoy, 621 A.2d 144, 145-46 (Pa.
Super. 1993)).
4
  We recognize that in affirming the orphans’ court denial of Appellants’ first
termination of parental rights position, this Court noted the finding of the
orphans’ court that Father “legitimately believed” that he was unable to
attempt to modify the PFA to permit contact with Children without risking
being held in contempt of the PFA. S.S.W., 125 A.3d at 417. While Father’s
belief may have been legitimate during the pertinent timeframe prior to the
first petition, the same cannot be said once Father received the orphans’
court opinion denying the first petition. See id. (quoting Orphans’ Court
Opinion, 11/13/2014, at 13 (“It is the court’s sense that [Father] has
suffered throughout his custody and PFA matters from lack of competent
counsel to educate him that the PFA order regarding custody could be
modified to allow him to reframe a custodial relationship with [Children].”)).



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Super. 1999)).    The fact that Father intended to seek custody at some

unknown time in the future does not excuse his failure to take action for the

approximately year and a half preceding the filing of Appellants’ termination

petition, all while Children were being raised by Appellants. Accordingly, the

orphans’ court erred in holding that Appellants failed to meet their burden

under subsection 2511(a)(1).

      We now turn to Appellants’ third issue on appeal, in which they argue

that the court abused its discretion by declining to terminate Father’s

parental rights pursuant to subsection 2511(b). Appellants’ Brief at 19-20.

Appellants argue that Children do not remember Father and would be

harmed by having him reenter their lives. Id.

      Upon review, the orphans’ court did not include an analysis of

subsection 2511(b) in its opinion, based on its conclusion that Father’s

parental rights should not be terminated pursuant to subsection 2511(a)(1).

Because this Court may not make independent factual findings, we must

remand this case to the orphans’ court for an analysis of subsection

2511(b).   See In re Adoption of M.R.B., 25 A.3d 1247, 1260 n.6 (Pa.

Super. 2011) (remanding for an analysis of subsection 2511(b) because,

“[a]s an error correcting court, we cannot encroach upon the orphans’

court’s purview as the ultimate trier of fact in order to resolve this case

during the instant appeal”).   Accordingly, we reverse the court’s February

27, 2017 order denying Appellants’ termination petition pursuant to


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subsection 2511(a)(1), and we remand this matter for the court to conduct

an analysis pursuant to subsection 2511(b).    After the court conducts its

analysis, it must enter a new order granting or denying Appellants’ petition

to terminate Father’s parental rights. We observe that the parties presented

extensive evidence concerning Children’s needs and welfare during the

termination hearing on January 26, 2017. Thus, the court need not conduct

any further hearings, but may rely on the record before it when reaching its

decision.

      Order reversed.     Case remanded for further proceedings consistent

with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/4/2017




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