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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF C.B.K.                :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
                                         :
APPEAL OF: M.K.                          :         No. 1993 MDA 2014

             Appeal from the Decree Entered October 21, 2014
         In the Court of Common Pleas of Northumberland County
           Orphans’ Court at No(s): Adoptee No. 28 Year of 2014


BEFORE: GANTMAN, P.J., MUNDY, J., AND JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                          FILED MAY 27, 2015

     Appellant, M.K. (“Father”), appeals from the decree entered in the

Northumberland County Court of Common Pleas, Orphans’ Court, which

involuntarily terminated Father’s parental rights to his minor child, C.B.K.

(“Child”). We affirm.

     The relevant facts and procedural history of this appeal are as follows.

Father and J.L.G. (“Mother”) are the natural parents of five-year-old Child.

Mother and Father never married, but they did live together with Child for

one month after Child’s birth.   Thereafter, Child resided with Mother, and

Father exercised partial physical custody pursuant to a 2010 custody order.

Although Father initially maintained regular contact with Child, Father’s

involvement in Child’s life dissipated. Ultimately, Father stopped exercising

his custody rights, and he has not seen Child since December 11, 2013.

     Also in 2013, Mother married J.T.G. (“Stepfather”). On July 28, 2014,
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Mother and Stepfather filed a petition for involuntary termination of Father’s

parental rights, and a petition for Stepfather’s adoption of Child. The court

conducted a hearing on the termination petition on October 20, 2014. On

October 21, 2014, the court entered a final decree granting Mother and

Stepfather’s petition for involuntary termination of Father’s parental rights.

The court also authorized Mother and Stepfather to proceed with adoption.

      Father filed a notice of appeal on November 24, 2014.1 The notice of

appeal included a concise statement of errors complained of on appeal,

pursuant to Pa.R.A.P. 1925(a)(2)(i).

      Father raises two issues for our review:

         DID THE TRIAL COURT ERR IN DETERMINING THAT

1
  On December 29, 2014, Father filed a docketing statement with this Court.
The docketing statement indicated that Father filed a notice of appeal on
November 19, 2014 and an “amended” notice of appeal on November 24,
2014. We note the certified record does not verify the filing of a notice of
appeal on November 19, 2014, but it does confirm the filing of the
“amended” notice of appeal on November 24, 2014.             Regarding the
timeliness of the “amended” notice of appeal, “an order is not appealable
until it is entered on the docket with the required notation that
appropriate notice has been given. Where there is no indication on the
docket that…notice has been given, then the appeal period has not started to
run.” In re L.M., 923 A.2d 505, 509 (Pa.Super. 2007) (quoting Frazier v.
City of Philadelphia, 557 Pa. 618, 612, 735 A.2d 113, 115 (1999)
(emphasis in original). See also Pa.R.C.P. 236(b) (stating prothonotary
shall note in docket giving of notice); Pa.R.A.P. 108(b) (explaining date of
entry of order in matter subject to Pennsylvania Rules of Civil Procedure
shall be day on which clerk makes notation in docket that notice of entry of
order has been given). Here, the prothonotary docketed the final decree on
October 21, 2014. The docket, however, does not show if or when the
prothonotary gave notice of entry of the final decree to the parties.
Therefore, the appeal period did not start to run automatically with the
docketing of the decree, and we consider the November 24, 2014 notice of
appeal timely filed.
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           [MOTHER AND STEPFATHER] PRESENTED CLEAR AND
           CONVINCING    EVIDENCE   THAT  GROUNDS  FOR
           INVOLUNTARY TERMINATION EXIST?

           DID THE TRIAL COURT ERR IN DETERMINING THAT
           INVOLUNTARY TERMINATION OF FATHER’S PARENTAL
           RIGHTS IS IN THE BEST INTEREST OF THIS CHILD[?]

(Father’s Brief at 6).

      On appeal, Father contends he exercised his custody rights from 2010

through 2013, providing for Child’s physical well-being during this period.2

Father asserts he ceased exercising his custody rights only after Mother

refused to accept his phone calls.    Father maintains Mother escalated the

tension between the parties by attempting to alienate Child from Father.

Father alleges Mother encouraged Child to refer to Mother’s paramours as

“daddy,” even though Mother knew the references angered Father. Father

submits Mother’s attempts to alienate Child from Father might have

confused Child and discouraged Child from developing a more significant

relationship with Father.

      Additionally, Father insists he has a bond with Child. Father disputes

the court’s finding that Child shares a stronger bond with Stepfather,

arguing:

           [Stepfather] did not testify at trial regarding his
           relationship and his alleged bond with the child, despite

2
  Regarding the court’s emphasis on the fact that Father is behind on his
child support payments, Father claims the court ignored “the fact that
[Father] is indigent, and what little income he earned went to pay his rent
and child support, while [Mother] was supported by [Stepfather] and
received welfare….” (Father’s Brief at 21).
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         being present for the hearing, and the testimony of
         [Mother] went unsubstantiated, and the trial court did not
         interview the child regarding such bond.

(Father’s Brief at 20). Father concludes the court erroneously terminated his

parental rights. We disagree.

      Appellate review in termination of parental rights cases implicates 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 Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972

A.2d 5, 8 (Pa.Super. 2009)).

            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).

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        The standard of clear and convincing evidence means
        testimony 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.
        In re J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We
        may uphold a termination decision if any proper basis
        exists for the result reached. In re C.S., 761 A.2d 1197,
        1201 (Pa.Super. 2000) (en banc). If the court’s findings
        are supported by competent evidence, we must affirm the
        court’s decision, even if the record could support an
        opposite result. In re R.L.T.M., 860 A.2d 190, 191[-92]
        (Pa.Super. 2004).

In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d

1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d

1165 (2008)).

     Mother and Stepfather sought the involuntary termination of Father’s

parental rights on the following grounds:

        § 2511. Grounds for involuntary termination

           (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.

                  (2) The repeated and continued incapacity,
           abuse, neglect or refusal of the parent has caused
           the child to be without essential parental care,
           control or subsistence necessary for his physical or
           mental well-being and the conditions and causes of
           the incapacity, abuse, neglect or refusal cannot or
           will not be remedied by the parent.


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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.A. § 2511(a)(1), (2); (b). “Parental rights may be involuntarily

terminated where any one subsection of Section 2511(a) is satisfied, along

with consideration of the subsection 2511(b) provisions.” In re Z.P., supra

at 1117.

      “A court may terminate parental rights under subsection 2511(a)(1)

when the parent demonstrates a settled purpose to relinquish parental claim

to a child or fails to perform parental duties for at least six months prior to

the filing of the termination petition.” In re I.J., supra at 10.

           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.      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.

In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.


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718, 872 A.2d 1200 (2005) (internal citations omitted).

      “The   bases   for   termination   of   parental   rights   under   Section

2511(a)(2), due to parental incapacity that cannot be remedied, are not

limited to affirmative misconduct; to the contrary, those grounds may

include acts of refusal as well as incapacity to perform parental duties.” In

re S.C.B., 990 A.2d 762, 771 (Pa.Super. 2010). “Parents are required to

make diligent efforts towards the reasonably prompt assumption of full

parental responsibilities.”   In re A.L.D., 797 A.2d 326, 340 (Pa.Super.

2002) (quoting In re J.W., 578 A.2d 952, 959 (Pa.Super. 1990)).              The

fundamental test in termination of parental rights under Section 2511(a)(2),

was stated in In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975), where the

Pennsylvania Supreme Court announced that under what is now Section

2511(a)(2), “the petitioner for involuntary termination must prove (1)

repeated and continued incapacity, abuse, neglect or refusal; (2) that such

incapacity, abuse, neglect or refusal caused the child to be without essential

parental care, control or subsistence; and (3) that the causes of the

incapacity, abuse, neglect or refusal cannot or will not be remedied.”        In

Interest of Lilley, 719 A.2d 327, 330 (Pa.Super. 1998).

      “It is universally agreed that the bond of parental affection is unique

and irreplaceable.” In re Diaz, 669 A.2d 372, 377 (Pa.Super. 1995).

         When parents act in accordance with the natural bonds of
         parental affection, preservation of the parent-child bond is
         prima facie in the best interest of the child, and the state
         has no justification to terminate that bond. On the other

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        hand, a court may properly terminate parental bonds
        which exist in form but not in substance when
        preservation of the parental bond would consign a child to
        an indefinite, unhappy, and unstable future devoid of the
        irreducible minimum parental care to which that child is
        entitled.

Id. (quoting In re J.W., supra at 958) (emphasis in original).

     “The statute permitting the termination of parental rights outlines

certain irreducible minimum requirements of care that parents must provide

for their children, and a parent who cannot or will not meet the requirements

within a reasonable time following intervention by the state, may properly be

considered unfit and may properly have his…rights terminated.”        In re

B.L.L., 787 A.2d 1007, 1013 (Pa.Super. 2001). This Court has said:

           There is no simple or easy definition of parental
           duties. 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.

        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

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         to the best of his…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 [the child’s] physical
         and emotional needs.

In re B.,N.M., supra at 855 (internal citations and quotation marks

omitted). “[A] parent’s basic constitutional right to the custody and rearing

of his…child is converted, upon the failure to fulfill his…parental duties, to

the child’s right to have proper parenting and fulfillment of his…potential in a

permanent, healthy, safe environment.” Id. at 856.

      Instantly, Mother testified that Father’s presence in Child’s life “slowly

dissipated” over the course of 2013, and Father has not seen Child since

December 11, 2013.       (See N.T. Hearing, 10/20/14, at 8.)    Mother denied

preventing Father from exercising his rights under the parties’ custody

order. Mother indicated she encountered Father at a support conference on

August 13, 2014, but Father did not ask about Child at that time. Although

Father had provided child support in the past, Mother claimed she had not

received a support payment since May 15, 2014, and Father had accrued

approximately $6,000.00 in arrears. (Id. at 12). Mother also stated that

Father has not attempted to see or call Child, and Father has not sent any

cards, gifts, or letters to Child.

      Mother explained Child seldom asks about Father:


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         [Child] will ask about him if we drive past a place that
         [Father] has lived. But that’s the most he’s asked about
         him. He just asks me where [Father] is, and I just tell him
         that he went away, I don’t know when he’ll be back, but
         I’m sure he loves him.

(Id. at 19). Mother also testified that Child has a “wonderful” relationship

with Stepfather, and Child refers to Stepfather as “dad.” (Id. at 8).

      Significantly, Father admitted he has not seen Child since December

2013. Father blamed Mother for his failure to interact with Child:

         Well, [Mother] filed for an emergency petition for change
         of custody because she heard rumors that I attempted to
         commit suicide, and she heard rumors that I was on drugs
         because of the breakup that I had with my girlfriend, that I
         was depressed, and I wasn’t in the right state of mind to
         have my son. So she filed an emergency petition to
         modify custody, and she told me―when I called her―it
         was a Wednesday when I called her. I was supposed to be
         there to pick up my son, and I was on my way, and I
         called her and told her that I was on my way, and she said
         that I could not have him because her lawyer advised her
         not to let me see my son until we go to court and put
         something in writing….

(Id. at 22-23). After Mother informed Father about the emergency custody

petition, Father did not attempt to contact Mother again. 3 Father claimed he

could not immediately contest the emergency custody petition, because he

could not afford a lawyer.    Father testified that while he was saving the

money to hire a lawyer, Mother and Stepfather instituted the proceedings to

terminate Father’s parental rights.


3
   Father indicated he attempted to use him family members as
intermediaries with Mother. Nevertheless, Father’s family members did not
testify at the hearing or otherwise corroborate Father’s assertions.
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      Father also conceded he was not currently providing financial support

for Child:

          [FATHER’S COUNSEL]:          Have you been supporting your
          son?

          [FATHER]:                I haven’t. I mean I―the only
          job―the only wage attachment job that I could get…I
          ended up getting laid off from there―well, fired. I was
          told not to come back. And every other job that I’ve had
          it’s not―I’m not―I mean I don’t make a lot. And it’s
          hardly enough just to support myself, and she won’t even
          let me see him.

(Id. at 30).     At the time of the hearing, Father was employed at a

waterproofing company where he had worked for approximately four

months.

      Based upon the foregoing, the court concluded:

          The Petition for Termination of Parental Rights was filed on
          [July 28], 2014. The six months immediately preceding
          this date correspond with a time period during which
          Natural Father had no contact whatsoever with the Minor
          Child and provided no financial, residential, or other type
          of support to the Minor Child, aside from child support
          monies received pursuant to a wage attachment between
          the months of February and May. Natural Father made no
          attempt to exercise any period of physical custody or
          visitation, and he did not contact Natural Mother for this or
          any other purpose.

          Natural Father testified that his involvement was minimal
          because of Natural Mother’s attempts to keep the child
          from him. However, his subsequent testimony belies this,
          as he admits that he did not contact Natural Mother to
          arrange for periods of custody or visitation because he
          “…figured [he’d] be getting hung up on.”

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        He opted not to pay child support after he lost the job at
        which he was eligible for wage attachment, despite his
        testimony that he subsequently found work and continues
        to work to this day…. He opted not to pay for half the
        Minor Child’s preschool tuition as agreed upon by the
        parties.4 He opted not to contact the Minor Child, either
        directly in person or indirectly by telephone. He opted to
        send no cards, gifts, or other communication to the Minor
        Child. He opted to make himself unavailable to the Minor
        Child for months at a time despite the fact that he resides
        less than 20 miles from Natural Mother’s home.          Put
        simply, Natural Father by his conduct refused to perform
        his parental duties in providing for the Minor Child’s
        physical and mental well-being, and that refusal was not a
        result of factors beyond his control.
           4
             The preschool tuition was eventually taken into
           account during a child support proceeding and the
           child support order was adjusted accordingly. …

                                 *     *      *

        In fact, the Minor Child has a much stronger bond with
        Stepfather than with Father. The family unit in which this
        Minor Child has been cared for and which has provided for
        his physical and emotional needs and welfare is the unit
        consisting of Natural Mother and Stepfather. The Minor
        Child calls Stepfather “dad.” The best interests of this
        Minor Child would be served by termination of Natural
        Father’s parental rights.

(Trial Court Opinion, filed December 18, 2014 at 3-5) (internal citations to

the record omitted). The record supports the court’s conclusion that Father

failed to provide the irreducible minimum parental care for Child and

termination of Father’s parental rights was in Child’s best interests. See In

re Z.P., supra; In re B.L.L., supra. Accordingly, we affirm.




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     Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/27/2015




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