J-S01014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: J.T.M., A MINOR                  :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
                                        :
                                        :
APPEAL OF: J.M.                         :        No. 1448 MDA 2016


               Appeal from the Decree Entered August 8, 2016
              In the Court of Common Pleas of Schuylkill County
                    Orphans’ Court at No(s): A63-124A-16


IN RE: J.R.M., A MINOR                  :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
                                        :
                                        :
APPEAL OF: J.M.                         :        No. 1449 MDA 2016


               Appeal from the Decree Entered August 8, 2016
              In the Court of Common Pleas of Schuylkill County
                    Orphans’ Court at No(s): A63-123B-16


BEFORE:   GANTMAN, P.J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                    FILED JANUARY 19, 2017

     Appellant, J.M. (“Father”), appeals from the decrees entered in the

Schuylkill County Court of Common Pleas Orphans’ Court, which terminated

Father’s parental rights to his two minor children, J.T.M. and J.R.M.

(“Children”). We affirm.

     In its opinion, the trial court fully sets forth the relevant facts and

procedural history of this case.   (See Trial Court Opinion, filed August 8,

2016, at 3-9.)    Therefore, we will only briefly summarize them.      H.H.
J-S01014-17


(“Mother”) and Father are the natural parents of Children; they were not

married.    Father was violent and controlling toward Mother and was not

involved in Children’s lives.    After the couple separated in 2011, Father

entered Mother’s home without her permission, while Mother and Children

were sleeping, turned off the furnace, and left. Mother obtained a protection

from abuse order based on Father’s trespass. Father was convicted for his

actions and was placed on probation. Subsequently, Father was arrested for

his involvement in a domestic dispute with his wife and was sentenced to a

period of incarceration. During Father’s incarceration, Father did not contact

Children.   Thereafter, Mother married D.H. (“Step-Father”), and together

they have cared for Children. Following Father’s release from prison, Father

filed a petition for custody of Children.

        On February 25, 2016, Mother filed a petition for termination of

Father’s parental rights to Children.       That same day, Step-Father filed a

petition to adopt Children. The court held a termination hearing on June 28,

2016.     On August 8, 2016, the court entered a final decree terminating

Father’s parental rights to Children, awarding Mother and Step-Father

custody of Children, and allowing the adoption to proceed without further

notice to Father. On September 6, 2016, Father filed a notice of appeal and

a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) for each child.    This Court sua sponte consolidated Father’s

appeals on September 15, 2016.


                                      -2-
J-S01014-17


      Father raises the following issues for our review:

         WHETHER THE TRIAL COURT EITHER ABUSED ITS
         DISCRETION OR COMMITTED AN ERROR OF LAW IN
         TERMINATING [FATHER]’S PARENTAL RIGHTS PURSUANT
         TO 23 PA.C.S.A. [§] 2511(A)(1) BY FINDING [MOTHER
         AND    STEP-FATHER]   MET    [THEIR]  BURDEN   OF
         PRESENTING CLEAR AND CONVINCING EVIDENCE THAT
         [FATHER] HAD BY CONDUCT FOR A PERIOD OF SIX
         MONTHS OR MORE IMMEDIATELY PRECEDING THE FILING
         OF THE PETITION EITHER EVIDENCED A SETTLED
         PURPOSE OF RELINQUISHING HIS RIGHTS OR REFUSED
         OR FAILED TO PERFORM HIS PARENTAL DUTIES?

         WHETHER THE TRIAL COURT EITHER ABUSED ITS
         DISCRETION OR COMMITTED AN ERROR OF LAW IN
         DETERMINING   THE  TERMINATION   OF   [FATHER]’S
         PARENTAL RIGHTS WAS IN THE BEST INTEREST, NEEDS
         AND WELFARE OF…CHILDREN?

(Father’s Brief at 4).

      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.


                                     -3-
J-S01014-17


        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).
        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 Step-Father filed a petition to terminate 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


                                     -4-
J-S01014-17


           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
        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).

     Termination under Section 2511(a)(1) involves the following:

        To satisfy the requirements of [S]ection 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 addition,

           Section 2511 does not require that the parent
           demonstrate both a settled purpose of relinquishing
           parental claim to a child and refusal or failure to
           perform parental duties. Accordingly, parental rights
           may be terminated pursuant to Section 2511(a)(1) if
           the parent either demonstrates a settled purpose of
           relinquishing parental claim to a child or fails to
           perform parental duties.

        Once the evidence establishes a failure to perform parental
        duties or a settled purpose of relinquishing parental rights,
        the court must engage in three lines of inquiry: (1) the
        parent’s explanation for…[his] conduct; (2) the post-

                                      -5-
J-S01014-17


            abandonment contact between parent and child; and (3)
            consideration of the effect of termination of parental rights
            on the child pursuant to Section 2511(b).

In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations

omitted).     Regarding the six-month period prior to filing the termination

petition:

            [T]he 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.

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

      With respect to an incarcerated parent, this Court has stated:

            [I]ncarceration alone does not provide sufficient grounds
            for the termination of parental rights. Likewise, a parent’s
            incarceration does not preclude termination of parental
            rights if the incarcerated parent fails to utilize given
            resources and fails to take affirmative steps to support a
            parent-child    relationship.       As   such,    a   parent’s
            responsibilities are not tolled during incarceration.

In re Adoption of K.J., supra at 1133 (internal citations omitted).

      Under Section 2511(b), the court must consider whether termination

will meet the child’s needs and welfare.        In re C.P., 901 A.2d 516, 520

(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability

are involved when inquiring about the needs and welfare of the child. The

court must also discern the nature and status of the parent-child bond,

                                        -6-
J-S01014-17


paying close attention to the effect on the child of permanently severing the

bond.” Id. Significantly:

        In this context, the court must take into account whether a
        bond exists between child and parent, and whether
        termination would destroy an existing, necessary and
        beneficial relationship.     When conducting a bonding
        analysis, the court is not required to use expert testimony.
        Social workers and caseworkers can offer evaluations as
        well. Additionally, Section 2511(b) does not require a
        formal bonding evaluation.

In re Z.P., supra at 1121 (internal citations omitted).

     “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 have [his] parental 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.


                                    -7-
J-S01014-17


         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
         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 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.

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable William E.

Baldwin, we conclude Father’s issues merit no relief. The trial court opinion

comprehensively    discusses   and   properly   disposes   of   the   questions

presented.   (See Trial Court Opinion at 1-10) (finding: (1) under Section

2511(a)(1), Father has not fulfilled his parental duties since he last saw

Children in April 2011, when they were three and four years old,

respectively; Father provided inconsistent and minimal amount of financial

support for Children in past five years; Father failed to put himself in

position to see Children, but he continues to blame others for his lack of

relationship with Children; Father has not sent Children gifts or letters, and

                                     -8-
J-S01014-17


he has not made telephone calls to them; Father did not make affirmative

attempts to establish, maintain, or encourage parental relationship with

Children; (2) regarding Section 2511(b),1 Children have resided with Mother

since birth; Mother has provided for Children’s financial, emotional, and

physical needs; Children do not ask about Father or think of him as their

Father; Children regard Mother’s husband, Step-Father, as their father;

Step-Father has been involved in Children’s lives and testified he does with

Children    “everything     a   dad    does,”    including   homework,   recreational

activities, and attending doctors’ appointments; Step-Father wishes to adopt

Children; Children are doing well in school, are happy, and in good health;

no evidence shows Children’s needs and welfare are better served by

continuing Father’s parental rights; instead, it is in Children’s best interests

to terminate Father’s parental rights).            The record supports the court’s

decision to terminate Father’s parental rights to Children, so we see no

reason to disturb it.       See Pa.C.S.A. § 2511(a), (b); In re Z.P., supra.

Accordingly, we affirm.

        Decrees affirmed.




____________________________________________


1
    Father appears to have abandoned this argument in his brief.



                                           -9-
J-S01014-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/19/2017




                          - 10 -
,.                                                                                                                                                                                   }(.,
-"' ..,.
                                                                                                                                        Circulated 12/29/2016 03:32 PM




                         COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY, PENNSYLVANIA
                                         ORPHANS' COURT DIVISION


                                                                                     No. A63-123B-16

                                           a Minor
                                                                                     Contested Involuntary Termination

             ·-· -····                           ·····---   •••~n~•'                                       -   ---·          •    •     ••   ···--~-~-              --···-··--•~·-

           -------------------------------------------------------------------------------------------------------------------
     __J.r:iJ~..e_·
                 ... --                                                        I     No. A63-124A-t6                -
           :-:r~ ·M.                                                           I
                                       a Minor                                 I
                                                                               I     Contested Involuntary Termination


                          Counsel of Record: Julie A. Werdt, Esquire - for Petitioners
                                             Lora J. McDonald, Esquire - for the Natural Father
                                             Thomas J. Campion, Jr., Esquire - for the Minor Children




                                                                       OPINION OF COURT
           BALDWIN, P.J.

                           H-~·              (hereinafter              n,otll.lv-   1),
                                                                                          natural mother, and i                  ·l).   t+ .             11   her

           husband, filed a petition to terminate the parental rights of1                                      j.       m.                       (hereinafter

           nt,,f}'-lV       1),
                                  the natural father ot.                 J.T. W\.                   and;                 J i2.. m.

                          The termination of parental rights is governed by statute. The party seeking

           termination must prove by clear and convincing evidence that the parent's conduct

           satisfies at least one of the nine statutory grounds delineated in Section 2511 (a) of the

           Pennsylvania Adoption Act, 23 Pa.C.S.A. §2101 et seq. See also In re I.J., 972 A.2d 5,

           9 (Pa. Super. 2009). If the court determines that the parent's conduct warrants

           termination, it must then engage in an analysis of the best interests of the child pursuant

           to Section 2511 (b) and take into consideration the developmental, physical, and

           emotional needs of the child. The best interests of the child may not be separately
     considered until a finding has been made that the statutory requirements for termination

     have been met. In re Adoption of M.R.B., 25 A.3d 1247 (Pa. Super. 2011).

            In this case, petitioners sought the involuntary termination of        nvfktls    parental

     rights pursuant to 23 Pa.C.S.A. §2511 (a)(1) and Section 2511 (b). We find that the

     petitioners presented clear and convincing evidence that       'f~\...rv-'~   parental rights

· -~ould be termmatea pursuant to-Section (a)(1) and (b) which provide· as follows:

            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 ).

            and

            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 ....  23 Pa. C.S.A. § 2511(b).


            Parental rights may be terminated if, for a period of at least six months, a parent

     either demonstrates a settled purpose of relinquishing a parental claim to a child or

                                                          .
     refuses or fails to perform parental duties. In re Adoption of R.J.S., 901 A.2d 502

     (Pa. Super. 2006). Section 2511 (a)(1) does not require that the parent demonstrate

     both a settled purpose and a refusal or failure to perform parental duties. In re Z.S.W.,

     946 A.2d 726, 730 (Pa.Super. 2008). Although it is the six month period immediately

     preceding the filing of the petition to terminate the parental rights that is most critical to

     the analysis, the trial court can and should "consider the whole history of a given case."

     In re Interest of A.P., 692 A.2d 240, 245 (Pa.Super. 1997).
            With respect to parental duties, as required by the language of Section

     2511 (a)(1 ), there is no simple or easy definition and they have been defined as

     "many sided." In re Adoption of M.J.H., 501 A.2d 648, 652 (Pa.Super. 1985),

     appeal denied, 522 A.2d 1105 (Pa. 1987). Not only is there a duty to love, to

     protect, and to financially support one's child, there is also a duty to maintain


                                                     2
communication and association with that child. In re Burns, 379 A.2d 535 (Pa.

1977). Further, being a parent is not just a passive state of mind, it is "an active

occupation, calling for a constant affirmative demonstration of parental love,

protection, and concern. In re Adoption of Baby Boy J, 512 A.2d 689,

691(Pa.Super. 1986).

       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 financial, physical, and emotional needs. In re Z.P., 994 A.2d

1108 (Pa.Super. 2010). As we have repeatedly acknowledged, a child's life

"simply cannot be put on hold in the hope that the parent will summon the ability

to handle the responsibilities of parenting." In re Z.S.W., supra. A parent who

cannot.or will not, meet the minimum requirements of care within a reasonable

time may properly be considered unfit and have his parental rights terminated. In

re Z.P., supra.

       However, failure or refusal to perform parental duties should be measured

"in light of what would be expected of an individual in similar circumstances" to

the parent under examination.       Lookabill v. Moreland, 485 A.2d   at 1204,   1206

(Pa.Super. 1984). The totality of the circumstances surrounding the failure to

perform parental duties must be considered, including the effect of certain

barriers on the contact between the parent and the child. In re Z.P., supra. It is

well-established   that the court must examine the individual circumstances of

each and every case and consider all explanations offered by the parent to

determine if the evidence in light of the totality of the circumstances warrants the

involuntary termination.     In re C.M.S., 832 A.2d 457 (Pa.Super. 2003).

       VV)~......- and   ftvh.tv   were never married and terminated their relationship in

January 2011 when the boys were about three and four years old. Wlb~r"' testified

that she ended the relationship because       f ~v     was "violent and controlling" and

                                                3
often hit or choked her. [N.T., p. 4].,         W\ot\~       testified that when the couple was

together as a family,      i"ftt.,\-~y-   was never really involved with the boys and when they

separated,    ,·fivfLu,Y   agreed that he should only see the boys at supervised visits at his

mother's home. Several visits were scheduled and, although: \!\,w~                      dropped the

boys off at   ~i'WivS          mother's home, i~- testified that she was never sure that

~          spentany·signlficanramount             of time with them while they wert=ffhere. ·------·

         On March 23, 2011, · ~v               obtained a Final Protection From Abuse (PFA)

Order against     ·fi:tiu,,y    because of an incident that had occurred earlier in the month.

W1,o{w.y testified that; ~                 had entered her home through a basement window,

came into her bedroom, turned off the furnace and left. ~                         testified that he had

only gone to the home because ~                     had called him and told him that the boys were

ill. When he got to the home, the front door was locked, and because he was so

concerned about the boys, he broke into the home through the window.                      'fi,efv~y
denied turning off the furnace and said that he only visited the boys' room to see that

they were okay. The PFA permanently evicted/ ·~y                          from the residence and

prohibited him from having any contact with ltM,O{\uv_except to arrange his supervised

visits. The PFA also required that the supervisor agree to be accountable to the court,

execute an affidavit of accountability, and file the affidavit before any visits could begin.

fl~y       was required to have no drugs or alcohol for at least twelve hours prior to or

during his periods of visitation. The custody provisions in the PFA order would lapse

unless a complaint or petition to modify custody was filed within thirty days.                ·~v-
was prohibited from stalking or harassing·                   \L . L ·      (I l'Wuh~s   mother) and

'C.-B.        and          zs                  (~~             otherchildren).   Neither ~~nor

~,v        filed a custody action within the thirty day period.

         On February 22, 2012,i ~                  pied guilty to criminal trespass, as well as to

DUI high rate and possession of marijuana, for the incident that had occurred at

~&            home and prompted her to seek the PFA.

                                                         4
       Subsequently, on June 24, 2012,                    ri--iN.v   was arrested and charged with

aggravated assault, simple assault, resisting arrest, and disorderly conduct against a

police officer. Those charges were filed against                     '5~    after the police were called to

his and his wife's home because he had "trashed" the house, and when the police

arrived, he got into a physical altercation with them. [N.T., p. 7].               ~d          probation

crrr-therprior charges was revol<ed due to new pending charges. He·was-foffricfgU"ilfy of

disorderly conduct at trial.

       A custody conference was held in July 2012 and because ·~,,.was

incarcerated at the time, he participated via telephone. In her report dated July 6, 2012,

Custody Conciliation Officer, Diane Hitzemann, concluded that a full custody trial was

necessary and that      ·fi;til..l,v   should be required to undergo a psychological evaluation

before the trial was held. An interim custody order, dated July 9, 2012, incorporated

those recommendations, as well as awarding sole legal and physical custody to

~y.
       On August 10, 2012, ~                           was sentenced to 1 to 2 years in state prison with

25 days credit. A subsequent custody order, dated August 28, 2012, awarded sole

legal and physical custody to          Vl,t.1>1'\u,v   and indicated that ~,y-      had no partial

physical custody of the boys until he completed a psychological evaluation after being

released from prison. He was required to file a petition to modify custody upon

completion of the mental health evaluation in order to reinstate any custody rights.

       ·n~v-         was released from prison on July 23, 2014. He served his entire

sentence and when asked about why he served the entire sentence, 1 flLfl'lY testified

that he had been offered and granted parole at one point, but before he was released

on parole, he was told that his parole was revoked because he had said "inappropriate

things" to his wife on a visit. [N.T., p. 91].

         'fi./-k.v    filed a petition to modify custody on December 4, 2014, about six

months after his release from prison, and a custody conciliation conference was held in

                                                             5
February 2015. At the conference,       ~v          submitted a personality assessment

inventory completed on September 9, 2012, while he was incarcerated and a

psychological evaluation completed in December 2014 by a private provider. The

psychological evaluation indicated that he had been diagnosed with a mood disorder,

personality disorder, and moderate to severe stressors and recommended that

~(          needed lengthy   psychiatric treatment with an experienced therapist.

        A child support hearing was held in late fall 2015. ~            presented a note

from a physician indicating that he was suffering from back pain and he had filed for

Social Security disability benefits. His support obligation was suspended.        }twfw,v
testified that she approached    i-~       and asked if he would voluntarily relinquish his

parental rights to the boys. . ~Y'        testified that he told her that he would never "sell"

his boys. [N.T., p. 73]. Following the child support hearing, in December 2015,

fi....fwy   filed a petition to modify custody which was subsequently stayed because

~           had filed a petition to terminate his parental rights on February 25, 2016.

        In the six month period just before the filing of the petition to terminate his

parental rights, ~           did pay some child support, but it is not clear exactly how

much and when. We do know that although he was court ordered to pay support

beginning in 2011, there was a two year period that he did not pay any support because

he was incarcerated and had requested that the obligation be suspended because he

would not be able to pay. After his release from prison in July 2014, his support

obligation was reinstated, but soon after that.~~            stopped working due to back

pain. ~            testified that it had been "difficult" to secure employment after being in

prison and that the "few jobs" he had "became very stressful" on his back. [N.T., p. 72].

Sometime by late 2015, his obligation was suspended and the arrearages vacated

because he notified the Domestic Relations Office that he had applied for Social

Security disability benefits.    ~v       testified that he had not been consistent with child



                                                6
support payments over the years and was not sure of how much and for how long he

had paid stating that "whenever I had money, that's where it went." [N.T., p. 71].

       Additionally, in the six month period prior to the filing of the petition to terminate

his parental rights, we note that   ·fttth.tv' did file   a petition to modify custody the same

day as the petition to terminate his rights was filed, and just weeks after l'v1ofiuvhad

asked him if he would voluntarily give up his parental rights. ~fklY"' testified and

f-td-kv    never disputed the fact that in that time period he never asked about the boys,

never asked to re-start his supervised visits, and never tried to contact his children. By

filing such a petition,   WN.v    may have demonstrated a desire to pursue his parental

rights, but such a desire seems to be more so as a property right to his boys rather than

any desire or willingness to fulfill his parental duties.

       'fi4,k.i,v   knew that he was required, since 2012, to submit to a psychological

evaluation and file it with the court in order to restore any of his custody rights. He

failed to submit proof of an evaluation until a January 13, 2015, custody conference

even though he had had an evaluation while incarcerated in 2012 and a second one

completed in December 2014. When asked why he waited a year after having the

second psychological evaluation to file for custody, he testified that he had "tried

filing ... for a modification for this, you know, prior to prison" which was unresponsive to

the question. [N.T., p. 79]. A series of questions was then asked of         f-o.ftl{V ·, but after
many unresponsive and sketchy answers, he finally replied that he did not "have an

answer" as to why he waited over a year to file his petition. [N.T., p. 79].

        More importantly, and despite the professional's recommendation that           'fiuftu.v
needed lengthy "intensive therapy" due to his diagnosis,         f~v       testified that such a

recommendation was just the professional's "opinion" and that he disagreed with the

recommended treatment because he did not "have time for that." [N.T., p. 69]. Further,

he testified that he could not afford such treatment because he was "geared up for

knowing that [he] had support to pay" and was "attempting to secure employment."

                                                 7
[N.T., p. 70].   f/A..fklv   claimed that if he needed psychotherapy or mental health

treatment it was due to his incarceration and "having been withheld from [his] sons'

lives." [N.T., p. 75]. He stated that he needed "as much treatment as their mother"

needed. [N.T., p. 76].

         'fith~v    testified that the batterers' program in prison did help him because it

was very informative as      to identifying   the "the other party's actions" and that he learned

that it "takes two people to have an argument." [N.T., p. 77]. Despite his history of

violence against \iYl~f       , his home, a police officer, and his wife (for which there are
pending charges),       ·~h«      has refused to acknowledge his tendency for such

behavior, and continues to blame others. His violent tendencies have caused him to

spend a significant time in prison.      ·fM\.uv     tried to explain his failure to make contact

with his sons while he was incarcerated by testifying that it was a "little difficult" to

contact anyone from prison because he was not allowed to phone anyone without

having them pre-approved.        [N.T., p. 63]. He stated that he had no current phone

number for Vv\,bftLlv , was prevented from contact with her or his boys because of the

PFA, and it was "not an option" for him to write to them or send them cards. [N.T., p.

64). ~             offered no explanation as to why it was no option to send a note nor did

he describe any concrete steps he took to have a relationship with them.

         ~          testified that he did not want his rights terminated and that he was now

willing to do whatever he needed to do to be in his sons' lives. A parent cannot protect

his parental rights by merely stating that he does not wish to have his rights terminated .

In re C.M.S., supra. at 464.      f~.,        stated that he had been "shut out at every length,

every attempt" that he made to be reinstated in their life. [N.T., p. 74]. He also testified

that he felt that he had been "stonewalled", but did not identify who in particular was

responsible for thwarting his attempts or how exactly he had been prevented from

having a relationship with his boys. [N.T., p. 74}. ~Y              did admit that she had

moved and that about five years after she and           f~       separated she got a different

                                                    8
phone number; but absent from the evidence is testimony that                        ·F~v     ever tried to

telephone her, or that he had attempted to contact her at the home, but she was not

there.     ·fi~l-lv'°"   reported that he had no address for. Vno+t~v , but all of his documents

were successfully served upon her during the time period from January 2011 through

today. We find that there was no evidence to support his argument that he was

prevented from establishing a relationship with JS·lYl· and                   J. it.rn .
         ·"ftt:tkvr      has done nothing to fulfill any of his parental duties since he last saw

the boys in April 2011. He has provided only a minimal amount of inconsistent financial

support in the past five years.              f,vf\\lv'"   has failed to put himself in a position to be able

to see his children and stubbornly clings to his assertion that he is not to blame for the

lack of a relationship. He has sent no gifts or letters and made no telephone calls. He

took no affirmative actions to establish, maintain, or encourage. a parental relationship

with the boys.

          In deciding the sensitive question of the involuntary termination of parental rights,

we are mindful of the irreversible nature and the serious emotional impact which

necessarily follow such an action. In re Adoption of Ostrowski, 471 A.2d 541

(Pa.Super. 1984). It is well-established that the court must engage in a bifurcated

process in terminating parental rights. In re D.W., 856 A.2d 1231 (Pa.Super. 2004).

Initially, the court must focus on the conduct of the parent, and only after determining

that the parent's conduct warrants the termination of parental rights does the court

engage in the second part of the analysis, that is, determining the needs and welfare of

the child under the standard of the best interests of the child. In re C.L.G., 956 A.2d

999 (Pa.Super. 2008). A major aspect of the needs and welfare analysis concerns the

"nature and status of the emotional bond between parent and child." In re Adoption of

R.J.S., supra. at 509 (citation omitted).

         J .i. \,\,\.   and   .JT.Vh, have   resided with    .·MDtt'lv   since their birth and she has

provided for their financial, emotional and physical needs. They boys have not seen

                                                             9
(;'o..,riw   since April 2011 when they were about three and four years old. They have

had no contact whatsoever since that time. Because they were so young when

(~           last saw them, they do not ask about him or think of him as their father, and

regard   Moi,tv.rr_,   husband,   ·]>. K.       1,   as a father.     ]),.r(,        has been

involved in the boys' lives for a significant amount of time and testified that he does

"everything a dad does," including homework, baseball, fishing, football, and hunting.

[N.T., p. 4 7]. He also attends their medical and dental visits. :f(Z.1"' · and    -q;-r.i · are in
good health and are happy. They are doing well in school.              D.1--l.         is

interested in adopting the boys.

         We conclude that there is no evidence showing that the minor children's needs

and welfare are better served by continuing          ~~                 parental rights. Instead,

the termination of the parental rights of the natural father,        ·b~           ', is in the best
interest, needs, and welfare of the minor children,         ~   ?2./l/1 -               and

 ~--r..1\/\.
         Accordingly, we enter the following:




                                                10
        COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY, PENNSYLVANIA
                        ORPHANS' COURT DIVISION


In Re:                                                                 No. A63-1238-16
 .::r· -(l._ • Al\ .   -
                               a Minor
                                                                       Contested Involuntary Termination


In Re:                                                                 No. A63-124A-16
~"JV\'
                           a Minor
                                                                       Contested Involuntary Termination




            Counsel of Record: Julie A. Werdt, Esquire - for Petitioners
                               Lora J. McDonald, Esquire -for the Natural Father
                               Thomas J. Campion, Jr., Esquire -for the Minor Children




                                                              FINAL DECREE
BALDWIN, P.J.
            AND NOW, this          ath   day of August, 2016, at 3:00 p.m., upon consideration of the

within Petition and after hearing held thereon, it is ORDERED, ADJUDGED AND

DECREED that all parental rights of                               ::r. M,i     _) . as natural father, in and to
~       (!.. .J'J\.                       ', a male minor, are TERMINATED.

            It is further ORDERED, ADJUDGED AND DECREED that all parental rights of

                           ·, as natural father, in and to                ~ T,   ,v...~              ) . a male minor, are

TERMINATED.

            Custody of the said                   -~   (2..   f'I\.                       and     er: "i-:- M.         is

hereby awarded to I                H . \--:\. -          and          .P. H·              .J her husband,   and the adoption

of the said children shall proceed without further notice to the natural parent.
      It is also directed that all papers in this case and the testimony shall be withheld

from public inspection and no person shall be allowed access thereto except upon

Order of Court granted upon cause shown.


                                          BY THE COURT,




                                             2
