J-S01006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.L.C.K.           :    IN THE SUPERIOR COURT OF
                                       :         PENNSYLVANIA
                                       :
                                       :
                                       :
                                       :
APPEAL OF: L.K.                        :         No. 1463 MDA 2016


               Appeal from the Decree Entered August 5, 2016
              In the Court of Common Pleas of Lancaster County
                    Orphans’ Court at No(s): 251 of 2016


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

MEMORANDUM BY GANTMAN, P.J.:                     FILED JANUARY 27, 2017

     Appellant, L.K. (“Mother”), appeals from the decree entered in the

Lancaster County Court of Common Pleas, Orphans’ Court, which granted

the petition filed by B.P.K. (“Father”) and L.S.K. (“Stepmother”) for

involuntary termination of Mother’s parental rights to her minor child,

A.L.C.K. (“Child”). We affirm.

     In its opinions, the Orphans’ Court fully and correctly set forth the

relevant facts and procedural history of this case.   Therefore, we have no

reason to restate them.

     Mother raises five issues for our review:

          DID THE COURT ERR IN FINDING THAT MOTHER FAILED
          TO USE REASONABLE EFFORTS AND FIRMNESS TO
          ESTABLISH AND MAINTAIN A PARENTAL RELATIONSHIP
          WITH CHILD, AS MOTHER ATTEMPTED TO MAINTAIN
          CONTACT BY CONTACTING THE THERAPIST TO ENGAGE IN
          REUNIFICATION THERAPY AS WELL AS BY TEXTS SENT TO
          CHILD THROUGH MOTHER’S OLDER DAUGHTER?
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         DID THE PETITIONERS IMPOSE SIGNIFICANT BARRIERS
         TO MOTHER’S ABILITY TO MAINTAIN A PARENTAL
         RELATIONSHIP WITH CHILD, SUCH AS PROVIDING TO
         MEDICAL AND EDUCATIONAL PROFESSIONALS AN
         OUTDATED CUSTODY ORDER THAT INDIC[A]TED FATHER
         HAD SOLE LEGAL CUSTODY, AND CHANGING CHILD’S
         THERAPIST AND ENROLLING HER IN CYBER SCHOOL IN
         2015?

         DID THE COURT ERR IN FINDING ON PAGE 9 OF ITS
         OPINION THAT THE MATERNAL GRANDMOTHER SERVED
         AS A MEANS OF COMMUNICATION WITH CHILD, AS THE
         RECORD IN THIS CASE ESTABLISHES THAT PETITIONERS
         WERE ADAMANT THAT CONTACT OCCUR THROUGH THE
         COUNSELOR?

         DID THE COURT ERR IN FINDING CREDIBILITY IN THE
         TESTIMONY OF CHILD, AS CHILD USED IN HER
         TESTIMONY TECHNICAL LANGUAGE REGARDING THESE
         PROCEEDINGS THAT INDICATED CHILD HAD BEEN
         METICULOUSLY COACHED AND PREPARED?

         SHOULD THE COURT PROPERLY HAVE ORDERED THAT A
         BONDING ASSESSMENT BE CONDUCTED IN THIS CASE
         GIVEN THE AGE OF CHILD AND THE HISTORY OF
         CONTACT BETWEEN MOTHER AND CHILD?

(Mother’s Brief at 20-21).

      Appellate review of 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
         [decree] of the [Orphans’ C]ourt is supported by
         competent evidence, and whether the [Orphans’ C]ourt
         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)).

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            Absent an abuse of discretion, an error of law, or
            insufficient evidentiary support for the [Orphans’
            C]ourt’s decision, the decree must stand. … We
            must employ a broad, comprehensive review of the
            record in order to determine whether the [Orphans’
            C]ourt’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 [Orphans’ C]ourt, 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)).

      Father and Stepmother filed a petition for involuntary termination of

Mother’s parental rights to Child on the following grounds:


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          § 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.

                                       *       *   *

          (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).1

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


____________________________________________


1
  A petition to terminate a natural parent’s parental rights, filed by one
natural parent against the other, is cognizable only if an adoption of the
child is foreseeable. See 23 Pa.C.S.A. § 2512(b) (stating petition for
involuntary termination of parental rights filed by one natural parent against
other natural parent must contain averment that petitioner will assume
custody of child until such time as child is adopted). Here, Father and
Stepmother’s petition for involuntary termination of Mother’s parental rights
confirmed Stepmother’s intent to adopt Child and stated that Father and
Stepmother will assume custody of Child until Child is adopted.



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            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…her conduct; (2) the post-
            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…her 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).

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

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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,

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…her 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 [C]ourt has held that the parental
        obligation is a positive duty which requires affirmative

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        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 [herself] 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
        to the best of… 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… her 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…her child is converted,

upon the failure to fulfill…her parental duties, to the child’s right to have

proper parenting and fulfillment of…her 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 opinions of the Honorable Jay J.

Hoberg, we conclude Mother’s issues merit no relief. The Orphans’ Court’s

opinions comprehensively discuss and properly dispose of the questions

presented. (See Orphans’ Court Opinion, filed September 23, 2016, at 2-5;


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Opinion in Support of Decree, filed August 5, 2016, at 5-14) (finding: (1)

although Mother made some attempts to resume contact with Child after

Mother’s decision to take “break” from visits with Child in April 2015, Mother

ceased all attempts to engage in reunification therapy with Child by August

2015; record shows Mother failed to exert effort or utilize opportunities to

establish, maintain, and repair parental relationship with Child; Mother was

historically inconsistent in attending visits, did not attend Child’s medical or

educational   appointments,   and   did   not   attend   Child’s   extracurricular

functions; Mother did not utilize opportunities to repair relationship with

Child through reunification therapy; Mother has failed in all respects to

perform any parental duties or responsibilities to Child within six-month time

period; (2) Mother voluntarily moved to New York City because she was not

making progress with Child and wanted to “have a life”; even if court

accepted Mother’s argument that Father and Stepmother placed significant

barriers to Mother’s ability to maintain parental relationship with Child,

Mother still had duty to exercise reasonable firmness in resisting obstacles,

and bore burden to show that obstacles imposed were insurmountable,

despite her genuine and sincere efforts; Mother took no affirmative steps to

remedy her lack of access to Child’s records; Mother did not even request

copy of controlling custody order, which was issued in 2012, until February

2016; Mother could have easily remedied any obstacle she faced resulting

from outdated custody order; (3) Child, Father, and Stepmother have


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maintained relationship with maternal grandparents; Mother was aware of

this relationship, but she failed to use maternal grandparents as resource to

rekindle her relationship with Child; Mother testified she left notes at

maternal grandmother’s house for Child to find, but such conduct does not

equate to using maternal grandmother as resource to reconnect with Child;2

(4) Child, who is now 12-years-old, testified at termination hearing; court

listened to Child’s answers to questions and observed her demeanor; Child

was articulate, intelligent, and mature; court did not find Child’s testimony

was coached or prepared; Child’s use of legal phrases does not automatically

call into question her credibility; instead, court found Child’s testimony was

credible, compelling, persuasive, and supported finding that involuntary

termination of Mother’s parental rights best served Child’s interests; (5)

court is under no obligation to order bonding assessment; Mother has had

inconsistent contact with Child since 2010; from April 2015 to present,

Mother has had no contact whatsoever with Child; Child’s bond with Mother

is attenuated at best and minimal when compared with far greater bond

Child has with Stepmother; Child’s therapist testified that given Child’s

history with Mother and Mother’s most recent absence, evaluation process

itself might be detrimental to Child; thus, court saw little benefit to ordering

bonding assessment; Mother’s testimony at termination hearing was
____________________________________________


2
  In its September 23, 2016 opinion, the court interchangeably refers to
Child’s maternal grandmother as “MGM” and “MGP.”



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inconsistent, incredible, and devoid of supporting evidence; termination of

Mother’s parental rights was proper under Section 2511(a)(1) and (b)).

Accordingly, we affirm on the basis of the Orphans’ Court’s opinions.

     Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/27/2017




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