J-S55035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: E.K.J.                              :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                                               :
                                               :
    APPEAL OF: A.W.                            :   No. 616 MDA 2017

                 Appeal from the Decree Entered March 10, 2017
                In the Court of Common Pleas of Lancaster County
                       Orphans’ Court at No(s): 2015-1472

BEFORE:       DUBOW, RANSOM, and STRASSBURGER*, JJ.

MEMORANDUM BY STRASSBURGER, J.:                     FILED SEPTEMBER 13, 2017

         A.W. (Mother) appeals from the March 10, 2017 decree which

terminated involuntarily her parental rights to her minor son, E.K.J.

(“Child”).1 After careful review, we affirm.

         The orphans’ court summarized the relevant factual and procedural

history of this matter as follows.

               [Child] is a minor male child who was born [in August
         2014] to Mother during her incarceration at the Muncy State
         Correctional Institute (Muncy SCI).      Prior to [Child’s] birth,
         Mother arranged through Lighthouse Prison Ministries to have
         [J.B. and M.B. (collectively, Petitioners)] act as the guardians
         and caregivers for [Child] while she was incarcerated.[2]
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  The orphans’ court issued a separate decree on December 1, 2016,
terminating involuntarily the parental rights of J.J., Child’s father. J.J. did
not file a brief in connection with this appeal, nor did he file his own separate
appeal.
2
 Petitioners “were part of a prison ministry … and … were matched with a
mom. In [July 2014, they] received a letter from [Mother] saying she had
(Footnote Continued Next Page)
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      Petitioners met Mother at Muncy SCI for the first time in early
      August of 2014 and Petitioners came to the hospital when
      [Child] was born.       [Child] had health problems at birth,
      reportedly due to drug and alcohol use by Mother during her
      pregnancy, and [Child] spent ten days in the NICU due to
      meconium aspiration and general breathing issues before he was
      released to Petitioners on August 31, 2014. [Child] has lived
      with Petitioners since that time.

             Mother and Petitioners agreed to a temporary custody
      order on September 12, 2014 that laid out the scope and
      duration of [Child’s] care. Petitioners were told that Mother was
      incarcerated for a parole violation and the duration of the
      guardianship would last until her release in June 2015.
      Petitioners brought [Child] to visit with Mother twice a month at
      Muncy SCI…. There were only two occasions when Petitioners
      were unable to bring [Child] to visit. On the first occasion
      Mother was in solitary confinement for getting into an
      altercation.    On the second occasion Mother had been
      transferred to a different facility.

             Mother was denied parole in April or March of 2015.
      Around that time Mother contacted Petitioners and asked them
      to care for another child of hers who lived in Erie County. She
      indicated that she did not like the resource family that was
      caring for the child. When Petitioners called Erie County Children
      and Youth they were told that the child was placed in protective
      care so that Mother would be unable to contact the child or the
      family. Petitioners then discovered that Mother had a previous
      charge of endangering the welfare of a child and that she was
      prohibited from having contact with minors.            Accordingly,
      Petitioners stopped bringing [Child] for visitation with Mother in
      July of 2015 and filed a petition to involuntarily terminate
      Mother’s parental rights on July 1, 2015. Mother wrote a letter
      to [the orphans’ court] to contest the petition and she was
      appointed counsel.     Petitioners subsequently withdrew their
      petition on October 16, 2015. Petitioners then filed for custody
      on October 23, 2015[,] and were granted physical and legal
      custody by order of the court on October 29, 2015.
                       _______________________
(Footnote Continued)

gotten [their] name from Prison Ministries and that she would like
[Petitioners] to care for her son.” N.T., 2/13/2017, at 6-7.



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              Mother was released from prison on January 11, 2016. As
       a result of the custody proceeding, a risk[-]of[-]harm hearing
       was scheduled to address Mother’s criminal history on January
       12, 2016 and March 16, 2016.[3] On January 13, 2016, the
       Judge presiding over the risk[-]of[-]harm hearing was sent a
       letter from the County of Erie Department of Human Services
       Office of Children and Youth advising that Mother was an
       indicated perpetrator of abuse. The incident which led to her
       indicated status occurred on January 21, 2011[,] and involved
       Mother’s failure to seek medical attention for her child. It was
       reported that her child was diagnosed with 1st, 2nd, and 3rd
       degree burns to the bottom of both feet and Mother did not seek
       medical attention for the child for at least ten days. The Erie
       County Children and Youth Agency requested a finding of
       aggravated circumstances as to Mother which was granted by
       the [Erie County juvenile court].

              On March 23, 2016[,] after hearing the testimony at the
       risk[-]of[-]harm hearing, a Lancaster County Judge found that
       Mother posed a serious risk of harm to [Child.] The Court found
       that any contact between Mother and [C]hild would have to be
       supervised in the presence of an agreed-upon supervisor or
       competent professional….

Orphans’ Court Opinion, 3/10/2017, at 2-4 (footnote omitted).

       On October 14, 2016, Petitioners filed a second petition to terminate

Mother’s parental rights to Child involuntarily. The orphans’ court conducted

a termination hearing on February 13, 2017.      Following the hearing, the

court issued a decree, dated March 10, 2017, terminating Mother’s parental

rights.   On April 10, 2017, Mother filed a concise statement of errors



____________________________________________


3
  See 23 Pa.C.S. § 5329(a) (requiring a court to consider a parent’s criminal
history prior to making a custody determination); 23 Pa.C.S. § 5329(a.1)
(requiring a court to consider a parent’s history of child abuse as to that
child or other children before making a custody determination).



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complained of on appeal.4         Mother filed an amended concise statement on

April 11, 2017, along with a notice of appeal.5

       Mother now raises the following issues for our review.

       A. Did the [orphans’] court commit an error of law by allowing
       [Petitioners’] deliberate and continuing course of conduct to be
       used as a basis for termination?

       B. Does the aforementioned error of law require this Honorable
       Court overrule the [orphans’] court’s Decree?

Mother’s Brief at 3 (suggested answers and orphans’ court answers

omitted).


____________________________________________


4
 Mother filed her first concise statement the day before she filed her notice
of appeal.
5
  Generally, a party must file his or her notice of appeal within thirty days of
the entry of the order being appealed.          Pa.R.A.P. 903(a) (“Except as
otherwise prescribed by this rule, the notice of appeal … shall be filed within
30 days after the entry of the order from which the appeal is taken.”). Here,
thirty days after March 10, 2017, was Sunday, April 9, 2017. Thus, under
normal circumstances, Mother’s notice of appeal would have been due by
Monday, April 10, 2017. 1 Pa.C.S. § 1908 (“Whenever the last day of any
such period shall fall on Saturday or Sunday, … such day shall be omitted
from the computation.”).

      In this case, however, the decree terminating Mother’s parental rights
was never entered, as the docket does not indicate that notice of the decree
was given. As a result, the thirty-day appeal period never began to run. In
re L.M., 923 A.2d 505, 509 (Pa. Super. 2007) (citing Frazier v. City of
Philadelphia, 735 A.2d 113, 115 (Pa. 1999)) (“[T]he 30–day appeal period
is not triggered until the clerk makes a notation on the docket that notice of
entry of the order has been given.”). In addition, while the decree is dated
March 10, 2017, and has a docket date of March 10, 2017, it is stamped as
having been filed on March 15, 2017. We therefore conclude that Mother’s
notice of appeal was timely filed on Tuesday, April 11, 2017.



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      We consider Mother’s 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.

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).


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     In this case, the orphans’ court terminated Mother’s parental rights

pursuant to subsections 2511(a)(1) and (b), which provide as follows.

     (a) General Rule.—The rights of a parent in regard to a child
     may be terminated after a petition filed on any of the following
     grounds:

           (1) The parent by conduct continuing for a period of
           at least six months immediately preceding the filing
           of the petition either has evidenced a settled purpose
           of relinquishing parental claim to a child or has
           refused or failed to perform parental duties.

                                    ***

      (b) Other considerations.―The court in terminating the rights
      of a parent shall give primary consideration to the
      developmental, physical and emotional needs and welfare of the
      child. The rights of a parent shall not be terminated solely on
      the basis of environmental factors such as inadequate housing,
      furnishings, income, clothing and medical care if found to be
      beyond the control of the parent. With respect to any petition
      filed pursuant to subsection (a)(1), (6) or (8), the court shall
      not consider any efforts by the parent to remedy the conditions
      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).

     Here, Mother presents two interrelated issues for our review. In her

first issue, Mother contends that the orphans’ court erred by terminating her

parental rights pursuant to subsection 2511(a)(1). Mother’s Brief at 7-9. In

her second issue, Mother argues that the court’s error with respect to

subsection 2511(a)(1) was “fatal” and requires reversal.       Id. at 9-10.

Mother makes no effort to challenge the termination of her parental rights

pursuant to subsection 2511(b) in the argument section of her brief, nor did



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she include any such challenge in her concise statement or statement of

questions involved. Thus, we conclude that Mother waived any challenge as

to subsection 2511(b), and we focus solely on subsection 2511(a)(1). See

In re M.Z.T.M.W., __ A.3d __, 2017 WL 2153892 (Pa. Super. May 17,

2017) (holding that the appellant waived her challenge to subsection

2511(b) by failing to include it in her concise statement and statement of

questions involved).

      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

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


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effort, and not yield to every problem, in order to maintain the parent-child

relationship to the best of his or her ability, even in difficult circumstances.”

Id. (citation omitted). Critically, incarceration does not relieve a parent of

the obligation to perform parental duties.       An incarcerated parent must

“utilize available resources to continue a relationship” with his or her child.

In re Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012) (discussing In re

Adoption of McCray, 331 A.2d 652 (Pa. 1975)).

      Instantly, Mother argues that the orphans’ court erred by terminating

her parental rights, because Petitioners prevented her from maintaining

contact with Child. Mother’s Brief at 7-10. Mother argues that she strove to

maintain a relationship with Child, but that Petitioners engaged in “deliberate

and continuing conduct, which completely obstructed her[.]”           Id. at 8.

Mother places particular emphasis on In re J.S.M.’s Adoption, 424 A.2d

878, 880 (Pa. 1981), wherein our Supreme Court explained that a parent’s

lack of communication with his or her child cannot be used as a basis to

terminate parental rights, “[w]here the absence of communication results

from the deliberate conduct of the opposing parent[.]”

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

found that Mother evidenced a settled purpose of relinquishing her parental

claim to Child, and that she refused or failed to perform parental duties

during the six months immediately preceding the filing of the termination

petition.   Orphans’ Court Opinion, 3/10/2017, at 6.      The court found that


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Mother performed no parental duties on Child’s behalf during the relevant six

months, and that Mother made no effort to maintain a relationship with

Child. Id. at 7.

      The orphans’ court also rejected Mother’s claim that Petitioners

prevented her from maintaining contact with Child.

            Mother cannot claim that Petitioners created barriers to the
      development of a parent-child relationship. Petitioners took
      [Child] to visit with Mother at the prison twice a month until they
      discovered Mother’s history of child abuse. Mother has always
      had Petitioners’ phone number and has always been able to call
      or text them. Petitioners did not block her calls or refuse to
      send pictures and updates of [Child.] The only barrier between
      Mother and her son was self-imposed.            The court-ordered
      supervised visits were available to her, but she did not pursue
      them and Mother has not made any attempt to visit her son
      since July of 2015.

Id.

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

the orphans’ court did not abuse its discretion.      During the termination

hearing, Child’s prospective adoptive mother, J.B., testified at length

concerning the circumstances that brought Child into her care. J.B. testified

about Petitioners’ initial attempt to terminate Mother’s parental rights in

2015, as well as the subsequent custody proceedings, which culminated in

the March 23, 2016 order finding that Mother poses a risk of harm to Child.

      Concerning the six months immediately preceding the filing of the

termination petition, on October 14, 2016, J.B. testified that Mother did not

visit with Child.   N.T., 2/13/2017, at 55.   While Mother was permitted to


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have supervised visits pursuant to the risk of harm order, Mother never

suggested an appropriate supervisor. Id. at 23-24. Moreover, Mother did

not send any cards to Child, nor did she send gifts or financial assistance.

Id. at 39.

      While Mother maintained contact with Petitioners during the relevant

six months, J.B.’s testimony reveals that this contact was limited. Mother’s

primary means of contacting J.B. was via text message. Id. at 26. Mother

would send text messages to J.B. asking for pictures of Child, and J.B. would

send pictures back to Mother. Id. J.B. also wrote a letter to Mother in April

2016. Id.

      J.B. further testified that she and Mother had a phone conversation in

May 2016, during which Mother indicated that she wanted Petitioners to

adopt Child. Id. at 27. She explained, “she was just telling me her drug of

choice, who the father was, what kind of contact she wanted to have with

him, which was none, who we were to send occasionally letters and pictures

to. I think the maternal grandmother.” Id. at 28. As a result, Petitioners

sent a consent to adoption form to Mother’s attorney, as well as a voluntary

post-adoption contact agreement. Id. at 29. However, Mother did not sign

the consent form. Id. J.B. later learned that Mother had once again been

incarcerated in June 2016, due to a parole violation. Id. at 30. Mother was

released in August 2016, and contacted J.B. via text message, saying that




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she would “fight for her son.” Id. at 31. J.B. then received “sporadic texts”

from Mother from August 2016 until November 2016.6 Id. at 33.

       In support of her testimony, J.B. presented exhibits containing every

text message sent to her by Mother since April 2016.         Id. at 35.    These

exhibits were entered into evidence as Petitioner’s Exhibits 8 and 9, and are

contained in the certified the record on appeal.       The exhibits reveal that,

during the relevant six-month period, Mother sent text messages to J.B. on

April 22, 2016, April 29, 2016, May 8, 2016, May 9, 2016, May 18, 2016,

May 19, 2016, May 28, 2016, May 30, 2016, August 2, 2016, August 5,

2016, August 16, 2016, August 21, 2016, September 7, 2016, September

22, 2016, September 29, 2016, October 10, 2016, and October 11, 2016.

See Petitioner’s Exhibit 8.       Many of Mother’s text messages consist of her

asking for pictures of Child or asking how Child is doing.      Id.   In multiple

text messages sent in May 2016, Mother indicates that she would like

Petitioners to adopt Child.       See, e.g., id. (text message received May 18,

2016) (“Well since you don’t want to talk I just want to say take damn good

care of my son he’s you[r] son now I am signing him over to you open

adoption[.]”).



____________________________________________


6
  J.B. also testified that she received a Facebook message from Mother in
the fall of 2016, and that she and Mother corresponded via e-mail at an
unspecified time. N.T., 2/13/2017, at 31, 36.



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      Thus, the record supports the finding of the orphans’ court that Mother

evidenced a settled purpose of relinquishing her parental claim to Child

and/or refused or failed to perform parental duties during the six months

preceding the filing of the termination petition.     Contrary to the argument

presented in Mother’s brief, Petitioners did not prevent Mother from

maintaining contact with Child.    Mother’s failure to maintain contact with

Child was entirely her own doing, as she failed to pursue visitation by

suggesting an appropriate supervisor.        Moreover, while Mother sent text

messages to J.B. asking about Child, it is clear that occasional text messages

are not sufficient to preserve Mother’s parental rights.     See B.,N.M., 856

A.2d at 855 (providing that a parent must display more than a “merely

passive interest in the development of the child”).

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

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

Child, we affirm the court’s March 10, 2017 decree.

      Decree affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/2017


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