J-S15001-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF J.C.T.R., A MINOR           IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA

APPEAL OF: A.L.

                                                    No. 1738 MDA 2014


                 Appeal from the Order Entered October 2, 2014
                 In the Court of Common Pleas of Tioga County
                     Orphans' Court at No(s): 43 O.C. 2014


BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                         FILED MARCH 27, 2015

       A.L. (Mother) appeals from the orphans’ court’s order, entered in the

Court of Common Pleas of Tioga County, involuntarily terminating her

parental rights to her minor son, J.C.T.R. (Child). After careful review, we

are constrained to reverse.

       Child was born in Ohio in March 2009; at the time of Child’s birth,

biological Father lived in Pennsylvania. Shortly after Child was born, Mother

became addicted to pain killers and heroin.1    In August 2009, Mother was

arrested for distributing drugs from her home and was placed on probation.

In August 2012, Mother was arrested for violating her probation by testing




____________________________________________


1
 Father testified that he was not aware of Child’s birth until Child was seven
months old. However, Mother claims that she told Father about Child when
she found out she was pregnant. N.T. Termination Hearing, 10/1/14, at
213.
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positive for drugs;2 she was placed in a drug treatment facility for four

months. Mother violated her probation by breaking rules at the treatment

facility,3 and, as a result, the court sentenced her in October 2012 to serve

six months in prison. Maternal Grandmother, who also lived in Ohio, cared

for Child during Mother’s periods of drug treatment and incarceration.

        In November 2012, Father filed an emergency custody petition while

Mother was in prison; the petition was denied. In March 2013, Mother was

released from prison and entered a halfway house. In April 2013, the Ohio

court granted Father weekend visitation. Later that month, the Ohio court

held a hearing and granted Father legal and physical custody of Child in

Pennsylvania as of May 24, 2013.4 The order also permitted Mother and her

family to have companionship time with Child once Father assumed custody

in Pennsylvania.

        In August 2013, Father refused to allow Maternal Grandmother to

“Skype” with Child. Thereafter, in September 2013, Maternal Grandmother

filed a contempt petition against Father for his failure to comply with court-

ordered companionship time. Mother testified that she waited until she was

____________________________________________


2
  Child and Mother’s three other children were living with her when she
violated her probation for using drugs in August 2012. N.T. Termination
Hearing, 10/1/14, at 182.
3
  Specifically, Mother told a fellow inmate why she had been placed at the
facility, which was a violation of the rehabilitation center’s rules.
4
    Father resides with Step-Mother in Tioga County.


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released to the halfway house to contact Child in September 2013 because

the prison would not accept collect calls from a cell phone without

preauthorization. Once released to the halfway house, Mother called Father

to speak to Child; Father refused to allow her to talk to Child on the phone,

told her not to call again and further told her that she was harassing him.

Father also told the staff at the halfway house about Mother’s call and

Mother was advised by the halfway house not to have any contact with

Father until the contempt proceedings had concluded.        Mother last saw

Child in October 2012 and last spoke to Child on May 23, 2013.

       After a hearing held in Ohio on October 22, 2013, the Ohio court

denied Maternal Grandmother’s contempt petition.      The court noted that

because there was an “ongoing criminal investigation,” 5 it suspended Mother

and Maternal Grandmother’s companionship time with Child until further

order of court.6




____________________________________________


5
  Although the order does not specify exactly what this investigation was
about, the record bears out that there appeared to have been allegations of
sexual and physical abuse perpetrated against Child, although the record is
unclear as to who made the allegations and who the exact alleged abuser
was.
6
  As of August 2014, the investigation into the alleged abuse had been
suspended; the Ohio court transferred jurisdiction over the matter to
Pennsylvania, finding that it is the home state of Child. The court also
stated that “all issues of custody, companionship and support [are] properly
before the Court of Common Pleas of Tioga County, Pennsylvania.” Ohio
Court Order, 8/1/14, at ¶13.


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        Maternal Grandmother sent letters to the court, monthly, letting the

Ohio judge know that there was no actual investigation regarding any abuse

of Child and requesting a new court date so that contact with Child could be

resumed. Mother was ultimately released from the halfway house in January

2014.

        Step-Mother, Father’s wife, requested services for Child due to his

emotional issues, constant temper tantrums, and sexualized behaviors that

she believed stemmed from Mother and Mother’s family.             Behavioral

specialist, Amanda Herr, began working with Child in August 2013; Herr

testified at the hearing on October 1, 2014, that Child spoke about Mother

using “crazy pills,” that Mother hit and punched him and that Maternal

Grandmother hit him with a belt. N.T. Termination Hearing, 10/1/14, at 8-9.

Herr also testified that Father and Step-Mother were very proactive in

securing counseling for Child and working with other organizations to

improve Child’s speech and support in school. Herr stated that Child would

require intense counseling and services for “quite some time.”    Id. at 13.

However, Herr acknowledged that any perspective she had on treating Child

came solely from Father and Step-Mother, id. at 15, that she never had an

opportunity to speak with Mother, and that Child had never specifically

named anyone as his abuser, including Mother and her family. Id. at 26.

        Family therapist, Laura Knowlton, testified that she has been working

with Child since August 2014, providing support to Father and Step-Mother’s

family so that they could become more functional. She was asked to take


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over services due to Child’s behavioral regression and need for a more

intensive program. She testified that while she has been working with Child

he has never spoken about Mother or her Ohio family, id. at 33, and that

anything she has learned about Mother and her family has come from Father

and Step-Mother. Id. at 41.

       On April 30, 2014, Father7 filed the instant petition seeking involuntary

termination of Mother’s parental rights.8 On October 1, 2014, the court held

a hearing on the petition; on October 2, 2014, the court announced its

decision, to terminate Mother’s rights pursuant to 23 Pa.C.S. §§ 2511(a)(1)

and (b), in open court. On appeal, Mother presents the following issues for

our consideration:

       (1)    Did the trial court abuse its discretion when it determined
              that Mother has shown that she wants to relinquish her
              parental rights or has failed to perform her parental
              duties?

       (2)    Did the trial court abuse its discretion in determining that
              the best interest of the child would be served by
              terminating the Mother’s parental rights?

       Mother first contends that the court improperly determined that her

parental rights should be terminated pursuant to section 2511(a)(1).
____________________________________________


7
  See 23 Pa.C.S. § 2512(a)(1) (“A petition to terminate parental rights with
respect to a child under the age of 18 years may be filed by . . . [e]ither
parent when termination is sought with respect to the other parent.”).
8
  In July 2014, the Ohio court issued an order clarifying the fact that Mother
“did not voluntarily give up [her] right to have companionship and contact
with child,” and transferred jurisdiction of the parties’ matter to
Pennsylvania.


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Specifically, she claims that because she was precluded by an Ohio court

order from contacting Child for months preceding the filing of the

termination petition, and that she had taken the only actions available to her

to attempt to foster a relationship with Child during the relevant periods; it

was, therefore, not proven by clear and convincing evidence that she “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. § 2511(a)(1).

      In a proceeding to terminate parental rights involuntarily, the
      burden of proof is on the party seeking termination to establish
      by clear and convincing evidence the existence of grounds for
      doing so. The standard of clear and convincing evidence is
      defined as testimony that is so "clear, direct, weighty and
      convincing as to enable the trier of fact to come to a clear
      conviction, without hesitance, of the truth of the precise facts in
      issue." It is well established that a 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 clearly warrants
      termination.

In re adoption of S.M., 816 A.2d 1117, 1122 (Pa. Super. 2003) (citation

omitted).   Moreover, we review a trial court’s decision to involuntarily

terminate parental rights for an abuse of discretion or error of law. In re

A.R., 837 A.2d 560, 563 (Pa. Super. 2003). Our scope of review is limited

to determining whether the trial court’s order is supported by competent

evidence. Id.




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       Instantly, the trial court terminated Mother’s parental rights pursuant

to section 2511(a)(1) of the Adoption Act.9            Section 2511(a)(1) sets forth

the following 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.

23 Pa.C.S. § 2511(a)(1) (emphasis added).                 When considering section

2511(a)(1) in a termination matter, the court should consider the entire

background of the case and not simply:

       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 h[er] . . . parental rights, to determine if the evidence, in light
       of the totality of the circumstances, clearly warrants the
       involuntary termination.

In re Z.P., 994 A.2d 1108, 1117 (Pa. Super. 2010) (citing In re D.J.S., 737

A.2d 283, 286 (Pa. Super. 1999)).              Additionally, we note that a parent’s

responsibilities are not tolled during incarceration. In re B.,N.M., 856 A.2d

847, 855-56 (Pa. Super. 2004).                 Rather, “[a]n incarcerated parent is

expected to utilize all available resources to foster a continuing close

relationship with h[er] . . .      children.     The focus is on whether the parent
____________________________________________


9
    23 Pa.C.S. §§ 2101-2938.


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utilized resources available while in prison to maintain a relationship with

h[er] . . . child.” Id.

      In In re R.J.S., 901 A.2d 502 (Pa. Super. 2006), an incarcerated

Father similarly argued that a custody order barred him from any contact

with his children and that his numerous efforts to modify the no-contact

order were unsuccessful.       Our Court noted that “the record contains no

evidence, other than Father’s testimony, that he took any concrete steps to

modify the custody order or that he was rebuffed by the court.         To the

contrary, the evidence suggests that Father did not pursue the avenues that

were open to him for assistance through DCYF.” Id. at 508-509 (emphasis

in original).    Father in R.J.S. was not only assigned a caseworker, who

“identified what he needed to do to get the family court order modified,” id.

at 509, but was also given constant updates on his children and sent copies

of his family service plan by the caseworker without any prompting on his

part. Id.       In response, Father never took the caseworker’s suggestions to

modify the order, failed to respond to a single letter or request by the

caseworker, and never tried to contact the agency relative to his children.

Id.

      Here, unlike the Father in R.J.S., Mother was not offered any

assistance with regard to the no-contact order from a local department of

children and youth services.      Instantly, Mother testified that from August

2012 (when she was in the drug treatment facility and in jail) to May 2013

(when Father obtained custody of Child), she called Maternal Grandmother


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one to two times a day and talked to Child. Additionally, Mother attempted

to call Child in September 2013 when she was at the halfway house;

however, Father told Mother that she could not speak to Child, that she was

harassing him and that she was not to call him anymore. Moreover, when

Father reported the call to authorities at the halfway house, Mother was

instructed not to call Father anymore. N.T. Termination Hearing, 10/1/14,

at 241.10

        From May 2013 (when Father had custody of Child) through October

2013 (date of no companionship/contact order), Mother testified that she

called Maternal Grandmother consistently to get updates on Child. Because

Father and halfway house personnel told Mother not to call Child, her best

chances at finding out about Child was through her mother.             After the

October 2013 Ohio order precluded Mother and Maternal Grandmother from

contacting Child, Maternal Grandmother attempted, on behalf of Mother who

was still in a halfway house, to have the no-companionship order modified

so that she could resume her visitation with Child.        Id. at 168.     After

recovering from a heart attack in March, Maternal Grandmother continued to

attempt to have the court order modified.        Id. at 169.   Finally, following

Mother’s release from the halfway house in January 2014, Mother, herself,

tried to have the order modified. Id.



____________________________________________


10
     Father does not contest this testimony.


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      In In re J.F., 572 A.2d 223 (Pa. Super. 1990), a father similarly filed

a petition to terminate natural mother’s parental rights to their child. When

child was nine months old, mother had relinquished physical custody to

father and his parents, but still maintained contact with child.        Father

ultimately married his current wife; however, child continued to reside with

paternal grandparents. Ultimately, legal custody was awarded to father with

liberal visitation to mother and paternal grandparents. In father’s petition to

terminate mother’s rights, father claimed that mother had relinquished her

parental rights for at least six months, under section 2511(a)(1). The court

ultimately found that mother could have done much more to demonstrate a

place of importance in child’s life, and that mother had failed to perform

parental duties for at least three years or take reasonable, affirmative action

to maintain communication and a relationship with child.      Specifically, the

court found that even though father had made it difficult for mother to

contact child, mother had not visited with daughter despite being granted

visitation rights and had never attempted legal action to enforce her

visitation rights.

      Here, in contrast to the mother in In re J.F., Mother was faced with

insurmountable obstacles that were exacerbated by her incarceration.        To

overcome these obstacles partially put in place by Father, the halfway

house, and the court in Ohio, Mother employed the help of Maternal

Grandmother to keep her updated on Child’s well-being and have letters and

motions filed with the Ohio court in her stead. Under the circumstances, we


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find that these attempts were not only reasonable, but the most feasible way

to regain contact with Child upon her release from the rehabilitation center,

prison, and the halfway house. See B.,N.M., supra at 855 (a court “must

consider situations in which a custodial parent has deliberately created

obstacles and . . . erected barriers intended to impede free communication

and regular association between noncustodial parent and h[er] child.”).

      We do not overlook or diminish the fact that Mother’s imprisonment,

which was a direct result of her drug addiction/dependency and selling drugs

from her home, was the main reason that Child was removed from her care.

However, while Mother will admittedly be challenged in parenting Child as

she has not actively parented him for the past two years of his life, the

statute does not permit the trial court to terminate her rights under section

2511(a)(1) on such a presumption.     Cf. In re C.L.G., 956 A.2d 999 (Pa.

Super. 2008) (where Mother was incarcerated for drug-related crimes,

underlying drug issues precluded her from properly parenting Child and

supported termination under section 2511(a)). At the termination hearing,

Mother offered evidence showing that she has been drug-free since August

2012. She also testified that she is currently employed as a waitress at a

local pub/sports restaurant.

      By the same token, we cannot ignore the fact that Child lived with and

was cared for by Mother for the first three-and-a-half years of his life.

Despite the fact that Mother was a drug addict, she enrolled child in pre-

school during that time, kept him up to date on his doctor’s appointments,


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had him enrolled in an early intervention program for his behavioral issues,

and had Maternal Grandmother take care of him while she was in prison.11

       In In re Shives, 525 A.2d 801 (Pa. Super. 1987), our Court stated:
       Only where the totality of the circumstances demonstrates
       clearly and convincingly that a parent has refused or failed to
       perform parental duties for a minimum period of six months may
       an order be entered terminating parental rights. The pertinent
       inquiry is not the degree of success a parent may have had in
       reaching the child, but whether, under the circumstances,
       the parent has utilized all available resources to preserve
       the parent-child relationship.

Id. at 803 (emphasis added). Based on a careful and comprehensive review

of the record in this case, we are forced to conclude that the evidence did

not clearly and convincingly demonstrate that Mother refused or failed to

perform her parental duties for six months. Mother’s incarceration, coupled

with Father’s refusal to allow her to communicate with child as well as an

out-of-state no-contact order, amounted to overwhelming barriers that

prevented her from utilizing traditional methods of communication to

demonstrate her continued interest in maintaining a parental relationship

with Child. By using her mother to update her on Child’s well-being and to

file court papers and letters requesting modification of the no-contact order,

Mother’s actions in this case amounted to diligent attempts to preserve the

parent-child relationship under the circumstances and means available to

her. See In re J.G.J., Jr., 532 A.2d 1218, 1220 (1987) (“In Pennsylvania,

____________________________________________


11
   We note that Father was not in the picture at all until he filed for custody
in November 2012.


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courts applying this standard have required that the evidence be so clear,

direct, weighty, and convincing as to enable the factfinder to come to a clear

conviction without hesitancy, of the truth of the precise facts in issue.”).

       Recognizing that we are limited, on appeal, to determining whether

the court’s order is supported by competent evidence and that we review a

trial court’s decision to terminate a parent’s rights for an abuse of discretion

or error of law, we must reverse.12 Under the totality of the circumstances,

Z.P., supra, we find that termination was not warranted under section

2511(a)(1).13

       Having found that Father did not prove, by clear and convincing

evidence, that Mother’s rights should be terminated under section 2511(a),
____________________________________________


12
    The trial court also bases its decision to terminate under section
2511(a)(1), in part, on the fact that Mother never sent the Child letters,
pictures or gifts. Trial Court Opinion, 11/10/14, at 1. However, Mother
explained that she was not permitted to send presents from prison and, that
based on Father’s prior actions refusing her contact with Child, she
reasonably believed that anything she would send Child would not be given
to him. Moreover, if she was under court order to not contact Child, any
such attempted gifts or communication would be a direct violation of the
court, subjecting her to sanctions or further loss of her rights to see Child.
13
    We recognize that Mother testified that she does not want to take Child
away from Father and Step-Mother, but just wants to be back in her Child’s
life. She seeks visitation with him, although acknowledging that it will be a
gradual process requiring supervision at first. In sum, she does not want to
disrupt Child’s life in Pennsylvania with the family he has been living with for
the past two and one-half years. N.T. Termination Hearing, 10/1/14, at
250-51. Moreover, Step-Mother testified that she and Mother had, for the
most part, a relatively cordial relationship and that she “absolutely
believe[s] that [they] can . . . as two sets of parents[,] that we can co-
parent with Child.” Id. at 138.



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we do not address Mother’s second issue related to the court’s determination

under section 2511(b). See In re C.L.G., 956 A.2d 999 (Pa. Super. 2008)

(only after determining parent's conduct warrants termination of parental

rights under section 2511(a), may court engage in second part of analysis

under section 2511(b)).14         While it may be tempting to look at the best

interests of the Child and bootstrap the section 2511(a) arguments and

conclusions, the statute does not permit a court to engage in such an

analysis.


____________________________________________


14
   However, even if we concluded that termination was proper under section
2511(a), we disagree with the court’s determination that the best interests
of Child were served by terminating Mother’s parental rights under section
2511(b). Here, the court concluded that the impact in severing any potential
parent-child bond “would be outweighed by the potential harm of the child in
the resumption of contact at this time.” N.T. Termination Hearing, 10/2/14,
at 325-26 (emphasis added).         As a result, the court concluded that
terminating Mother’s rights to Child would be in his best interests under
section 2511(b). However, the court’s focus in this regard is short-sighted;
it must assess the permanent effect that severing any parent-child bond
would have on Child. Here, there was no testimony from any witness
directly addressing the presence or absence of any bond between Mother
and Child.     In fact, behavioral specialist, Amanda Herr, testified that it
would be “difficult” for her to say whether Child had a familiar bond with
Mother and her family. N.T. Termination Hearing, 10/1/14, at 11. While
neither a formal bond evaluation nor an expert opinion is required for a
section 2511(b) analysis, at a minimum the court must consider the
presence of any parent-child emotional bond and the effect that severance
would have on the child. In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super.
2005). Interestingly, the trial court even questioned Ms. Herr’s qualification
to make a recommendation to terminate Mother’s rights.             See N.T.
Termination Hearing, 10/1/14, at 305. Moreover, it is inappropriate to even
discuss this issue unless and until section 2511(a) is proven by clear and
convincing evidence.



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       Order reversed.15 Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/2015




____________________________________________


15
  We express no opinion with regard to whether an emotional bond exists
such that its severance would not be in Child’s best interest. This is
something that must be further explored by the trial court should a new
petition to terminate Mother’s rights be filed.


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