J-S59016-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: E.D.L., A MINOR                  :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
 APPEAL OF: E.H., FATHER                 :
                                         :
                                         :
                                         :
                                         :
                                         :   No. 2103 EDA 2019

               Appeal from the Decree Entered June 28, 2019
  In the Court of Common Pleas of Bucks County Orphans' Court at No(s):
                             No. 2018-A9119


BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY NICHOLS, J.:                      FILED DECEMBER 04, 2019

      E.H. (Father) appeals from the decree granting the petition filed by D.L.

(Mother) and her husband, R.J. (Stepfather), seeking to involuntarily

terminate Father’s parental rights to E.D.L. (the Child), born in September

2012, pursuant to the Adoption Act, 23 Pa.C.S. § 2511(a)(1) and (b). We

affirm.

      The trial court summarized the relevant evidence as follows:

      Mother . . . and Father . . . are the biological parents of [the
      Child.fn1] The Child was born . . . in Middlesex County, New
      Jersey. At the time of the Child’s birth, Mother and Father were
      in a romantic relationship and living together. Mother and Father
      separated in November of 2012. The Child currently resides with
      Mother and [Stepfather]


             [The Child’s] name at birth was E.D.H. In 2014, a name
          [fn1]

          change was granted at which time [the Child]’s name was
          changed to E.D.L.
J-S59016-19


     Father has not seen the Child in person since November of
     2012.[fn2] On November 3, 2012, Mother and Father took the Child
     to his two-month pediatrician appointment. Upon returning home
     from the appointment, Father left the residence and never
     returned. Mother later found out that Father moved to Florida.

            The parties stipulated to the fact that Father has not
        [fn2]

        seen the Child in person since November of 2012.

     Soon after Father moved to Florida, Mother filed for custody of the
     Child in Middlesex County, New Jersey, where she continued to
     reside. On December 17, 2012, following a hearing, Mother was
     granted full legal and physical custody. Father did not appear for
     the hearing, but participated by telephone.

     Between November of 2012 and February of 2013, Father
     remained in contact with Mother through e-mail correspondence.
     Mother testified that the e-mails were mainly arguments “back
     and forth.” In February of 2013, Mother filed a restraining order
     as a result of alleged threatening e-mails she received from
     Father. Mother testified that Father had also threatened to abduct
     the Child and push on the “soft spot” of his head. [fn3] The
     restraining order was temporary and remained in effect for twelve
     weeks.
        [fn3]Father denies the allegations contained in Mother’s
        petition for a restraining order.

     In 2014, Mother filed for a name change on behalf of the Child in
     Middlesex County, New Jersey. Father objected to the name
     change and again did not appear for the hearing, but participated
     by telephone. Mother’s petition for a name change on behalf of
     the Child was granted and the Child’s name was changed from
     E.D.H. to E.D.L.

     In 2015, Mother filed a petition for relocation in Middlesex County,
     New Jersey. Mother filed the petition with the intent to relocate
     to Bucks County. On September 26, 2015, Mother’s request for
     relocation was granted. Shortly thereafter, Mother moved to
     Bucks County with the Child and [Stepfather].                Mother,
     [Stepfather] and the Child have continued to reside in Bucks
     County since the relocation was approved. The five-year-old
     [c]hild of Mother and [Stepfather] also lives in the home, and
     [Stepfather]’s two daughters from a previous relationship live in
     the home every other weekend.

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J-S59016-19



     Father has not contacted Mother regarding the Child since 2014.
     Mother testified that the last contact she had with Father prior to
     the filing of the petition for the involuntary termination of Father’s
     parental rights was in 2014[,] when he requested pictures of the
     Child. Mother testified that she has never blocked Father’s
     telephone number, that she has not changed her e-mail address,
     and that Father was provided with her address as a result of
     various court proceedings. Mother testified that [although Father
     paid $23 each week in child support,] she never received any
     birthday cards, gifts, or mail from Father for the Child. Mother
     also testified that, to her knowledge, Father has never filed for
     custody.[fn4]
        [fn4]Father testified that he filed for custody after receiving
        the petition for the involuntary termination of his rights and
        approximately two weeks before this matter was scheduled
        for an evidentiary hearing.

     Father has been unemployed since 1998 as the result of being
     involved in two accidents. In 1993, Father was involved in a motor
     vehicle accident that caused injuries to his back. In 1995, Father
     fell off of a ladder. Father testified that he underwent over twenty
     surgeries as a result of the accidents. Father is presently on Social
     Security disability.

     Following Father’s accidents, he was prescribed Klonopin, Elavil,
     Oxycodone, and Zanaflex. Father testified that he was prescribed
     Elavil for depression, Klonopin for anxiety, and Oxycodone for
     pain. Father acknowledged that he has suffered from mental
     health problems in the past. Specifically, Father testified that he
     suffered from high levels of anxiety and depression. Mother
     testified that Father told her he had previously overdosed on
     prescription medication, had threatened to commit suicide on
     another occasion, and was committed to a psychiatric facility.
     Father denies Mother’s allegations. Additionally, Father denies
     that he has ever struggled with substance abuse despite Mother’s
     allegations that he abused his prescription medication and did not
     take it as directed.

Trial Ct. Op., 8/12/19, at 1-4 (record citations and some capitalization

omitted).



                                     -3-
J-S59016-19



        Mother and Stepfather filed a petition to terminate Father’s parental

rights on September 17, 2018.1 An evidentiary hearing was scheduled for

February 19, 2019, at which time Father appeared without counsel and

expressed that he wished to contest the petition. The hearing was continued,

and the trial court appointed counsel to represent Father on April 9, 2019.

        The trial court held an evidentiary hearing on June 14, 2019. Mother

and Stepfather testified in support of the petition.     Father, represented by

counsel, testified on his own behalf. Francine Kaplan, Esq., represented the

Child as both guardian ad litem (GAL) and legal counsel.2

        The trial court terminated Father’s parental rights in a decree dated June

18, 2019, and entered on June 28, 2019.          Father timely filed a notice of
____________________________________________


1   Stepfather filed a petition to adopt the Child on October 10, 2018.

2 The trial court initially appointed Attorney Kaplan as GAL and then as legal
counsel. Therefore, the Child’s right to counsel under 23 Pa.C.S. § 2313(a)
was satisfied. See In re Adoption of K.M.G., ___ A.3d ___, 2019 PA Super
281, 2019 WL 4392506 (Sept., 13, 2019) (en banc) (holding that (1) “this
Court’s authority is limited to raising sua sponte the issue of whether the
orphan’s court violated Section 2313(a) by failing to appoint any counsel for
the Child in a termination hearing,” and (2) we may not “review sua sponte
whether a conflict existed between counsel’s representation and the child’s
stated preference in an involuntary termination of parental rights proceeding”
(citations omitted) (emphasis in original)). We add that there was no
apparent conflict between the Child’s best interests and legal interests. See
id.; see also In re T.S., 192 A.3d 1080, 1089-90, 1092-93 (Pa. 2018)
(reaffirming the ability of an attorney-guardian ad litem to serve a dual role
and represent a child’s non-conflicting best interests and legal interests); In
re Adoption of L.B.M., 161 A.3d 172, 174-75, 180 (Pa. 2017) (plurality)
(stating that, pursuant to 23 Pa.C.S. § 2313(a), a child who is the subject of
a contested involuntary termination proceeding has a statutory right to
counsel who discerns and advocates for the child’s legal interests, defined as
a child’s preferred outcome).

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J-S59016-19



appeal, along with a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).         The trial court filed a Rule

1925(a) opinion.

      Father raises the following issues for review:

      1. Did the trial court err in terminating [Father’s] parental rights
      when it was established that [Father] had suffered from numerous
      physical and emotional maladies in the years preceding
      termination, which prevented [Father] from maintaining a more
      active role in [the Child’s] life?

      2. Did the trial court err in terminating [Father’s] parental rights
      when it was established that [Father] was receiving disability, had
      limited financial means to actively participate in [the Child’s] life,
      and where [Father] made attempts to participate in every court
      proceeding pertaining to [the Child’s] custody and name change?

Father’s Brief at 4 (some capitalization omitted).

      In both of his issues, Father argues that he has continually suffered from

physical and psychological conditions that have impacted his life and ability to

maintain a relationship with the Child. See id. at 16. He maintains that he

was physically unable to see Child due to his numerous surgeries and medical

requirements. Id. He further asserts that his psychological issues prevented

him from functioning as a parent. Id. Father notes that his financial situation

limited his ability to travel from Florida to New Jersey to visit the Child, and

he insists that he attempted to keep in contact with Mother and send cards

gifts for the Child. Id. at 18. Father contends that he is now able to maintain

a relationship with the Child. Id.

      Our review is governed by the following standards:



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J-S59016-19


      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 quotations omitted).

      The termination of parental rights 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 Section 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 Section 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).           We

have defined clear and convincing evidence as that which 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.” In re

C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en banc) (citation omitted).

      Here, we initially focus on the trial court’s analysis under Section

2511(a)(1).

      Section 2511(a)(1) provides:

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J-S59016-19


      (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).

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

the parent demonstrates a settled purpose to relinquish parental claim to a

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

filing of the termination petition.”   In re Z.P., 994 A.2d 1108, 1117 (Pa.

Super. 2010) (emphasis in original). Our Supreme Court has held,

      [o]nce 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
      or 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).


Matter of Adoption of Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)

(citation omitted); accord In re J.T.M., 193 A.3d 403, 409 (Pa. Super. 2018).

      It is well settled that:

      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.




                                       -7-
J-S59016-19


     This affirmative duty encompasses more than a financial
     obligation; it requires continuing interest in the child and a
     genuine effort to maintain communication and association with
     the child.

     Because a child needs more than a benefactor, parental duty
     requires that a parent exert himself to take and maintain a place
     of importance in the child’s life.

     Parental duty requires that the parent act affirmatively with good
     faith interest and effort, and not yield to every problem, in order
     to maintain the parent-child relationship to the best of his or 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 his or her physical and emotional
     needs.

In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations omitted).

     This Court has noted that

     we may not consider any effort by the parent to remedy the
     conditions described in subsection (a)(1) . . . if that remedy was
     initiated after the parent was given notice that the termination
     petition had been filed. Further, this evidentiary limitation applies
     to the entire termination analysis. The court, however, may
     consider post-petition efforts if the efforts were initiated before
     the filing of the termination petition and continued after the
     petition date.

Z.P., 994 A.2d at 1121. Further,

     the trial court must consider the whole history of a given case and
     not mechanically apply the six-month statutory provision. The
     court must examine the individual circumstances of each case and
     consider all explanations offered by the parent facing termination
     of his or her parental rights, to determine if the evidence, in light
     of the totality of the circumstances, clearly warrants the
     involuntary termination.


                                     -8-
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In re B., N.M., 856 A.2d at 855 (citations omitted).

      Here, the trial court observed:

      It is well established that a parent must take affirmative steps to
      maintain a relationship with his or her child to the best of his or
      her ability under the circumstances. Here, Father clearly failed to
      establish and maintain a place of importance in the Child’s life.
      Father himself acknowledged that he could have made more of an
      effort to be involved in the Child’s life. After 2014, Father did not
      attempt to make contact with the Child. We heard testimony from
      Mother that she did not change her e-mail address, [that] she did
      not change her telephone number or block Father’s telephone
      number, and that Father was aware of the address of the home in
      which she and the Child have continuously resided for nearly five
      years. While Father testified that he sent cards for the Child every
      year, Mother testified that she did not receive any mail from
      father.

      Although Father moved to Florida when the Child was two months
      old, he could have attempted to remain in contact with the Child
      despite the distance. Father testified that he moved back to New
      Jersey in May of 2018 because he “wanted to spend time” with
      the Child and “wanted to be a father.” Notably, however, Father
      did not even attempt to reach out to Mother to inform her that he
      had moved back to New Jersey or that he wanted to see the Child.
      This [c]ourt cannot now accept Father’s vow to be present as a
      Father after his prolonged absence in the Child’s life and his failure
      to maintain any contact with the Child. Accordingly, we find that
      [Mother and Stepfather] proved by clear and convincing evidence
      that grounds for termination under Section 2511(a)(1) existed for
      Father’s failure to perform parental duties.

Trial Ct. Op. at 7-8 (record citations omitted).

      As to Father’s explanation for his conduct and post-abandonment

contact with the Child, the trial court explained:

      Father argues that he suffered from “numerous physical and
      emotional maladies in the years preceding termination” that
      prevented him from having an active role in the Child’s life. We
      accept Father’s testimony that he is disabled, has undergone
      many surgeries, and suffered from anxiety and depression.

                                        -9-
J-S59016-19


      However, we did not hear any evidence of how Father’s physical
      limitations or emotional issues interfered with Father’s ability to
      remain in meaningful contact with the Child. Furthermore, a
      majority of Father’s testimony related to his physical and
      emotional issues between the years 2008 and 2014. Father
      testified that beginning in 2014, he was “doing better” physically.
      Thus, while his physical disability may have prevented Father from
      playing a role in the Child’s life from 2012 to 2014, it does not
      explain Father’s failure to attempt to be involved, or even contact
      the Child, in the years immediately prior to the filing of the
      [p]etition. Father also testified that he had improved emotionally
      over the past year or two and that he stopped taking medication
      for anxiety and depression in May of 2018. While Father’s
      emotional issues may have prevented him from playing a role in
      the Child’s life for several years, it is by Father’s own admission
      that his condition had improved for at least the year preceding
      termination and that he did not make an effort to see or contact
      the Child during that time.

      Next, Father argues that he had limited financial means to actively
      participate in the Child’s life. While we heard testimony that
      Father is on Social Security disability and was unable to afford
      transportation to New Jersey from Florida, the [c]ourt is not
      satisfied that Father’s financial limitations prevented him from
      maintaining basic contact, such as e-mailing or calling to ask
      about the Child or to speak to the Child, as the Child got older.

      Regarding any post-abandonment contact between Father and the
      Child, Father seems to argue that his participation in the New
      Jersey custody and name change proceedings is demonstrative of
      his attempt to remain in contact with the Child. We acknowledge
      that Father participated in the custody proceedings and the name
      change proceedings. However, between the most recent custody
      hearing in 2015 and the filing of [the petition], Father did not
      make any attempt to file for custody. It was not until Father was
      in receipt of [the petition] that he filed for custody. As such,
      Father’s participation in the name change proceeding and the
      custody proceedings in New Jersey is not demonstrative of an
      attempt to participate in the Child’s life so as to overcome his
      otherwise total lack of involvement in the Child’s life over the
      course of six years, and most critically, over the six-month period
      preceding the filing of the [p]etition.

See Trial Ct. Op. at 8-9 (record citations and footnote omitted).

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       Following our review, we see no reason to disturb the trial court’s

determination. See T.S.M., 71 A.3d at 267. The evidence supported the trial

court’s determination that Father did not perform parental duties in the six

months prior to the filing of the petition. See Z.P., 994 A.2d at 1117; B.,

N.M., 856 A.2d at 855. Moreover, we find no abuse of discretion or error of

law in the trial court’s consideration of Father’s explanations for his conduct

or the trial court’s finding that Father failed to maintain contact with the Child

after Father moved to Florida. See J.T.M., 193 A.3d at 409. Accordingly, we

affirm the trial court’s conclusion that the termination of Father’s parental

rights was appropriate under Section 2511(a)(1). See T.S.M., 71 A.3d at

267.

       We next consider the trial court’s ruling under Section 2511(b). Initially,

we note that that Father did not preserve a challenge to the trial court’s ruling

under Section 2511(b) in his statement of errors complained of on appeal or

his statement of questions involved on appeal.          See Pa.R.A.P. 1925(b),

2116(a). Additionally, Father discusses Section 2511(b) only in passing in his

brief. See Father’s Brief at 19 (arguing that “it would decidedly be against

the Child’s best interest to deny [the Child] the opportunity to have a

relationship with his natural father that is now, for the first time, truly

possible”). While we could conclude that Father has waived this issue, see

M.Z.T.M.W., 163 A.3d 462, 466 & n.3 (Pa. Super. 2017), we will consider the




                                      - 11 -
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trial court’s ruling under Section 2511(b). See In re C.L.G., 956 A.2d 999,

1009 (Pa. Super. 2008) (en banc); Z.P., 994 A.2d at 1121.

        Section 2511(b) states in relevant part:

        (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.

23 Pa.C.S. § 2511(b).

        This Court has stated that the focus in terminating parental rights under

Section 2511(a) is on the parent, but the focus of Section 2511(b) is on the

child. See C.L.G., 956 A.2d at 1008. In reviewing the evidence in support of

termination under Section 2511(b), our Supreme Court has stated as follows:

        [I]f the grounds for termination under subsection (a) are met, a
        court “shall give primary consideration to the developmental,
        physical and emotional needs and welfare of the child.” 23 Pa.C.S.
        § 2511(b). The emotional needs and welfare of the child have
        been properly interpreted to include “[i]ntangibles such as love,
        comfort, security, and stability.” In In re E.M., 620 A.2d [481,
        485 (Pa. 1993)], this Court held that the determination of the
        child’s “needs and welfare” requires consideration of the emotional
        bonds between the parent and child. The “utmost attention”
        should be paid to discerning the effect on the child of permanently
        severing the parental bond.

T.S.M., 71 A.3d at 267 (some citations omitted).

        When evaluating a parental bond, “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.” Z.P., 994 A.2d at 1121 (citations omitted). Further, “in cases

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where there is no evidence of a bond between a parent and child, it is

reasonable to infer that no bond exists.” In re Adoption of J.M., 991 A.2d

321, 324 (Pa. Super. 2010) (citation omitted).

      Instantly, the trial court determined that there was no evidence of a

bond between Father and the Child.       See Trial Ct. Op. at 12. The record

supports the trial court’s finding.   The parties stipulated that the last time

Father saw the Child in person was November 2012, when the Child was two

months old. N.T., 6/14/19, at 6. Mother testified that the Child does not ask

about Father and considers Stepfather to be his parent in all respects. Id. at

13, 94. Father admitted that the Child would not know who he was, and that

his re-entry into the Child’s life would potentially be a shock to the Child. Id.

at 137.

      Moreover, the record supports the trial court’s finding that Mother and

Stepfather have attended to the needs and welfare of the Child, and that the

Child shares a strong bond with Stepfather. See Trial Ct. Op. at 11; N.T. at

13, 94-95. Stepfather is committed to adopting the Child. See N.T. at 99.

The Child’s GAL and legal counsel further indicated that the Child is very happy

at Mother and Stepfather’s home, that the Child and is clearly bonded to

Stepfather, and that termination was in the Child’s best interests. Id. at 179-

82.

      Following our review, we find no error of law or abuse of discretion in

the trial court’s analysis of the Child’s needs and welfare. There was clear and


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convincing evidence that there was no bond between Father and the Child,

and that the Child was in a loving and stable home with Mother and Stepfather.

The trial court recognized that Father expressed an interest in resuming his

parental duties, but considered all relevant factors to determine that the

termination of Father’s parental rights would best serve the needs and welfare

of the Child.   Therefore, we agree with the trial court that Mother and

Stepfather established the grounds for terminating Father’s parental rights

under Section 2511(b). See T.S.M., 71 A.3d at 267.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/4/19




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