J-S75045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ADOPTION OF: C.S.                        :   IN THE SUPERIOR COURT OF
                                                    :        PENNSYLVANIA
                                                    :
    APPEAL OF: B.C., NATURAL FATHER                 :
                                                    :
                                                    :
                                                    :
                                                    :
                                                    :   No. 1522 WDA 2019

              Appeal from the Decree Entered September 16, 2019
       In the Court of Common Pleas of Cambria County Orphans' Court at
                           No(s): No. 2019-185 IVT


BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                              FILED FEBRUARY 4, 2020

        B.C. (Father) appeals from the September 16, 2019 decree entered by

the Court of Common Pleas of Cambria County (trial court) terminating his

parental rights to his son, C.S. (Child). After careful review, we affirm.

                                               I.

        We glean the following facts from the certified record. At the time of

the termination of parental rights hearing, Child was four-and-a-half years old

and had been in foster placement through Cambria County Children & Youth

Services (CYS) for approximately three years. Notes of Testimony, 7/18/19,

at 7, 10. Child entered placement in August 2016 because his mother did not

have safe or sanitary housing and struggled with drugs, alcohol and mental


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*   Retired Senior Judge assigned to the Superior Court.
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health. Father was incarcerated due to an aggravated assault conviction since

before Child’s birth.

       Once paroled, Father was instructed to obtain and maintain stable

housing, comply with service providers, complete a drug and alcohol

assessment and regular drug screens, and avoid further incarceration. Father

was initially released to a halfway house in October 2016, but he was

reincarcerated because of parole violations from February to May 2017, from

November 2017 to May 2018, and from June to December 2018. While Father

was on parole, it was difficult to schedule visitation with Child because his

parole conditions prohibited him from entering Cambria, Allegheny and

Somerset counties.        CYS had to schedule visitation with available out-of-

county providers. Father did meet and comply with service providers when

he was not in prison.

       During his release from incarceration in 2017, Father attended biweekly

services that included parenting lessons and supervised visitation with Child.

His caseworker believed that he had a good parenting style, but Father and

Mother had a volatile relationship and were unable to parent together. 1

Another caseworker observed two of Father’s visits with Child in 2017 and

opined that Father had a good parenting style. No caseworkers were able to



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1 Father’s reincarceration in November 2017 was due to an incident of
domestic violence with mother.


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observe and testify to Father’s interactions with Child between November

2017 and February 2019.

      Father visited Child seven times in 2017 and did not visit at all in 2018.

He chose not to attend visitation while on parole in 2018 because there was

an outstanding warrant for his arrest and he did not want to be arrested in

front of Child. The CYS caseworker assigned to the case opined that while

Father has a bond with Child, Child has never looked to Father as a parental

figure since Father has not been available to fill that role.      Child bonded

significantly with his foster family while he was in their care.

      While incarcerated, Father contacted Child through phone calls and

letters. However, in the latter half of 2018, he went several months without

calling Child from prison. Father testified that when he was residing in the

halfway house, he would try to talk to Child on the phone twice a week. He

testified that Child refers to him as “dad” or “daddy” during these calls and

that they talk about Child’s day, school or church activities.         Notes of

Testimony, 8/30/19, at 62. Father acknowledged that Child was happy and

bonded with his foster mother. He admitted that he had never had custody

of Child and that he would have to work toward overnight visits before he

could take custody of Child.

      Father was residing in a halfway house after release from prison for

three months prior to the filing of the petition in February 2019. In that time,

he spoke with Child on the phone but could not visit in person because his


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parole conditions prevented him from entering Cambria County. Id. at 35-

36. He saw Child once immediately before a court date in January 2019. Due

to his periods of incarceration and Child’s lengthy placement in foster care,

Father has never parented Child independently.

       On September 16, 2019, the trial court issued an order terminating

Father’s parental rights.2 Father timely filed a notice of appeal and he and the

trial court have complied with Pa.R.A.P. 1925.

                                               II.

       On appeal, Father contends that the trial court abused its discretion in

finding clear and convincing evidence to support the termination of his

parental rights.3 We disagree.

                                               A.

       “The party seeking termination must prove by clear and convincing

evidence that the parent’s conduct satisfies the statutory grounds for

termination delineated in [the subsections of 23 Pa.C.S. § 2511(a)].” In re

Adoption of J.N.M., 177 A.3d 937, 942 (Pa. Super. 2018) (quoting In re



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2The trial court also terminated Mother’s parental rights and she did not file
an appeal.

3 Father does not argue that termination of his parental rights did not serve
Child’s best interests pursuant to 23 Pa.C.S. § 2511(b). See In re J.T.M.,
193 A.3d 403, 408 n.5 (Pa. Super. 2018) (holding that appellant waived any
challenge to the trial court’s determination under Section 2511(b) by failing
to raise it in his concise statement and brief).


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L.M., 923 A.2d 505, 511 (Pa. Super. 2007)). Clear and convincing evidence

is 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 D.L.B., 166 A.3d 322, 326 (Pa. Super. 2017)

(citation and quotation marks omitted). The orphans’ court may then enter a

final decree of involuntary termination if it is in the child’s best interests as

outlined in Section 2511(b). Id.4

       The trial court found clear and convincing evidence to terminate Father’s

parental rights pursuant to subsections 2511(a)(1), (2), (5), and (8). When

reviewing a trial court’s order terminating parental rights, we need only agree

as to one subsection of Section 2511(a), as well as Section 2511(b), to affirm

the order. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).

Accordingly, we proceed to our analysis of the trial court’s findings under

subsection 2511(a)(1).



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4 We review such a decree for an abuse of discretion. In re G.M.S., 193 A.3d
395, 399 (Pa. Super. 2018) (citation omitted). Moreover, “[w]e give great
deference to trial courts that often have first-hand observations of the parties
spanning multiple hearings.” In re Interest of D.F., 165 A.3d 960, 966 (Pa.
Super. 2017). “We must employ a broad, comprehensive review of the record
in order to determine whether the trial court’s decision is supported by
competent evidence.” In re S.H., 879 A.2d 802, 805 (Pa. Super. 2005). “The
trial court is free to believe all, part, or none of the evidence presented and is
likewise free to make all credibility determinations and resolve conflicts in the
evidence.” In re A.S., 11 A.3d 473, 477 (Pa. Super. 2010). “If competent
evidence supports the trial court’s findings, we will affirm even if the record
could also support the opposite result.” Id.


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      Subsection 2511(a)(1) provides that parental rights may be terminated

if “[t]he 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); see

also In re C.M.S., 832 A.2d 457, 462 (Pa. Super. 2003). “Although the six

month period immediately preceding the filing of the petition is most critical

to the analysis, the court must consider the whole history of the case and not

mechanically apply the six-month statutory provision.” In re I.J., 972 A.2d

5, 10 (Pa. Super. 2009).

      This court has defined “parental duties” as “a positive duty which

requires affirmative performance” to meet the physical and emotional needs

of the child. In re Adoption of N.N.H., 197 A.3d 777, 784 (Pa. Super. 2018)

(internal quotations and citation omitted). Moreover,

      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.

Id. A parent’s responsibilities are not tolled during incarceration. See In re

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

parental rights under subsection 2511(a)(2)).       Rather, we must inquire

whether the parent has used those resources at his disposal while in prison to


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continue a close relationship with the child.      See id.    If the evidence

establishes a failure to perform parental duties, the trial court must then

consider: “(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).”   In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citation

omitted).

                                         B.

      Father contends that there was not clear and convincing evidence to

support termination because, despite his incarceration, he made efforts to

maintain his bond with Child through phone calls and letters. He also argues

that he had obtained housing and employment when he was not incarcerated

and that he demonstrated appropriate parenting skills during his limited

supervised visits with Child.

      In the six months prior to the filing of the petition in February 2019,

Father visited with Child once, immediately before a court date. He did not

visit with Child at all in 2018, even during the times when he was not

incarcerated, because he was concerned about an outstanding parole violation

warrant.    While two caseworkers did testify that Father demonstrated

appropriate parenting skills during supervised visits, these visits occurred in




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2017, well before the six-month time period that is most relevant to the trial

court’s determination under subsection 2511(a)(1).5

       During the relevant time, Father was unable to visit with Child because

of his incarceration and parole restrictions prohibiting him from entering

Cambria County.6 When asked why he did not attempt to challenge these

restrictions, Father testified that he had “no real reason” to be in Cambria

County other than his court hearings and CYS meetings, which his parole

officer gave him permission to attend. Notes of Testimony, 8/30/19, at 77.

Thus, even though the restrictions limited his ability to see Child, he was not

concerned with attempting to have them changed. This does not demonstrate

reasonable firmness to overcome the obstacles preventing him from nurturing

a parent-child relationship. See In re Adoption of N.N.H., supra.




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5 While we acknowledge that the trial court must consider the entire history
of a case, the six months immediately preceding the filing of the petition is
“most critical to the analysis.” In re I.J., 972 A.2d 5, 10 (Pa. Super. 2009).

6 Father presented testimony from an employee of a foster care agency who
supervised Father’s monthly visitation with Child from March to August 2019.
Notes of Testimony, 8/30/19, at 40-41. The witness testified that Father
interacted appropriately with Child, was receptive to parenting advice, and
implemented skills that he learned during these sessions. Id. at 41-42.
However, these visits took place after the petition to terminate parental rights
was filed. Our law is clear that “[w]ith 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.” See 23 Pa.C.S.
§ 2511(b).

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      Father relies on a favorable psychological evaluation generated by a

psychologist who works with CYS as evidence that he is a capable parent. The

report indicated that Father was a “cooperative and pleasant individual who

appeared committed to maintaining his recovery from substance/alcohol use

and paying his own way in society.” Notes of Testimony, 7/18/19, at 93. The

psychologist concluded that Father had the ability to learn to be an appropriate

parent to Child if he complied with treatment recommendations. Father points

to this evaluation as evidence that he was able to perform parental duties but

for the roadblocks to reunification created by his parole and incarceration.

      However, this evaluation was conducted in June 2017. Over a year-

and-a-half passed between the evaluation and the filing of the instant petition,

and in that time, Father continued to violate parole and made minimal efforts

to visit Child. As the psychologist noted, the evaluation measured potential,

not performance. Id. at 95-96. In his testimony, Father failed to appreciate

and address his own actions that led to his frequent periods of incarceration

and prevented him from maintaining a parental relationship with Child.

Father’s performance in his relationship with Child was the defining factor in

the trial court’s determination that CYS had provided clear and convincing

evidence for termination under subsection 2511(a)(1). The record is clear

that Father failed to perform parental duties for much of Child’s life.

      By the time of the termination of parental rights hearings, Child had

spent three years in foster placement.       Father testified that he was not


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immediately available to take custody of Child and would need to work towards

overnight visits with Child. The trial court determined that while Father had

taken some recent steps to achieve the stability he would need to be a parent

to Child, he was not currently in the position to do so. Further, based on

Father’s history of incarceration and minimal compliance with his parenting

goals, the trial court was not confident that Father could become an able and

available parent in the near future.    The trial court concluded that Child

deserved permanence after spending the majority of his life in placement.

These determinations are well-supported by the record and the trial court did

not abuse its discretion in finding that CYS presented clear and convincing

evidence to support termination of Father’s parental rights.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/4/2020




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