J-S56004-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    A.F.                                       :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                         Appellant             :
                                               :
                                               :
                   v.                          :
                                               :
                                               :
    E.B.V.                                     :   No. 1708 EDA 2019

                     Appeal from the Order Entered May 24, 2019
                   In the Court of Common Pleas of Carbon County
                        Orphans' Court at No(s): No. 18-9056


BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY PANELLA, P.J.:                          FILED FEBRUARY 12, 2020

           In this appeal, A.F. (“Father”) challenges the decree entered in the Court

of Common Pleas of Carbon County that denied his petition for involuntary

termination of parental rights. He contends the trial court should have

involuntarily terminated the parental rights of E.B.V. (“Mother”) to their child,

J.B.V., (born May 2015) (the “Minor Child” or “Child”) due to her failure to

perform parental duties. After careful review, we affirm the trial court’s order

denying Father’s petition.1

           The Minor Child was born in May 2015. Shortly after, Child experienced

withdrawal symptoms due to Mother’s drug use during pregnancy. Monroe
____________________________________________


1 Mother filed a motion to dismiss Father’s appeal as wholly frivolous and
vexatious. She also seeks an award of her attorney’s fees pursuant to
Pa.R.A.P. 2744. While we express our concern about Father’s clearly meritless
constitutional challenges, we decline to find that Father’s challenge to the
court’s refusal to terminate Mother’s parental rights wholly frivolous. We
therefore deny Mother’s motion to dismiss and her motion for sanctions.
J-S56004-19



County Children and Youth Services (“CYS”) conducted an investigation into

the circumstances of Child’s birth and Mother’s addiction. As a result, Child

was placed in emergency shelter care.

         The Monroe County Court of Common Pleas held an emergency shelter

care hearing at which time Father appeared and expressed an interest in

taking custody of Child. But, as of the hearing, Father was unable to establish

paternity. The court ordered Father to undergo genetic testing. In the

meantime, Child was maintained in emergency shelter care.

         Thereafter, the court held a dependency hearing, during which Child was

adjudicated a dependent child. The court reversed its decision soon after the

results of Father’s genetic testing established he was the presumptive father.

As such, the court terminated Child’s dependency status and awarded Father

legal and physical custody. At all times up to and including the dependency

hearings, Mother showed no interest in accepting parental responsibility for

Child.

         Even so, Mother’s mother (“Maternal Grandmother”) filed a custody

action to obtain legal and physical custody of Child. A custody conciliation

conference resulted in Maternal Grandmother receiving partial physical

custody of Child. This arrangement required Father to present Child for visits

with Maternal Grandmother on certain weekends and holidays. It was during

these visits that Mother – now clean and sober - attempted to re-enter Child’s

life. Mother would appear during the visits and spend time with Child,

unbeknownst to Father. Due to Mother’s presence at these visits, Father filed

                                       -2-
J-S56004-19



a petition for involuntary termination of Mother’s parental rights, claiming she

did nothing to provide for Child nor perform parental duties on his behalf.



      As a resident of Carbon County, Father successfully transferred the case

to the Carbon County Court of Common Pleas. After conducting an evidentiary

hearing on the petition, the court entered a decree denying Father’s requested

relief. Father timely filed a notice of appeal and a concise statement of errors

complained of on appeal. This appeal is properly before us.

      On appeal, Father raises the following issues:

      (1) Did the trial court err as a matter of law and thereby infringe
      [on] . . . [Father’s] fundamental liberty interests protected by his
      due process and equal protection rights under the U.S.
      Constitution, amend. 14, § 1, and the Pennsylvania Constitution
      art. I, § 1 . . . [?]

       (2) Did the trial court err as a matter of law when it concluded
      that . . . [Mother’s] parental rights could not be terminated under
      any of the enumerated sections of 23 Pa. C.S.A. ?

      (3) Did the trial court abuse its discretion by admitting evidence
      identifying the potential adoptive person?

      (4) Did the trial court abuse its discretion in making specific factual
      findings and conclusions from the testimony presented?

Appellant’s Brief, at 4-5.

      We review these claims under 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

                                       -3-
J-S56004-19


      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 (the “Act”), 23 Pa.C.S.A. § 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 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).

      In his first issue, Father challenges the constitutionality of the Act. He

alleges that in order to terminate Mother’s parental rights under the Act, he

“must either (a) participate in an adoption . . . or (b) relinquish his parental

rights.” Appellant’s Brief, at 21. Father asserts that conditioning the

termination of Mother’s parental rights upon either a pending adoption or

voluntary relinquishment interferes with his fundamental right to raise Child.



                                      -4-
J-S56004-19



See id., at 25. Furthermore, as there is no basis to impair his liberty interest,

Father maintains that it is constitutionally repugnant to require marriage as a

prerequisite to termination under the Act. See id., at 28. Therefore, Father

contends the Act violates his due process and equal protection rights under

the Fourteenth Amendment of the U.S. Constitution. See id., at 21.

      Preliminarily, we must address an issue related to Father’s challenge to

the constitutionality of the Act. In Pennsylvania, when a party challenges the

constitutionality of any statute, and the Commonwealth is not a party in the

matter, the challenging party must notify the Pennsylvania Office of the

Attorney General so that the Attorney General has the opportunity to be heard

on the issue. See In re J.Y., 754 A.2d 5, 11 (Pa. Super. 2000); see also

Pa.R.C.P. 235. Failure to file such notice results in waiver of the claim. See

Pa.R.A.P. 521 (a).

      The record reveals that the Commonwealth is not a party in this matter,

and Father failed to notify the Office of the Attorney General of his challenge

to the constitutionality of the Act. Accordingly, we are constrained to find that

Father has waived any constitutional claim. Therefore, we decline to address

the merits of this claim.

      In addition, based on our review of the trial court opinion and the

applicable law, we conclude that the trial court properly disposes of the

remaining issues raised by Father. Of particular note, we agree with the court

that Father’s “attempt [to terminate Mother’s parental rights] . . . fails as the

conditions which led to . . . [Child] being removed from . . . [Mother] no longer

                                      -5-
J-S56004-19



exist and in fact ceased to exist when . . . [Father] was given custody . . . .”

Trial Court Opinion, 5/24/19, at 17. Further, we cannot conclude, on this

record, that it was error for the court to admit evidence regarding the

proposed adoptive mother’s identity. See id., at 9-15. Having averred that

adoption was contemplated, Father had an obligation to present testimony on

this subject, which he did not. Finally, the record supports the court’s

determination that Mother demonstrated a serious intent to parent Child, as

evinced by the performance of her parental duties. See id., at 25.

      Therefore, we affirm the order on the basis of the trial court opinion.

      Order affirmed. Motion to dismiss denied. Motion for sanctions denied.

      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/20




                                     -6-
                                                                             Circulated 01/22/2020 10:52 AM




                                                                        ;




--/
                                                                             ,: :   .-:   (.'-··

   IN THE COURT OF COMMON PLEAS OF C_ARBON __COUNTY, PENNSYLVANIA
                       ORPHANS COURT DIVISION
                                                    li] i 9 flj '( 2 Ll ,�, i I:                   11


                   Plaintiff

                   Vs.                       No. 18-9056



                   Defendant

Michael S. Greek, Esquire                    Counsel for       Plaintiff
Bernard Conway, Esquire                      Counsel for       Plaintiff
Joseph Sebelin, Jr., Esquire                 Counsel for       Defendant
Mark Combi, Esquire                          Guardian Ad       Litem

                              MEMORANDUM OPINION

Matika, J. -      Maya"f ,    2019

     In this Opinion and accompanying Decree, this Court is tasked

with determining whether or not the parental rights of a recovering

addict, who surreptitiously visited with her subject child while

that child was in the partial physical                 custody of his maternal

grandmother,      has    exhibited    sufficient       efforts     to       maintain                an

appropriate position in this child's life and avoid the termination

of her parental rights. For the reasons stated in this Memorandum

Opinion,   this    Court     is   constrained     to    deny     the        Petition               for

Involuntary Termination of Parental Rights filed by the father,



                    FACTUAL AND PROCEDURAL BACKGROUND

     The Petitioner,                         (hereinafter ''-") and the

Respondent,                                            (hereinafter

                                     [FM-10-19)
                                         1
conceived a child,                                 (hereinafter "J.V.") who was born

on May .,          2015.      At the time of his birth and prior thereto,

- was               addicted to and had been               using various controlled

substances such as methamphetamine,                   heroin,   suboxone, and xanax.

As a result, J.V. was born addicted to opiates and suffered opiate

withdrawal upon his birth.                  Consequently, Monroe County Children

and      Youth      Services        commenced        an    investigation       into    the

circumstances        surrounding J. V.' s birth and - s addiction.

As a result, on May 21, 2015, the Monroe County Children and Youth

Services Agency took custody of J.V. and placed him into emergency

shelter care.1        On May 22, 2015, an emergency shelter care hearing

was    held   at    which     time only - appeared                    and expressed an

interest in taking custody of J.V. and would participated in any

genetic testing to establish if he was                       in fact J. V.' s     father.

Pending that testing,              J. V.   was maintained in emergency shelter

care.2

        On May 28,         2015,   Monroe County Children and Youth Services

learned       that - began                   suboxone     treatment    to    address   her

addiction and had also provided a clean urine test.                         Despite this,

she maintained that she did not want anything to do with J.V.

        A dependency hearing was held on May 29,                  2015.       As of that


1
  During this investigation,          named two possible fathers, one of whom
was    •   ; however since nothing was conclusive on the identity of the
father, the Child was placed into emergency shelter care.

2   Due to physical condition, J.V. remained in the hospital until June 8, 2015.

                                           [FM-10-19)
                                               2
date, - had not received back any .r e su Lt. from the paternity

    testing.    Accordingly, J.V. was adjudicated a dependent child;                         On

June 1, 2015, - s private genetic t e s t inq established that he

was     the presumptive father of J. V.               On June        8,    2015,    J.V.    was

discharged from the hospital and into                 llllllllll's   custody.           On July

13, 2015, the genetic testing ordered by the Court at the emergency

shelter care proceeding confirmed that - was the presumptive

father.

         On September 10,        2015,    a further hearing on the dependency

status of J.V. was held.               Based upon the testimony provided, the

Master, Todd W. Weitzmann, Esquire,               recommended that the child's

dependency status be terminated and that legal and physical custody

of J.V. be awarded to-,                     with whom J.V. had been with since

June 8,        2015.     At all times,      up to and including that hearing,

- showed no interest in J.V.'s situation.                                 J.V. has been in

the physical and legal custody of his father.

        At     some    time   in the   latter part      of 2015,          J. V. 's maternal

grandmother, - - (hereinafter "Grandmother") commenced a
                                                                 3
custody action against both - and -·                                      As a result of a

custody        conciliation      conference     which      occurred         on     or    about

September 23, 2016, it was recommended that 1111111111 be granted sole

legal custody and primary physical custody, while Grandmother was


3 Originally, Grandmother named Monroe County Children and Youth Services as a
defendant as well, however, as per Order of Court dated October 13, 2016, they
were removed as a defendant in· that action.                         ·

                                         [FM-10-19]
                                              3
to     receive    partial      physical    custody    every     second    and    fourth

Saturdays from 9:00 A.M.           until 5:00 P.M.         Other periods of partial

physical        custody   were    also     afforded    Grandmother        on    certain

holidays.        This recommendation also suggested that "the partial

physical custody rights of mother (111111111) are hereby suspended

until     she    files    a    petition    with     this    court   and    attends    a

conciliation conference in the future. "4 In fact,                  throughout the

entire calendar year 2016, - did not see or inquire about

J.V. from-·

        Testimony presented by both - and Grandmother revealed

that on most occasions in anticipation of Grandmother's periods of

partial physical custody, - inqui•red of Grandmother whether

-was going to be present.                     Up through the October 14, 2017

visit,     Grandmother        regularly responded to - and intimated

that     "Erica does not now,        nor has she ever had any visit with

Jamie."      It was not until meeting with an attorney herself did

Grandmother cease in including that sentence in �-mails responding

to-.              It was around this time period when - began to

appear at Grandmother's residence during her periods of partial

physical custody with J.V.               In fact,    Grandmother's response was

now, "As stated in Barry Cohen's5 letter to you dated July 6, 2017,


4 It was noted in the recommendation that           failed to appear for this
conference and ha� not participated as a parent since J.V.'s birth.
5 Barry Cohen, Esquire was Grandmother's counsel in the Monroe County custody
case.
                                     [FM-10-19]
                                          4
your inquiries about 0here Jamie will be and with whom durin1 my

shared·custody are uncalled for and do not require answers."

      At some point 'in 2017, -' a resident o f Albrightsville,

Carbon     County,   sought    and    was       successful   in   transferring   the

custody case to Carbon County.                  Thereafter on January 12,      2018,

Grandmother     filed   a     custody       action    seeking     partial   physical

custody of J.V. here in Carbon County pursuant to a Monroe County

Order.     This action resulted in an Interim Order dated March 9,

2018 mirroring that which was issued by Monroe County on October

13,   2016,   including language which required - to                         file   a

petition to reinstate6 which - eventually did on April 17,

2018.7

      From November, 2017 until at least the filing of the instant

petition to terminate parental rights filed on February 13, 2018,

11111111   had been present at her Mother's home while Grandmother

was exercising her partial physical custody rights in and to J.V.

on the second and fourth Saturdays each month.                     She spent these

times with J. V.,     unbeknownst to - .                 One of the reasons she

never told - that she was present was due to the hostilities

between - and Grandmother.                      She acknowledged that she had a



6 While the term "reinstate" and "suspended" were used in the March 9, 2018 and
October 13, 2016 order respectively, this Court could not identify any evidence
to indicate          had any custody of J.V. to actually "suspend."

7 This filing was dismissed by Order of Court dated April 30, 2018 as a result
of another Order cif even date which granted        's preliminary objections to
Grandmother's standing to pursue partial physical custody in the first instance.
                                     [FM-10-i9j ..
                                            5
substance abuse disorder most of her adult life but was clean and

sober since May, 2017.          She also testified that she had not gotten

involved with      J.V.     and visiting him before November,                              2017    nor

contacting - because she did not feel five                                 (   5)    months or so

was sufficient enough time to re-engage with J.V.                               Further, until

such time as she went with Grandmother to see Attorney Nicholas

Masington, she believed that she would be breaking the law visiting

with    J.V.     On    cross-examine        from - s                    Attorney,           -

admitted that      she wanted more clean time under her belt before

seeing J.V. because she felt that would be in his best interests.

- also testified that, absent the Saturday visits while J.V.

was visiting with Grandmother, she had done nothing else to provide

for J.V. nor perform parental duties on his behalf.

       The testimony presented and the exhibits offered and admitted

did not prohibit - from seeing J.V.                                  while he was            in the

custody of Grandmother.

       When    questioned      on    the   issue        of    whether      an        adoption was

contemplated,      -·           despite     the     overruling          of          his   counsel's

objection to this testimony, provided vague and nominal testimony

on this issue and specifically on the person who "contemplated"

adopting J.V. should-'s parental rights be terminated.                                            All

- testified to was the identity of his girlfriend who lived

in New York.       - also testified that he has been seeing her

"on    weekends"      during   the    course       of        their   one       plus       year    long

                                       [FM-10-19)
                                            6
    relationship. · Na· t e sti rnony was p r e s e'n t e d by this person,                                nor on

    the issue of any rel�tionship ·between this person

    and J.V.

                In    the     midst       of   contentious             custody p roc e ed i nq s        involving

1111111              and       Grandmother,             1111111        filed· the. instant              petition.

    Hearings           took place on September 21,                         2018 and October 23,             2018.

    Proposed findings                     of   fact and conclusions of                  law were        filed· by

Counsel for                  1111111111   and for       1111111111     as well as the Court appointed

Guardian ad Litem for J.V.

                This case is now ripe for an appropriate disposition.

                                                 LEGAL DISCUSSION

                1111111111   filed this petition for involuntary termination of the

parental rights of the maternal mother,                                        1111111111     on February 13,

2018.              At that time,           1111111111   alleged that          1111111111' s   parental rights

should               be      terminated        pursuant           to    one    of   the       several    grounds

outlined in the statute, to wit: 23 Pa. C. S.A. § 2511 (a) (1) (6) and

    ( 8).   8      These grounds alleged by                   1111111111   are as follows:

        (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.




8 After a long and somewhat confusing discussion at the hearing on September
21, 2018, it was determined that          , despite initially claiming other
grounds as a basis for terminating        s parental rights to J.V., ultimately
agreed that only these three sections would be the grounds upon which he would
present his case for termination.

                                                         [FM.:.10-i9]
                                                              7
  (6)      In the case of a newborn child, the parent knows or has
          reason to know of the child's birth, does not reside with
          the child, has not married the child's other parent, has
          failed for a period of four months immediately preceding
          the filing of the petition to make reasonable efforts to
          maintain substantial and continuing contact with the child
          and has failed during the same four-month period to provide
          substantial financial support for the child.



  (8)     The child has been removed from the care of the parent                   by
          the court or under a voluntary agreement with an agency,                 12
          months or more have elapsed from the date of removal                     or
          placement, the conditions which led to the removal                       or
          placement of the child continue to exist and termination                 of
          parental rights would best serve the needs and welfare                   of
          the child.

        In order to properly adjudicate .... s claims on each of

these grounds, this Court will address each separately noting that

- only          needs    to     establish       one   such grounds     by clear and

convincing evidence in order to succeed on his petition.                       In Re:

B.L.W.,    843 A.2d 380, 384       (Pa. Super. Ct. 2004)        (en bane); In Re:

T.R., 465 A.2d 642 (Pa. 1983).          Such 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 hesitancy,          of the truth of the precise facts

in issue."    Matter of Sylvester, 555 A.2d 1202, 1203-04 (Pa. 1989).

        In a termination' proceeding,            "the initial   focus is on the

conduct of the parent whose rights are at issue."                     In Re: E.M. I.,

57 A.3d 1278,    1287    (Pa.    Super. Ct. 2012).         Should - succeed

on this first prong under any of the alleged grounds identified


                                    [FM-10-19)
                                            8
above,       the Court must also analyze the needs arid welfare of the

child as this is the second prong of the termination test.·                     In Re:

A.P.,    994 A.2d 1108,        1121   (Pa:   Super.   Ct. 2010).      This includes

determining          whether      termination         would    best     serve      the

developmental,        physical and emotional needs and welfare of the

child while examining such tangibles as "love, comfort, security,

and stability."         In Re: E.M.I., Supra at 1287           (internal citations

omitted).

        Additionally,        in In re: E.M.I., the court stated,

        "current case law indicates that while an averment of a
        contemplated adoption might be sufficient to obtain a
        hearing on the termination petition, at the termination
        hearing the petitioning parent must demonstrate the
        planned adoption is also in the child's best interests,
        before the court will terminate the parental rights of
        the responding parent.    See In re Adoption of L. J.B.,
        supra at 232, 18 A. 3d at 1110-11 (implying no gain to
        child or society is achieved by terminating one parent's
        rights to permit adoption by another who is unwilling or
        unqualified to adopt).    Thus, as part of its Section
        2511(b) analysis of the needs and welfare of the child
        in this context, the court must address and evaluate the
        "proposed adoption" that was averred n the termination
        petition.

Supra at 1287.

        In    this   case,    - claims           that    he   has   averred   in   his

petition in paragraph 9 that an adoption is presently contemplated

and /:hat this simple averment is sufficient to. show that a proposed

adoption is in the best interests of J.V. without inquiring into

the person who would actually be in a position to adopt the child

should   llllllll's     parental rights be terminated.              At the hearing,

                                      [FM-10-19]
                                           9
counsel for-' while cross-examining-' inquired of the

proposed adoptive mother should termination be granted.                           This line

of questioning was met with an objection by -s counsel who

argued that     2 3 Pa.     C. S. A.    §2504. 1 which reads:          "The Court shall

take such steps        as    are reasonably necessary to assure that the

identity of the adoptive parent or parents is not disclosed without

their consent in any proceeding under this subchapter or Subchapter

B   (relating to      involuntary termination)u. and "the Supreme Court

may prescribe uniform rules under this section relating to such

confidentiality", prohibits the identity of the proposed adoptive

mother without her consent.                 Further,    11111111   argues that since 23

Pa.C.S.A.     §2531       (report      of    intention       to     adopt)   is    equally

inapplicable,      disclosure          is   likewise     not      appropriate.      11111111
accurately cites to subsection (c) of this statute which indicates

that "no report       shall     be required when the child is the child,

grandchild,    stepchild,        brother,       or     sister of     the whole or half

blood,   or niece or nephew by blood,                  marriage or adoption of the

person receiving or retaining custody or physical care."                          However,

his reliance on the subsection as the means to preclude questions

as to the identity,          relationship,           and possible character of the

proposed    adoptive        mother     is    misplaced.        Accordingly,       - s

objection into this specific line of questioning was overruled and




                                        [FM-10-19]
                                            10
counsel for - was permitted to inquire regarding the proposed

adoptive mother.9

      During direct examination, -never even·mentioned that

an adoption was       contemplated nor who that person might be.                On

cross-examination        by -' s          counsel,    over   the   objection    of




                                                     -··
-·s counsel,             the following colloquoy took place:

      Q. You may answer the question, Mr.

      A. And that question again?

      Q. Who is the person who is adopting?           You don't have to adopt

          the   child.     Is there another person that's contemplated

          in this termination?




9 "A termination of parental rights petition filed by one parent against the

other must occur in the context of an anticipated adoption."      In Re: Adoption
of M.R.D., 145 A.3d 1117, 1120 (2016). In those cases, not only must the parent
establish the requirements set forth in 23 Pa. C.S.A. §2517, but also that the
proposed adoptive mother is authorized to adopt the subject child pursuant to
the Adoption Act.    23 Pa. C.S.A. §2512(b); In Re: M.R.D., Supra. Further, the
court stated that the Adoption Act explicitly allows only a stepparent to be an
adoptive resource for the subject child when it is a biological parent filing
the termination petition against the other biological parent. See 23 Pa. C.S.A.
§2903. If the proposed adoptive parent is someone other than a stepparent, the
Adoption Act requires the biological parent who is filing the termination
petition to relinquish his parental rights. Id.     These requirements, however,
can be waived "for good cause shown.'' See 23 Pa. C.S.A. §2901.
   In In re.T.R., 465 A.2d 642, 644 n.10 (Pa. 1983), the Supreme Court observed
that, "the ·'singular concern' of the Adoption Act" is to "establish a new
 'parent-child relationship.'" Accordingly, it reasoned that the trial court is
required to "consider, and not merely accept on its face," the putative adoption
parent's declaration of intent to adopt in order to confirm that the purpose of
the involuntary termination of parental rights is genuine, i.e., to establish
a new parent-child relationship.
   As it relates to the "contemplated adoption" as averred by         , the Cour.t.
must also examine the record to ascertain whether the proposed adoption of J.V.
by the proposed adoptive mother is to establish a new family unit. Accordingly,
the Court is required to analyze the integrity of the proposed adoption and
whether the adoption was likely to happen.    See In re T.R., 465 A.2d 642, 644
n.10 (1983).


                                   [FM-10-19]'
                                       11
A. Yes, there is.

Q. And what is the name of that person?

   The     Witness:    Your   Honor,   may   I   speak on   behalf   of my

   Counsel?

The Court: No.        Your Counsel speaks on behalf of your Counsel.

   You answer questions presented by counsel when asked.

The Witness:

By Mr. Sebelin:

Q. And who is�?

A.� is my girlfriend.

Q. How long have you been together?

A. Over a year.

Q. Okay.    Does she live with the child?

A. Not at this time.

Q. Where does she live?

A. In New York.

Q. New York State?

A. The state of New York.

Q. Where in New York? It is a big state.

A. Long Island.

Q. How frequently are the two of you together?

A. On weekends.

The Court: Could you spell her last name?

The Witness:-·

                              [FM-10-19)
                                  12
      By Mr.   Sebelin:

      Q.   - -          hasn't      filed    a   consent        to · adopt    the    child,

           correct?

      A. That's correct.

      Q. You and_..... are not married, correct? I know you said

      it is your girlfriend.           You are not married,           correct?




      A.-.
      A. That is correct.

      Q. What does the child call           111111111111?


      Q.   How many times       -   you said on the weekends                and you have

      been dating a year?           So -

      At that point,-· s counsel objected, claiming it was not

necessary to further inquire into what was otherwise an area of

inquiry he should have delved into on the issue presented above.

In other words, - s. counsel did not want -· s counsel to

ask any    further     questions     of - on               an   issue - had an

obligation     to    present     testimony       on   in    the     first     instance.10

Further,     nowhere    on     re-direct     was      -           asked      any    further

questions into the proposed adoptive mother.

      It is necessary to address this testimony for two reasons: 1)

to determine whether to strike this testimony at -s request




10 As the Court did not believe it was          's · obligation to present this
testimony but rather        's obligation and since      I    apparently did not
want any evidence presented to satisfy his burden, this Court granted          s
request to cease inquiry.

                                     [FM-10-19] ·
                                         13
as violative of 23            Pa.        C.S.A.       §2504.1;         and 2)       in furtherance of

the analysis required on this issue of a contemplated adoption/new

parent-child relationship vis-a-vis the integrity of the proposed

adoption.        Since       the        Court    believes          it    is     truly      necessary to

analyze    the    person,          character          and     in vol vemen t         of    the    proposed

adoptive mother,         in addressing - s objections and request to

strike that portion of -' s testimony the phrase "be careful

what you wish for" comes to mind.                             Should the Court strike this

testimony,      this Court would have no evidence before it to address

the integrity of the proposed adoption.11                               All that the Court would

have    before    it    is        the    single       averment          that,       "an    adoption      was

contemplated."               In    the case           of    In    re     T.R.,      Supra,       the   court

determined       that    it       should        not    merely          accept       the   "adoption       as

contemplated"       averment            on   its      face,      but must        actually consider

adoptive parent's            intent to adopt.                    Here,    the proposed adoptive

mother, was never called to testify.                              In fact,       the only evidence

established about her was her name                                                  ) ,   the length of

the relationship        11111111 had            with her (over a year), the fact that

she does not live with - or the child (lives in Long Island,

New    York),    the    frequency of               their      contact         (on     weekends),       that

- is not married to-, that the child calls her -

and that -- has not filed a consent to adopt the child.                                                This



11Perhaps it was the intent of        to avoid presenting this evidence knowing
full well such evidence was unsubstantial vis-a-vis this issue.

                                             [FM-10-19)
                                                 14
testimony, limited by' the sustained objection- of - s counsel,

is unconvincing to the Court that any relationship exists between

the child and - and that an adoption was truly con t ernp Lat ed ;

Further,    and as a result,     it cannot be said that adoption would

foster     the   creation of a new     family    unit12 nor serve the best

interest of the child.u

      23 Pa. C.S.A. §25ll(a) claims

      Notwithstanding the fact that        1111111111   has failed to establish

an appropriate ''contemplated adoption," the Court feels obligated

to address also the 25ll(a) claims he raised in his petition.                 As




12  In addition to the lack of evidence to establish an appropriately
characterized "contemplated adoption," the Court also would be otherwise
constrained to find that the relationship between               and 1111, a
boyfriend/girlfriend relationship, is not one contemplated by the statute to
form a new "family unit."

13As duly noted by the Superior Court in In re E.M.I., 57 A.3d 1278, 1290 (Pa.
Super. 2012),"
       (a] s the petitioner, it was incumbent upon Mother to present
      adequate evidence in support of the petition. Mother must now bear
      the responsibility for any complaint that the court issued a
      decision on an incomplete record, as it was her burden to offer
      unequivocal factual support for S.S.'s potential adoption of Child.
      Although the hearings contained ample testimony on Father's
      parenting deficiencies, there was a noticeable absence of solid
      facts about the "contemplated adoption" element required under the
      Adoption Act and how the "proposed adoption" would foster a new
      family unit in Child's best interests. Quite simply, Mother did not
      carry her evidentiary burden. Contrary to the contention of Child's
      GAL, the court had no duty to require S.S. to file an intention to
      adopt or otherwise expand the record.        Ultimately, the court
      correctly centered its analysis on the primary goals of the Adoption
      Act - the best interests of Child and the creation of a new family
      unit through adoption. On this record, we cannot fault the court's
      decision to deny Mother's petition to terminate Father's parental
      rights to Child."
  While the Petitioner in the E.M.I case presented more than that presented by
111111 in the case subjudice, it, like here, failed to meet petitioner's burden.
                                  [FM-10-i9]''
                                      15
he has raised three (3) separate claims,                (a) (1),     (a) (6) and (a) (8),

we will address each seriatim.

     I. §2511 (a) (8) - Monroe County Children            &    Youth Involvement

       1111111   first contends that -'s parental rights should

be    terminated    pursuant      to   2511   (a) (8)     of    the    statute.     This

subsection reads as follows:

            The child has been removed from the care of the
       parent by the court or under a voluntary agreement with
       an agency, 12 months or more have elapsed from the date
       or removal or placement, the conditions which led to the
       removal or placement of the child continue to exist and
       termination of parental rights would best serve the
       needs and welfare of the child."

       This Court agrees that J.V. was removed from his mother by

the    Monroe      County    Office      of   Children         and     Youth   Services

(hereinafter "Agency") because of -' s drug use, and placed

into Emergency Shelter Care and that pending                   lllllll's   confirmation

as J.V.'s father, was the subject of a dependency petition in which

the Agency alleged that J.V. was "without proper p�rental care of

control."    Once   1111111 was    able to establish himself as the Father,

the Monroe County Courts,          upon the recommendation of the Master,

Todd W. Weitzman, Esquire, terminated placement through the Agency

finding that the circumstances which necessitated the dependency

adjudication have been alleviated."                 Thereafter and as a result,

on September 17, 2015, J.V. was released from the Agency's custody

and placed with      11111111.


                                       [FM-10-19]
                                           16
         This Court first finds that. (a) ('8) is one of the subsections

of the statute utilized by Children and Youth·Agencies to terminate

parental·.rights of parents, and riot uti·lized by a biological parent

who   has     custody .of the      subject       child,     and is     when     see king to

terminate the other biological parent's rights to that child as is

the case here. Secondly, even if applicable to "private termination

proceedings", -'s attempt under this subsection fails as the

conditions which led to J.V. being removed from                      111111111    no longer

exist and in fact ceased to exist when - was given custody on

September      17,   2015.    Therefore,      - would              fail    to     terminate

111111111 s   parental rights under 23 Pa. C.S.A. §2511 (a) (8).

   II.      2511 (a) (6) - Newborn Child

            - further            alleges     in       his   petition    that     111111111• s
parental rights       should be terminated pursuant to                    (a) ( 6)   of the

statute which reads:

              In the case of a newborn child, the parent knows
      or has reason to know of the child's birth, does not
      reside with the child, has not married the child's other
      parent,   has _failed for a period of four months
      immediately preceding the filing of the petition to make
      reasonable   efforts   to   maintain   substantial   and
      continuing contact with the child and has failed during
      the same four-month period to provide substantial
      financial support for the child." (Emphasis ours)

Without getting into the specific evidence presented at the hearing

by. -           on . this    ·claim,   we   can       end   the   analysis       by -s i mpl y

addressing the fact the J.V. is not a newborn child, nor was he on



                                       crn...:10-191
                                            17    ·
the date of the filing of this petition.14             Pursuant to 23 Pa. C.S.

A.   §2102,    a newborn child is defined as "[A)             child who is six

months of age or younger at the time of the filing of any petition

pursuant to chapter 25 (relating to proceedings prior to petition

to adopt)."      Since J.V. was approximately thirty-three months old

at the time of the filing of the instant petition,                 2511 (a) (6) is

inapplicable.

     III. 25ll(a) (1)- Settled Purpose to Relinquish Rights/Failed or
          Refused to Perform Parental Rights

       The remaining subsection of the statute which            llll!llt.   believed

entitles      him to   terminate -, s              parental   rights   is    23 Pa.

C.S.A. §25ll(a) (1)       This section reads as follows:

         "the parent by conduct continuing for a period of at least
         six months 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.A. §25ll(a).

       Under this subsection,� may prove his claims in one of

two different ways:      1) that - has,               for at least six months

prior to the filing of the instant petition, conducted herself in

such a way that she has shown that she wants to relinquish her

parental rights to J.V.; or 2) that - has for at least six

(6}months prior to the filing of the instant· petition, refused cir

failed to perform parental duties for and on behalf of J.V.                   Thus,



14 J.V. was born on May 19,   2015.   ••• s petition was filed on February 13,
2018 .

                                      [FM-10-19]
                                          18
the minimal operative ti me frame within which to examine-' s

conduct vis-a-vis J.V.        .i s s i x months prior to February 13,.2018.
                                v




In other words, the Court is to examine what did - do or not

do from August 13,        2017 until February 13,        2018 to warrant the

possible termination of her parental rights in and to J.V.

        There   was    sufficient    testimony    presented    by - that

during the course of a custody action involving J.V.'s maternal

grandmother,     �11111111,         he expressed concern about whether the

biological mother was to have or had any contact with J.V. during

maternal grandmother's periods of partial physical custody of the

subject     child.        �s          testimony    regarding     the     numerous

conversations with or emails to and from maternal grandmother on

the issue of whether - was present suggested that he was

infatuated with ensuring that - played no role in the child's

life.

        - herself testified that at the time of J.V.'s birth

she    wanted   nothing    to do with him and        instantly     thought   that

adoption may be the best for him. - also testified that she

did not see J.V.        at all throughout the remainder of 2015 nor at

all in 2016 and that it was not until late 2017 that she started

to visit with J.V. when her mother had partial physical custody of

J.V.     When asked why she had not spoken to - during this time

frame, she intimated that it was due to the hostility he had shown

to     the. maternal    grandmother    regarding   her   periods    of   partial

                                    [FM-10-19]
                                        19 .
physical custody and, not wanting to jeopardize that, was afraid

to contact him.

      - further. testified that she had a serious substance

use disorder for the majority of her adult life.                     In fact,    J. V.

was born with illegal substances in his system due to - s

addiction.        - testified that                   she was sober    for five      (5)

months    after      J. V.' s   birth   but   relapsed   and got     in   trouble    in

January, 2017. -testified that in May 2018, she had reached

one year of sobriety.            When asked why she had not sought time with

J.V. once she became sober, she testified that she did not feel as

if she had enough clean time to prove to anyone she was a fit

parent.       It was only after November, 2017 did she feel she wanted

to become a bigger part of J.V.'s life when she would appear at

her mother's house when J.V. was visiting there.

      - testified that she saw J.V. at her mother's home from

November      2017    to   February     13,   2018   approximately eight      to ten

times.     During these visits, - stated that she would play

with J.V., color with him, draw with him, and read to him.                       Also

during this time frame, she began to reach out to an attorney to

see if there was anything she could do to restore the custodial

rights that were suspended per the Order of Court dated October

13,   2016.    - admitted that, other than these visits, which

occurred without        11111111   knowing about them and her attempt to have

her custodial rights reinstated, she did nothing more in the way

                                        [FM-10-19)
                                            20
of financial cir emotional support for J.V.                       Bottom line,· -

felt that, while she considered herself an "unfit" parent, she did

not want to be involved in J.V.'s life. When she felt the time was

right, she began to reappear in J.V.'s life albeit through secret

visits while J.V. was at his maternal grandmother's home .

      . - also testified that he felt - s issues of drug

use and homele5sness were the two primary causes for concern and

reasons     he     was       seeking   termination        of   her parental     rights    in

addition to his belief that J.V. deserved a parent who is fit and

willing to provide emotional, mental and physical support for this

child, and that - was not that person.

       A.        Relinguishing Parental Claims

       - argues that - relinquished her rights to J.V.

from the time she gave up custody of him at birth.                             This Court

agrees with - insofar as his analysis of -· s conduct

for    the better part of              two years      (birth through approximately

November,        2 01 7) .     However,       thereafter,      albeit   sur rep ti tiously,

-·s conduct insofar as wanting to be involved in J.V.'s life

can no longer equate to contact tantamount to relinquishing her

parental    rights to· him which occurred within the six                        (6)    month

period prior to -'s filing.

       - also argues .t ha t; even if - did see J. V. during

this six month period, she did so· in violation of the October 13,··

2016   custody        order     and    she    should not be       "rewarded"     for    this

                                             (FM-10-19]
                                                 21
illegal and improper conduct in ignoring the Court's concerns that

resulted in        llllllll's     custodial rights being suspended. However,

in reviewing the recommendation which led to the issuance of the

October      13,    2016   custody order,        this    Court   finds        nothing that

prohibits     11111111     from "having contact" with J. V.                 just that her

specified      periods      of    partial    physical        custody   were        suspended

pending the filing of a petition by her.                       While we can presume

- raised the issue of                11111111• s    substance use disorder,            there

is nothing in the recommendation nor order suggesting that -

have    no   contact       with   J.V.    pending     the    filing    of     a    petition.

Further,     there is nothing in the record to suggest that -

was    in fact      in contempt of court           for having     contact with J.V.

Therefore, we do not see these efforts by - to reengage with

her son as violative in any way of the court order,                               but rather

evidence of her conduct not to relinquish her rights to her child.

       8.     Refuse/Fail to Perform Parental Duties

       This aspect of the termination statute is the most difficult

one to-analyze. Under the circumstances of this case the question

here is whether or not-· by her conduct from August, 2017

through February,          2018 shows evidence of a refusal or failure to

perform      parental      duties    vis-a-vis        J.V.     There     is       undisputed

evidence that - did in fact                         have contact with J. V.             from

November,     2017 through the end of January,                 2018, while J.V. was

visiting with his grandmother.               The testimony was also undisputed

                                         [FM-10-19)
                                            22
that - was· performing "some" type· of parental" duties with

J.V.    in   her   interactions     with    him.      Additionally;    there     was

testimony     that - wanted                to   do   more   with   regard   to   her

relationship       with   J. V.   beyond   these     periodic   visits when      she

reached out to an attorney to see what to do regarding her conduct

and custodial rights.         The question now becomes was this enough on

the part of - to establish that she had not failed/refused

to perform these parental duties.

       In the case of In Re: B.N.M., 856 A.2d 847, 855 (Pa. Super.

2004), the court stated:

       "There is not 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 pa rental obligation is a positive duty which
       requires affirmative performance.

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

       Because a child needs more than a benefactor, parental
       duty requires that a parent exert 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 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

                                    (FM-10-19)
                                        23
        preserved by waiting for a more suitable or convenient
        time to perform one's parental responsibilities while
        others provide the child with [the child's] physical and
        emotional needs.u

        (internal citations omitted)

        Undoubtedly,    lllllllll's      contact with J.V. during the six (6)

month    period      were   limited      to   when     he   was        with    his   maternal

grandmother.         Additionally,       taking      into consideration the               fact

that     she   had    not   been   involved       in    the   child's           life   for     a

significant       period    of   time,     her    attempts        to    re-establish         her

relationship with him needed to start small                              . baby steps, so

to speak.      What she began to do before the petition to terminate

was filed was a re-introduction of herself into J.V.'s life, albeit

without    llllllll's   knowledge.        The fact that she took the time to

address    her addiction to better herself internally as well as

externally      was     progress      towards        vindication              vis-a-vis   her

abandonment of J.V. until such time as she believed it to be in

J.V.'s best interests.

        "To be legally significant,      the [post-abandonment]
        contact must be steady and consistent over a period of
        time, contribute to the psychological health of the
        child, and must demonstrate a serious intent on the part
        of the parent to recultivate a parent-child relationship
        and must also demonstrate a willingness and capacity to
        undertake the parental role.      The parent wishing to
        reestablish his parental responsibilities bears the
        burden of proof on this question."    In Re: D.J.S., 737
        A.2d 283, 286 (Pa. Super. Ct. 1999(quoting In Re:
        Adoption of Hamilton, 549 A.2d 1291, 1295 (1988)).




                                      [FM-10-19)
                                          24
        As· occurs· inost t i.me s in custody cases, ab s en t.e e " parents are

slowly re�introduced into children's lives.                          Such were the steps

taken    by - to                    begin      the   process    of   re-establishing        her

parental responsibilities towards J.V.

        In conclusion,             this Court does        not    feel    that - has

failed nor refused to perform parental duties on behalf of J.V.

during the six (6) month period called for in the statute.                            To the

contrary, this Court finds that - has demonstrated a serious

intent, desire, and willingness to take on the role of parent.

Section 2Sll(b) Analysis

        In light of the fact that this Court has determined .....

has     failed       to     satisfy      the   statutory       grounds   for   terminating

-'s parental rights in and to J.V., it is not necessary to

engage     in    a        discussion      regarding     the     "needs   analysisu        under

2Sll(b),        that       being    or    giving     "primary     consideration      to     the

developmental,             physical      and emotional needs and welfare of the

child."      However,         if pressed to do so,            the conduct of - in

rekindling and recultivating a relationship with J. V.                          at a time

where his only other relationship was with his biological father,

in the eyes of this Court is the attempt at providing what this

child needs.           "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



                                            [FM-10-19]
                                                25
permanently severing any such bond.u             Lt:   re   L.M.,   923 A. 2d SOS,

511 (Pa. Super. Ct. 2007)       (citations omitted).

    This Court believes that�'s actions are truly attempts

to establish the emotional bond between parent and child, one that

was lacking due to mother's addiction and one that should not be

severed at the whim of the father.

                                 CONCLUSION

     Based   upon   an     exhaustive   review     of       the   record   and   the

applicable case     law,   this Court does not find that - has

satisfied his burden in regards to his petition to terminate the

parental rights of� in and to J.V. and accordingly, enters

the following order:




                                 [FM-10-19]
                                     26
