J-S27016-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN RE: ADOPTION OF A.J.K., A MINOR               IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA

APPEAL OF: R.J.W., III, FATHER                   No. 2679 EDA 2014


              Appeal from the Decree entered August 15, 2014,
        in the Court of Common Pleas of Philadelphia County, Family
                  Court, at No: CP-51-AP-0000235-2013,
                          FID: 51-FN-001519-2013

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                              FILED JUNE 23, 2015

      R.J.W., III, (Father) appeals from the decree entered August 15, 2014,

in the Court of Common Pleas of Philadelphia County, which involuntarily

terminated his parental rights to his minor son, A.J.K. (Child). We affirm. 1

      Father is the former boyfriend of H.K. (Mother).       Mother and Father

separated shortly after the birth of Child in March of 2006. Since that time,

Father has had little involvement in Child’s life. On April 19, 2013, Mother

filed a petition to involuntarily terminate Father’s parental rights to Child.2 A

termination hearing was held on October 16, 2013. During the hearing, the

trial court heard the testimony of Mother; Stepfather; Mother’s mother, E.K.

* Former Justice specially assigned to the Superior Court.
1
 We note that our review of this fast-track matter was delayed significantly,
as the trial court did not forward the certified record to this Court until
December 19, 2014, over two months after its original due date of October
10, 2014.
2
  Mother and her husband, S.M. (Stepfather), filed a petition for adoption at
the same time as the termination petition.
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(Maternal Grandmother); Father; and Father’s mother, M.W. (Paternal

Grandmother). The hearing then was continued until October 25, 2013. On

that date, the trial court interviewed Child in camera. On August 15, 2014,

the court entered its decree terminating Father’s parental rights. 3      Father

timely filed a notice of appeal on September 10, 2014, along with a concise

statement of errors complained of on appeal.

      Father now raises the following issue for our review. “Did the [t]rial

[c]ourt err in terminating the parental rights of [Father] in that clear and

convincing evidence for terminating his parental rights did not exist?”

Father’s Brief at 6.

      We consider Father’s claim mindful of the following.

      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.



3
   On October 25, 2013, the court entered an order requiring each party to
file proposed findings of fact and conclusions of law, as well as a proposed
decree, within 30 days of the date that the termination proceedings were
transcribed. It is not clear from the record when the notes of testimony
were transcribed. However, the parties did not comply with the court’s
order until June and July of 2014.
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In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks

omitted).

      Our courts apply a two-part analysis in reviewing a decree terminating

parental rights. As we explained in In re L.M., 923 A.2d 505 (Pa. Super.

2007),

      [i]nitially, 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.

Id. at 511 (citations omitted).

      In this case, the trial court terminated Father’s parental rights

pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), and (b). We need only agree

with the trial court as to any one subsection of Section 2511(a), as well as

Section 2511(b), to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super.

2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004).           Here, we

analyze the court’s decision to terminate under Sections 2511(a)(1) and (b),

which provide as follows.

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


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

                                    *    *    *

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

23 Pa.C.S.A. § 2511(a)(1), (b).

      We first address whether the trial court abused its discretion by

terminating Father’s parental rights pursuant to Section 2511(a)(1).           To

meet the requirements of this section, “the moving party must produce clear

and convincing evidence of conduct, sustained for at least the six months

prior to the filing of the termination petition, which reveals a settled intent to

relinquish parental claim to a child or a refusal or failure to perform parental

duties.” In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citing In re

Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super. 2006)). The court must

then consider “the parent’s explanation for his or her conduct” and “the

post-abandonment contact between parent and child” before moving on to

analyze Section 2511(b). Id. (quoting In re Adoption of Charles E.D.M.,

708 A.2d 88, 92 (Pa. 1998)).

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        This Court has emphasized that a parent does not perform his or her

parental duties by displaying a “merely passive interest in the development

of the child.” In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004), appeal

denied, 872 A.2d 1200 (Pa. 2005) (quoting In re C.M.S., 832 A.2d 457, 462

(Pa. Super. 2003), appeal denied, 859 A.2d 767 (Pa. 2004)).                 Rather,

“[p]arental 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.”    Id.   (citation omitted).    Critically, incarceration does not

relieve a parent of the obligation to perform parental duties.                     An

incarcerated   parent    must   “utilize   available   resources   to   continue    a

relationship” with his or her child. In re Adoption of S.P., 47 A.3d 817,

828 (Pa. 2012) (discussing In re Adoption of McCray, 331 A.2d 652 (Pa.

1975)).

        Instantly, the trial court concluded that Father “purposefully and

decidedly abdicated his parental role” with respect to Child, and that Father

“failed to vigorously work to insert and maintain himself in the life of the

child in a meaningful way.”            Trial Court Opinion, 12/16/14,         at 5

(unpaginated). Father argues that he made efforts to maintain contact with

Child by sending letters to Mother, and trying to contact her. Father’s Brief

at 9.    Father also contends that both he and his parents were prevented

from seeing Child by Mother, as they feared she would call the police. Id.



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

the trial court did not abuse its discretion by terminating Father’s parental

rights to Child. During the termination hearing, Mother testified that Father

and Child have never resided together.       N.T., 10/13/13, at 34-35, 43.

Mother further explained that the last time she saw Father was in August of

2012, when he came to her home intoxicated and asked to see Child. Id. at

11, 36, 41, 46, 50.   Mother stated that she did not permit Father to see

Child, as Father no longer had visitation rights due to a November 2011

custody order. Id. at 11-12, 29, 50. Mother called the police, who asked

Father to leave. Id. at 36-37, 46, 50-51.

      Mother also was asked about Father’s involvement with Child during

the six-month period preceding the filing of the termination petition on April

19, 2013. Mother testified that she was not contacted by Father in any way

from October of 2012 until January of 2013. Id. at 15. Mother explained

that Father sent a letter asking for pictures of Child in January of 2013. Id.

at 15, 38, 43, 50, 52.   Mother did not respond to the letter.     Id. at 38.

Father had no further contact with Mother from January of 2013 until April of

2013. Id. at 12-15. Mother acknowledged that she changed residences in

September of 2012, and that her current address is confidential. Id. at 16,

40. However, she stated that she set up a forwarding address at the post

office, such that mail sent to her prior address would be directed to her

current home. Id. Mother also noted that Father has her cellphone number,



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and that this number has not changed in “[s]ix years or so.” Id. at 16-17,

41.

      Maternal Grandmother testified that she resides in the same home

where she has lived for the past 34 years.           Id. at 58-59.     Maternal

Grandmother stated that Father lived in her home with Mother from

approximately November of 2005 until February of 2006. Id. at 58. Father

also knows Maternal Grandmother’s phone number. Id. at 59. Despite this,

Maternal Grandmother indicated that Father did not send any letters, call her

on the phone, or make any contact with her at all between October of 2012

and April of 2013. Id. at 59-60.

      Father testified that Mother informed him in April of 2006 that he “will

never see [Child] again,” which prompted Father to file a custody petition.

Id. at 66, 105.   Father was awarded visitation with Child twice per week,

which he attended consistently for a period four years. Id. at 67. Father

claimed that these visits stopped because Mother “just started to call the

cops if I went over there . . . .” Id. at 69. Father stated that he sometimes

tried to see Child when he was not scheduled to do so, but stated that

Mother would call the police during even his scheduled visitation periods.

Id. at 69, 100. Father stated that he at one point filed a contempt petition,

but that his petition was withdrawn because Mother relented and let him see

Child. Id. at 100-01. Father admitted that he last saw Child in 2011, and

that he lost his visitation rights because “I could not stay out of jail.” Id. at

99, 108.    Specifically, Father testified that he was incarcerated at an

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unspecified time, and that he was released in approximately December of

2010. Id. at 81. Father again was arrested in June or July of 2011, and

was released on March 22, 2012.      Id. at 74, 77, 80.    Finally, Father was

incarcerated starting on May 30, 2012. Id. at 77. Father explained that he

was released on July 30, 2013, and that he now works detailing cars. Id. at

64, 77.

      Father claimed that, while incarcerated, he would send letters to

Mother and Child “[m]aybe once a week” at Mother’s former address, and

that “I would show up and try to see my son” during the times when he was

not incarcerated.   Id. at 70-71, 86, 107. Father stated that he had been

incarcerated for 16 or 18 months over the previous two years, and he sent

letters during “the beginning of the 18 months that I was incarcerated.” Id.

at 70, 84-85, 107. Father specified that the letters were sent “[b]efore I left

county, I was in the county for two months.” Id. at 85. Father also stated

that he sent letters during “the last six months” prior to the termination

hearing. Id. at 107. According to Father, he used to called Mother “all the

time” while he was incarcerated, but this stopped in July of 2012 because

Mother stopped answering her phone. Id. at 75-76, 93-94. Father reported

that Maternal Grandmother told him that “she would call the cops if I

contacted her” or Mother. Id. at 72, 94.

      Paternal Grandmother testified that she visited with Child twice per

week for about five years. Id. at 112-13. She stated that Father “always

wrote letters to his son,” and that she used to sit and read letters to Child

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“all the time.”   Id. at 117.   However, a dispute arose concerning Father’s

payment of child support about two years prior to the termination hearing,

and Paternal Grandmother has not seen Child since that time. Id. at 113.

Paternal Grandmother testified that the last time she tried to see Child,

Mother told her to leave the property and called the police, and that “there’s

been cops called, I don’t know how many times when we went to go pick up

[Child].” Id. at 114, 118. Paternal Grandmother admitted that she has not

taken any steps to see Child since then.     Id. at 114.   Reportedly, Mother

also had informed Paternal Grandmother that Maternal Grandmother would

throw away any pictures that Father sent to Child. Id. at 117.

      The record supports the finding of the trial court that Father has failed

to perform parental duties for a period of at least six months prior to the

filing of the termination petition.   The court was free to accept Mother’s

testimony that Father sent only a single letter during the relevant six-month

period, asking for pictures of Child. This displays a “merely passive interest”

in the development of Child, and is not sufficient to prevent termination.

B.,N.M., 856 A.2d at 855.        Moreover, even if the court were to credit

Father’s testimony, Father indicated that he did little, if anything, to

maintain a relationship with Child during the relevant time.     Father stated

that he sent Child letters during the first two months of his most recent

incarceration, which took place well outside of the relevant period. Father

also stated that he sent Child letters within the six months preceding the

termination hearing, which overlapped the relevant period only by a few

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days. Moreover, while Father was incarcerated during this six-month period,

and, while both Father and Paternal Grandmother testified concerning

Mother’s efforts at preventing Father from seeing Child, these circumstances

do not excuse Father from endeavoring to perform parental duties.           Id.;

S.P., 47 A.3d at 828. In order to maintain his parental rights, Father was

required to make a good faith effort at maintaining a relationship with Child.

B.,N.M., 856 A.2d at 855. He failed to do so.

      We next consider whether the trial court abused its discretion by

terminating Father’s parental rights under Section 2511(b).          We have

discussed our analysis under Section 2511(b) as follows.

      Section 2511(b) focuses on whether termination of parental
      rights would best serve the developmental, physical, and
      emotional needs and welfare of the child. As this Court has
      explained, Section 2511(b) does not explicitly require a bonding
      analysis and the term ‘bond’ is not defined in the Adoption Act.
      Case law, however, provides that analysis of the emotional bond,
      if any, between parent and child is a factor to be considered as
      part of our analysis. While a parent’s emotional bond with his or
      her child is a major aspect of the subsection 2511(b) best-
      interest analysis, it is nonetheless only one of many factors to be
      considered by the court when determining what is in the best
      interest of the child.

            [I]n addition to a bond examination, the trial court
            can equally emphasize the safety needs of the child,
            and should also consider the intangibles, such as the
            love, comfort, security, and stability the child might
            have with the foster parent. Additionally, this Court
            stated that the trial court should consider the
            importance of continuity of relationships and whether
            any existing parent-child bond can be severed
            without detrimental effects on the child.



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In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting

In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)) (quotation marks and

citations omitted).

      In this case the trial court concluded that Child has no bond with

Father, and that Father “has had no significant contact with the child for the

majority of his life.” Trial Court Opinion, 12/16/14, at 5 (unpaginated). In

contrast, the court found that Child has a “serious bond” with Stepfather,

who is “the only father the child knows . . . .”      Id.   Father argues that

termination is not in Child’s best interest because “there was nothing in the

record, which would indicate any beneficial effect for” Child. Father’s Brief at

9.

      We again conclude that the trial court did not abuse its discretion.

Mother testified that Child does not remember Father, and that Child instead

calls Stepfather “dad.”   Id. at 19-20, 38-39, 42.      Maternal Grandmother

testified that Child and Stepfather have a “[w]onderful” relationship. Id. at

60. She described Stepfather as “a father in every since [sic] of the word

other than biological.” Id. at 60-61. Stepfather agreed that he and Child

have a “great” relationship. Id. at 53-54. Stepfather stated that Child calls

Father by his first name, and that Child “knows his name, that’s pretty much

all he ever really says.” Id. at 55.

      In contrast, Paternal Grandmother testified that, the last time she saw

Father and Child together, Child ran up to Father, and called him “dad.” Id.


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at 116, 119.     According to Paternal Grandmother, Child has stated that “I

really, really, miss my dad, but he’s never coming back.”                  Id. at 119.

Paternal Grandmother indicated that Child “loves his father, it’s as simple as

that.”    Id. at 116. Similarly, Father testified that he has an “[a]wesome”

relationship with Child, that he loves Child, and that Child “knows who I am.

He knows I am his father.” Id. at 73, 76. However, Father conceded that

Child “is in[]a better spot,” and that it would be best for Child to “stay with

his mother and [Stepfather]. I believe he’s in the best place that he could

be . . . .” Id. at 108, 110. Despite this admission Father indicated that “I

don’t want to lose him,” and “as far as me not being in his life, I don’t see

that as fair.” Id.

         During his interview with the trial court, Child was asked who his

father is.    N.T., 10/25/2013, at 7.    Child responded with Stepfather’s first

name. Id. Child stated that he does not remember Father, but that he did

remember getting a present from Father’s parents when he was 4 or 5 years

old. Id. at 7-8. Child further stated that he would not recognize Father if he

were to see him now. Id. at 10.

         Thus, the record supports the trial court’s conclusion that Father and

Child do not have a bond, as Child does not remember who Father is. In

contrast,    Child   considers   Stepfather      to   be   his   father.   Under   the

circumstances, it would serve Child’s needs and welfare for Father’s parental

rights to be terminated, as termination would permit Child to be adopted by


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Stepfather, and would provide Child with permanence and stability.     We

discern no abuse of discretion.

      Accordingly, because we conclude that Father’s claim does not entitle

him to relief, we affirm the decree of the trial court.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/23/2015




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