J-S20014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ADOPTION OF K.A.V.                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA




APPEAL OF: C.D.T., NATURAL MOTHER                No. 1358 WDA 2015




                Appeal from the Order Entered August 13, 2015
                 In the Court of Common Pleas of Butler County
              Orphans’ Court Division, at No(s): OA No. 13 of 2015


BEFORE: PANELLA, J., OLSON, J., and PLATT∗, J.

MEMORANDUM BY: PANELLA, J.                              FILED JUNE 24, 2016

        C.D.T. (“Mother”) appeals from the order entered on August 13, 2015,

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

terminated her parental rights to her minor son, K.A.V. (“Child”), born in

January 2005. We affirm.

        Father and Stepmother filed a petition for involuntary termination of

Mother’s parental rights on April 15, 2015. The trial court appointed Maura

Palumbi, Esquire, as counsel for Mother and Ronald Thomas, Esquire, as

Guardian ad litem to represent Child.

        The trial court summarized the relevant facts and procedural history as

follows. Mother is the biological mother of Child. Father is the biological

∗
    Retired Senior Judge specially assigned to the Superior Court.
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father of Child. Mother and Father have never been married, but lived

together when Child was born. They separated six months after Child’s birth

and Father moved out with Child and moved into his mother’s home. Father

moved due to concerns about Child’s safety because of drug use involving

maternal grandmother and maternal uncle. Paternal Grandmother watched

Child when Father was working, and she was not working. In addition,

Paternal Grandmother has continued to be the primary babysitter for Father

and his wife (“Stepmother”).

      After Mother’s separation from Father, she saw Child sporadically, a

few days a week while Father was working, and paternal grandmother was

unavailable to watch him. Mother was also given overnight visits. However,

the overnight visits did not work out since Mother would call Father late at

night to pick up Child, as she was unable to get him to sleep.

      In 2009, Father filed a pro se custody complaint in order to obtain an

award of primary physical custody. Father and Mother reached an agreement

at the conciliation conference on March 19, 2009, and entered into an order

the next day, giving Father primary physical custody of Child and giving

Mother partial physical custody every other weekend and every other

Wednesday night.

      Mother did not appear for a custody review conference on September

18, 2009. Based upon the custody conciliator’s recommendation, an order

was entered on that date reaffirming primary physical custody with Father


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and partial physical custody with Mother every other weekend and additional

periods of partial custody, as agreed to by the parties.

      Mother did not fully exercise the periods of partial custody given to her

under the order. She would just see Child a day here and a day there.

Whenever Mother did have Child, maternal grandmother, maternal uncle, or

another man with whom she was living, would care for Child while Mother

was out partying with friends.

      Father encouraged Mother to see Child when he was younger and even

offered to allow Mother to have custody of Child during his primary custody

time. However, the frequency of Mother’s visits decreased over time.

Mother started coming around after she was absent for years. The last

activity that Mother participated in was when Child was in kindergarten.

      Father filed a complaint for custody on May 30, 2012, requesting that

Mother’s periods of partial custody be supervised. Father still had concerns

for Child’s safety because of drug use by Mother and members of Mother’s

family. Both Father and Mother appeared for the custody conciliation

conference held on July 12, 2012. On July 16, 2012, the trial court entered

an order confirming primary physical custody with Father and providing

Mother with supervised visits once every week for a period of two hours to

coincide with visitation of Mother’s other Child, L. In August 2012, Mother

voluntarily relinquished her parental rights to L. At the last supervised visit,

Mother was told by Totin Family Services that when her visits with L.


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stopped, she would have to pay to have her visits with Child supervised by

Family Pathways.

     Mother did not appear for the custody conciliation review on November

15, 2012. This resulted in a recommendation by the custody conciliator and

an order on November 16, 2012, suspending Mother’s custodial rights of

Child. The order also indicated that Mother could file the appropriate

pleading if she desired custody rights to Child. Mother has not seen, talked

to, or had any contact with Child since her last supervised visit in 2012.

Mother has also had no contact with Father since her custody rights with

Child were suspended. In addition, Mother did not call paternal grandmother

after her custody rights were suspended. Paternal grandmother has never

hung up on Mother or refused to take phone calls from Mother.

     Moreover, Mother knew and socialized with Stepmother before

Stepmother knew Father. Mother did not telephone Stepmother about Child

at any time after Stepmother began to live with Father in April 2012.

     Mother has not sent any cards, letters, or gifts to Child, nor has

Mother provided any financial support for Child other than a nominal amount

of money paid to Father when Child was a baby.

     Mother has had a history of drug addiction that continued through the

date of the termination hearing. Mother was incarcerated in the Butler

County Prison on May 19, 2015 for using opiates and cocaine. Mother has

also been incarcerated numerous times on a variety of criminal charges


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including retail theft, forgery, and probation violations. Mother also suffers

from bipolar disorder, post-traumatic stress disorder, depression, anxiety,

and obsessive-compulsive disorder.

      Mother has given birth to three other children, but has not maintained

parental rights to any of them. Mother’s parental rights were involuntarily

terminated to two of her children, while she voluntarily relinquished her

rights to another child. Mother primarily resides with her mother.

      Stepmother is employed full-time. She began to date Father in

December 2011. They began to live together in April 2012, and were

married on May 4, 2013. Stepmother and Father have an infant daughter.

Father also has a fourteen-year-old son from a previous relationship who

resides with them.

      Father testified that Child has no relationship with Mother, and Child

only speaks about Mother when Father brings her up. None of Mother’s

relatives see or attempt to keep in contact with Child.

      However, Father testified that Child has a great relationship with

Stepmother. Father testified that Stepmother is the only mother that child

has known for the last seven years. Child loves Stepmother like a mother

and calls her “Mom.” Stepmother is the person who performs normal

parental duties for Child including providing emotional support, attending

school activities and parent-teacher conferences, helping him with his

homework, taking him to doctor appointments, and involving him in


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activities with her family. Stepmother desires to adopt Child. She notes that

she would not treat Child differently if Child’s adoption did not occur, but she

feels that Child would be upset if the adoption did not occur.

      During closing arguments, counsel for Mother orally requested a

bonding assessment, which the         trial court denied    as untimely and

unnecessary. Following the hearing, the trial court orally granted the petition

terminating Mother’s parental rights from the bench. The trial court found

that clear and convincing evidence had been presented to terminate

Mother’s parental rights under Section 2511(a)(1) and (b), and indicated

that more specific findings of fact and analysis would follow.

      The trial court issued its findings of fact, opinion, and order of court,

and decree terminating Mother’s parental rights on August 13, 2015. This

timely appeal followed.

      We review the appeal from the termination of parental rights in

accordance with the following standard.

             [A]ppellate courts must apply an abuse of discretion
      standard when considering a trial court’s determination of a
      petition for termination of parental rights. As in dependency
      cases, our standard of review requires an appellate court 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. As
      has been often stated, an abuse of discretion does not result
      merely because the reviewing court might have reached a
      different conclusion. Instead, a decision may be reversed for an
      abuse of discretion only upon demonstration of manifest
      unreasonableness, partiality, prejudice, bias, or ill-will.


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           [T]here are clear reasons for applying an abuse of
     discretion standard of review in these cases. We observed that,
     unlike trial courts, appellate courts are not equipped to make the
     fact-specific determinations on a cold record, where the trial
     judges are observing the parties during the relevant hearing and
     often presiding over numerous other hearings regarding the child
     and parents. Therefore, even where the facts could support an
     opposite result, as is often the case in dependency and
     termination cases, an appellate court must resist the urge to
     second guess the trial court and impose its own credibility
     determinations and judgment; instead we must defer to the trial
     judges so long as the factual findings are supported by the
     record and the court’s legal conclusions are not the result of an
     error of law or an abuse of discretion.

In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (citations

omitted).

     The burden is upon the petitioner to prove by clear and convincing

evidence that the asserted grounds for seeking the termination of parental

rights are valid. See In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

     Moreover, we have explained that

     [t]he standard of clear and convincing evidence is defined as
     testimony that is so clear, direct, weighty and convincing as to
     enable the trier of fact to come to a clear conviction, without
     hesitance, of the truth of the precise facts in issue.

Id. (citation and internal quotation marks omitted).

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

pursuant to Sections 2511(a)(1), and (b), which provide as follows.

     § 2511. Grounds for involuntary termination

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


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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 have explained this Court’s review of a challenge to the sufficiency

of the evidence supporting the involuntary termination of a parent’s rights

pursuant to section 2511(a)(1) as follows.

           To satisfy the requirements of section 2511(a)(1), 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.

     ***

             Once the evidence establishes a failure to perform
         parental duties or a settled purpose of relinquishing
         parental rights, the court must engage in three lines of
         inquiry: (1) the parent’s explanation for his or her
         conduct; (2) the post-abandonment contact between
         parent and child; and (3) consideration of the effect of


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         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) (citations
      omitted).

         [T]o 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 Z.P., 994 A.2d 1108, 1119 (Pa. Super. 2010) (emphasis added)

(citation omitted). See also In re Adoption of C.L.G., 956 A.2d 999, 1006

(Pa. Super 2008) (en banc).

      Our Supreme Court stated that Section 2511 does not require that the

parent demonstrate both a settled purpose of relinquishing parental claim to

a child and refusal or failure to perform parental duties, as the word or joins

the two portions of the statute. See In re Adoption of Charles E.D.M.,

708 A.2d 88, 91 (Pa. 1998).

      Here, the trial court found clear and convincing evidence that Mother

has had no contact with Child for three years, which is in excess of the six

month requirement as set forth under 23 Pa.C.S.A. § 2511(a)(1). Mother’s

failure to send Child any letters, birthday cards, or any gifts is evidence of

Mother’s intent to relinquish her parental claim. The court also found that

Mother’s failure to have any form of contact or communication demonstrated


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Mother’s patent failure and refusal to perform her parental duties. The

record amply supports the trial court’s findings. Mother’s attempts to

overturn the trial court’s credibility findings are simply untenable.

      Next, we review the termination of Mother’s parental rights under

section 2511(b). The focus in terminating parental rights under section

2511(a) is on the parent, but, under section 2511(b), the focus is on the

child. See In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008)

(en banc).

      In reviewing the evidence in support of termination under section

2511(b), our Supreme Court stated as follows.

             [I]f the grounds for termination under subsection (a) are
      met, a court “shall give primary consideration to the
      developmental, physical and emotional needs and welfare of the
      child.” 23 Pa.C.S. § 2511(b). The emotional needs and welfare of
      the child have been properly interpreted to include “[i]ntangibles
      such as love, comfort, security, and stability.” In re K.M., 53
      A.3d 781, 791 (Pa. Super. 2012). In In re E.M., [620 A.2d 481,
      485 (Pa. 1993)], this Court held that the determination of the
      child’s “needs and welfare” requires consideration of the
      emotional bonds between the parent and child. The “utmost
      attention” should be paid to discerning the effect on the child of
      permanently severing the parental bond. In re K.M., 53 A.3d at
      791.

In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).

      With regard to section 2511(b), the evidence reveals that Child has no

bond with Mother, and, as a result, the termination of Mother’s parental

rights will have no immediate effect on the Child. The trial court found that




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the termination of Mother’s parental rights of Child will best meet the needs

of Child and permit the Child to achieve the stability that he deserves.

      The trial court also had before it competent evidence to support a

finding that the Child has a strong emotional bond with Father and

Stepmother, with whom he has been living, and who have taken exclusive

care of all of his needs for the three years that Mother has not had contact

with Child. In fact, Stepmother is the person who performs normal parental

duties for Child including providing him emotional support, attending school

activities and parent-teacher conferences, helping him with homework, and

taking him to doctor’s appointments. Stepmother desires to adopt Child.

Thus, the trial court found that there is no evidence that Child would be

adversely affected if Child’s relationship with Mother were severed.

      The competent evidence in the record shows Mother failed to “exhibit

[the] bilateral relationship which emanates from the parent[’s] willingness to

learn appropriate parenting . . . .” In re K.K.R.S., 958 A.2d 529, 534 (Pa.

Super. 2008). She did not put herself in a position to assume daily parenting

responsibilities so that she could develop a real bond with the Child. See In

re J.L.C., 837 A.2d 1247, 1249 (Pa. Super. 2003).

      A parent’s own feelings of love and affection for a child, alone, will not

preclude termination of parental rights. See In re Z.P., 994 A.2d 1108,

1121 (Pa. Super. 2010). A child’s life “simply cannot be put on hold in the

hope that [a parent] will summon the ability to handle the responsibilities of


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parenting.” In Re Z.S.W., 946 A.2d 726, 732 (Pa. Super. 2008). Rather, a

parent’s basic constitutional right to the custody and rearing of her child is

converted, upon the failure to fulfill his or her parental duties, to the child’s

right to have proper parental care. See In re Z.P., 994 A.2d at 1120.

      We find that there was competent evidence to support the trial court’s

decision that termination of Mother’s parental rights best serves Child’s

developmental, physical, and emotional needs and welfare. Thus, we discern

no abuse of discretion or error of law as to the trial court’s termination of

Mother’s parental rights pursuant to Section 2511(b).

      Accordingly, we affirm the trial court’s order terminating Mother’s

parental rights to Child pursuant to Section 2511(a)(1) and (b).

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/24/2016




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