J-S52044-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF J.S.S.                                  IN THE SUPERIOR COURT OF
                                                                 PENNSYLVANIA


APPEAL OF: C.A.S., BIOLOGICAL
MOTHER
                                                                 No. 625 WDA 2015


                    Appeal from the Order of March 11, 2015
                In the Court of Common Pleas of Cambria County
                      Orphans’ Court at No.: 2014-0750-IVT


BEFORE: SHOGAN, J., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                                     FILED AUGUST 28, 2015

       C.A.S. (“Mother”) appeals the March 11, 2015 order that terminated

her parental rights to J.S.S. (“Child”), born in October 2008. After careful

review, we must conclude that the trial court abused its discretion, and

consequently, we vacate the order.

       On August 5, 2014, J.S. (“Grandmother”) and P.A.S. (“Grandfather”)1

(collectively   “Grandparents”)       filed    petitions    to   involuntarily   terminate

Mother’s and D.M.’s (“Father”) parental rights to Child.               Grandmother and

Grandfather sought to adopt Child.

       On October 17, 2014, the trial court held a hearing on the petitions.

The hearing testimony established the following summary of the facts

disclosed at the hearing.
____________________________________________


1
      Grandfather is Mother’s stepfather and has no biological relationship to
Child. Notes of Testimony (“N.T.”), 10/17/2014, at 7.
J-S52044-15



     After Child was born, she lived with Mother and Father in an apartment

with Mother’s sister.    Notes of Testimony (“N.T.”), 10/17/2014, at 14.

Mother worked at a care center. Grandmother would care for Child two or

three nights per week while Mother was working.      Id. at 15. Mother and

Child moved in with Mother’s then-boyfriend when Child was about two

years old.   Id. at 13, 16.   Grandmother continued to care for Child while

Mother worked, approximately three or four nights per week. Id. at 16.

     Starting in February 2014, Child lived with Grandparents full-time. Id.

at 13, 16.    Mother asked to move into Grandparents’ house with Child

because Mother was leaving her then-boyfriend.          Id. at 42.   However,

Mother only stayed at Grandparents’ house a few overnights in February and

March.   Id. at 16.     Mother admitted that she was rarely in the home

overnight because she worked overnight hours or she worked until midnight

and stayed at a friend’s house who lived closer to Mother’s work. Id. at 87-

88. Mother cared for Child while Grandmother was at work from February

2014 until June or July of 2014.        Id. at 44.      When Mother was at

Grandmother’s during the day, she cared for Child, including feeding,

bathing, and playing with Child.   Id. at 88-89.   Throughout February and

March, Mother saw Child approximately two or three other times per week in

addition to those times Grandmother was working.             Id. at 43, 88.

Sometimes, Child would spend the night at Mother’s house. Id. at 88-89.

However, when Grandmother said that she did not want Child to spend the

night with Mother, the overnights stopped. Id. at 94.

                                    -2-
J-S52044-15



         In June or July 2014, Child told Mother that Grandmother had hired a

babysitter for when Grandmother worked. At the same time, Grandmother

stopped     calling   to   inform   Mother   of   Grandmother’s   work    schedule.

Grandmother never expressed any concerns to Mother about her caring for

Child, nor did she tell Mother about the babysitter.          Id. at 90.      After

Grandmother hired a babysitter to watch Child while Grandmother worked,

Mother texted and called Child.         Id. at 47.    At that time, Grandmother

believed Mother no longer felt welcome in Grandmother’s home. Id. Mother

would occasionally stop to see Child, but said she did not feel welcome. Id.

at 91.

         Mother last saw Child in August 2014. Id. at 17. On that day, Child

ran to Mother and jumped into her arms. Id. at 65. However, Grandmother

asked Mother to leave because Mother’s former boyfriend was with her. Id.

at 51. Mother said that Grandmother told her to get out, but did not say

why. Id. at 92.

         Grandmother asserted that she routinely took Child to doctor’s

appointments, in part because of Mother’s work schedule.                 Id. at 17.

Mother stated that she also took Child to the doctor.        Id. at 106. Mother

started Child in dance classes and Grandmother had continued that. Id. at

23-24. Mother attended dance recitals and Child’s church plays. Id. at 24-

25. Grandmother, Mother, and Father never entered into a formal custody

arrangement, nor was there a custody order involving Grandmother. Id. at




                                        -3-
J-S52044-15



18. However, Mother and Father had a custody order that granted Mother

primary custody. Id. at 54.

     After Grandmother filed the petition to terminate Mother’s parental

rights, Mother tried to see Child on a weekly basis. Id. at 19. Mother called

Child on her birthday, approximately a week before the hearing, but did not

send a card or gift.   Id. at 20-21.     Mother did not go to Child’s party

because Grandmother did not invite Mother to the party.          Child informed

Mother of the party when Mother called. Id. at 52-53. Mother has called

and texted Child regularly since August 2014.     Id. at 103.     Grandmother

often does not answer when Mother calls. Grandmother has not kept Mother

informed about Child’s school events or illnesses. Id. at 142.

     Grandmother did not believe that Mother acted as a parent to Child.

Id. at 34. Grandmother asserted that there was no longer a bond between

Mother and Child as of February 2014. Id. at 64. Mother disagreed, stating

that Child runs to Mother when Child sees her, gives her hugs, and tells

Mother that she loves her. Id. at 105.

     Mother admitted that she is a recovering drug addict.         Mother had

been clean for three years until she had a relapse in July 2013.        In late

February 2014, she started back at a methadone clinic and had been clean

for approximately three months as of the hearing.        Id. at 99.     Mother

testified that she could care for Child full-time because, as of the hearing,

she had a stable home on her own and was seeing a counselor regularly.

Id. at 100.   Mother moved Child into Grandparents’ home so that Child

                                    -4-
J-S52044-15



would have stability while Mother sought help with her drug relapse. Id. at

101.   Mother explained that she did not try to obtain physical custody of

Child sooner because Mother wanted to ensure that she had a stable home

first. Id. at 108.

       Grandparents, Mother, and the guardian ad litem (“GAL”) for the child

each filed a memorandum.             The GAL supported termination of Father’s

parental rights, but opposed the termination of Mother’s parental rights. On

March 11, 2015, the trial court issued an opinion and order terminating both

Mother’s and Father’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1)

and (b).2

       On April 9, 2015, Mother filed a notice of appeal and a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b). On April 30, 2015, the trial court issued a statement

pursuant to Pa.R.A.P. 1925(a), stating that the court was relying upon the

March 11, 2015 opinion and order.

       Mother raises one issue for our review:

       Whether the lower court abused its discretion or committed an
       error of law when it involuntarily terminated the rights of
       [Mother] to [Child] under 23 Pa.C.S.A. § 2511(a)(1), where the
       Petition to Involuntarily Terminate Rights was filed with the
       lower court on August 5, 2014, when [Mother] continued to have
       substantial contact, exercise parental duties and provide for
       [Child’s] essential needs up until at least June or July 2014?

____________________________________________


2
       Father has not appealed the termination of his parental rights.



                                           -5-
J-S52044-15



Mother’s Brief at 2.

      Our standard of review is as follows:

      In an appeal from an order terminating parental rights, our
      scope of review is comprehensive: we consider all the evidence
      presented as well as the trial court’s factual findings and legal
      conclusions. However, our standard of review is narrow: we will
      reverse the trial court’s order only if we conclude that the trial
      court abused its discretion, made an error of law, or lacked
      competent evidence to support its findings. The trial judge’s
      decision is entitled to the same deference as a jury verdict.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). We

“will examine the record closely in termination cases to determine whether

the evidence supports a termination and will reverse where the evidence

fails to support a trial court’s decree and/or where the trial court has failed

to give adequate consideration to the effect of such a decree upon the

welfare of the child or children.” In re Bowman, 647 A.2d 217, 219 (Pa.

Super. 1994).

      It is well-settled that a party seeking termination of a parent’s rights

bears the burden of proving the grounds to so do by clear and convincing

evidence, which requires evidence 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.” In re T.F., 847

A.2d 738, 742 (Pa. Super. 2004).

      The trial court terminated Mother’s parental rights pursuant to 23

Pa.C.S.A. § 2511 which states, in pertinent part, as follows:




                                     -6-
J-S52044-15


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

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

                                         *     *   *

       (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.

       Termination is a two-step process; a trial court first must determine if

the grounds under subsection (a) are met, and then it must consider

subsection (b).     See In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa.

Super. 2008) (en banc).          The focus in terminating parental rights under

section 2511(a) is upon the parent, while section 2511(b) focuses upon the

child.3 Id. at 1008.

       With regard to subsection (a)(1):

____________________________________________


3
     Here, Mother has only challenged the trial court’s conclusions as to
subsection (a)(1) and that is the focus of our memorandum.



                                             -7-
J-S52044-15


      The statute thus indicates that in order to terminate parental
      rights involuntarily, there must be a showing of both a six-month
      period of estrangement and either a settled purpose or intent to
      relinquish a parental claim or a failure to perform parental
      duties.

      To establish a settled purpose to relinquish a parental claim,
      appellants must show that [the parent] made a deliberate
      decision to terminate the parent-child relationship throughout
      the six-month period. Failure to have contact with the child for
      six months will not automatically forfeit a parent’s rights.
      Moreover, this court consistently has refused to apply the
      statutory six-month time frame mechanically. Instead, the court
      must consider the individual circumstances of each case.

Adoption of M.S., 664 A.2d 1370, 1373 (Pa. Super. 1995) (citations

omitted).

      Here, the trial court did not find that Mother evidenced a settled

purpose to relinquish a parental claim.    Nor could it have so found.      The

evidence indicated that Mother was Child’s primary caregiver until February

2014. After that Child lived primarily with Grandparents, but Mother kept in

weekly contact from February until June or July of 2014. Even after that,

when Mother no longer felt welcome to see Child, Mother called and texted

Child. Mother never evidenced a settled purpose to relinquish her parental

claim to Child.

      Instead, the trial court relied upon its finding that Mother had failed to

perform parental duties, and characterized Mother’s relationship with Child

as one of a playmate or friend, rather than a parent.        We have defined

parental duties as follows:

      There is no simple or easy definition of parental duties. Parental
      duty is best understood in relation to the needs of a child. A

                                     -8-
J-S52044-15


      child needs love, protection, guidance, and support. These
      needs, physical and emotional, cannot be met by a merely
      passive interest in the development of the child. Thus, this court
      has held that the parental obligation is a positive duty which
      requires affirmative performance.

      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.

In re Z.P., 994 A.2d 1108, 1118-19 (Pa. Super. 2010).                  We have

recognized that:

      It is incumbent upon a parent when separated from his child to
      maintain communication and association with the child. This
      requires an affirmative demonstration of parental devotion,
      imposing upon the parent the duty to exert himself, to take and
      maintain a place of importance in the child’s life.

In re G.P.-R., 851 A.2d 967, 976 (Pa. Super. 2004). Additionally,

      [A]lthough a parent may fulfill his or her parental duties and
      provide for the child by making suitable arrangements for the
      child’s temporary care or by allowing others to provide essential
      parental services during a period of crisis, extended relegation of
      the child to the care of others as a result of parental incapacity is
      relevant . . . .

In re Adoption of Sabrina, 472 A.2d 624, 627 (Pa. Super. 1984).

      It is undisputed that, from Child’s birth until February 2014, Mother

was   Child’s   primary   caretaker,   although   Mother   received   substantial

assistance from Grandmother while Mother worked.           It is also undisputed

that, after February 2014, Child resided primarily with Grandparents.


                                       -9-
J-S52044-15



However, the record does not support the conclusion that Mother failed to

perform parental duties during this period. Mother saw Child several times

each week and cared for Child during that time.              Mother fed and bathed

Child, took Child on outings, and played with Child. Mother, at times, had

Child solely in her care overnight. Mother was not solely or even primarily

performing parental duties for Child, but she did not fail to perform those

duties in the six months preceding the filing of the petition.

       The record provides evidence that Mother took more than a passive

interest in Child.     Mother demonstrated a “continuing interest in the child

and a genuine effort to maintain communication and association with the

child.”   See Z.P., supra.        Even when Mother no longer felt welcome at

Grandparents’ home, she called and texted Child.             Mother made efforts to

maintain a place in Child’s life.              The record demonstrates that Mother

“fulfill[ed her] parental duties and provide[d] for the child by making

suitable arrangements for the child’s temporary care or by allowing others to

provide essential parental services during a period of crisis,” namely her

drug relapse. See Sabrina, supra. This is not a case in which Mother left

Child with Grandmother for an extended period of time or abandoned Child

with no contact.4


____________________________________________


4
     Child’s GAL filed a brief in support of Mother’s appeal.          Notably, the
GAL provided the following argument:

(Footnote Continued Next Page)


                                          - 10 -
J-S52044-15



      On    this    record,    Grandparents         did   not   meet   their   burden   to

demonstrate by clear and convincing evidence that Mother failed to perform

parental duties. The trial court erred in so finding. Therefore, we vacate the

order.

      The trial court has entered a temporary custody order on October 17,

2014 that remains in effect.            Either Mother or Grandparents may seek

modification of that order.

      Order vacated. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/2015



                       _______________________
(Footnote Continued)

      At the time of the hearing in October of 2014, [Mother] was drug
      free, had a residence and was seeking employment.             She
      testified she wants her child back in her care and never
      abandoned her child, instead she placed her in the care and
      custody of her loving [Grandparents], until [Mother] could
      correct her obstacles.      Even [Grandmother] testified that
      [Mother] will always have a role in [Child’s] life. . . . At best,
      this should be a custody case, certainly not an adoption or
      termination case.

GAL’s Brief at 3.



                                           - 11 -
