J-S49015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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




APPEAL OF: A.S., NATURAL MOTHER

                                                               No. 442 WDA 2017


                  Appeal from the Decree entered January 31, 2017
                  in the Court of Common Pleas of Jefferson County,
                       Orphans' Court, at No(s): 57A-2016 O.C.


BEFORE: DUBOW, J., SOLANO, J., and FITZGERALD J.*

MEMORANDUM BY DUBOW, J.:                                   FILED AUGUST 31, 2017

        Appellant, A.S. (“Mother”) appeals from the decree involuntarily

terminating her parental rights to J.K.S. (“Child”) pursuant to the Adoption

Act, 23 Pa.C.S. § 2511(a) and (b). We affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

        Mother and K.S. (“Father”) were both minors when the Child was born

in September 2013. They were never married. The next month the Child

became      the    subject   of   a   custody   action    in   which   C.S.   (“Maternal

Grandmother”) and L.S. (“Paternal Grandfather”) were also named as

parties due to the ages of Mother and Father.                     Following a pretrial


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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conference, the court entered a Stipulation and Order giving Mother and

Father shared legal and physical custody of the Child.

        One year later, on October 23, 2014, Mother’s sister, T.M. (“Maternal

Aunt”), received a call from Paternal Grandfather informing her that Mother

had been arrested and asking Maternal Aunt to take the Child.       Maternal

Aunt and her husband took the Child into their home the next day.        Two

weeks later, Maternal Aunt filed a Petition to Intervene and a Petition for

emergency custody at the existing custody docket. The court granted both

Petitions, and awarded Maternal Aunt sole physical custody of the Child on

November 7, 2014.           According to the Order, visitation would be upon

agreement of the parties. Because no party has ever filed any subsequent

Petition, this custody Order remains in effect.

        On December 21, 2016, Maternal Aunt filed a Petition to Involuntarily

Terminate the Parental Rights (“TPR”) of both Mother and Father pursuant to

23 Pa.C.S. §2511(a)(1),(2),(5),(8), and (b).      The Orphans’ Court held an

evidentiary hearing on January 19, 2017.

        Both Mother and Father knowingly waived their right to counsel and

appeared pro se.        See N.T., 1/19/17, at 3-4.1   Maternal Aunt and her
____________________________________________


1
    The following colloquy occurred between the Orphans’ Court and Mother:

        Court:       [D]o you understand you have a right to an
        attorney?

        Mother:      Yes, sir.
(Footnote Continued Next Page)


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husband,2 with whom the Child has lived since she was 13 months old,

testified in support of the Petition.

      Maternal Aunt testified that she brought the Child to visit Mother in

prison, and that after Mother was released, Mother saw the Child about once




                       _______________________
(Footnote Continued)

      Court:      Do you understand if you can’t afford an attorney
      and qualify for court-appointed counsel, one would be appointed
      for you?

      Mother:          Yes, sir.

      Court:     Do you understand that when you do that, you’re
      held to have the same standard of knowledge that attorney
      would have. So if you make a mistake, you can’t later say you
      didn’t know what you were doing. The mistake would count
      against you the same as if you had or were an attorney. Do you
      understand that?

      Mother:          Yes, sir.

      Court:       And knowing all those risks – because the ultimate
      risk in this is that your rights are terminated and you have no
      further claim to the child. Do you understand that?

      Mother:          Yes, sir.

      Court:           Knowing those risks, do you wish to proceed on your
      own?

      Mother:          Yes, sir.

N.T., 1/19/17, at 3-4.
2
  Maternal Aunt and her husband (“Uncle”) are the prospective adoptive
parents.



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a month for a couple of hours each visit.    She also testified that Mother

spoke to the Child on the phone “once in a while.” Id. at 17.

     Mother testified on her own behalf and informed the court that she had

graduated from boot camp, and had secured a job and home in Dauphin

County. She testified that before the date of the hearing, she was not ready

to take care of the Child, but she is now. See id. at 44. She also said she

“text[s] at least once a day to talk” to the Child, but her sister tells her

frequently that the Child does not want to talk.     Id. at 45.   Mother also

acknowledged that Maternal Aunt has done a “very good job” of raising the

Child. Id.

     Maternal Grandmother testified that Mother saw the Child once a

month and there was only one time when Maternal Aunt denied a visit. She

also stated that Maternal Aunt was doing a good job of raising the Child.

See id. at 51-2.

     Father testified on his own behalf, opining that it would be in the

Child’s best interest to remain in the custody of Maternal Aunt and her

husband. See id. at 57-8.

     Following the conclusion of this testimony, the Orphans’ Court took the

matter under advisement. By Opinion and Decree entered on January 31,

2017, the Orphans’ Court terminated both Mother and Father’s parental

rights pursuant to 23 Pa.C.S. §2511(a)(1) and (b).




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        Mother filed this timely appeal.3

ISSUES ON APPEAL

        Mother raises the following issues for our review:

           1. Whether the [Orphans’] Court erred in terminating
              Mother’s  parental rights  under   23    [Pa.C.S.]
              §2511(a)(1)?

           2. Whether the [Orphans’] Court committed an error
              and/or abuse of discretion in finding that the
              termination of Mother’s parental rights was in [Child’s]
              best interest in accordance with 23 [Pa.C.S.] §2511(b)?

Mother’s Brief at 4.

LEGAL ANALYSIS

        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.” In re Adoption of

S.P., 47 A.3d 817, 826 (Pa. 2012). “If the factual findings are supported,

appellate courts review to determine if the trial court made an error of law

or abused its discretion.” Id. We may reverse a decision based on an abuse

of discretion only upon demonstration of “manifest unreasonableness,

partiality, prejudice, bias, or ill-will.”     Id.   We may not reverse, however,

merely because the record would support a different result.” Id. at 827.

        We give great deference to trial courts that often have first-hand

observations of the parties spanning multiple hearings.          In re T.S.M., 71
____________________________________________


3
    Father did not file an appeal.



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A.3d 251, 267 (Pa. 2013). The Orphans’ Court is free to believe all, part, or

none of the evidence presented and is likewise free to make all credibility

determinations and resolve conflicts in the evidence. In re M.G., 855 A.2d

68, 73-74 (Pa. Super. 2004). In addition, in order to affirm the termination

of parental rights, this Court need only agree with any one subsection under

Section 2511(a). See In re B.L.W. 843 A.2d 380, 384 (Pa. Super. 2004)

(en banc).

      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. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). 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. (citations omitted).

      Termination Pursuant to 2511(a)(1)

      Section 2511(a)(1) provides that the trial court may terminate

parental rights if the Petitioner establishes that for six months, the parent

demonstrated a settled intent to relinquish a parental claim or a refusal or

failure to perform parental duties:

      a)      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

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                   the petition has evidenced a settled purpose of
                   relinquishing parental claim to a child or has
                   refused or failed to perform parental duties.


23 Pa.C.S. § 2511(a)(1).         This Court has interpreted this provision as

requiring the Petitioner to demonstrate a settled intent to relinquish a

parental claim to a child or a refusal or failure to parent:

         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.


In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citation omitted).

         This Court has defined “parental duties” in general as the obligation to

affirmatively and consistently provide safety, security and stability for the

child:

            There is no 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 parental
            obligation is a positive duty which requires affirmative
            performance. This affirmative duty … 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 B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citation and paragraph

divisions omitted).



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      Moreover, a parent must exercise reasonable firmness in resisting

obstacles placed in the path of maintaining the parent child relationship:

         Parental duty requires that the parent act affirmatively
         with good faith interest and effort, and not yield to every
         problem, in order to maintain the parent-child relationship
         to the best of his or her ability, even in difficult
         circumstances.     A parent must utilize all available
         resources to preserve the parental relationship, and must
         exercise reasonable firmness in resisting obstacles placed
         in the path of maintaining the parent-child relationship.

Id. (internal citations omitted).

      And most importantly, “parental rights are not preserved by waiting

for   a more   suitable   or   convenient time   to   perform one’s parental

responsibilities while others provide the child with her physical and

emotional needs.” Id.

      In the instant case, the Orphans’ Court properly concluded that

Maternal Aunt met the requirements of Section 2511(a)(1).        The Orphan’s

Court found that, in the relevant period prior to Maternal Aunt’s TPR petition,

indeed for the majority of the Child’s young life, Mother’s actions toward

reuniting with the Child and building a parent-child relationship with her

have been minimal. The court explained:

            Mother, too, has failed to perform her parental duties.
         Certainly, her efforts have exceeded Father’s. The Court’s
         job, though, is to evaluate her conduct based on the
         objective standards articulated above, not to determine
         whether her deficiencies are less than some other parent
         who meets the statutory criteria for termination, and that
         evaluation ends with the conclusion that termination is
         appropriate.


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            For at least a year-and-a-half now, Mother has not seen
        [Child] more than once a month.             While she was
        incarcerated, visits occurred within the confines of the jail,
        prison, or boot camp facility where she was then housed.
        Once she was able to travel, the [visits] took place at
        [Maternal Aunt’s] residence and, with the exception of her
        visit this past November, lasted only a couple of hours.
        Mother did not ask for more than that. She thus had little
        opportunity     to   develop    a   nurturing,  parent-child
        relationship with [Child] while they were together. Indeed,
        [Child’s] subdued demeanor in Mother’s presence indicated
        that the child was not entirely comfortable being in her
        company. She may have been familiar with Mother and
        willing, on occasion, to permit physical contact. [Child]
        clearly did not identify [Mother] as a source of love and
        comfort, though.

Orphan’s Court Opinion, 1/31/17, at 6.

     Moreover, the Orphan’s Court further explained that despite the

physical distance from the Child, Mother did not avail herself adequately of

her ability to communicate with the Child:

            Given the opportunity to further foster a relationship
        through telephone contact, moreover, Mother allowed
        [Child] to dictate the parameters of their communication.
        Mother surely recognized that her absence had put a
        distance between them and, if she did not, should have
        realized that she, not [Child], was the one who would have
        to pursue a more intimate connection. Instead of insisting
        that [Maternal Aunt] summon [Child] so that she could at
        least learn to recognize [Mother’s] voice, though, Mother
        simply accepted that [Child] did not want to talk most of
        the time and, as a result, forfeited a ready and convenient
        avenue for fostering a parent-child relationship with
        [Child]. As stated in In re Adoption of Faith M., 501
        A.2d 1105 (Pa. 1985), though, “‘communication and
        association are essential to the performance of parental
        duties,’” and because the absent parent and the child are
        at a disadvantage, the parent “‘must make special effort to
        bridge the gulf of geographic separation and to take
        affirmative steps to maintain communication and


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          association with [her] child[.]’” Id. at 1108-09 (quoting
          In re Adoption of J.R.F., 27 Somerset L.J. 298, 304
          (Pa.C.P. 1972)). See also In re G.P.-R., 851 A.2d 967,
          976 (Pa. Super. 2004) (“it is incumbent on a parent when
          separated from [her] child to maintain communication and
          association with the child. This requires an affirmative
          demonstration of parental devotion, imposing upon a
          parent to exert [her]self, to take and maintain a place of
          importance in the child’s life”). Mother made little effort in
          this case.

Orphan’s Court Opinion, 1/31/17, at 7.

     Finally, the Orphan’s Court assigned little weight to Mother’s testimony

about her future intentions and her desire to demonstrate an ability to

parent:
           As for Mother’s future intentions, our courts have long
     maintained that a parent may not preserve her parental rights
     by waiting for a more convenient time to perform her parental
     duties and responsibilities. [See, e.g.,] In re D.J.S., 737 A.2d
     283, 287 (Pa. Super. 1999). Whereas Mother has failed to take
     advantage of the opportunities that were available to her earlier,
     therefore, her purported intention to file a petition to modify
     custody in January of 2017 does not affect the Court’s
     assessment; the excuse that she knew she was not in a position
     to assume custody of [Child] carries no weight when she failed
     to avail herself of the other resources that have been available
     to her.


            Although [Maternal Aunt] has had physical custody of
     [Child] since October 24, 2014, moreover, Mother retained
     shared legal custody and, even if she felt that [Maternal Aunt]
     was excluding her from playing a more active role in [Child’s]
     life, [she] could have petitioned the Court to request increased
     or unsupervised visitation, more frequent telephone contact,
     medical updates, etc. As the record plainly shows, however, she
     was not that invested, and that has been the case well in excess
     of six months.      Accordingly, the evidence clearly supports
     termination of Mother’s parental rights under subsection (a)(1).

Orphan’s Court Opinion, 1/31/17, at 7-8.


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      Mother argues that “[t]he record does not reflect clear and convincing

evidence of [her] settled purpose of relinquishing her parental rights or

failure to perform parental duties[.]”    Mother’s Brief at 6.   According to

Mother, despite the physical distance between her and the Child she would

speak to the Child and “every chance [she] had she would drive to see [the

Child].”   Id. at 9.   She then cites to her own testimony and asserts that

Maternal Aunt stymied her efforts to see the Child. Mother avers that the

contact between herself and the Child was “substantial but was hindered by

Maternal Aunt.” Id. at 11.

      Mother further argues that her case is similar to the facts of In re

S.S.W., 125 A.3d 413 (Pa. Super. 2015), wherein this Court excused a

father’s failure to enforce his custodial rights through the legal system.

Mother asserts that “she had every intention to file for custody of [the Child]

but that ultimately Maternal Aunt beat her to the courthouse.”        Mother’s

Brief at 9-10.

      Finally, Mother asserts that the Orphan’s Court erred in failing to

consider the “totality of the circumstances” and “instead evaluated her

conduct based on the objective standards[.]”       Id. at 10 (citing S.S.W.,

supra, and Orphan’s Court Opinion, 1/31/17, at 6).

      Our review of the record refutes Mother’s claims.      We find that her

arguments focus on the credibility of the witnesses. The record supports the

Orphans’ Courts findings of fact and credibility determinations.    We, thus,




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accept the court’s crediting the testimony of Maternal Aunt over Mother’s

testimony and that of her witness. In re M.G., supra.

        Moreover, her reliance on S.S.W., is inapposite.         In that case, the

father did not proceed through the legal system because of the existence of

a protection from abuse order against him, which he genuinely believed

prevented contact with his children. No such impediment exists in Mother’s

case.

        Finally, we read the Orphan’s Court’s reference to “objective standards

above” to be no more than its recognition of case law that requires each

parent’s relationship with the Child to be considered individually to

determine whether they are fulfilling their duties with respect to the Child’s

physical and emotional needs for love, protection, guidance, and support.

        In light of the foregoing, we conclude that the court did not abuse its

discretion in terminating Mother’s parental rights pursuant to 23 Pa.C.S. §

2511(a)(1).

        Termination Pursuant to Section 2511(b)

        We also agree with the Orphans’ Court’s determination that Maternal

Aunt met her burden under 23 Pa.C.S. § 2511(b), and that terminating

Mother’s parental rights is in the best interest of the Child.

        With respect to Section 2511(b), our analysis shifts focus from

parental actions in fulfilling parental duties to the effect that terminating the

parental bond will have on the child. Section 2511(b) “focuses on whether

termination of parental rights would best serve the developmental, physical,

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and emotional needs and welfare of the child.” In re: Adoption of J.M.,

991 A.2d 321, 324 (Pa. Super. 2010).

      In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005), this Court

found that “intangibles such as love, comfort, security, and stability are

involved in the inquiry into the needs and welfare of the child.” In addition,

the Orphans’ Court must also discern the nature and status of the parent-

child bond, with utmost attention to the effect on the child of permanently

severing that bond. Id.

      In cases where there is no evidence of a bond between a parent and a

child, it is reasonable to infer that no bond exists. In re K.Z.S., 946 A.2d

753, 762-63 (Pa. Super. 2008). Thus, the extent of the bond-effect analysis

necessarily depends on the circumstances of the particular case. Id. at 763.

      In this case, given the Orphan’s Court’s above comments regarding

Mother’s minimal efforts to build a parent-child relationship, the court found

that Mother does not share a close bond with the Child. Rather, a beneficial

bond exists between the Child and Maternal Aunt, as well has her husband,

who have provided for the Child’s daily needs for the majority of her life.

The court explained:

         [Maternal Aunt and her husband] have consistently
         demonstrated not only the ability, but also the willingness
         and desire to meet [the Child’s] needs, providing her with
         a loving and stable home and affording her the physical,
         emotional, and psychological support every child needs.
         As a result, [the Child] has thrived and continues to thrive
         in their care, and it is [Maternal Aunt and her husband]
         whom [the Child] recognizes as her parents-in-fact.
         Mother and Father are merely peripheral figures in [the

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         Child’s] life. They are familiar to her, and she is willing to
         let them into her circle, albeit with some reservations.
         [the Child] does not share a close bond with either,
         however, and certainly not a parent-child bond the
         severance of which would be detrimental to [the Child]. At
         the same time, the Court can, by terminating Mother and
         Father’s rights, guarantee [the Child] a future with the
         couple she has come to know as “Mom” and “Dad” and the
         continuing security of being their legal daughter for the
         rest of her life.

Orphan’s Court Opinion, 1/31/17, at 8 (footnote omitted).

      Crediting Maternal Aunt’s testimony, the Orphan’s Court further opined

that the Child’s bond with Mother will continue to grow since Maternal Aunt

“intends to allow both parents to be part of [the Child’s] life[.]” Id. at 8 n.3.

Nevertheless, the court found it “worth noting, however, that [the Child]

would not suffer either way, as the Court’s findings make clear.” Id.

      Mother argues that termination of her parental rights would have a

negative effect on the Child.    She supports this assertion by citing select

portions of Maternal Aunt’s testimony wherein she stated that the Child calls

her “Auntie” and that Child was “clingy” to her (Mother) when they visited.

See Mother’s Brief at 11-12. Once again, the credibility of Maternal Aunt’s

testimony, and the weight to be given it, are matters exclusively within the

province of the Orphans’ Court as fact finder. In re M.G., supra. As noted

above, the Orphan’s Court credited Maternal Aunt’s testimony that the Child

has recently referred to her and her husband as “Mom” and “Dad.”            See

Orphan’s Court Opinion at 8. We cannot disturb this determination.         Thus,

Mother’s claim fails.


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     CONCLUSION

     In sum, our review of the record supports the Orphans’ Court’s

determination that Maternal Aunt met her statutory burden of proving by

clear and convincing evidence that Mother’s parental rights should be

terminated pursuant to 23 Pa.C.S. §§ 2511(a)(1) and 2511(b). Accordingly,

we affirm.

     Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/31/2017




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