J-S58016-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.T., A MINOR              IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA




APPEAL OF: J.T., FATHER

                                                   No. 638 MDA 2016


              Appeal from the Order Entered March 15, 2016
              In the Court of Common Pleas of Mifflin County
                   Orphans' Court at No(s): 28 OF 2015


IN THE INTEREST OF: E.T., A MINOR              IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA




APPEAL OF: J.T., FATHER

                                                   No. 639 MDA 2016


              Appeal from the Order Entered March 15, 2016
              In the Court of Common Pleas of Mifflin County
                   Orphans' Court at No(s): 29 OF 2015


BEFORE: GANTMAN, P.J., BOWES and PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                         FILED AUGUST 22, 2016

      J.T. (“Father”) appeals from the March 15, 2016 orders granting the

petitions filed by D.S. (“Mother”) to involuntarily terminate his parental

rights to his sons, A.T. and E.T. We affirm.



* Retired Senior Judge assigned to the Superior Court.
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        Mother and Father married on February 29, 2012, and the family

remained intact until November 5, 2013.            While A.T.’s June 2011 birth

preceded the marital union, E.T. was born of the marriage during July 2013.

Following the parties’ separation, Father sought employment in Texas for

approximately one month before returning to Pennsylvania during December

2013. Upon Father’s return, Mother secured a PFA order against him. While

the grounds for the PFA order are not readily apparent from the certified

record, it is undisputed that the two-year PFA expired in January 2016.

Additionally, the order permitted Father to contact Mother to exercise

physical custody of his sons or to discuss the children’s wellbeing.

        During March 2014, the parties entered a custody agreement that

provided Father four hours of supervised partial physical custody on

Sundays.     The parties retained their former neighbors and mutual friends,

David and Emily Hartzler, to supervise two of the custodial periods at the

Hartzler’s home in Lewistown, Pennsylvania.         Father’s fifteen-year-old son

from a prior relationship was responsible for supervising the remaining

custodial periods at Father’s Mifflintown residence. Father exercised custody

under the agreement only four times, and his last contact with the children

occurred on Easter 2014.

        Following the Easter visit, Father temporarily relocated to Florida, and

after   a   brief   return   to   Pennsylvania   that   summer,   he   moved   to

Massachusetts, where he presently resides with his current wife.          During

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these periods, Father communicated with Mother by telephone, email, and

Facebook, but he neglected to request custody, speak with the children, or

send letters, cards, or gifts.     Eventually, Mother began systematically

blocking Father’s telephone numbers, and she terminated contact with him

consistent with her interpretation of the PFA order.

      As the PFA order permitted Father to communicate with Mother in

order to discuss the children, Mother’s reliance upon the order to support her

actions was misguided.     Nevertheless, Father did not employ reasonable

efforts to circumvent the barriers that Mother erected to impede him from

contacting the children.     Indeed, beyond reaching out to Mother by

telephone, email and social media, all of which she ignored, Father’s only

other endeavor was to contact Mother’s family and the Hartzlers to help him

locate her.   These efforts were ineffective, and rather than contacting

Mother’s attorney or retaining a lawyer to help him exercise his custodial

rights, Father simply succumbed to Mother’s impediments.       Indeed, in the

year preceding Mother’s petitions to terminate Father’s parental rights,

Father communicated with Mother on only three occasions: an email, a voice

mail, and a telephone call, and while he inquired about his sons’ welfare and

indicated that “it would be nice to” receive a phone call, he neglected to

request custody or ask to speak with the children. N.T., 2/8/16, at 10.

      Mother remarried during May 2015.       The children refer to Mother’s

husband, who is the proposed adoptive father, as “daddy,” and recognize

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him as their father. Id. at 15. Father acknowledges that the children are in

a “good place” with Mother and her husband. Id. at 60.

      On October 27, 2015, Mother filed the underlying petitions for the

involuntary termination of Father’s parental rights to A.T. and E.T. pursuant

to 23 Pa.C.S. § 2511(a)(1) and (b). Following a hearing, the orphans’ court

terminated Father’s parental rights to the children.       When the hearing

occurred, A.T. was four months from his fifth birthday and E.T. was

approximately two and one-half years old.        Neither child had seen Father

since Easter 2014.     This timely appeal ensued.       Father complied with

Pa.R.A.P. 1925(a)(2)(i) by filing a concise statement of errors complained of

on appeal simultaneously with his notice of appeal.

      Father raises two issues for our review:

      1.   Whether the trial court erred in failing to consider
      uncontradicted evidence that Mother prevented Father from
      maintaining a relationship with the children?

      2.    Whether the trial court erred in determining [that]
      termination [of parental rights] was in the children’s best
      interest when there was evidence that[,] with more regular
      contact with Father and/or the engagements of family therapy,
      the attachment/bonding issues testified to could positively
      resolve itself within a reasonable time frame?

Father’s brief at 4.

      We review the orphans’ court’s order to grant or deny a petition to

involuntarily terminate parental rights for an abuse of discretion.     In re

C.W.U., Jr., 33 A.3d 1, 4 (Pa.Super. 2011). “We are limited to determining



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whether the decision of the trial court is supported by competent evidence.”

In re R.L.T.M., 860 A.2d 190, 191 (Pa.Super. 2004) (quoting In re C.S.,

761 A.2d 1197, 1199 (Pa.Super. 2000)).        However, “[w]e must employ a

broad, comprehensive review of the record in order to determine whether

the trial court's decision is supported by competent evidence.”          In re

C.W.U., Jr., supra at 4.     As the ultimate trier of fact, the trial court is

empowered to make all determinations of credibility, resolve conflicts in the

evidence, and believe all, part, or none of the evidence presented.       In re

A.S., 11 A.3d 473, 477 (Pa.Super. 2010). “If competent evidence supports

the trial court's findings, we will affirm even if the record could also support

the opposite result.” Id.

      The party petitioning for termination of parental rights “must prove the

statutory criteria for that termination by at least clear and convincing

evidence.” In re T.R., 465 A.2d 642, 644 (Pa. 1983). 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).

      Requests to involuntarily terminate a biological parent’s parental rights

are governed by 23 Pa.C.S. § 2511, which provides in pertinent part as

follows:




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     (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. § 2511.

     The test for terminating parental rights consists of two parts. In In re

L.M., 923 A.2d 505, 511 (Pa.Super. 2007), we explained:

     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.

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      Herein,    the   certified   record   supports   the   orphans’    court’s

determination that Mother established the statutory grounds to terminate

Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1) and (b). As it

relates to §2511(a)(1), the pertinent inquiry for our review follows:

      To satisfy 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. . . .
      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.      Accordingly,
      parental rights may be terminated pursuant to Section
      2511(a)(1) if the parent either demonstrates a settled purpose
      of relinquishing parental claim to a child or fails to perform
      parental duties.

In re D.J.S., 737 A.2d 283, 285 (Pa.Super. 1999) (quoting Matter of

Adoption of Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)) (internal

citations omitted).

      In In re C.M.S., 832 A.2d 457, 462 (Pa.Super. 2003), we explained,

“A parent is required to exert a sincere and genuine effort to maintain a

parent-child relationship; the parent must use 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.”   Moreover, once evidence establishes a parent’s failure to

perform parental duties, the trial court must consider, inter alia, the parent’s




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explanation for his conduct.     Matter of Adoption of Charles E.D.M., II,

supra.

      Father’s first argument concedes that Mother established the predicate

elements of § 2511(a)(1) insofar as she proved that, for at least six months

prior to the date she filed her petitions, Father failed to perform any of his

parental duties to A.T. and E.T.          However, focusing upon the remaining

inquiry, Father complains that the orphans’ court failed to consider his

explanation for his parental inaction. Specifically, he maintains that Mother

erected barriers designed to impede his communication with his two sons.

      Father asserts that he regularly attempted to contact Mother and

arrange visits with the children but that his attempts were futile.               He

highlights Mother’s testimony that, pursuant to her interpretation of the PFA

order, she habitually withheld her address from him and blocked the

telephone numbers that she associated with him and his extended family

members. Furthermore, he contends that when he was able to circumvent

Mother’s obstructions and leave voicemail messages, send emails, and

attempt   to   contact    her   through    Facebook,   Mother   still   ignored   his

communications.     In addition, Father asserts that he contacted Mother’s

family and the Hartzlers to help him locate his children, but neither were

particularly helpful.    Father testified that Mother’s family advised him that




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they did not want to get embroiled in the custody dispute and that the

Hartzlers informed him that they had lost contact with Mother.1       In sum,

Father maintains that his struggle to contact Mother and the children was

substantial, and he implies that, but for the impediments that Mother

erected, he would have had free and regular access to perform his parental

duties.

       As it relates to the needs-and-welfare analysis pursuant to § 2511(b),

Father acknowledges the absence of any meaningful relationship with A.T.

and E.T.     Indeed, he exercised four, four-hour custodial periods prior to

Easter 2014 and has not established contact with them since.         However,

noting his love for the boys and his desire to reunite with them, Father

argues that, with regular contact and family therapy, he would be able to

fashion parental bonds with his sons. Hence, he concludes that terminating

his parental rights was not in the best interest of the children.

       Father’s arguments are unpersuasive. Stated plainly, Father failed to

use all available resources or exercise reasonable firmness to overcome the

impediments to maintaining a relationship with A.T. and E.T.            Father

neglected to contact an attorney to help him pursue his custody rights, and

____________________________________________


1
  Father’s position disregards the inconvenient facts that Mr. Hartzler not
only testified that he never refused to facilitate Father’s physical custody of
the boys, but he also attested that Father had not contacted him within the
past year seeking to exercise his custody rights. See N.T., 2/8/16, 29-31.



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he failed to utilize known contacts in Mother’s family to send the children

gifts, cards, or financial assistance.       Instead, he relied on Mother’s

elusiveness as an excuse for his continued inaction and his failure to perform

his parental duties. Also, while there is no parent-child bond between Father

and his sons, such a bond exists among Mother’s husband and the boys.

Thus, we do not disturb the orphans’ court’s conclusion that terminating

Father’s parental rights serves the boys’ developmental, physical and

emotional needs and welfare. Accordingly, we affirm the orders terminating

Father’s parental rights pursuant to § 2511(a)(1) and (b).

      Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/2016




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