J-S31014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: D.T.P., A MINOR                    :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
APPEAL OF: A.T.E., III, FATHER            :
                                          :
                                          :
                                          :
                                          :
                                          :    No. 64 WDA 2017

              Appeal from the Decree entered December 9, 2016
                In the Court of Common Pleas of Butler County
                      Orphans’ Court at No(s): O.A. No 9


BEFORE:      PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.                                    FILED MAY 15, 2017

     A.T.E., III. (“Father”) appeals from the decree entered on December 9,

2016, granting the petition filed by D.P. (“Mother”) and involuntarily

terminating his parental rights to his male child, D.T.P., born in May 2009,

(“Child”), pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1) and (b),

so that Child may be adopted by her current husband, E.C., (“Stepfather”).

We affirm.

     On      February   22,   2016,   Mother   filed   the    petition   seeking   to

involuntarily terminate Father’s parental rights to Child. On September 28,

2016, the trial court held a hearing on the petition. At the hearing, Mother

presented the testimony of Father, as on cross-examination, and Stepfather,

and then testified on her own behalf.
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     On December 9, 2016, the trial court entered its findings of fact and

termination decree setting forth the following facts that it found credible

from the evidence.

            The clear and convincing evidence shows that while Father
     desired visitation with Child, he did not perform any parental
     duties. Father had minimal contact with Child from his date of
     birth, [in May 2009], until Father’s incarceration May 14, 2010.
     During this time[,] Father did pay child support. Over the next
     three years[,] Father sent a handful of letters to Child while
     incarcerated. After his release from prison in December, 2013,
     […], Father contacted Mother on several occasions requesting
     visits with Child which Mother denied, [and] Mother informed
     Father that she would only consider visits if mandated through
     the [c]ourts. Father testified that he made a knowing decision
     not to proceed through the judicial system because he believed
     that process was not in Child’s best interest.

           In December 2015, Father purchased and provided to
     Child Christmas gifts. However, Father did not provide any other
     financial support for Child after his release from incarceration.

           The evidence showed that Mother did not acquiesce to
     Father’s request for visits. The evidence also reveals that Mother
     did not want Father to have a relationship with Child.

           Mother refused to give Father her address. However, the
     issue before the [c]ourt is whether Father performed parental
     duties, and he did not. While Mother did not agree to introduce
     Father back into Child’s life, she did not create such an
     impediment that prevented Father from performing parental
     duties. In fact, Father’s testimony was clear that he knew he
     could use the judicial system to gain parenting time, but made a
     specific decision not to do so. He could have[,] after
     incarceration[,] continued to send letters, cards, gifts, or
     financial support to Child. Simply put, Father accepted Mother’s
     unwillingness to provide visitation with Child and took no other
     affirmative steps to perform parental duties except occasionally
     making additional request[s] to Mother.

           The court[,] finding that Mother proved by clear and
     convincing evidence §2511(a)(1), the [c]ourt considers [sic] 23

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       Pa.C.S.A. §2511(b). Child had minimal contact with Father for
       the first year of his life. The last contact between Child and
       Father was July 2010. Until shortly before the hearing, Child was
       unaware that Mother’s current husband was not his Natural
       Father. The clear and convincing evidence is that there is no
       bond between Child and Father. Child has a strong positive bond
       with Mother’s husband[,] who desires to adopt Child. Child has
       other [step]-siblings who are either biologically related to
       Mother’s husband or are being adopted by him.

             There is no evidence that Child would be emotionally
       harmed by the termination of Father’s parental rights. Primary
       consideration was given to the developmental, physical and
       emotional needs and welfare of Child. The court finds that it
       would best serve the needs and welfare of the [c]hild to
       terminate the parental rights of Father so that he could be
       adopted by Mother’s husband[,] who is the only father figure
       Child has known.

Orphans’ Court Findings of Fact, 12/9/16, at 1-2 (unnumbered).

       Father timely appealed.

       On appeal, Father raises two issues:

       1. Did the [trial court] commit an error of law in determining
       that Mother . . . proved by clear and convincing evidence that
       Father’s parental rights should be terminated pursuant to 23
       Pa.C.S.A. § 2511(a)(1)?

       2. Did the [trial court] commit an error of law in determining
       that the Natural Father . . . failed to perform parental duties
       pursuant to 23 Pa.C.S.A. § 2511(a)(1)?

Father’s Brief, at 5.1

____________________________________________


1
  In his brief, Father contends that the trial court abused its discretion or
erred as a matter of law in concluding that the evidence was sufficient to
support the involuntary termination of his parental rights under §
2511(a)(1). He does not raise the termination of his parental rights under
subsection (b) in either his concise statement or the statement of questions
(Footnote Continued Next Page)


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      In reviewing an appeal from an order terminating parental rights, we

adhere to 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.

            [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.



                       _______________________
(Footnote Continued)

involved section of his brief. Thus, he has waived any challenge to the
termination under subsection (b). See Krebs v. United Refining Company
of Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (holding that an
appellant waives issues that are not raised in both his concise statement of
errors complained of on appeal and the statement of questions involved in
his brief on appeal).



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In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012) (internal 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).2

       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. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).

       In his brief, Father contends that the court abused its discretion or

erred as a matter of law in concluding that the evidence was sufficient to

support the involuntary termination of his parental rights under § 2511(a)(1)

and (b).

       This Court may affirm the trial court’s decision regarding the

termination of parental rights with regard to any one subsection of section

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

banc). Here, as noted, the court terminated Father’s parental rights under §

2511(a)(1) and (b), which provides as follows:

       § 2511. Grounds for involuntary termination

____________________________________________


2
  Thus, the burden to support the petition is not on both the petitioner and
the guardian ad litem, as alleged by Father.



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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.A. § 2511(a)(1), (b).

       With respect to subsection 2511(a)(1), our Supreme Court has held

that

       [o]nce 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 termination of parental rights on the child pursuant to
       Section 2511(b).

In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1988) (citation

omitted).

       Further, this Court has stated that




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      the trial court must consider the whole history of a given case
      and not mechanically apply the six-month statutory provision.
      The court must examine the individual circumstances of each
      case and consider all explanations offered by the parent facing
      termination of his or her parental rights, to determine if the
      evidence, in light of the totality of the circumstances, clearly
      warrants the involuntary termination.

In re B.,N.M., 856 A.2d 847, 854-855 (Pa. Super. 2004) (citations

omitted).

      Father argues that the record established that the Mother failed to

sufficiently demonstrate that his conduct over the six months immediately

preceding the filing of the petition demonstrated that he had a settled

purpose of relinquishing his parental claim and failed to perform his parental

duties. See Father’s Brief, at 8. Additionally, Father asserts that he put forth

reasonable and significant efforts to find and contact the Child, considering

all of the circumstances surrounding this case, and that Mother’s refusal to

allow him to see Child was a barrier to his ability to parent. See id.

      In support of his argument, Father relies on Adoption of S.H., 383

A.2d 529 (Pa. 1978), and Lookabill v. Moreland, 485 A.2d 1204, 1206 (Pa.

Super. 1984), in urging that the court failed to consider the circumstances of

this case. Specifically, Father contends that he was incarcerated, and he

utilized all of the resources available to him to attempt to establish a

connection with Child. At the same time, Mother was engaging in ongoing

efforts to evade Father and prevent a relationship between him and Child.

Father alleges that Mother utilized his incarceration to further these efforts


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by changing her address and telephone number without telling him.

Moreover, Father contends that the record also clearly established that

Mother actively sought to prevent and obstruct his relationship with Child,

and that, by terminating Father’s parental rights, the trial court rewarded

Mother’s misconduct. Father claims that, considering the totality of the

circumstances and the bad faith conduct of Mother, the trial court should

have excused his lack of success in contacting Child. See Father’s Brief, at

8-11.

        Father testified that he was convicted and incarcerated for dealing in

illegal drugs. See N.T., 9/28/16, at 11. He was incarcerated in July 2010,

was released to a half-way house in October 2013, and was released on

parole at the time of the hearing on September 28, 2016. See id., at 7-9.

Father was drug tested on a weekly basis as of the time of the hearing. See

id., at 11.

        Obviously, incarceration makes performance of the duty to protect,

support, and maintain communication with a child much more difficult. Our

Supreme Court has instructed that

        a parent’s absence and/or failure to support due to incarceration
        is not conclusive on the issue of abandonment. Nevertheless, we
        are not willing to completely toll a parent’s responsibilities during
        his or her incarceration. Rather, we must inquire whether the
        parent has utilized those resources at his or her command while
        in prison in continuing a close relationship with the child. Where
        the parent does not exercise reasonable firmness in declining to
        yield to obstacles, his other rights may be forfeited.




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47 A.3d at 828 (quoting In re: Adoption of McCray, 331 A.2d 652, 655

(Pa. 1975)). “[I]ncarceration neither compels nor precludes termination of

parental rights.” Id. (quoting In re Z.P., 994 A.2d 1108, 1120 (Pa. Super.

2010)).

       With the above standards of review in mind, we have thoroughly

reviewed the record, the parties’ briefs, and the applicable law. We find that

the trial court ably and methodically considered the evidence presented at

trial, and addressed Father’s issues.

       After a careful review of the record in this matter, we find the record

supports the trial court’s factual findings, and the court’s legal conclusions

are not the result of an error of law or an abuse of discretion. This Court

finds that the trial court’s determinations are supported by competent

evidence.3 Accordingly, we affirm the trial court’s decree on the basis of the

discussion in the trial court’s findings of fact, set forth verbatim above, see

ante, at 2-3, entered on December 9, 2016.        See Trial Court Findings of

Fact, 12/9/16, at 1-2.

       Decree affirmed.



____________________________________________


3
  Although Father has waived any argument regarding subsection (b), had
he preserved the issue, we would have found it lacked merit. There was
sufficient evidence to allow the trial court to make a determination of Child’s
needs and welfare and as to the existence of a bond between Father and
Child that, when severed, would have no detrimental impact on Child.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/15/2017




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