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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: B.G.M., A MINOR                             IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA




APPEAL OF: T.M.                                    No. 1477 MDA 2015




                  Appeal from the Order entered August 5, 2015
              in the Court of Common Pleas of Lackawanna County
                       Orphans’ Court at No(s): A-9-2015

BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J.                                  FILED APRIL 04, 2016

        T.M. (“Father”) appeals from the Order entered on August 5, 2015, in

the Court of Common Pleas of Lackawanna County, which involuntarily

terminated his parental rights to his minor daughter, B.G.M. (“Child”), born

in April 2013. We affirm.

        The court summarized the relevant facts and procedural history as

follows. Child was born in Lackawanna County to Father and D.S.

(“Mother”).1 Following Child’s birth, Child’s maternal aunt, (“Maternal Aunt”),

and Child’s biological maternal uncle, (“Maternal Uncle”), maintained primary

physical custody of Child since April 20, 2013. Father maintained partial


*Former Justice specially assigned to the Superior Court.
1
    Mother voluntarily relinquished her rights to Child.
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physical custody of Child during the first year of Child’s life, until April 17,

2014, at which time his visits were suspended by the court.

      The petition to terminate Father’s parental rights was filed by Maternal

Aunt and Maternal Uncle on January 23, 2015. Father requested the

appointment of counsel by the court to assist him in the termination

proceedings. The court appointed counsel. A guardian ad litem had already

been assigned to Child at an earlier proceeding.

      The court held a hearing on July 2, 2015.       During the hearing, the

court heard the testimony of Katrina Roughsedge, a special needs instructor

for Early Intervention through the United Cerebral Palsy of Northeastern

Pennsylvania; Jeane Decker, an outpatient therapist through Aaron Center;

Corinne Thiel, the Guardian ad litem; Maternal Aunt; Maternal Uncle; and

Father. Following the hearing, the court entered an Order granting Maternal

Aunt’s and Maternal Uncle’s petition for the involuntary termination of

Father’s parental rights. Father timely appealed.

      Father raises three issues on appeal.

         1. Did the trial [c]ourt err in concluding that petitioners
         established, by clear and convincing evidence, the
         elements required to involuntarily terminate respondent’s
         parental rights, as the evidence presented by petitioners
         clearly and convincingly does not establish the required
         elements for involuntarily termination pursuant to 23 Pa.
         C.S.A. § 2511(a)(1)?

         2. Did the trial [c]ourt err in failing to consider, and to
         give significant weight to, the likelihood of severe
         detriment to the minor child if minor child were not re-
         integrated with her natural father, biological two brothers

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         and one sister as the testimony presented by respondent
         at trial clearly suggests?

         3. Did the trial court err in based on [sic] that the decision
         is not supported by its own findings of fact, by the facts of
         record, or by Pennsylvania law such that the trial [c]ourt
         did not find, for example, that respondent has custody of
         minor child’s three older biological siblings?

Father’s Brief at 4.

      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. In re: R.J.T., 608
      Pa. 9, 9 A.3d 1179, 1190 (Pa. 2010). 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.; R.I.S., 36
      A.3d 567, 572 (Pa. 2011) (plurality opinion)]. As has been often
      stated, an abuse of discretion does not result merely because
      the reviewing court might have reached a different conclusion.
      Id.; see also Samuel Bassett v. Kia Motors America, Inc.,
      34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 838 A.2d 630,
      634 (Pa. 2003). Instead, a decision may be reversed for an
      abuse of discretion only upon demonstration of manifest
      unreasonableness, partiality, prejudice, bias, or ill-will. Id.

            As we discussed in R.J.T., there 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. R.J.T., 9 A.3d at 1190.
      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

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      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 Atencio, [539 Pa. 161, 165,]
      650 A.2d 1064, 1066 (Pa. 1994).

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

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

      This court may affirm the 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, the court

terminated Father’s parental rights under section 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:

         (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.

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                                    ***

     (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
         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).



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      [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) (citation omitted). See

also In re Adoption of C.L.G., 956 A.2d 999, 1006 (Pa. Super 2008) (en

banc).

      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 or joins the two portions of the statute.

See In re Adoption of Charles E.D.M., 708 A.2d 88, 91 (Pa. 1998).

      Further, regarding the definition of “parental duties,”

      [t]here 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 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.

      Parental duty requires that the parent act affirmatively with good
      faith interest and effort, and not yield to every problem, in order

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     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. 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.

In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citation omitted).

     Father testified as to how he had loved, sheltered, and cared for Child.

However, other testimony showed that he had not cared for Child for any

duration of time, except for the month that Mother had resided with the

Maternal Aunt and Maternal Uncle.

     Father’s testimony illustrated the inconsistent, sporadic visits that he

had with Child. Father saw Child for occasional, brief visits in 2013 and in

the very early part of 2014. Father has not seen Child since April 2014. See

N.T., 7/2/15, at 8, 63, 103-104, 117-199, 122-124. Father’s reasons for not

parenting, supporting, or visiting Child were transportation problems, money

and employment issues, and the child care responsibilities for his other

children, some of whom reside with him. Father also has a criminal record of

numerous offenses. See id., at Exhibit P-6.

     At the hearing, Father maintained that, if he were given custody of

Child, he would be able to meet his parenting responsibilities. See id., at

122-124. However, the guardian ad litem testified that Father has been and

continues to be non-compliant with his obligations to the court and to Child.


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See id., at 25-30. In addition, the Maternal Aunt and Maternal Uncle

testified that Father has been largely absent for most of Child’s life. They

have maintained physical custody of Child since she was just two weeks old

and have exclusively carried out all parental roles and responsibilities for

Child since that time. See N.T., 7/2/2015, at 121-122. At the hearing,

Father did not dispute that he had not seen Child for more than one year

and acknowledged that he had not been in contact with the Maternal Aunt

and Maternal Uncle to inquire about Child’s well-being for more than a year

prior to the filing of the involuntarily termination petition.

      The court found that Father’s own actions and inactions are indicative

of his long-standing refusal to perform parental duties for Child, which

evidenced a settled purpose of relinquishing his parental claim to Child. See

N.T., 7/2/2015, at 122-124. We agree and find that competent evidence

amply supports the involuntary termination of Father’s parental rights to

Child pursuant to § 2511(a)(1).

      Next, we consider section 2511(b).

             [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


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      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).

      Child has no bond with Father. The involuntary termination of Father’s

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

involuntary termination of Father’s parental rights would best meet the

needs of Child and permit the Child to achieve the stability that she

deserves.

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

that Child has a strong emotional bond with her foster parents, with whom

she has been living for the last two years and who take care of all of her

needs. At the hearing, Ms. Decker, a social worker, opined that Child is

attached to Maternal Aunt and Maternal Uncle, and there is a natural bond

between them. She also opined that Child is well adjusted with Maternal

Aunt and Maternal Uncle, and is well cared for and loved by them. Thus, the

court found that there is no evidence that Child would be adversely affected

if her relationship with Father were severed.

      The competent evidence in the record shows that Father 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) (citation omitted). Father did not put himself in

a position to assume daily parenting responsibilities so that could develop a

real bond with Child. See In re J.L.C., 837 A.2d 1247, 1249 (Pa. Super.

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2003). In addition, it is by Father’s own actions or inactions that have

resulted   in   Child   being   kept   from   her   biological   siblings   and   the

establishment of bonding relationships.

      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

parenting.” Id. at 1125.

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

decision that involuntary termination of Father’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 on the part of the court

pursuant to section 2511(b).

      Accordingly, we affirm the court’s order terminating Father’s parental

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

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/4/2016




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