J-S68016-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

IN THE INTEREST OF: G.A.S., A MINOR        :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
                                           :
                                           :
APPEAL OF: H.M., FATHER                    :   No. 2062 EDA 2015

                Appeal from the Order entered May 27, 2015,
                Court of Common Pleas, Montgomery County,
                     Orphans’ Court at No. 2015-A0065

BEFORE: BENDER, P.J.E., DONOHUE and MUNDY, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED NOVEMBER 12, 2015

      H.M. (“Father”) appeals from the order entered by the Court of

Common Pleas, Montgomery County, on May 27, 2015, granting the petition

filed by the Montgomery County Office of Children and Youth (“OCY”) to

involuntarily terminate his parental rights to G.A.S. (“the Child”) pursuant to

23 Pa.C.S.A. § 2511(a)(1), (2), (8), and (b). Upon review of the record and

the applicable law, we affirm.

      A brief summary of the factual and procedural history is as follows. In

August 2009, M.S. (“Mother”) gave birth to the Child. 1       Mother did not

identify the Child’s father on the Child’s birth certificate. On September 19,

2013, OCY filed a dependency petition, asserting that the Child was without

proper care or control.      In October 2013, the Child was adjudicated

dependent, and along with his biological half-sister, was placed into foster


1
   On May 27, 2015, Mother voluntarily relinquished her parental rights to
the Child. This appeal involves the termination of Father’s parental rights
only.
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care.    Mother initially did not provide any information about the Child’s

father to OCY, but at some point in 2014, she disclosed to OCY that Father

was the Child’s biological father.

        In November 2014, OCY located Father in a Philadelphia jail where he

was incarcerated.     Robert Newton (“Mr. Newton”), the Child’s caseworker,

visited Father in jail and told him that Mother indicated he was the father of

the Child.    Father admitted that he had sexual relations with Mother and

learned from Mother in the early stages of her pregnancy that she was

pregnant, but claimed that at the time, he did not believe her. Father also

alleged that Mother disappeared after she told him that she was pregnant.

Father nevertheless expressed that he would be released from incarceration

in July 2015 and would be interested in being involved in the Child’s life if

DNA tests determined he was the father.

        On March 18, 2015, OCY filed a petition for involuntary termination of

Father’s parental rights as the putative father. The trial court scheduled a

hearing for May 27, 2015. A paternity test was completed two weeks prior

to the hearing.     On the morning of the hearing, Father learned that the

paternity test confirmed that he was the father of the Child.

        At the hearing, the trial court heard testimony from the Child’s foster

mother, Mr. Newton, and Father. After hearing the testimony, the trial court

granted OCY’s petition to terminate Father’s parental rights pursuant to

sections 2511(a)(1), (2), (8), and (b) of the Adoption Act.      Father timely



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filed a notice of appeal and a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).         On appeal, Father raises the

following two issues for our review:

            1. Did the honorable trial court commit error in
            terminating the parental rights of Father, pursuant to
            23 Pa.C.S.A. [§] 2511(a)(1), when the testimony at
            trial demonstrated that Father had been prevented
            from having an opportunity to provide parental
            duties and, indeed, did not learn that he was the
            father until very shortly (hours) before the May 27,
            2015 trial?

            2. Did the honorable trial court commit error by
            involuntarily terminating Father’s parental rights
            where the facts did not establish by clear and
            convincing evidence that such termination was in the
            best interests of the Child as contemplated by 23
            Pa.C.S.A. § 2511(b)[?]

Father’s Brief at 4.

      Our standard of review in cases involving termination of parental rights

is as follows:

               When reviewing an appeal from a decree
            terminating parental rights, we are limited to
            determining whether the decision of the trial court is
            supported by competent evidence. Absent an abuse
            of discretion, an error of law, or insufficient
            evidentiary support for the trial court’s decision, the
            decree must stand. Where a trial court has granted
            a petition to involuntarily terminate parental rights,
            this Court must accord the hearing judge’s decision
            the same deference that we would give to a jury
            verdict. We must employ a broad, comprehensive
            review of the record in order to determine whether
            the trial court’s decision is supported by competent
            evidence.




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In re J.F.M., 71 A.3d 989, 992 (Pa. Super. 2013) (citing In re R.N.J., 985

A.2d 273, 276 (Pa. Super. 2009)). If the trial court’s decision is supported

by competent evidence, this Court must affirm the decision “even if the

record could also support the opposite result.” Id. (citing In re Adoption

of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003)).

     Involuntary termination of parental rights is governed by statute.

Section 2511 of the Adoption Act provides, in pertinent part:

           (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.

              (2) The repeated and continued incapacity,
              abuse, neglect or refusal of the parent has
              caused the child to be without essential
              parental care, control or subsistence necessary
              for his physical or mental well-being and the
              conditions and causes of the incapacity, abuse,
              neglect or refusal cannot or will not be
              remedied by the parent.

                                  *    *    *

              (8) The child has been removed from the care
              of the parent by the court or under a voluntary
              agreement with an agency, 12 months or more
              have elapsed from the date of removal or
              placement, the conditions which led to the
              removal or placement of the child continue to




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               exist and termination of parental rights would
               best serve the needs and welfare of the child.

                                  *    *    *

            (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.

23 Pa.C.S.A. § 2511(a)(1), (2), (8), (b).

      In its analysis under section 2511, “the trial court must engage in a

bifurcated process.” In re B.C., 36 A.3d 601, 606 (Pa. Super. 2012).

               The initial 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 at least one of the nine statutory grounds in
            section 2511(a). If the trial court determines that
            the parent’s conduct warrants termination under
            section 2511(a), then it must engage in an analysis
            of the best interests of the child under section
            2511(b), taking into primary consideration the
            developmental, physical, and emotional needs of the
            child.

Id.

      In this case, the trial court terminated Father’s rights under sections

2511(a)(1), (2), and (8).     In his brief, Father assails the trial court’s

determination with respect to sections 2511(a)(1) and (a)(2). Father makes

no argument regarding the trial court’s determination with respect to section

(a)(8). Thus, Father essentially concedes that the trial court’s termination of



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his parental rights pursuant to section (a)(8) is without error, and we could

affirm on that basis, as it is well settled that “[w]e need only agree with the

orphans’ court as to any one subsection of Section 2511(a), as well as

Section 2511(b), in order to affirm.” In re Adoption of C.J.P., 114 A.3d

1046, 1050 (Pa. Super. 2015) (citing In re B.L.W., 843 A.2d 380, 384 (Pa.

Super. 2004) (en banc), appeal denied, 581 Pa. 668, 863 A.2d 1141

(2004)).   For purposes of completeness, however, we focus our review of

this case on the arguments Father presents with regard to section (a)(1).

      In order to prevail on its petition for involuntary termination under

section 2511(a)(1), OCY was required to establish that in the six months

preceding the filing of the petition, Father “refused or failed to perform

parental duties.”   23 Pa.C.S.A. § 2511(a)(1).       Our Supreme Court has

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 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



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            take and maintain a place of importance in the
            child’s life.”

In re D.J., 2015 WL 6167408, at *2-3 (Pa. Super. April 28, 2015) (quoting

In re Burns, 379 A.2d 535, 540 (Pa. 1977)).

      In reviewing whether Father failed to perform his parental duties, we

are mindful that

            [a]lthough it is the six months immediately
            preceding the filing of the petition that is most
            critical to the analysis, 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, 855 (Pa. Super. 2004) (internal citations

omitted).

      The trial court in this instance found that Father failed to perform his

parental duties:

                In this case, the [c]ourt has established that for
            the six months prior to the filing of the petition[,
            Father] failed to perform parental duties. [Father]
            was advised by the woman with whom he had the
            relationship that she was pregnant and made no
            effort for the first five years of [the Child]’s life to
            inquire about [Mother], [the Child], or any of his
            circumstances and made no effort to have a role in
            [the Child]’s life during that time.

               It’s true that [Father] was not specifically
            informed by Mr. Newton of [OCY] who himself was



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            not aware of it until October or November of 2014,
            was not informed until November of 2014 that he
            was considered likely by the [OCY] to be the father
            of [the Child]. At that time, he was in jail.

                But, nevertheless, as the evidence established
            upon cross-examination, [Father] made no specific
            efforts to begin contact with [the Child], to send
            letters or presents to [the Child], to ask for
            additional information about [the Child], to establish
            a relationship with [the Child]. His efforts were
            limited to his request for DNA testing to confirm
            whether or not he was the father of [the Child] and
            his suggestion to Mr. Newton that he would like to
            create a relationship with [the Child] after his release
            from prison. This deferred interest in parenthood is
            simply not adequate to meet the requirements of
            providing parental care, supervision, support,
            nourishment to a child that every child needs.

               As a consequence of his own actions and
            inactions, [Father] has not established a relationship
            with [the Child].

N.T., 5/27/15, at 97-98.      After our review, we conclude that the record

supports the trial court’s findings.

      Father asserts that he did not know he was the father of the Child until

moments before the hearing began and argues that “[i]t is fundamentally

unfair to expect a parent to preserve a parental relationship that the parent

does not know exists.” Father’s Brief at 13-14. Although it is undisputed

that Father received the results from the paternity test confirming that he

was the father of the Child on the day of the hearing, testimony offered at

the hearing revealed that he learned from Mother that she was pregnant

with the Child when she was in the early stages of her pregnancy.        N.T.,



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5/27/15, at 77, 88.       Father asserted that he did not believe Mother and

never saw Mother again, but also admitted that he did nothing further to

ascertain whether Mother had a baby or confirm that the child she was

carrying was his. Id.

         Moreover, at the time Mr. Newton informed Father in November 2014

that Mother named him as the Child’s father, Father expressed that he was

eager to learn if he was the father, but did not request to take a paternity

test or demonstrate any urgency in taking a test.      Id. at 58, 63-64.   Mr.

Newman left his contact information with Father, yet Father only called Mr.

Newton once between November 2014 and April 2015 to inquire about

taking a paternity test.    Id. at 67. Father made no efforts to contact the

Child, did not send any mail or gifts to the Child, and did not ask about the

Child.    Id. at 66-67.    Thus, although Father stated that he wished to be

involved in the Child’s life if he was the father, he made no efforts to do so,

instead stating that he would consider it once he received the DNA results.

Id. at 50-51, 60-61.

         Father’s assertion that it is fundamentally unfair to expect him to

preserve a parental relationship that he does not know exists is wholly

unsupportable under the law. See Father’s Brief at 14. To the contrary, this

Court has held that a father cannot wait until he receives the results of a

paternity test to perform parental duties, as this “rationale would relieve all

fathers of their parental duties until their parentage was confirmed by a



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paternity test.”   In re Z.S.W., 946 A.2d 726, 731 (Pa. Super. 2008).

Accordingly, as the record reflects that Father made no efforts to contact the

Child or to perform parental duties during the five years of Child’s life, we

agree with the trial court’s determination that OCY satisfactorily established

that Father failed to perform parental duties in excess of six months

pursuant to section 2511(a)(1).

      For his second issue on appeal, Father challenges whether, under

subsection (b), termination of Father’s parental rights would best serve the

developmental, physical, and emotional needs and welfare of the Child. This

Court has held that in considering the child’s needs and welfare under

subsection (b),

            it is imperative that a trial court carefully consider
            the intangible dimension of the needs and welfare
            of a child – the love, comfort, security, and closeness
            – entailed in a parent-child relationship, as well as
            the tangible dimension. Continuity of relationships is
            also important to a child, for whom severance of
            close parental ties is usually extremely painful. The
            trial court, in considering what situation would best
            serve the [child]’s needs and welfare, must examine
            the status of the natural parental bond to consider
            whether terminating the natural parents’ rights
            would destroy something in existence that is
            necessary and beneficial.

In re Adoption of K.J., 936 A.2d 1128, 1134 (Pa. Super. 2007) (citing In

re C.S., 761 A.2d 1197, 1202 (Pa. Super. 2000)). “Common sense dictates

that courts considering termination must also consider whether the children

are in a pre-adoptive home and whether they have a bond with their foster



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parents.” In re T.S.M., 71 A.3d 251, 268 (Pa. 2013) (citing In re K.M., 53

A.3d 781, 791 (Pa. Super. 2012)).

      In this case, the trial court found, and the record establishes, that the

Child is bonded with his foster family.       N.T., 5/27/15, at 99.   The Child’s

foster mother testified that the Child calls his foster parents “mom” and

“dad.” Id. at 24. The foster mother further testified that she has told the

Child that she and her husband would adopt him. Id. at 18. The Child has

already chosen his adoption name, to include his foster parents’ last name,

and is very proud and excited about the name he has chosen. Id.

      The record further establishes that the Child is responding well to his

placement with his foster parents. When the Child was first placed with his

foster parents, he had severe asthma, which resulted in several admissions

to the hospital.   Id. at 10.   Since being placed with his foster parents,

however, they have been able to manage his asthma.                    Id. at 11.

Furthermore, the Child’s foster mother testified that when he was placed

with her family, he was four years old and still wearing a diaper. Id. at 10-

11. Although he still occasionally has accidents, they occur less frequently.

Id. at 11.   The Child, who previously experienced night terrors regularly,

“which consisted of him waking up and screaming at the top of his lungs,

terrified[,]” did not experience any night terrors in the eight months leading

up to the hearing.      Id. at 12.     The Child is also reportedly “doing

exceptionally well” in school. Id. at 27.



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      Finally, the Child’s foster family is also caring for his biological half-

sister and they have expressed an interest in adopting her. Id. at 18. Mr.

Newton testified that the Child and his sister, who are approximately one

year apart in age, have always lived together, spend all of their time

together, and love each other. Id. at 54.

      After our review of the record, we conclude that the trial court’s

decision that termination of Father’s parental rights to the Child would best

serve the Child’s needs and welfare is supported by competent evidence.

The Child is bonded with his foster family, which provides him with the

necessary parental care that the Child needs. The permanence and stability

offered by the foster family best serves the developmental, physical, and

emotional needs of the Child, evidenced by the Child’s improved health,

success in school, and the Child’s desire to remain with and be adopted by

the foster family. The record also reflects that termination of the Father’s

parental rights would not have a detrimental impact on the Child as Father

and the Child have never met or communicated in any way. As a result, we

conclude that subsection (b) has been satisfied in this case. Accordingly, we

affirm the trial court’s decision to terminate Father’s parental rights.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/12/2015




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