J-S79002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ADOPTION OF: J.M.W., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: D.W., FATHER                    :
                                               :
                                               :
                                               :
                                               :   No. 2855 EDA 2017

                    Appeal from the Decree August 22, 2017
    In the Court of Common Pleas of Montgomery County Orphans’ Court at
                              No(s): 2017-A0012


BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.:                           FILED DECEMBER 28, 2017

       D.W. (“Father”) appeals from the order, entered in the Court of Common

Pleas of Montgomery County, granting the Montgomery County Office of

Children and Youth’s (“OCY”) petition requesting termination of Father’s

parental rights to J.M.W. (“Child”) (born April 2011), pursuant to 23 Pa.C.S.A.

§ 2511(a)(1) and (2). After careful review, we affirm.

       K.L.W. (“Mother”)1 and Father are not married, and Child was born while

Father was incarcerated; Father has never met Child. On February 2, 2017,

OCY filed a petition requesting termination of Father’s parental rights to Child

pursuant to sections 2511(a)(1) and (2). On June 15, 2017, the Honorable

Lois E. Murphy met and interviewed Child. On June 21, 2017, the trial court
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1 Mother, who suffers from mental health issues, is unable to sustain herself
and live independently and has not been able to meet the needs of Child
throughout Child’s life; consequently, the trial court terminated her parental
rights on August 21, 2107. N.T. Termination Hearing, 8/22/17, at 25-26.
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held a permanency review hearing and granted OCY’s request to change

Child’s goal to adoption, and, on the same day, the trial court held an

evidentiary hearing on OCY’s petition to terminate Father’s parental rights.

On August 22, 2017, the trial court terminated Father’s parental rights to

Child. Father filed a timely notice of appeal on September 19, 2017. Both

Father and the trial court have complied with Pa.R.A.P. 1925.2 On appeal,

Father raises the following issue: Whether the trial court committed an error

of law and/or abuse of discretion when it terminated Father’s parental rights

pursuant to sections 2511(a)(1) and (2).

       Section 2511 governs the termination of parental rights:

       § 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.

          (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



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2 Judge Murphy’s Pa.R.A.P. 1925(a) opinion was verbally set forth in the record
on August 22, 2017. N.T. Termination Hearing, 8/22/17. Judge Murphy’s on-
record verbal declaration of her reasoning for terminating Father’s parental
rights to Child satisfies Rule 1925(a) and Pa.R.A.P. 905(a)(2) for the purpose
of this appeal.

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        causes of the incapacity, abuse, neglect or refusal cannot or
        will not be remedied by the parent.

                                   ******

     (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) and (2), (b). See In the Interest of C.S., 761

A.2d 1197, 1201 (Pa. Super. 2000).

     In a proceeding to terminate parental rights involuntarily, the
     burden of proof is on the party seeking termination to establish
     by clear and convincing evidence the existence of grounds for
     doing so. The 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. It is well
     established that a court must examine the individual
     circumstances of each and every case and consider all
     explanations offered by the parent to determine if the evidence in
     light of the totality of the circumstances clearly warrants
     termination.

In re Adoption of S.M., 816 A.2d 1117, 1122 (Pa. Super. 2003) (citation

and quotation marks omitted). See also In re C.P., 901 A.2d 516, 520 (Pa.

Super. 2006) (party seeking termination of parental rights bears burden of

proving by clear and convincing evidence that at least one of eight grounds

for termination under 23 Pa.C.S.A. § 2511(a) exists and that termination


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promotes emotional needs and welfare of child set as forth in 23 Pa.C.S.A. §

2511(b)).

      Termination under section 2511(a)(1) involves the following:

      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 Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super.
      2006). In addition,

         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.

      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) (internal citation omitted).

      The focus of the termination proceeding is on the conduct of the parent

and whether his conduct justifies termination of parental rights. In re B.L.L.,

787 A.2d 1007, 1013 (Pa. Super. 2001); In re Child M., 681 A.2d 793, 797

(Pa. Super. 1996). Although 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.     In re D.J.S., 737 A.2d 283, 286 (Pa. Super.

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1999). 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. Id. at 285. See

Adoption of M.S., 644 A.2d 1370 (Pa. Super. 1995) (failure of parent to have

contact with child for six months will not automatically forfeit that parent’s

rights). See also In re Shives, 525 A.2d 801, 803 (Pa. Super. 1987) (where

non-custodial parent faces termination of parental rights, court must consider

non-custodial parent’s explanation for apparent neglect, including whether

custodial parent has deliberately created obstacles and erected barriers

intended to impede communication and association between non-custodial

parent and child).

      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 conduct; (2) the

post-abandonment contact between parent and child; and (3) consideration

of the effect of termination of parental right on the child pursuant to section

2511(b). Matter of Adoption of Charles E.D.M., II, 70 A.2d 88, 91 (Pa.

1998).

      The grounds for termination of parental rights under section 2511(a)(2),

due to parental incapacity that cannot be remedied, are not limited to

affirmative misconduct; to the contrary, those grounds may include acts of

refusal as well as incapacity to perform parental duties. In re A.L.D., 797

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A.2d 326 (Pa. Super. 2002). “Parents are required to make diligent efforts

towards the reasonably prompt assumption of full parental responsibilities.”

Id. at 340.        Furthermore, under section 2511(a)(2), the petition for

involuntary termination must prove (1) repeated and continued incapacity,

abuse, neglect or refusal; (2) that such incapacity, abuse, neglect or refusal

caused the child to be without essential parental care, control or subsistence;

and (3) that the cause of the incapacity, abuse, neglect or refusal cannot or

will not be remedied. In Interest of Lilley, 719 A.2d 327, 330 (Pa. Super.

1998).

       Instantly, Father has never met with, provided financial resources for,

or corresponded or sent gifts to Child.          Father avers that he attempted to

contact Mother when he was released from prison in July 2015, but that

maternal grandmother and law enforcement prevented him from contacting

Child due to his probation status.3 When Father completed his probation and

parole on March 21, 2016, he did not contact Mother or Child for more than a

year afterward. Furthermore, Father did not attempt to file a custody petition,

did not contact OCY, did not request visits with Child and did not provide

support for Child. See In re J.W., A.W., V.W. and J.W., 578 A.2d 952 (Pa.

Super. 1990) (“[A] parent who cannot or will not meet the irreducible

minimum requirement set by the Juvenile Act within a reasonable time

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3Father has a criminal record for terroristic threats, 18 Pa.C.S.A. § 2706, and
two misdemeanors, one of which was for corruption of minors, 18 Pa.C.S.A. §
6301.

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following state intervention may properly . . . have parental rights

terminated.”).

      Presently, Father has completed parenting classes, found employment

as a full-time landscaping contractor, acquired health insurance and maintains

a stable residence in a rented room in North Wales. However, beyond these

measures, Father failed to demonstrate to the trial court that he is prepared

and ready to fulfill a parental role. Father does not live in a home that includes

space for a child; his residence is not ready for parenting or providing safety

and stability for Child. Additionally, Father has not addressed his substance

abuse and depression issues as is necessary to prepare him to parent Child.

Father, in summary, is unable to provide the basic minimum needs that Child

is entitled to, including adequate housing, clothing, food, love and supervision.

See In re Diaz, 669 A.2d 372 (Pa. Super. 1995).

      Additionally, the fact that Father was frequently incarcerated between

2011 and 2015 does not excuse his failure to contact or provide support for

Child. The trial court, in addressing Father’s periods of incarceration, stated

that “‘a parent has an affirmative duty to love, protect and support his child

and to make an effort to maintain communication and association with that

child.’” N.T. Termination Hearing, 8/22/17, at 21, quoting In re Adoption of

S.P., 47 A.3d 817, 828 (Pa. 2012). Although Father is no longer incarcerated,

the lengthy term of his incarcerations and his failure to contact Child or OCY

following his release from probation and parole indicate that he has failed to

provide for Child.     The trial court may properly reject as untimely or

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disingenuous Father’s present desire to cooperate and provide for Child after

a long period of uncooperativeness and absence from Child’s life. See In re

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

      Moreover, Kristen Caprara, Ph.D., a licensed clinical psychologist who

has been treating Child since January 18, 2017, met with Father on May 5,

2017. After meeting with both Father and Child, Dr. Caprara believes that

Father should focus solely on his own mental health treatment, and that it

would not be in Child’s best interest for Father to assume the role of Child’s

full-time permanent caregiver.    N.T. Evidentiary Hearing, 6/21/17, at 64.

Furthermore, Dr. Caprara stated that Child’s foster parents have exhibited the

ability to provide all of Child’s needs, nurturance and support and have

developed a healthy and safe bond with Child. Id. at 64-65.

      After a thorough review of the record, the parties’ briefs, the applicable

law, and the well-reasoned oral opinion of the Judge Murphy, we conclude that

the record supports the court’s determination that OCY met its statutory

burden of establishing that Father evidenced a settled purpose of relinquishing

his parental claim to Child. Therefore, termination would best serve Child’s

needs and welfare. 23 Pa.C.S.A. §§ 2511(a)(1),(a)(2), and (b). Accordingly,

we affirm as to Father’s issues based on the court’s oral opinion issued at the

termination proceeding. In the event of further proceedings, we direct the

parties to attach a copy of the notes of testimony from Father’s August 21,

2017 termination hearing in which Judge Murphy set forth a verbal 1925(a)

opinion.

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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/28/17




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