J-A15014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: INVOLUNTARY TERMINATION OF                   IN THE SUPERIOR COURT OF
PARENTAL RIGHTS TO: L.A.W., A MINOR                       PENNSYLVANIA




APPEAL OF: D.J.W., FATHER

                                                         No. 1580 MDA 2016


                    Appeal from the Decree of August 25, 2016
                In the Court of Common Pleas of Lancaster County
                      Orphans' Court at No(s): 36-2016-0045


BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                             FILED AUGUST 02, 2017

       D.J.W. (“Father”) appeals from the August 25, 2016 decree entered in

the Lancaster County Court of Common Pleas, which involuntarily terminated

his parental rights to his daughter, L.A.W.1 (“Child”). We affirm.

       The trial court set forth the following factual and procedural history:

               [Child] is a minor female child born [in] October [of]
            2006 . . . . She currently resides with Petitioners[, D.T.
            (“Mother”) and W.T. (“Step-Father”)]. . . . Petitioners
            were married on December 25, 2015. . . . [Child] has
            resided with Mother since birth and Step-Father since
            December 2015.

               [D.J.W.] is the biological father of [Child] and is 38
            years old.    Father is single and resides at the State
            Correctional Institute – Houtzdale, Pennsylvania.

____________________________________________


       1
           In the certified record, L.A.W. is also referred to as L.W.
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          [When Child] was born . . . . Mother and Father were
       married and they lived as an intact family with Child and
       Mother’s oldest daughter, [Child]’s half-sister.           In
       December 2010, Father was arrested for the sexual abuse
       of [the oldest daughter].        Father continued to have
       telephone contact with [Child] and Mother during the
       course of the criminal trial, while incarcerated at Lancaster
       County Prison.

          In December 2011, Father was convicted of rape by
       force, indecent assault of a minor, sexual assault forcible
       compulsion, and multiple other sexual offenses perpetrated
       against Child’s half-sister, beginning when [the oldest
       daughter] turned nine years old and continuing over a nine
       year period. He was sentenced to 14 to 30 years in prison.
       As an element of Father’s sentencing and classification as
       a sexual offender, he was not to have any contact with the
       victim or the victim’s family. Father testified that he would
       talk to the Child for up to five minutes at a time, but
       admitted most of his phone contact was spent talking to
       Mother. Mother testified that Father’s contact primarily
       focused on blaming Mother’s oldest child for his actions
       and trying to convince Mother to believe his innocence.
       Mother testified she told Father to stop contacting her, but
       did not tell Father he could not contact [Child.] Father
       testified that he stopped calling because Mother no longer
       answered his calls.

          Father was relocated to State Correctional Institute –
       Camp Hill, at which time he continued to send letters and
       cards to Mother and, occasionally, [Child.] On March 15,
       2012, Mother signed a visitation form allowing [Child] to
       be placed on Father’s visitation list. However, [Child] has
       never visited Father in prison at any point in his
       incarceration.  All contact between [Child] and Father
       ended sometime in 2012 or early 2013.2
              2
                  Mother changed her phone number in 2012
                  and testified she did not distribute this new
                  number to Father or any of Father’s family.
                  Father testified that he continued to call
                  Mother until 2013.

          In September of 2014, after nearly two years of no
       contact, Father filed a custody action. For the first time,


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       Mother objected to Father’s renewed contact with [Child].
       A custody conference was scheduled for December 1,
       2014.     Father neither attended nor requested any
       accommodations. A Criminal History hearing was held on
       January 28, [2015], which Father also did not attend nor
       request any accommodations. At that time, and based
       upon the Father’s sentencing order restricting contact with
       his victim’s family, Mother was granted sole legal and
       physical custody of [Child] and the matter was dismissed
       for Father’s lack of attendance.

          During this same time, Father had also requested the
       Criminal Court reduce his sentence. When a hearing on
       the matter was held, which Father attended, Father
       requested that the Court allow him contact with his
       biological children. The court modified the sentencing
       order lifting the contact restriction to allow for contact if
       approved by the mother of the children.                 Since
       modification in early 2015, Father has made no attempt to
       contact Mother or [Child]. He also failed to file any further
       actions in the custody proceedings . . .

          Prior to Father’s sentencing, Paternal Grandmother
       (PGM) maintained a relationship with [Child] and Mother.
       She babysat, dropped off presents for Child, and invited
       them to family functions. Despite initiating the custody
       action in September 2014, Father did not try to contact
       [Child] through PGM. He did not ask about her medical,
       educational, or emotional welfare. When asked by his
       attorney what resources were available to him from prison
       in order to maintain contact, Father testified that he was
       able to write letters and make daily phone calls. However,
       Father testified he did not utilize either of these resources
       to reach out to [Child]. Since 2013, none of Child’s
       paternal relatives have attempted to contact [Child], send
       cards or gifts, or asked to visit of their own volition or on
       Father’s behalf.

          [On] January [7,] 2016, after another year of no
       contact from Father, Mother filed for termination of
       Father’s parental rights. The initial termination hearing
       and adoption proceeding was scheduled for April 1, 2016.
       Father was present via telephone and contested the
       termination of his parental rights. Both Mother and Father
       testified at the hearing. The matter was continued.

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              The termination proceeding resumed on May 23, 2016.
           Petitioners offered the testimony of Mother. Father offered
           the testimony of . . . [his] sister-in-law, and testified on
           his own behalf. The Court incorporated the custody action
           and the record in the criminal dockets into the record.

               At the end of that hearing, the termination of parental
           rights proceedings were concluded and the record was
           closed. . . . On June 8, 2015, the Court ordered counsel
           for the Petitioners, counsel for Father, and the Guardian ad
           litem to submit written briefs. Counsel for all parties
           submitted their letter briefs in July 2016. The Guardian ad
           litem’s written recommendation was received by the Court
           on July 15, 2016, and served upon the parties.

Trial Ct. Op., 8/24/16, at 1-4 (some footnotes omitted).              On August 25,

2016,2 the trial court entered a decree terminating Father’s parental rights

pursuant to section 2511(a)(1) and (b) of the Adoption Act. On September

23, 2016, Father timely appealed to this Court.

       Father raises two issues on appeal:

              A. Did the lower court commit an error of law by
                 allowing deliberate conduct of [an] opposing parent
                 to be used as a basis for termination?

              B. Does the aforementioned error of law require this
                 Honorable Court [to] overrule the lower court’s
                 decree?

Father’s Br. at 3 (suggested answers and other comments omitted).

       Father    argues    that   Mother       deliberately   prevented   Father   from

communicating with or visiting Child and the trial court erred by not

considering that fact when determining whether Father had made efforts to
____________________________________________


       2
       The trial court’s opinion and decree were dated August 24, 2016, but
were not filed until August 25, 2016.



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maintain contact with Child. We consider Father’s issues mindful of our well-

settled standard of review:

           The standard of review in termination of parental rights
     cases requires appellate courts 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. A decision may be reversed for an
     abuse of discretion only upon demonstration of manifest
     unreasonableness, partiality, prejudice, bias, or ill-will. The trial
     court’s decision, however, should not be reversed merely
     because the record would support a different result. We have
     previously emphasized our deference to trial courts that often
     have first-hand observations of the parties spanning multiple
     hearings.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotations

omitted).

     Termination of parental rights is governed by section 2511 of the

Adoption Act, 23 Pa.C.S. § 2511, which requires a bifurcated analysis. We

have stated:

     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.

In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted). The

petitioner must “prove by clear and convincing evidence that [the] asserted




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[statutory] grounds for seeking the termination of parental rights are valid.”

In re R.N.J., 985 A.2d 273, 276 (Pa.Super. 2009).

      First, Father argues that the trial court erred in terminating his

parental rights where Mother deliberately prevented Father from maintaining

communication or contact with Child.         According to Father, “Mother’s

deliberate actions resulted in an absence of communication between Father

and [Child]. . . . [that] Mother used . . . as the sole reason for petitioning

the lower court to terminate Father’s rights.”     Father’s Br. at 7.    Father

asserts that Mother’s deliberate conduct may not be used to terminate his

parental rights, especially when he “strove to maintain an affirmative

relationship with his child.” Id.

      Section 2511(a)(1) of the Adoption Act provides:

         (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.

23 Pa.C.S. § 2511(a)(1).      “A court may terminate parental rights under

section 2511(a)(1) where the parent demonstrates a settled purpose to

relinquish parental claim to a child or fails to perform parental duties for at

least the six months prior to the filing of the termination petition.”   In re




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Z.P., 994 A.2d 1108, 1117 (Pa.Super. 2010) (emphasis in original).         The

court should consider the entire background of the case and not simply

         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 . . . parental rights, to determine
         if the evidence, in light of the totality of the circumstances,
         clearly warrants the involuntary termination.

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

However, “[w]ith respect to any petition filed pursuant to subsection (a)(1),

. . . 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 petition.” 23 Pa.C.S. § 2511(b); see In re D.W.,

856 A.2d 1231, 1235 (Pa.Super. 2004) (holding that the post-petition

evidentiary restriction “applies to the entire termination analysis”).

      In terms of parental duty, we are reminded

         [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.




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        Parental duty requires that the parent act affirmatively
        with good faith interest and effort, and not yield to every
        problem, in order 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 [the child’s] physical
        and emotional needs.

B., N.M., 856 A.2d at 855 (citations and quotations omitted). Our Supreme

Court has provided guidance regarding the interaction between incarceration

and termination pursuant to section 2511(a)(1):

        [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.

In re Adoption of McCray, 331 A.2d 652, 655 (Pa. 1975) (citation and

footnotes omitted).

     With respect to conduct of an opposing parent, we have explained that

        [w]here a non-custodial parent is facing termination of his
        or her parental rights, the court must consider the non-
        custodial parent’s explanation, if any, for the apparent
        neglect, including situations in which a custodial parent
        has deliberately created obstacles and has by devious
        means     erected   barriers   intend   to   impede    free
        communication and regular association between the non-
        custodial parent and his or her child. Although a parent is
        not required to perform the impossible, he must act

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        affirmatively to maintain his relationship with his child,
        even in difficult circumstances. A parent has the duty to
        exert himself, to take and maintain a place of importance
        in the child’s life.

B., N.M., 856 A.2d at 855-56 (citations omitted). “The pertinent inquiry is

not the degree of success a parent may have had in reaching the child, but

whether, under the circumstances, the parent has utilized all available

resources to preserve the parent-child relationship.”      In re Shives, 525

A.2d 801, 803 (Pa.Super. 1987).

     The trial court found Father’s argument unavailing:

            Father argues Mother prohibited contact which imposed
        barriers making his contact with Child impossible. The
        Court does not find this argument credible. Until Father
        initiated the custody action in 2014, Mother never
        prohibited contact between Father and [Child]. Even when
        Father’s sentencing order prohibited contact between
        Father and the Child, Mother still allowed them to
        communicate and even put [Child] on Father’s prison visit
        list.

            Pennsylvania law is clear that a parent must take
        affirmative steps to maintain a relationship with his or her
        child to the best of his or her ability under the
        circumstances as they exist. . . . Father clearly failed to
        exert himself to establish and maintain a place of
        importance in his child’s life.

           Mother has lived at the same address for 21 years.
        [Child] has lived . . . at that address her entire life.
        Mother did not withhold any mail from Father addressed to
        [Child]. Father testified he did not send any cards, letters,
        or presents to [Child]. Father knew Mother’s family, who
        resided in the same home with the same address for over
        40 years. Moreover, prior to 2013, [Father’s sister-in-law]
        testified that she saw [Child] every other weekend and
        that PGM cared for [Child] in her own home during those
        times. Father did not attempt to contact [Child] through
        Mother’s family or his family.        Father presented no


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         evidence that he inquired into Child’s well-being from any
         of those individuals.

             Assuming Father’s argument, that Mother imposed
         barriers to his contact with [Child], was in fact true, Father
         clearly knew how to use legal avenues to contact [Child],
         evidenced by his custody petition filed in September 2014,
         and by his numerous petitions for resentencing hearings.
         Father waited almost a year and half [sic] after having no
         contact with [Child] before taking any legal action to assert
         his parental rights. Even after initiating action through the
         family court, Father did not arrange to participate in the
         proceedings while incarcerated. After holding two hearings
         in the matter, the Court awarded Mother custody based on
         Father’s sentencing restrictions.         Yet, once those
         restrictions were removed, Father did not initiate any
         actions in the custody matter to reflect the lifting of the
         restriction.

Trial Ct. Op., 8/24/16 at 7-8 (citations omitted).

      We conclude that the trial court did not abuse its discretion. While it is

true that some obstacles may render impossible any efforts at maintaining a

parent-child relationship, Pennsylvania law is clear that the parent “must act

affirmatively to maintain his relationship with his child, even in difficult

circumstances.” B., N.M., 856 A.2d at 856. Here, the trial court found that,

even when Father’s sentencing order prevented him from contacting the

victim or the victim’s family, Father still had the resources to communicate

with Child and Mother did not object to that communication.         Even when

Mother changed her phone number, Father could have reached out to his

family to communicate with Child or written a letter to Child.      As the trial

court found, the key issue here is that Father did not attempt to maintain

contact with Child using the resources available to him.          Under these



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circumstances, the trial court acted well within its discretion to terminate

Father’s parental rights.

       Father’s argument that he is entitled to relief because Mother created

barriers to communicating with Child is without merit. As noted above, the

issue is not whether Mother created such barriers, but instead whether

Father used the resources available to him to communicate with Child in

light of those barriers.      The obstacles of which Father complains did not

hinder Father’s efforts at communication such that the trial court was

required to deny the termination petition.3 Cf. In re D.J.Y., 408 A.2d 1387

(Pa. 1979) (affirming denial of termination petition where Father’s family

continually impeded Mother’s efforts to visit and communicate with her son);

____________________________________________


       3
        In his brief, Father relies on In re Adoption of J.S.M., 424 A.2d
878, (Pa. 1981), for the proposition that “[w]here the absence of
communication [between parent and child] results from the deliberate
conduct of the opposing parent, it may not be used as a basis for
termination of parental rights, even when the lack of contact may have
extended significantly beyond the statutory period.” Father’s Br. at 7
(quoting J.S.M., 424 A.2d at 879-80). While that is a correct statement of
the law, J.S.M.’s holding actually supports the termination of Father’s
parental rights in this case. In J.S.M., the appellant failed to contact “his
child for a period of approximately six years prior to the hearing.” Id. at
880. The appellant argued “that his ex-wife placed numerous obstacles in
his path,” but the record showed that some of these obstacles were initiated
by the appellant’s conduct and the appellant could have overcome
communication obstacles by reasonable diligence.        Id.   Therefore, our
Supreme Court held that the trial court had not abused its discretion in
terminating the appellant’s parental rights. Here, like the appellant in
J.S.M., Father failed to contact Child for at least three years prior to the
hearing and could have overcome communication obstacles through
reasonable diligence.



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Adoption of S.H., 383 A.2d 529 (Pa. 1978) (reversing grant of termination

petition where Father’s “course of conduct . . . consistently aimed at

maintaining his relationship with his son” despite Mother’s refusal to accept

Father’s calls and Father receipt of threatening letter from Mother’s fiancée

stating that Mother would not bring child to visit Father in prison). Here, the

record shows that Father had multiple resources through which to contact

Child aside from direct phone calls with Mother and, even when Father’s

sentencing order prevented him from communicating with Child, Mother did

not take affirmative steps to prevent such contact.            Much of Father’s

argument centers on the trial court’s credibility determinations, which we

will not disturb on appeal.       We agree with the trial court’s conclusion that

“despite having resource[s] to maintain contact with [Child], Father exerted

no effort whatsoever to remain a part of his child’s life.”        Trial Ct. Op.,

8/24/16, at 8.4

       Decree affirmed.




____________________________________________


       4
         Because we conclude that the trial court properly determined that
Father failed to maintain his relationship with Child, we need not address
Father’s second issue asserting that if the trial court erred, such error was
fatal to the trial court’s decree.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/2/2017




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