J-A13029-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: T.C. AND C.C.               IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA

APPEAL OF: D.C., JR.                            No. 2023 WDA 2015


                Appeal from the Decree December 2, 2015,
            in the Court of Common Pleas of Allegheny County,
                     Orphans’ Court, at No: A-14-132

BEFORE: OLSON, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                          FILED AUGUST 17, 2016

      Appellant, D.C., Jr. (“Father”), appeals from the decree entered

December 2, 2015, in the Court of Common Pleas of Allegheny County,

which involuntarily terminated his parental rights to his minor sons, T.C.,

born in September of 2001, and C.C., born in October of 2002 (collectively,

“the Children”). After careful review, we affirm.

      This appeal arises from the petition for involuntarily termination of

parental rights filed by the Children’s mother, J.B. (“Mother”), on November

21, 2014.1 The record reveals that Mother and Father began dating in June

of 2000, and separated in approximately 2003. N.T., 7/8/15 and 7/9/15, at

116-17, 129-30. Following separation, Father played only a minimal role in

the Children’s lives.   Father visited with the Children on occasion, and

sometimes spoke to the Children on the phone.          Id. at 13-48, 85-86.

Meanwhile, Mother married her current husband, E.B. (“Stepfather”), on


1
 Amended termination petitions were filed on March 3, 2015, and March 13,
2015.
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September 4, 2005. Id. at 7. Stepfather has assisted Mother in caring for

the Children since that time, and the Children describe Stepfather as their

“Dad.” Id. at 44, 59.

     Father’s final visit with the Children took place in February of 2010.

Id. at 47-48. Father was incarcerated about a year later, in March of 2011,

and remained incarcerated until May of 2015.      N.T., 8/4/2015, at 4, 53.

Starting in about August of 2011, Father sent letters and cards to the

Children from prison.    N.T., 7/8/15 and 7/9/15, at 49.         Father also

attempted to talk to the Children on the phone. N.T., 8/20/15 and 8/21/15,

at 126, 146-47. However, the Children refused to speak to Father on the

phone and declined to read his letters.   Id. at 126, 133-34, 146-47.     In

approximately September of 2014, Father sent Mother and Stepfather a

document indicating that he intended to seek custody rights with respect to

the Children upon his release from incarceration, which prompted the filing

of the subject termination petitions. N.T., 7/8/15 and 7/9/15, at 64, 66-67.

     A termination hearing was held over the course of several days,

starting on July 8, 2015, and concluding on August 21, 2015. Following the

hearing, on December 2, 2015, the orphans’ court entered its decree

involuntarily terminating Father’s parental rights to the Children.   Father

timely filed a notice of appeal on December 23, 2015, along with a concise

statement of errors complained of on appeal.

     Father now raises the following issues for our review.


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     I. Did the [orphans’] court abuse its discretion and commit an
     error of law when it held that the statutory grounds for
     involuntary termination of Father’s parental rights to [the]
     Children under 23 Pa.C.S.A. § 2511(a)(1) were met, thereby
     determining Father, by conduct continuing for a period of at least
     six (6) months immediately preceding the filing of the petition
     either had evidenced a settled purpose of relinquishing parental
     claim to a child or had refused or failed to perform parental
     duties?

     II. Did the [orphans’] court abuse its discretion and commit an
     error of law when it determined that the statutory grounds for
     involuntary termination of Father’s parental rights under 23
     Pa.C.S.A. § 2511(a)(2) were met and that the repeated and
     continued incapacity, abuse, neglect or refusal of Father has
     caused [the] Children to be without essential parental care,
     control or subsistence necessary for their physical or mental
     well-being and the conditions [sic] and that Father could [not] or
     would not remedy the causes of the incapacity, abuse, neglect or
     refusal?

     III. Did the [orphans’] court abuse its discretion when it
     determined that terminating Father’s parental rights best served
     the development[al], physical and emotional needs and welfare
     of [the] Children?

Mother’s Brief at 3-4 (suggested answers omitted).

     We consider Father’s claims 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


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      have first-hand observations of the parties spanning multiple
      hearings.

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

omitted).

      Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated

analysis.

      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. One major aspect of the
      needs and welfare analysis concerns the nature and status of the
      emotional bond between parent and child, with close attention
      paid to the effect on the child of permanently severing any such
      bond.

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

      In this case, the orphans’ court terminated Father’s parental rights

pursuant to Sections 2511(a)(1), (2), and (b). We 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 B.L.W., 843 A.2d 380, 384 (Pa.

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

we analyze the court’s decision to terminate under Sections 2511(a)(1) and

(b), which provide as follows.



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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).

      We first address whether the orphans’ court abused its discretion by

terminating Father’s parental rights pursuant to Section 2511(a)(1).           To

meet the requirements of this section, “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 Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citing In re

Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super. 2006)). The court must

then consider “the parent’s explanation for his or her conduct” and “the

post-abandonment contact between parent and child” before moving on to

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analyze Section 2511(b). Id. (quoting In re Adoption of Charles E.D.M.,

708 A.2d 88, 92 (Pa. 1998)).

      This Court has explained that a parent does not perform his or her

parental duties by displaying a “merely passive interest in the development

of the child.” In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004), appeal

denied, 872 A.2d 1200 (Pa. 2005) (quoting In re C.M.S., 832 A.2d 457, 462

(Pa. Super. 2003), appeal denied, 859 A.2d 767 (Pa. 2004)).                Rather,

“[p]arental 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.”   Id.   (citation omitted).    Critically, incarceration does not

relieve a parent of the obligation to perform parental duties.                    An

incarcerated   parent   must   “utilize   available   resources   to   continue    a

relationship” with his or her child. In re Adoption of S.P., 47 A.3d 817,

828 (Pa. 2012) (discussing In re Adoption of McCray, 331 A.2d 652 (Pa.

1975)).

      In the instant matter, the orphans’ court found that Father failed to

perform parental duties for a period of time well in excess of the six months

immediately preceding the filing of the termination petition.           The court

reasoned that Father had only “minimal and sporadic contact” with the

Children from 2005 until his final visit in February of 2010. Findings of Fact,

12/2/15, at ¶ 5. While the court acknowledged that Father sent letters to


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the Children and attempted occasional phone calls following his incarceration

in 2011, the court observed that Father sent only six letters to each child

during all of 2014. Id. at ¶ 12-13.

      Father argues that the trial court “overlooked” credible testimony that

he was involved in the Children’s lives up until February of 2011, rather than

2010, and that Mother created insurmountable obstacles which inhibited his

ability to maintain a relationship with the Children following his incarceration

in March of 2011. Father’s Brief at 18. Father insists that he did “as much

as he possibly could have done” during his incarceration in order to maintain

a place of importance in the Children’s lives. Id. at 16. Father asserts that

he sent cards and letters to the Children during his incarceration, that he

spoke to the Children on the phone, and that he arranged for birthday and

Christmas gifts to be sent to the Children on his behalf. Id. at 17. Finally,

Father emphasizes that he prepared and served Mother with a custody

complaint in September of 2014. Id.

      After a thorough review of the record in this matter, we conclude that

the orphans’ court did not abuse its discretion.       During the termination

hearing, Stepfather provided extensive testimony concerning Father’s lack of

involvement in the Children’s lives.    Despite occasional visits, Stepfather

explained that Father’s contact with the Children “was minimal throughout

my whole relationship with the boys.”       N.T., 7/8/15 and 7/9/15, at 35.

While Father also called the Children on the phone, these phone calls were


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always “very short,” and “[a]s the years progressed, they lost interest, and

it got to the point of where they did not want to talk, where if they were

asked, you know, do you want to talk, they would say no.” Id. at 85-86.

Stepfather testified that Father’s last visit with the Children took place

following a snowstorm in February of 2010. Id. at 47, 72, 74. Stepfather

recalled that there was “a humongous amount of snow” in his yard, and that

Father and the Children constructed an igloo together. Id. at 48.

      Stepfather further testified that Father was incarcerated in 2011, and

that he began sending letters to the Children from jail in approximately

August of 2011. Id. at 49. Stepfather stated that Father sent letters to the

Children, on average, about once per month following his incarceration. Id.

Stepfather later clarified that, “[t]here were a couple time frames in there

where maybe one or two months, maybe three months, where no letter was

received.” Id. Stepfather recounted that the Children read the first letter

that Father sent following his incarceration, but that afterward they refused

to read Father’s letters. Id. at 50-51. The Children were always asked if

they would like to read the letters sent by Father, but the Children declined

to do so each time, so Stepfather and Mother “put the letters away” so that

the Children could read them later if they wanted to.       Id. at 51.    The

Children never wrote letters back to Father nor did they ask to write letters

back. Id. at 59. Stepfather testified that Father wrote to the Children on

only six occasions during all of 2014. Id. at 49-50. Specifically, Father sent


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letters or cards to the Children in January, March, July, September, October,

and December.     Id. at 49-50.    Stepfather explained that he and Mother

decided to a file a petition to terminate Father’s parental rights after they

received correspondence from Father in September of 2014, indicating that

he would soon be released from incarceration, and that he would be seeking

custody of the Children.2, 3 Id. at 64, 66-67.

      Accordingly, the record supports the finding of the orphans’ court that

Father failed to perform parental duties for the six months immediately

preceding the filing of Mother’s initial termination petition on November 21,

2014. During the relevant six month period, Father wrote to the Children on

only three occasions, once in July, once in September, and once in October.

It does not appear that Father did anything else in an effort to parent the


2
   Father’s correspondence was admitted into evidence as Respondent’s
Exhibit A. N.T., 7/8/15 and 7/9/15, at 69. However, the certified record on
appeal does not contain a copy of this exhibit.             Father’s counsel
characterized the correspondence as “a Complaint in Custody,” and counsel
for Mother and Stepfather objected, stating “[i]t wasn’t a Complaint in
Custody. It wasn’t properly filed, it wasn’t properly served. It was nothing
except a piece of paper.” Id. at 66-67. Counsel for Mother and Stepfather
later described the correspondence as “an unfiled custody complaint” and
asserted that Father did not successfully file a custody complaint until
January of 2015. Id. at 69, 164.
3
  Mother testified that she received a collect call from Father on one occasion
during his incarceration, and that she did not take the call because “I didn’t
want to talk to him and the [C]hildren didn’t want to talk to him.” N.T.,
7/8/15 and 7/9/15, at 157, 174. Similarly, during in camera interviews with
the orphans’ court, the Children stated that their paternal grandmother
would often ask them if they would like to speak to Father on the phone, but
that they did not want to. N.T., 8/20/15 and 8/21/15, at 126, 146-47.


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Children during this time, other than notifying Mother and Stepfather that he

intended to seek custody, and possibly attempting to speak to the Children

on the phone.

     Further, it is well-settled 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.” Id. (citing In re

D.J.S., 737 A.2d 283, 286 (Pa. Super. 1999)).       Here, our review of the

whole history of this case reveals that Father played a minimal role in the

Children’s lives even prior to his incarceration. While Father claimed during

the termination hearing that he was much more involved in the Children’s

lives than the testimony of Mother and Stepfather would suggest, the court

was free to reject Father’s assertions, and to conclude that he did not “act

affirmatively with good faith interest and effort” in order to maintain a

relationship with the Children. B.,N.M., 856 A.2d at 855. At the time of the

termination hearing, T.C. was thirteen years old, while C.C. was twelve

years old. Given Father’s failure to parent the Children for over a decade,

we conclude that it was proper for the orphans’ court to terminate Father’s

parental rights pursuant to Section 2511(a)(1).

     We next consider whether the orphans’ court abused its discretion by

terminating Father’s parental rights pursuant to Section 2511(b). We have

discussed our analysis under Section 2511(b) as follows.


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      Section 2511(b) focuses on whether termination of parental
      rights would best serve the developmental, physical, and
      emotional needs and welfare of the child. As this Court has
      explained, Section 2511(b) does not explicitly require a bonding
      analysis and the term ‘bond’ is not defined in the Adoption Act.
      Case law, however, provides that analysis of the emotional bond,
      if any, between parent and child is a factor to be considered as
      part of our analysis. While a parent’s emotional bond with his or
      her child is a major aspect of the subsection 2511(b) best-
      interest analysis, it is nonetheless only one of many factors to be
      considered by the court when determining what is in the best
      interest of the child.

            [I]n addition to a bond examination, the trial court
            can equally emphasize the safety needs of the child,
            and should also consider the intangibles, such as the
            love, comfort, security, and stability the child might
            have with the foster parent. Additionally, this Court
            stated that the trial court should consider the
            importance of continuity of relationships and whether
            any existing parent-child bond can be severed
            without detrimental effects on the child.

In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting

In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)) (quotation marks and

citations omitted).

      Here, the orphans’ court found that terminating Father’s parental

rights would best serve the needs and welfare of the Children.       The court

emphasized that the Children do not have a parent/child bond with Father,

and that the Children instead consider Stepfather to be their “Dad.”

Conclusions of Law, 12/2/15, at ¶ 6. Father argues that it was improper for

the orphans’ court to conclude that he does not have a bond with the

Children, because the court reached this conclusion without a bonding

evaluation performed by an expert. Father’s Brief at 20.

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      Stepfather testified that the Children would ask about Father “in the

beginning of [Mother] and my and the boys’ relationship[.]” N.T., 7/8/2015

and 7/9/2015, at 58. However, “as the years progressed, it dwindled to the

point of where they didn’t even want to bring him up.”         Id.   Stepfather

explained that he has “fantastic relationship” with the Children, and stated,

“they’re my sons. I mean, I’ve raised them since they were two and three

. . . .” Id. at 59. Similarly, Mother testified that the Children never bring up

Father in conversation. Id. at 151. Mother observed that Stepfather treats

the Children “as his sons and the kids view him as their father. . . . [T]hey

have a bond with [Stepfather] that they’ve never had with their father.” Id.

Notably, during their in camera interviews with the orphans’ court, the

Children did not refer to Father as their father, but instead described

Stepfather as their “Dad.”    N.T., 8/20/2015 and 8/21/2015, at 123, 127,

142, 153-54.

      Thus, the record supports the conclusion of the orphans’ court that

terminating Father’s parental rights would best serve the needs and welfare

of the Children. At the time of the termination hearing, the Children had not

seen Father in over five years.     Further, the record supports the court’s

finding that Father was only minimally involved in the Children’s lives even

prior to his incarceration in March of 2011. Given Father’s complete absence

from the Children’s lives over the last five years, and given his minimal

involvement during the previous years, it was reasonable for the court to


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infer that Father and the Children do not share a parent/child bond. As this

Court has explained, “[i]n cases where there is no evidence of any bond

between the parent and child, it is reasonable to infer that no bond exists.”

In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super. 2008). In addition, while

Father argues that the court should have ordered a bonding evaluation, it is

well-settled that a court in a termination proceeding “is not required by

statute or precedent to order a formal bonding evaluation be performed by

an expert.” In re K.K.R.-S., 958 A.2d 529, 534 (Pa. Super. 2008) (citation

omitted).

     Accordingly, because we conclude that the orphans’ court did not

abuse its discretion by involuntarily terminating Father’s parental rights to

the Children, we affirm the decree of the orphans’ court.

     Decree affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/17/2016




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