J-S49001-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: J.L., A MINOR               IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
APPEAL OF: A.V., FATHER
                                                      No. 702 MDA 2015


                Appeal from the Decree Entered March 20, 2015
                In the Court of Common Pleas of Luzerne County
                        Orphans' Court at No(s): A-8203


BEFORE: BENDER, P.J.E., ALLEN, J., and OLSON, J.

MEMORANDUM BY BENDER, P.J.E.:                  FILED SEPTEMBER 04, 2015

      A.V. (“Father”) appeals from the decree entered on March 20, 2015,

that granted the petition filed by the Luzerne County Children and Youth

Services Agency (“CYS”) to involuntarily terminate his parental rights to his

minor, male child, J.L. (“Child”) (born in December of 2008) pursuant to

section 2511(a)(1) and (b) of the Adoption Act, 23 Pa.C.S. §§ 2101-2938.

We affirm.

      In its opinion, the orphans’ court set forth the following factual history

of this case:

      It is unrebutted that … [C]hild’s most recent placement
      commenced when he was removed from the care of [A.L.
      (“Mother”)] on June 20, 2012.           The paramount reason for
      placement was Mother[’s] placing [Child] in an unsafe situation.
      [Child] had been deemed dependent prior to June 20, 2012 and
      remained dependent at the time of his repeat placement. It was
      Mother’s lack of parenting and lack of supervision of [Child] and
      his siblings that led to an initial finding of dependency. [Child]
      had been returned to Mother’s custody prior to the June 20,
      2012 placement. Father has been incarcerated effective one and
      one-half months subsequent to [Child’s] birth until the present.
      In June of 2012, [Child] was placed in a foster home. He
      remained in the initial placement for one month and then moved
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        to a pre-adoptive placement where he remained until April of
        2014. The foster father passed away and the foster mother was
        not able to raise [Child] alone. In April of 2014, [Child] moved
        to his current home and has been residing with his current foster
        parents until the present. The record supports the finding that
        from the date of [Child’s] birth until the present, Father has not
        had any contact with the minor child.

Orphans’ Court Opinion (O.C.O.), 5/14/15, at 2 (citations to the record

omitted).

        On April 17, 2014, CYS filed petitions for the involuntary termination of

parental rights of Mother and Father.          A hearing was held regarding

termination of Mother’s parental rights, which concluded on February 12,

2015.     A subsequent hearing was held on March 5, 2015 concerning

termination of Father’s parental rights. At the hearing, CYS presented the

testimony of Jo-Ann Costanzo, a Child Protective Services (“CPS”) intake

supervisor at CYS, and Father testified on his own behalf.         On March 6,

2015, the orphans’ court issued decrees (entered on the orphans’ court’s

docket on March 20, 2015) terminating Father’s parental rights pursuant to

23 Pa.C.S. § 2511(a)(1) and (b), and terminating Mother’s parental rights

pursuant to 23 Pa.C.S. § 2511(a)(2), (5), (8) and (b). Mother did not file an

appeal.

        However, on April 15, 2015, Father filed a timely notice of appeal,

along with a concise statement of errors complained of on appeal pursuant

to Pa.R.A.P. 1925(a)(2) and (b). In his brief, Father raises the following sole

issue on appeal: “Whether the trial court erred in finding that children and

youth services proved the elements of termination with respect to 23 Pa.


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C.S.A. Section 2511(a)(1) and 23 Pa. C.S.A. Section 2511(b), through clear

and convincing evidence.” Father’s Brief at 3.

     We review an appeal from the termination of parental rights 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., 613 Pa. 371[, 455], 34 A.3d 1, 51 (Pa. 2011);
     Christianson v. Ely, 575 Pa. 647, [654-655,] 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 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).


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In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).

      In termination cases, 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. In re S.H., 879 A.2d 802, 806 (Pa.

Super. 2005). We have previously stated:

      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.

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

marks omitted).

      Termination of parental rights is governed by section 2511 of the

Adoption Act, which requires a bifurcated analysis.

      Our case law has made clear that under Section 2511, the court
      must engage in a bifurcated process prior to terminating
      parental rights. 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 interest 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) (citing 23 Pa.C.S. § 2511;

other citations omitted). This Court must agree with only one subsection of

2511(a), in addition to section 2511(b), in order to affirm the termination of


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parental rights. See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004)

(en banc).

      In this case, the orphans’ court concluded that CYS provided clear and

convincing evidence that Father’s parental rights should be terminated

pursuant to sections 2511(a)(1) and (b).         Those provisions provide as

follows:

      (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. § 2511(a)(1), (b).

      As we addressed the application of section 2511(a)(1) in In re C.M.S.,

832 A.2d 457, 461 (Pa. Super. 2003), we noted:

      To satisfy 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,

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     which reveals a settled intent to relinquish parental claim to a
     child or a refusal or failure to perform parental duties.

Id. (quoting Matter of Adoption of Charles E.D.M., II, 708 A.2d 88, 91

(Pa. 1998)). In C.M.S., we further acknowledged the following statement by

our Supreme Court:

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

C.M.S., 832 A.2d at 462 (quoting In re Burns, 379 A.2d 535, 540 (Pa.

1977)).

     Here, in support of its finding that Father failed to perform his parental

duties, which established grounds for termination under 23 Pa.C.S. §

2511(a)(1), the orphans’ court stated the following:

     The credible and uncontradicted testimony of Jo-Ann Costanzo,
     CPS intake supervisor at [CYS], is [that] Father has not had any
     contact with [Child] since the date of placement, on June 20,
     2012, and even since [Child’s] birth [in December of 2008], until
     the filing of the [p]etition for [t]ermination of [p]arental rights
     on April 17, 2014. Ms. Costanzo testified that Father was
     indicated as the natural Father on the birth certificate. She
     further testified that prior to repeat placement of [Child] on June
     20, 2012, the Agency kept Father apprised of [Child’s]

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     placement based upon the aforementioned prior finding of
     dependency. Father forwarded a letter to [CYS] dated October
     11, 2011 stating that he never signed an acknowledgement of
     paternity[,] … nor did he take a paternity test proving that he
     was the [f]ather. Father further stated in his October 2011
     letter that he needed to stay focused on rehabilitating himself
     and that he wanted to take a paternity test. He also stated that
     once a paternity test establishes that he is the natural father of
     [Child], he would then acknowledge [Child] as his son and would
     be more willing to have a personal relationship with [him] once
     he is released from prison. Father stated that his release date
     would be in 2019 or in 2017 at the earliest.

     Father wrote another letter prior to placement of [Child] dated
     March 21, 2012. In that letter, Father stated again that he had
     not taken a paternity test to establish that he is the [f]ather of
     [Child]. Father further requested that the agency refrain from
     advising him in writing of the court dates since he cannot attend
     them. He stated that he was 500 miles away and would not be
     released until 2019. In response, the agency attempted to
     contact Father’s counselor in [an] attempt to have Father
     undergo the paternity test. However, Ms. Costanzo stated that
     she was unaware whether any testing was done and that she did
     not receive the results of any testing performed upon [Father].
     Despite [his] request for [CYS] to stop advising him of the court
     dates and updates, [CYS] continued to update Father with notice
     of all proceedings, including the shelter care that took place in
     June of 2012.

            Between the date of placement of June 20, 2012 until the
     filing of the [p]etition for [t]ermination of [p]arental [r]ights on
     April 17, 2014, Father only wrote one letter to [CYS] stating
     again that he did not take a paternity test establishing he is
     [Child’s] [f]ather. He further stated in his letter that he did not
     have an opportunity to address the court in court proceedings
     even though Father was advised by [CYS] of every court
     proceeding. He stated that he wanted the [c]ourt to give him
     and [Child] a chance to be a family once he would be released
     from incarceration in 2019. However, he renewed his request to
     take a paternity test to establish whether he is the [f]ather of
     [Child].

O.C.O. at 5-7.




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      Father asserts that he was incarcerated throughout the entire time

Child was in placement and contends that the orphans’ court failed to

consider the efforts he made while incarcerated. Father’s Brief at 5.

However, we have previously asserted:

      A parent is required to exert a sincere and genuine effort to
      maintain a parent-child relationship; the parent must use 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.

C.M.S., 832 A.2d at 462. Moreover, in In re McCray’s Adoption, 331 A.2d

652 (Pa. 1975), our Supreme Court considered the effect of a parent’s

incarceration on abandonment and held:

      [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.

Id. at 655.

      In the present case, it is clear that Father failed to use the resources

available to him while incarcerated, as the record indicates that he failed to

do any of the following: (a) make any telephone calls to CYS; (b) have his

corrections facility counselor telephone CYS; (c) write letters other than the

April 2, 2014 letter; (d) contact CYS to inquire as to the well-being of Child;

(e) financially support Child; (f) send cards or letters directly to Child; (g)



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request visitation with Child in any manner; (h) request telephone calls with

Child; and/or (i) provide gifts to Child on Child’s birthday or holidays.

O.C.O. at 7.

      Finally, the orphans’ court noted that despite Father’s awareness of

the court proceedings and his right to have counsel provided, Father did not

request counsel, nor did he request to participate in any of the hearings. Id.

at 7. Father testified that he declined to request counsel because he wanted

to first take a paternity test. Id. at 8. Moreover:

      Ms. Costanzo testified that Father was initially sent a letter upon
      placement of [Child] on June 20, 2012 which explained that
      Father had a right to have visits with [Child]. Ms. Costanzo
      testified that the service plan which was provided to Father also
      explained how Father could have visits with [Child] and how
      parents     should   be    maintaining   contact    with    [Child].
      Nevertheless, despite the information provided to [him], Father
      never requested to have visits with [Child].           Instead, he
      requested that [CYS] stop mailing him legal documents
      regarding this matter so that he could focus on himself in prison.

            The [c]ourt, therefore finds that based upon the testimony
      of Ms. Constanzo and the evidence presented before the [c]ourt,
      Father has refused or failed to perform his parental duties since
      the date of placement on June 20, 2012.

Id.

      The record clearly reflects that Father made no attempts to form a

relationship with Child. Accordingly, we conclude that the orphans’ court’s

determinations regarding section 2511(a)(1) are supported by sufficient,

competent evidence in the record.

      After we determine that the requirements of section 2511(a) are

satisfied, we proceed to review whether the requirements of subsection (b)

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are satisfied.   See In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa.

Super. 2008) (en banc). This Court has stated that the focus in terminating

parental rights under section 2511(a) is on the parent, but it is on the child

pursuant to section 2511(b). Id. at 1008.

      In reviewing the evidence in support of termination under section

2511(b), our Supreme Court recently stated as follows:

      [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 “intangibles 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.
      1992)], 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 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).

      As part of its bonding analysis, the orphans’ court appropriately

examined Child’s relationship with the foster parents. See T.S.M., 71 A.3d

at 267-68 (stating that existence of a bond attachment of a child to a parent

will not necessarily result in the denial of a termination petition, and the

court must consider whether the child has a bond with the foster parents).

The orphans’ court noted the following:

            Ms. Costanzo testified that [Child] has been with the foster
      parents since April of 2014. According to Ms. Costanzo, [Child]
      has assimilated into the household in which he is placed. The
      foster parents also have custody of [Child’s] two siblings and

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      there are a few animals in the home. [Child] is very attached to
      his siblings as he has lived with his siblings throughout his life.
      [Child] is also included in all activities with the family. They
      celebrate birthdays and other family functions together.

            According to Ms. Costanzo, the foster parents meet all of
      [Child’s] physical needs. They provide the child with food,
      clothing, and shelter. They also meet [Child’s] developmental
      needs. The foster parents are involved in [Child’s] school and
      also [e]nsure that he is meeting all of his “milestones.” They
      also [e]nsure that [Child’s] medical needs are met. [Child] is up
      to date with all of his immunizations. The foster parents also
      meet [Child’s] emotional needs. Ms. Costanzo testified that the
      foster parents provide [Child] with love, support and stability.
      Based on Ms. Costanzo’s personal observations, [Child] is very
      comfortable around the foster parents. He sits on their laps and
      is very loving around them.

            In addition, Ms. Jones, the caseworker, visited the foster
      parents’ home once per month and based on her records and Ms.
      Costanzo’s observations, [Child] has a close bond with the foster
      parents. [Child] is very happy and loving in the home. The
      bond is also reciprocated by the foster parents. They express
      their love for him and plan many activities with him. Ms.
      Costanzo testified that there is not a bond existing between the
      Father and [Child]. [Child] has never met his Father. Ms.
      Costanzo testified that there would not be any detrimental effect
      on [Child] if Father’s parental rights were terminated. In the
      event [Child] is adopted by the foster parents, Ms. Costanzo
      believes the adoption would have a positive effect upon [him].

O.C.O. at 11-12.

      As there is competent evidence in the record that supports the

orphans’ court’s credibility and weight assessments regarding Child’s needs

and welfare, and the absence of any bond with Father, we conclude that the

court did not abuse its discretion as to section 2511(b). See S.P., 47 A.3d

at 826-27. Accordingly, we affirm the orphans’ court’s decree terminating

Father’s parental rights to Child.



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     Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/4/2015




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