J-S31013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: L.A.C.H.                        :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
APPEAL OF: C.H. & A.H.                 :
                                       :
                                       :
                                       :
                                       :
                                       :   No. 1911 WDA 2016

              Appeal from the Order Entered November 17, 2016
               In the Court of Common Pleas of Clarion County
                 Orphans’ Court at No(s): No. 227 OC 2016


BEFORE:   PANELLA, DUBOW, and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.                             FILED JUNE 2, 2017

     C.H. (“Father”) and A.H. (“Stepmother”) appeal the order entered on

November 17, 2016, that denied their petition seeking to involuntarily

terminate the parental rights of K.D.H. (“Mother”), pursuant to the Adoption

Act, 23 Pa.C.S.A. § 2511(a)(1) and (b), to L.A.C.H. (“Child”), the female

child of Father and Mother, born in August 2008. We affirm.

     In its opinion, the orphans’ court set forth the factual background and

procedural history of this appeal, which we adopt herein. See Orphans’

Court Opinion, 1/24/17, at 1-14 (unpaginated). On September 28, 2016,

Father and Stepmother filed the petition seeking to involuntarily terminate
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the parental rights of Mother to Child pursuant to section 2511(a)(1),1 and a

report of intention for Stepmother to adopt Child. The orphans’ court held an

evidentiary hearing on November 16, 2016. At the hearing, Father and

Stepmother presented the testimony of Cami Hrisak, Child’s therapist, as an

expert as a licensed clinical social worker and in the field of counseling.

Stepmother and Father testified on their own behalf. They also presented

the testimony of S.J., who is Child’s teacher at school. Finally, Father and

Stepmother presented the testimony of D.S., the headmaster at Child’s

school.

       Mother testified on her own behalf. She also presented the testimony

of Jory Hubler, who is employed at Misty Isle Bridges; and S.M. and K.W.,

who are Mother’s friends.

       Based on this testimony and the documentary evidence admitted at

the hearing, the court entered its order denying the termination and

adoption petitions. Father and Stepmother timely filed a notice of appeal and

concise statement pursuant to Pa.R.A.P. 1925(a)(2)(i).

       On appeal, Father and Stepmother raise three issues:

       1. Did the Orphans Court abuse its discretion and err as a
          matter of law in failing to consider the statute in 23 Pa.C.S.A.
          § 2511 (a)(1) which states that “[t]he parent by conduct
____________________________________________


1
  The petition provided that Father and Stepmother were married in June
2014, and that Father had primary physical custody of Child since a March 6,
2015 stipulation and custody consent order, which provided Mother an
opportunity for supervised visits with child through Misty Isle Bridges.



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          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
          failed to perform parental duties.” [emphasis added]
                                       ...

       2. Did the Orphans Court abuse its discretion and err as a matter
       of law in failing to consider the statute in 23 Pa.C.S.A. § 2511
       (a)(2) which states that “[t]he 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.”
       [emphasis added]
                                        …
       3. Did the Orphans Court abuse its discretion and err as a matter
       of law in failing to consider under “Other considerations” (23
       Pa.C.S.A. § 2511(c)[)] that Mother had been designated a sexual
       abuse perpetrator by the Pennsylvania Department of Welfare
       Children and Youth Services under the Child Line Abuse Registry
       for acts perpetrated on the child in question.
                                           …

Father’s and Stepmother’s Brief, at 5-6 (emphasis and brackets in original). 2

       In reviewing an appeal from an order terminating parental rights, we

adhere to 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. If the factual findings are
       supported, appellate courts review to determine if the trial court
       made an error of law or abused its discretion. As has been often
       stated, an abuse of discretion does not result merely because
____________________________________________


2
  We note that the concise statement did not include the statutory section in
the third issue. We, nevertheless, find the issue preserved for our review.



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     the reviewing court might have reached a different conclusion.
     Instead, a decision may be reversed for an abuse of discretion
     only upon demonstration of manifest unreasonableness,
     partiality, prejudice, bias, or ill-will.

           [T]here 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. 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 S.P., 47 A.3d 817, 826-827 (Pa. 2012) (internal citations

omitted).

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

     Moreover, we have explained that

     [t]he 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.”

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

     In their brief, Father and Stepmother contend that the orphans’ court

abused its discretion or erred as a matter of law in concluding that the

evidence was insufficient to support the involuntary termination of Mother’s


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parental rights under § 2511(a)(1). Alternatively, they argue the court

abused its discretion or erred as a matter of law in concluding that the

evidence was insufficient to support the involuntary termination of Mother’s

parental rights under § 2511(a)(2).3 Finally, they urge that the court abused

its discretion in failing to consider, under “Other considerations,”4 that

Mother had been designated a sexual abuse perpetrator by the Pennsylvania

Department of Welfare Children and Youth Services under the Child Line

Abuse Registry for acts perpetrated on Child.

       This Court may affirm the lower court’s decision regarding the

termination of parental rights with regard to any one subsection of section
____________________________________________


3
  The orphans’ court never reviewed § 2511(a)(2), finding that section was
not raised in the petition. We agree with the court that Father and
Stepmother waived § 2511(a)(2) by failing to raise that section in the lower
court. See Pa.R.A.P. 302(a). The fact that Father and Stepmother raised the
claim in their concise statement does not alter our conclusion. See
Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003) (stating
“[a] party cannot rectify the failure to preserve an issue [for appeal] by
proffering it in response” to the court’s request for a Rule 1925(b)
statement).
4
   Father and Stepmother cite § 2511(c) as providing for “Other
considerations.” This citation appears to be a typographical error, as the
section captioned “Other considerations” is § 2511(b), infra. Section
2511(c), is captioned, “(c) Right to file personal and medical history
information.” Section 2511(c) provides, “At the time the decree of
termination is transmitted to the parent whose rights have been terminated,
the court shall advise the parent, in writing, of his or her continuing right to
place and update personal and medical history information whether or not
the medical condition is in existence or discoverable at the time of adoption,
on file with the court and with the Department of Public Welfare pursuant to
Subchapter B of Chapter 29 (relating to records and access to information).”
(footnote omitted).



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2511(a), along with section 2511(b). See In re B.L.W., 843 A.2d 380, 384

(Pa. Super. 2004) (en banc). Section 2511(a)(1), (2), and (b), provide as

follows:

      § 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.


                                     ***

      (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.

      With respect to § 2511(a)(1), our Supreme Court has held that


      [o]nce 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).


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In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1988).

      Further, this Court has stated that

      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, 854-855 (Pa. Super. 2004) (citations

omitted).

      Father and Stepmother argue that the record clearly established that

Mother’s conduct over the six months immediately preceding the filing of the

petition demonstrated that Mother had a settled purpose of relinquishing her

parental claim and failed to perform her parental duties with regard to Child

during the six-month period preceding the filing of the termination petition.

      In its opinion, the court ably and methodically considered the evidence

presented at the hearing, and addressed Father’s and Stepmother’s issues.

The court’s credibility determinations are supported by competent evidence

in the record, so we will not disturb them. Accordingly, we adopt the court’s

discussion   herein.   See   Orphans’    Court   Opinion,   1/24/17,   at   15-18

(unpaginated).

      Next, in regard to Father’s and Stepmother’s third issue, that the court

failed to properly consider Mother’s record as “indicated” for child abuse as

“Other considerations” under the Adoption Act, see Orphan’s Court Opinion,


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1/24/17, at 4-5 (explaining circumstances of the “indicated” finding)

(unpaginated), we view this issue as a matter being raised in relation to

Child’s needs and welfare, under § 2511(b), see note 4, supra.

     Here, the court found, on the record, that there had been a fairly

strong bond between Mother and Child at one time in this matter, and that

there might still be a bond. See N.T., 11/16/16, at 268. The court, however,

was unable to determine the present existence of a bond because of the

interference of Father and Stepmother with Mother having the supervised

visitation to which she was entitled. See id., at 267-268. Thus, the court

found that Father and Stepmother had failed to sustain their burden of

proof. See id., at 268-269.

     We have thoroughly reviewed the record, the parties’ briefs, and the

applicable law with the above standards of review in mind. The record

supports the court’s factual findings, and the court’s legal conclusions are

not the result of an error of law or an abuse of discretion. As we agree with

the court that termination of Mother’s parental rights under § 2511(a)(1)

was not warranted, and under section 2511(a)(2) was waived, the court

properly did not proceed to conduct a § 2511(b) analysis.

     We find no abuse of the court’s discretion in failing to find that

Mother’s record as “indicated” for child abuse impacted on Child’s needs and

welfare under § 2511(b). The court found from the evidence that Father and

Stepmother had interfered with Mother’s previous close relationship with


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Child by their placement of insurmountable obstacles between her and Child,

so that Father and Stepmother interfered with the bond between Mother and

Child. See Orphans’ Court Opinion, 1/24/17, at 18 (unpaginated). This

determination is supported by competent evidence in the record.

     Accordingly, we affirm the orphans’ court’s order based on the

discussion in the court’s opinion entered on January 24, 2017. See Orphans’

Court Opinion, 1/24/17, at 15-18 (unpaginated).

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/2/2017




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