J-A05034-17

                              2017 PA Super 143



IN RE: ADOPTION OF: A.C., A MINOR               IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA




APPEAL OF: A.C.

                                                     No. 1567 WDA 2016


             Appeal from the Order Entered September 14, 2016
               In the Court of Common Pleas of Beaver County
                     Orphans' Court at No(s): 3034-2015


BEFORE: BENDER, P.J.E., SHOGAN, J., and MOULTON, J.

OPINION BY MOULTON, J.:                                 FILED MAY 12, 2017

      A.C. (“Child”) appeals, through her guardian ad litem, from the order

entered September 14, 2016 in the Beaver County Court of Common Pleas,

which denied the petition of Beaver County Children and Youth Services

(“CYS”) to terminate the parental rights of C.W. (“Father”) to Child.    We

affirm.

      The trial court set forth the factual and procedural background of this

case as follows:

          At birth [in July 2014], [Child] tested positive for drugs
          (amphetamines and marijuana), due to Mother’s drug use.
          When she was released from the hospital, five days after
          her birth, [Child] initially was voluntarily placed with her
          [M]other’s cousin, [J.B. (“Foster Mother”)], who is the
          current foster mother.        The goal at that time was
          reunification with parents. [Father] is not listed on the
          birth certificate and did not sign an acknowledgement of
          paternity, nor did he submit to genetic testing. When he
J-A05034-17


       failed to attend a Domestic Relations matter, he was
       adjudicated [Child]’s father.

          [Child] was adjudicated dependent on September 29,
       2014. Neither parent attended the hearing. Father was
       released from jail on September 24, 2014. It is unclear
       whether Father received notice of the adjudication
       proceeding.

          From September 24, 2014 through December 1, 2014,
       30 visits with [Child] were offered to Mother and Father.
       Father attended 4, and he left early on 2 of those
       occasions. There is some confusion about whether visits
       were offered to Father at this time due to the allegations of
       another person being [Child]’s father. Ultimately, DNA
       tests revealed the other person was not [Child]’s father.

           Father was incarcerated again from December 1, 2014
       through March 2016. Visits occurred at the Beaver County
       Jail one time every other week for one hour. Father had
       limited access to mail while incarcerated. He sent two
       letters to CYS, and he never indicated that he wanted to
       give up his rights as [Child]’s Father.

          CYS filed a Petition to Terminate Parental Rights on
       September 11, 2015. The hearing initially set to terminate
       the rights of both parents was originally scheduled for
       November 24, 2015. Mother failed to attend this hearing
       and her rights were terminated.

          The hearing to terminate Father’s parental rights was
       continued several times, pending the outcome of his
       criminal trial, which also kept getting continued.

          In March 2016, counsel for Father sought to dismiss the
       Petition to Terminate Parental Rights, because it failed to
       comply with the Pennsylvania Adoption Act, 23 Pa.C.S.
       §2512(b), which states that the petition shall set forth
       specifically those grounds and facts alleged as the basis for
       terminating parental rights. CYS filed a new petition to
       terminate on April 18, 2016, seeking termination on the
       grounds specified in 23 Pa.C.S. §2511(a)(1) and (2).

                                   ...




                                   -2-
J-A05034-17


          Also in March 2016, Father was acquitted of the criminal
       charges for which he had been incarcerated since
       December 1, 2014. If he had been convicted of those
       charges, he could have faced a lengthy prison term, and
       we would be looking at a much different scenario for this
       child’s future. Since he was acquitted of the charges,
       Father resumed visits with [Child]. He missed of few of
       these visits due to transportation issues.

          The hearing to terminate his parental rights was
       scheduled for June 21, 2016, but was continued until June
       28, 2016. Testimony regarding the psychological bonding
       assessment was not available at this hearing, so the court
       kept the record open to allow for the completion of the
       bonding assessment, and resumed testimony on August
       24, 2016.

          The bonding assessment indicated that [Child] is well
       bonded with her [F]oster [M]other. It also showed that a
       bond is forming with Father. The evaluator did not have
       an issue with the bond between Father and [Child], but
       was more concerned with Father’s criminal history and
       pending charges.     The evaluator commented, “It may
       indeed be that [F]ather’s pattern of criminal involvement
       may be an overwhelming impediment in his ability to
       establish a bond and indeed be an effective parent going
       forward. Here it appears that parental fitness (due to a
       pattern of criminal behavior) is a much larger
       consideration than the bonding profile.” (Chambers Report
       p. 8).

          Since his release from jail, Father has complied with all
       of the CYS directives in the family service plan.        He
       obtained a drug and alcohol evaluation, which indicated
       that no treatment was necessary. He obtained a parenting
       evaluation, which recommended no additional services. He
       attended the bonding assessment. He obtained adequate
       housing with his [m]other and his other children.

          [Child] has been in placement for 22 of the last 24
       months. In her entire life, the only time she was not in
       placement was during her initial hospital stay at birth. For
       the majority of this time, Father was in jail awaiting trial
       on charges, for which he was ultimately found not guilty.
       [Child] has never spent the night at Father’s home. She


                                  -3-
J-A05034-17


         has a brother in her foster home, with whom she shares a
         strong bond.

             Father is still awaiting a hearing on criminal charges in
         Allegheny County that stem from separate incidents that
         occurred on March 7, 2014 and March 19, 2014. At the
         hearing in this matter, those charges were awaiting a jury
         trial to be held in September 2016.1
              1
                  The criminal docket indicates that on September
                  13, 2016, the charges are now awaiting a non-
                  jury trial. No date for the trial was provided.

         Father has three other children who reside with him and
         his mother. He shares custody of two of them with his
         mother, and his mother has played a significant role in
         raising them. All of the children are well provided for and
         do well in the community. Father does not want [Child] to
         think that he gave up on her. He cares for her and loves
         her, just as he loves his other children.

Trial Ct. Op., 9/1/16, at 1-4.

      On September 14, 2016, the trial court denied the petition to

terminate Father’s parental rights. On October 14, 2016, Child’s guardian ad

litem filed an appeal on Child’s behalf.

      Child raises three issues on appeal:

            1. Whether the trial court erred as a matter of law and
               abused its discretion in failing to terminate the
               parental rights of [F]ather under 23 Pa.C.S. §
               2511(a)(1) after determining that CYS failed to meet
               its burden when [F]ather was incarcerated for ten
               months prior to the filing of the petition for
               termination and failed to address whether Father
               exhibited reasonable firmness in maintaining his
               relationship with the minor child and used all
               available resources to preserve the parental
               relationship?

            2. Whether the trial court erred and abused its
               discretion in failing to terminate the parental rights
               of Father under 23 Pa.C.S. § 2511(a)(2) after finding

                                      -4-
J-A05034-17


                that Father was facing additional felony criminal
                charges and possible future incarceration?

             3. Whether the trial court erred and abused its
                discretion in failing to find that the needs and welfare
                of the minor child would best be served by the
                termination of parental rights in light of the evidence
                regarding the parent child bond and the detrimental
                effect of severing the bond between the minor child
                and the foster mother on the minor child[?]

Child’s Br. at 3-4. CYS has also filed a brief that supports Child’s position.

      We consider Child’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 quotation marks

omitted); see also In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa.

2012) (“[E]ven where the facts could support an opposite result, as is often

the case in . . . termination cases, an appellate court must resist the urge to

second guess the trial court and impose its own credibility determinations

and judgment”).




                                      -5-
J-A05034-17



      Termination of parental rights is governed by section 2511 of the

Adoption Act, 23 Pa.C.S. § 2511, 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.

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

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

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

      In her first issue, Child advances two arguments that the trial court

erred in finding termination inappropriate under section 2511(a)(1).       First,

Child contends that the trial court erred in finding that CYS failed to meet its

burden of proof where Father was incarcerated for ten months prior to the

filing of CYS’s petition.   Second, Child asserts that the trial court erred in

failing   to   address   whether   Father   exhibited   reasonable   firmness   in

maintaining his relationship with Child, using all available resources to

preserve his parental relationship.

      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:


                                      -6-
J-A05034-17


                 (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

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”). 1
____________________________________________


       1
        In its opinion, the trial court considered evidence beyond the original
petition filing date of September 2015. However, we find no abuse of
discretion because CYS filed an amended petition in April 2016 that set forth
(Footnote Continued Next Page)


                                           -7-
J-A05034-17



      In terms of parental duty, we are reminded that:

          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.

          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.




                       _______________________
(Footnote Continued)

the grounds for, and facts supporting, termination of Father’s parental
rights. See Am. Pet. to Term. Parental Rights, 4/18/16. Further, the bulk of
the post-petition evidence concerned Father’s ongoing visits with Child,
which is evidence of continuing conduct that was initiated before the filing of
the original petition.



                                            -8-
J-A05034-17



B., N.M., 856 A.2d at 855 (internal citations and quotation marks 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) (internal citation

and footnotes omitted).

      The trial court found that while Father “did very little to be active” in

Child’s life from the time of Child’s “birth in August 2014 until [Father] was

incarcerated in December 2014,” Father made a materially greater effort to

remain in Child’s life thereafter. Trial Ct. Op., 9/14/16, at 6. The trial court

explained:

         Once he was incarcerated, Father maintained regular
         biweekly visits with [Child]. He claims he was not initially
         offered these visits at the jail by CYS, but that he had to
         request them, and that they started as a result of his
         efforts. Father requested to have visits increased at the
         jail, but the request was denied. The court did not want to
         set precedent to allow weekly visits for some inmates, but
         bi-weekly visits for others, especially given Father’s lack of
         involvement prior to incarceration

                                      ...




                                     -9-
J-A05034-17


            Father maintained contact and visits with [Child]
            throughout his incarceration.   He sent letters to her
            caretakers and requested photographs.

               Since his release from jail, Father has complied with all
            of the CYS directives in the family service plan.        He
            obtained a drug and alcohol evaluation, which indicated no
            further treatment was necessary. He obtained a parenting
            evaluation, which recommended no additional services. He
            attended the bonding assessment. He obtained adequate
            housing with his Mother and his other children. He is in
            the process of reinstating his driver’s license.

              He visits regularly with [Child], who calls him “daddy,”
            and the visits go well.

Id. at 6-8.

      Based on the foregoing findings, which are fully supported by the

record, the trial court concluded:

            Given the totality of the circumstances in this case, we do
            not believe that CYS has demonstrated by clear and
            convincing evidence, that Father’s rights should be
            terminated under section (a)(1). To terminate [under]
            that section, CYS must show that 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. We do
            not believe this standard has been met at this time.

Id. at 8.

      The record supports the trial court’s conclusion. While CYS and Child

note that Father attended only 4 of 30 offered visits before his incarceration,

it is unclear whether Father was informed of the visits that occurred between

September 2014 and November 2014. During that time, the visits were only

offered through Mother, with whom Father did not have a relationship.

Despite Father’s admittedly minimal involvement in the first four months of

                                       - 10 -
J-A05034-17



Child’s life, the record supports the trial court’s findings that Father was

significantly more involved thereafter, and that Father “complied with all of

the CYS directives in the family service plan.” Id. at 7-8. We agree with the

trial court that this situation is “quite different” from the factual scenario in

McCray, where the prisoner “did not take advantage of his visitation rights

or his personal counselor nor did he make sincere or persistent efforts to

locate or inquire about his daughter.” Id. at 7 (citing McCray, 331 A.2d at

655).    Contrary to CYS and Child’s arguments, the trial court considered

Father’s incarceration as well as his efforts to maintain a relationship with

Child. Under these circumstances, we discern no abuse of discretion by the

trial court and defer to its findings of fact and conclusions of law.

        Next, Child argues that the trial court erred in declining to terminate

Father’s parental rights under section 2511(a)(2), which 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:

                                           ...

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

23 Pa.C.S. § 2511(a)(2).        To terminate parental rights under section

2511(a)(2), the moving party must produce clear and convincing evidence of

the following elements: “(1) repeated and continued incapacity, abuse,

                                      - 11 -
J-A05034-17



neglect or refusal; (2) such incapacity, abuse, neglect or refusal has caused

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

necessary for his physical or mental well-being; and (3) the causes of the

incapacity, abuse, neglect or refusal cannot or will not be remedied.” In re

Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003).

       Child and CYS argue that the trial court erred in failing to consider the

ramifications of Father’s pending criminal charges in Allegheny and Beaver

Counties. According to Child, “Father has been incarcerated during much of

the [C]hild’s life” and if he is convicted and sentenced on the pending

criminal charges, he would once again be “incapable of performing his

parental duties.” Child’s Br. at 24. CYS echoes this sentiment, noting that

“[a] conviction in one or both of th[o]se cases would most certain[l]y result

in additional jail time, especially in light of his criminal history,” and that

“Father’s failure to avoid criminal activity has rendered him incapable of

caring for [Child] throughout a large portion of . . . [C]hild’s life and most

certainly, if he is convicted again, Father will once again, be unavailable.”

CYS’s Br. at 14-15.2

       Both Child and CYS appear to argue that Father’s potential future

incarceration on pending charges creates, within the meaning of section
____________________________________________


       2
        It bears noting that Father’s incarceration between December 2014
and March 2016 was not based on a criminal conviction and sentence.
Rather, Father was detained pre-trial on charges for which he was ultimately
acquitted.



                                          - 12 -
J-A05034-17



2511(a)(2), an “incapacity” that “cannot or will not be remedied by the

parent.”     23 Pa.C.S. § 2511(a)(2).          Although the Pennsylvania Supreme

Court has discussed the effect of incarceration on the termination analysis

under section 2511(a)(1), see McCray, 331 A.2d at 655-56, and section

2511(a)(2), see S.P., 47 A.3d at 827-31, Pennsylvania appellate courts

have provided little guidance on whether and how trial courts should

consider the effect of possible incarceration based on criminal charges

pending at the time the termination petition is filed.

       The Pennsylvania Supreme Court has instructed that incarceration,

            while not a litmus test for termination, can be
            determinative of the question of whether a parent is
            incapable of providing “essential parental care, control or
            subsistence” and the length of the remaining confinement
            can be considered as highly relevant to whether “the
            conditions and causes of the incapacity, abuse, neglect or
            refusal cannot or will not be remedied by the parent,”
            sufficient to provide grounds for termination pursuant to
            23 [Pa.C.S.] § 2511(a)(2). See [In re: E.A.P., 944 A.2d
            79, 85 (Pa. Super. 2008)] (holding termination under §
            2511(a)(2) supported by mother’s repeated incarcerations
            and failure to be present for child, which caused child to be
            without essential care and subsistence for most of her life
            and which cannot be remedied despite mother’s
            compliance with various prison programs).

S.P., 47 A.3d at 830 (some internal citations omitted). 3 Accordingly, courts

properly consider the incapacitating effect of a parent’s incarceration and
____________________________________________


       3
           Further, the Supreme Court stated:

            If a court finds grounds for termination under subsection
            (a)(2), a court must determine whether termination is in
(Footnote Continued Next Page)


                                          - 13 -
J-A05034-17



whether the duration of that incarceration would prevent a parent from

remedying the incapacity. See id.; see also In re D.C.D., 105 A.3d 662,

677 (Pa. 2014) (holding that trial court properly concluded that father’s

incarceration rendered him “incapable of providing care for his child and that

[his] incapacity will exist at least until [f]ather’s minimum release date [four

years later], when [c]hild will be seven”).

      While the record shows that Father had been incarcerated on prior

occasions, Father was not incarcerated when CYS filed the amended petition

to terminate his parental rights or when the trial court denied that petition.

Father was released from custody in March 2016 after a jury acquitted him

of the charges for which he had been detained. He remained out of custody

despite the pending criminal charges in Allegheny and Beaver Counties.

Thus, unlike the mother in S.P., Father remedied his incapacity through his

release from jail.




                       _______________________
(Footnote Continued)

          the best interests of the child, considering the
          developmental, physical, and emotional needs and welfare
          of the child pursuant to § 2511(b). In this regard, trial
          courts must carefully review the individual circumstances
          for every child to determine, inter alia, how a parent’s
          incarceration will factor into an assessment of the child’s
          best interest.

S.P., 47 A.3d at 830-31.



                                           - 14 -
J-A05034-17



       Child and CYS contend that the trial court erred by not considering

Father’s pending criminal charges and any possible incarceration that could

result from conviction on those charges. We disagree.

       First,   courts   should     be    extremely    cautious   before   employing

speculation about the outcome of pending charges when analyzing a petition

for termination under section 2511(a)(2).              As Father’s earlier acquittal

demonstrates, a criminal charge does not inevitably lead to a conviction and

extended incapacity.        Moreover, the mere existence of pending charges,

without more, is unlikely to meet the “clear and convincing” standard set

forth in section 2511.4 Before terminating a parent’s rights, the trial court

must receive 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 Adoption of Atencio, 650

A.2d 1064, 1066 (Pa. 1994).

       Second, the trial court was aware of and did consider Father’s pending

charges and the possibility of his future incapacity. After noting that Father

was “exonerated of the [earlier] charges,” “has housing,” “does not require

____________________________________________


       4
         This is not to say that pending criminal charges are irrelevant in
determining an individual’s capacity to parent or remedy an existing
incapacity. However, pending criminal charges alone, without any further
evidence of a parent’s incapacity or inability to remedy said incapacity, are
insufficient to support a finding that a parent has an irremediable incapacity
that warrants termination of his or her parental rights under section
2511(a)(2).



                                          - 15 -
J-A05034-17



further parenting skills,” and “has applied for a job with his union,” the court

properly concluded:     “If Father is convicted on those charges, and has to

spend time in jail, then CYS may be able to show that the incapacity will not

be remedied by the parent and termination may be appropriate at that

time.”   Trial Ct. Op. at 9.   A final disposition of Father’s pending criminal

charges would allow CYS to determine whether another petition is

appropriate and, if so, allow CYS to present a full set of facts to the court for

disposition of a new termination petition. Accordingly, we conclude that the

trial court did not abuse its discretion by declining to terminate Father’s

parental rights based on the pending criminal charges.

      Finally, Child and CYS argue that the trial court erred in failing to

address evidence presented as to the parent-child bond and the detrimental

effect of severing the bond between Child and Foster Mother. The trial court

declined to analyze the bond between Child and either Father or Foster

Mother because it had concluded that grounds for termination did not exist

under section 2511(a). Trial Ct. Op. at 9.

      We agree with the trial court’s analysis. A trial court only “engage[s]

in the second part of the analysis pursuant to Section 2511(b) . . . if the

court determines that the parent’s conduct warrants termination of his or

her parental rights.”    In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007).

Because the trial court found that grounds for termination did not exist, it

appropriately denied CYS’s petition without considering the bond between

Father and Child.

                                     - 16 -
J-A05034-17



     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/12/2017




                          - 17 -
