J-S04002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: L.S.K., A MINOR,             IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA




APPEAL OF: S.A., MOTHER

                                                      No. 2938 EDA 2016


                Appeal from the Order Entered August 11, 2016
                In the Court of Common Pleas of Monroe County
                  Orphans’ Court at No(s): No. 2 O.C.A. 2016


IN RE: ADOPTION OF: W.H.K., A MINOR,             IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA




APPEAL OF: S.A., MOTHER

                                                      No. 2940 EDA 2016


                Appeal from the Order Entered August 11, 2016
                In the Court of Common Pleas of Monroe County
                  Orphans’ Court at No(s): No. 3 O.C.A. 2016


BEFORE: SHOGAN and OTT, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                        FILED FEBRUARY 23, 2017

       S.A. (“Mother”) appeals from two separate orders entered in the Court

of Common Pleas of Monroe County on August 11, 2016, denying her

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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petitions to involuntarily terminate the parental rights of S.K. (“Father”) to

the minor children, L.S.K. and W.H.K. (collectively, “the Children”) pursuant

to 23 Pa.C.S. § 2511(a)(1). After careful review, we affirm.

      The trial court summarized the relevant facts of this case as follows:

      1. L.S.K.[, a son born in February of 2006].

      2. W.H.K.[, a son born in August of 2008].

      3. [Mother] resides in Monroe County, Pennsylvania with her
      spouse [(hereinafter “Stepmother”)], and the two minor
      children.

      4. [Father] resides [in] Berks County, Pennsylvania[.]

      5. Mother and Father were married in 2004 and divorced in
      2010.

      6. Mother and [Stepmother] were married [in] 2014.

      7. [Stepmother] wishes to adopt the minor children and has filed
      a Petition for Adoption.

      8. [Stepmother] has known the children since 2008 when she
      began dating Mother.

      9. Mother, [Stepmother] and the [C]hildren moved to Monroe
      County two (2) years ago.

      10. Prior to moving to Monroe County, they lived in western
      Pennsylvania, and prior to that, closer to Father in Berks County.

      11. Following the initial separation of Mother and Father in 2008,
      the custody arrangements were that the [C]hildren lived with
      Mother subject to Father’s periods of partial physical custody on
      the weekends as the parties could agree.

      12. Father visited less when Mother, [Stepmother,] and the
      [C]hildren moved to western Pennsylvania, and even less when
      they moved to Monroe County, Pennsylvania.


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     13. In 2014, Father had two (2) visits with the [C]hildren[, one
     each] in July and December.

     14. In 2015, Father had three (3) visits with the [C]hildren [one
     each in] April, May and August.

     15. Father has not seen the [C]hildren since the August 2015
     visit.

     16. Father has not called the [C]hildren in 2016.

     17. Father did not send a birthday card or gift to L.S.K. in 2016,
     nor a card or gift to either child for Christmas in 2015.

     18. Father and his mother both stated they have gifts and cards
     for the [C]hildren for the 2015 Christmas and birthdays at their
     house in Berks County.

     19. Mother and Father worked out visits and transportation in
     2010 – 2013 because of Mother’s distance from Father when
     living in western Pennsylvania (Venango County).

     20. Father has not attended school events or met the teachers of
     the [C]hildren.

     21. Father has not filed for custody.

     22. Father has paid child support, although it was sporadic at
     times; but, Mother received a child support payment just prior to
     the hearing in this matter.

     23. The [C]hildren do well in school and enjoy living with Mother
     and Stepmother.

     24. Stepmother and the [C]hildren have a close bond and do
     activities together as a family.

     25. The [C]hildren want to change their names to [Stepmother’s
     name as Mother did].

     26. Mother has not refused visits [to Father].

     27. Father lives with his parents and sometimes with his
     girlfriend.

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      28. Father is employed as a plumber and is now regularly paying
      support.

      29. Father had a drug addiction, for which he underwent
      treatment starting in July 2015.

      30. Father takes medication, sees a counselor and is now living
      sober while in a suboxone treatment program.

      31. L.S.K. does not want contact with Father and cited his
      reason as the limited visits of Father in the past which frustrated
      him.

      32. W.H.K. presented as less inclined to have no contact with
      Father and was less certain about the prior events and the
      meaning of this proceeding.

Trial Court Opinion, 8/11/16, at 1-4.

      On January 14, 2016, Mother filed petitions to involuntarily terminate

Father’s parental rights to the Children. On June 27, 2016, the trial court

held a hearing on both termination petitions. In the orders dated August 11,

2016, the trial court denied Mother’s termination petitions.        This timely

appeal followed, and both Mother and the trial court have complied with

Pa.R.A.P. 1925.

      On appeal, Mother raises three issues for this Court’s consideration:

      1. Did the trial court err and/or abuse its discretion in failing to
      terminate the parental rights of [Father] where he had no
      contact of any kind with [the Children] for a period of 10 months
      and sporadic contact prior to that with no involvement in [the
      Children’s] lives, he delayed the termination of parental rights
      (TPR) hearing for 90 days for the stated purpose of conducting
      discovery which he never performed, he took no action to
      contact the Children by any manner during the 90 day
      continuance, and the Children expressed a lack of interest in
      contact with Father and evidenced a genuine love for and bond
      with [Stepmother?]

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     2. Did the trial court err and/or abuse its discretion in failing to
     acknowledge or consider the opinion of the [court-appointed]
     guardian ad litem (GAL) where the GAL was fully supportive of
     the [petition to involuntarily terminate Father’s parental rights]
     after interviewing the Children, [Mother], and Stepmother[?]

     3. Did the trial court err/and or abuse its discretion where it
     applied an erroneous standard that Father did “just enough” to
     prevent the [petition to involuntarily terminate Father’s parental
     rights] where Father did not make diligent efforts nor did he
     exercise reasonable firmness to maintain a place in the
     Children’s lives[?]

Mother’s Brief at 15 (full capitalization and bold typeface omitted). Because

all of Mother’s issues concern the allegation that the trial court abused its

discretion in denying Mother’s petitions, we shall address the issues

concurrently.

     Our standard of review is well settled:

     [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
     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.

           As we discussed in [In re:] R.J.T., [9 A.3d 1179, 1190
     (Pa. 2010)], 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

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      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). Additionally, the burden is upon the petitioner to prove by clear

and convincing evidence the existence of grounds for termination of parental

rights. Id. at 821.

      Moreover, we have explained:

      [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.

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

quotation marks omitted)).

      The trial court’s order addressed section 23 Pa.C.S. § 2511(a)(1) and

(b), which are set forth below:

      § 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.

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                                      ***

      (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.

      This Court has found in regard to review of the statutory requirements

as follows:

            To satisfy the requirements of 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, which reveals a settled intent to
      relinquish parental claim to a child or a refusal or failure to
      perform parental duties. In addition,

              Section 2511 does not require that the parent
              demonstrate both a settled purpose of relinquishing
              parental claim to a child and refusal or failure to
              perform parental duties. Accordingly, parental rights
              may be terminated pursuant to Section 2511(a)(1) if
              the parent either demonstrates a settled purpose of
              relinquishing parental claim to a child or fails to
              perform parental duties.

      In re Adoption of Charles E.D.M., 550 Pa. 595, 708 A.2d 88,
      91 (1998).

              Once 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

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           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).

     Id. at 92 (citation omitted).

In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008).

     Regarding the definition of “parental duties,” this Court has stated:

           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 his or her physical and emotional
     needs.




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In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (internal citations and

quotation marks omitted).

      In denying Mother’s petitions to terminate Father’s parental rights

pursuant to Section 2511(a)(1), the trial court reviewed the record and the

evidence presented and concluded that it is clear that Father had contact

with the Children in August 2015, which was within six months of the filing

of Mother’s petitions.   Trial Court Opinion, 8/11/16, at 5.   The trial court

continued, “Although a hearing was not held in this matter until June 27,

2016, due to a continuance and the [trial c]ourt’s own availability, the

statutory section cited by [Mother] requires a settled purpose to relinquish

parental rights within the six (6) months prior to the filing of the petition.”

Id.

      Father testified that before Mother, Stepmother, and the Children

moved to Monroe County, Mother provided dates of the Children’s

extracurricular activities and dates the Children could visit Father, which

allowed Father to plan his schedule; after the move, Mother stopped

providing that information to Father.      N.T., 6/27/16, at 47-48.     Father

further testified that his attempts to contact Children were unavailing, that

he tried to contact the Children by calling Mother’s house telephone number,

and he left a message when no one answered. Id. at 44-45.

      The trial court concluded that “Father has done just enough for

[Mother] to be unable to prove termination under Pa. C.S.A. §2511(a)(1).”


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Trial Court Opinion, 8/11/16, at 6. While noting that it is likely that Mother

ignored Father’s telephone calls in 2015, the trial court did not fault Mother.

“[Mother] did what she thought was best for the [C]hildren based upon what

they wanted, as well as the sporadic and limited contact by Father for the

past two (2) years; and his admitted drug abuse issues.” Id. at 7. The trial

court acknowledged that:

      Although children cannot wait forever for parents to step-up and
      provide adequate parental duties and interaction, evidence of a
      drug addiction and treatment to stay sober can be considered by
      the [trial c]ourt when determining if there has been a settled
      purpose to relinquish rights. One cannot put on hold the duty to
      perform parental rights, but decisive actions to be clean and
      sober in order to be a parent again is relevant.

Id.

      Further, the trial court stated

      We cannot say, based upon the facts herein, that Father’s rights
      should be terminated at this time under 23 Pa.C.S.A.
      §2511(a)(1). Although there is a step-parent willing to adopt,
      who has a close bond with the [C]hildren, who has lived with
      them for most of their lives, and where the feelings of the
      [C]hildren is that they want to be adopted, the issue under
      2511(a)(1) is what Father has done to maintain parental rights.
      Here, he has done the minimum to maintain a second chance to
      be a [f]ather to the minor [C]hildren. Father has attempted to
      maintain contact and see the [C]hildren despite a drug abuse
      problem. Father is now clean and sober and ready to be more of
      a presence in the [C]hildren’s lives.

Id. at 8.

      The trial court determined Father testified credibly that he attempted

to see the Children. We defer to the trial court’s determination of credibility,

absent an abuse of discretion, and discern no such abuse in its finding


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Father’s testimony to be credible.             In re M.G., 855 A.2d 68, 73-74 (Pa.

Super. 2004). Moreover, the record supports the trial court’s determination

that while Father’s efforts have been minimal, at the present time Father has

not engaged in a course of conduct demonstrating a settled purpose of

relinquishing his parental rights nor has he refused or failed to perform

parental duties pursuant to 23 Pa.C.S. § 2511(a)(1).               Accordingly, we

discern no abuse of discretion or error of law in the trial court’s conclusion.1

       Because we conclude that the trial court did not abuse its discretion in

its determination under 23 Pa.C.S. § 2511(a)(1), we need not engage in a

section 23 Pa.C.S. § 2511(b) analysis. See In re P.Z., 113 A.3d 840, 850

(Pa. Super. 2015) (stating that only where the court determines that the

parent’s conduct warrants termination of his parental rights does the court

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


____________________________________________


1
  We note that Mother avers that the trial court erred in failing to consider
and in ignoring the GAL’s recommendation that terminating Father’s parental
rights was in the Children’s best interests. Mother’s Brief at 25. However,
Mother provides no legal authority that requires the trial court to follow the
opinion of a guardian ad litem. Rather, a GAL’s opinion is advisory only. In
re Adoption of R.J.S., 889 A.2d 92, 100 n.8 (Pa. Super. 2005). Moreover,
immediately following the GAL’s statement in favor of terminating Father’s
parental rights, N.T., 6/27/16, at 111-112, the trial court said: “Thank you,
everybody. I am going to take the matter under advisement. I will give it
some thought and I’ll issue an opinion and order sometime in the future.”
Id. at 112. Thus, the allegation that the trial court ignored the GAL’s
position is not supported by the record. After review, we are satisfied that
the trial court properly considered and weighed the evidence and committed
no abuse of discretion in reaching its decision.



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Thus, for the reasons set forth above, we affirm the orders denying Mother’s

petitions for termination of Father’s parental rights.

      Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/23/2017




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