J-S39028-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: A.R., MINOR CHILD                        IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA




APPEAL OF: L.T., BIRTH FATHER

                                                     No. 180 WDA 2017


                Appeal from the Order Dated December 28, 2016
              In the Court of Common Pleas of Washington County
                   Orphans' Court at No(s): 63-OC-2016-0379


BEFORE: BENDER, P.J.E., BOWES AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                               FILED JULY 31, 2017

       L.T. (“Father”) appeals from the order involuntarily terminating his

parental rights to his daughter, A.R., pursuant to the Adoption Act, 23

Pa.C.S. § 2511(a)(1) and (b).1 We affirm.

       The trial court summarized the pertinent facts as follows:

             The Mother of the child is [T.Z. (“Mother”)]. The Mother
       and Father were living together in . . . New Mexico when Mother
       became pregnant. Sometime during her pregnancy she returned
       to Pennsylvania where she had previously lived. Father testified
       that Mother came to Pennsylvania to avoid being arrested for
       outstanding warrants in New Mexico. The child was born on
       October 6, 2014. Shortly thereafter, [Washington County Child
       and Youth Services (“CYS”)] became involved with the Mother
       and child. The child was adjudicated dependent and placed in
____________________________________________


1
 Birth mother, T.B., voluntarily relinquished her parental rights on April 12,
2016.



* Retired Senior Judge assigned to the Superior Court.
J-S39028-17



      foster care on January 8, 2015. The Mother identified [L.T.] of
      New Mexico as the Father. [CYS discovered Father in Clovis,
      New Mexico during February of 2016].

            The Father testified that he was in phone contact with the
      Mother the first year of the child's life. He became incarcerated
      on October 5, 2015. Thereafter, he had no contact with the
      Mother or the child. He provided no financial support, nor sent
      any written correspondence to the child. After he learned in
      February of 2016 that the child was in foster care, Father has
      called the CYS caseworker, Andrew Albright, a few times. Father
      was provided the phone number of the foster parents. He has
      never called the foster parents or the child. The Father was
      released in June of 2016, but his release was for only thirty (30)
      days, as he was rearrested for a parole violation. Father expects
      to be released at his maximum, May 17, 2017.

Trial Court Opinion, 2/7/17, at 1-2 (citations to certified record omitted).

      On April 1, 2016, CYS filed a petition to involuntarily terminate

Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1) and (b).

Counsel was appointed, and Father participated in the December 22, 2016

hearing via telephone.     CYS presented the testimony of its caseworker,

Andrew Albright, the court appointed special advocate (“CASA”), Susan

Caffrey, and the pre-adoptive foster mother (“Foster Mother”), C.M. Father

testified on his own behalf.

      As it relates to Father’s interactions with A.R., Mr. Albright testified

that Father has not had any contact with his daughter, even though CYS

reached out to Father and provided him Foster Mother’s contact information.

Father neglected to mail A.R. correspondence from prison or provide gifts or

financial support. Mr. Albright also stated that, while Father indicated that



                                     -2-
J-S39028-17



he     intended   to   contest   the   termination   of   his   parental   rights,   he

acknowledged his lack of appropriate housing and the ability to care for his

daughter.     Essentially, Mr. Albright concluded that it was in A.R.’s best

interest to terminate Father’s parental rights and proceed with adoption.

        Similarly, in relation to A.R.’s bond with her pre-adoptive foster family,

Ms. Caffrey testified that she was assigned to A.R. during February 2015 and

that she has observed the child at least once per month.                   Ms. Caffrey

described a loving relationship in which A.R. thrives and refers to her foster

parents as “mother” and “father.”          She recommended that the orphans’

court terminate parental rights in order to facilitate the family’s adoption of

A.R.

        Foster Mother’s testimony corroborated the evidence proffered by Mr.

Albright and Ms. Caffrey. She outlined Father’s failure to establish contact

with A.R. and described the mutual bond that A.R. shares with the family.

In sum, Foster Mother confirmed her desire to adopt A.R. and noted that she

and her husband completed the adoption profile and were ready to proceed

toward finalizing the adoption.

        Following the evidentiary hearing, the orphans’ court entered the

above referenced order terminating Father’s parental rights. Father filed a

timely appeal and complied with Pa.R.A.P. 1925(a)(2)(i) by filing a




                                         -3-
J-S39028-17



statement of errors complained of on appeal concurrent with his notice of

appeal.2 He frames the issue on appeal as follows:

        Did the trial court err in terminating Father's parental rights
        where the Agency failed to prove by clear and convincing
        evidence that Father evidenced a settled purpose of relinquishing
        parental claims to the child and failed to prove that Father
        refused or failed to perform parental duties?

Father’s brief at 7.

        The pertinent scope and standard of review of an order terminating

parental rights is as follows:

              When reviewing an appeal from a decree terminating
        parental rights, we are limited to determining whether the
        decision of the trial court is supported by competent evidence.
        Absent an abuse of discretion, an error of law, or insufficient
        evidentiary support for the trial court's decision, the decree must
____________________________________________


2
    The Rule 1925(b) statement presented two questions:

        1. Did the trial court err in terminating Appellant's parental
        rights where the evidence was insufficient to sustain such a
        finding?

        2. Did the trial court err in conducting a § 2511(b) analysis
        where there was insufficient evidence from which to conclude
        that the father's bond should be severed?

While the orphans’ court complained that Father’s assertions were too
general, it addressed the claims nevertheless. We agree that Father’s first
issue is stated broadly; however, in light of the fact that CYS sought to
terminate parental rights under only one of the enumerated statutory
grounds, the issue was not too vague for review. Similarly, although Father
subsequently abandoned his second issue, it is clear that the claim assailing
the §2511(b) analysis was stated concisely. Thus, to the extent that the
orphans’ court found that either of the issues raised in the concise statement
were waived pursuant to Pa.R.A.P. 1925(b)(4), we reject that notion.



                                           -4-
J-S39028-17



      stand. Where a trial court has granted a petition to involuntarily
      terminate parental rights, this Court must accord the hearing
      judge's decision the same deference that we would give to a jury
      verdict. We must employ a broad, comprehensive review of the
      record in order to determine whether the trial court's decision is
      supported by competent evidence.

In re M.M., 106 A.3d 114, 117 (Pa.Super. 2014) (quoting In re S.H., 879

A.2d 802, 805 (Pa.Super. 2005)). 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 the

Interest of T.M.T., 64 A.3d 1119, 1124 (Pa.Super. 2013).

      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
      R.N.J., 985 A.2d 273, 276. The trial court is free to make all
      credibility determinations, and may believe all, part, or none of
      the evidence presented. In re M.G., 855 A.2d 68, 73-74
      (Pa.Super. 2004). If the findings of the trial court are supported
      by competent evidence, we will affirm even if the record could
      also support the opposite result. In re Adoption of T.B.B., 835
      A.2d 387, 394 (Pa.Super. 2003).

Id.
      Termination of parental rights is governed by 23 Pa.C.S. § 2511, which

provides in pertinent part 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.


                                     -5-
J-S39028-17



           ....

            (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.

     Termination of parental rights requires a “bifurcated analysis” under §

2511(a) and (b).     Adoption of C.J.P., 114 A.3d 1046, 1049 (Pa.Super.

2015). We explained,

     Initially, the focus is on the conduct of the parent. The party
     seeking termination must prove by clear and convincing
     evidence that the parent's conduct satisfies the statutory
     grounds for termination delineated in Section 2511(a). Only if
     the court determines that the parent's conduct warrants
     termination of his or her parental rights does the court engage in
     the second part of the analysis pursuant to Section 2511(b):
     determination of the needs and welfare of the child under the
     standard of best interests of the child. One major aspect of the
     needs and welfare analysis concerns the nature and status of the
     emotional bond between parent and child, with close attention
     paid to the effect on the child of permanently severing any such
     bond.

Id. at 1049-50 (quoting In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007)).

     Herein, the trial court concluded that CYS met its burden to terminate

Father’s parental rights to A.R. pursuant to § 2511(a)(1), which “provide[s]

grounds for termination if the parent evidenced a settled purpose of

                                    -6-
J-S39028-17



relinquishing parental claim to a child, or has refused or failed to perform

parental duties for a period of at least six months.” In re Adoption of S.P.,

47 A.3d 817, 828 (Pa. 2012). The petitioning party must produce clear and

convincing   evidence   of   conduct   that    fulfills   either   one   of   the   two

requirements outlined in § 2511(a)(1), it does not have to establish both.

In re D.J.S., 737 A.2d 283, 285 (Pa.Super. 1999) (“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.”)   While the statute targets the six months immediately

preceding the filing of the petition to terminate, the trial court must consider

the entire history of the case and not apply the six-month statutory period

mechanically. In re of K.Z.S., 946 A.2d 753, 758 (Pa.Super. 2008).

      Our Supreme Court has noted that parental duty under § 2511(a)(1)

includes “an affirmative duty to love, protect and support” the child and “to

make an effort to maintain communication with that child.” In re Adoption

of S.P., supra at 828. When the parent’s fulfillment of those duties is made

more difficult by incarceration, “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.”         Id.    Finally, our Supreme Court

explained,

            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

                                       -7-
J-S39028-17



     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).

Matter of Adoption of Charles E.D.M., II, 708 A.2d 88, 92 (Pa. 1998).

     Father argues that he never evidenced a settled purpose to relinquish

his parental claim to his daughter or failed to perform parental duties. He

continues that his incarceration limited the resources that he could provide

A.R. and impaired his ability to contact her. In sum, Father insists that the

evidence sustains neither the orphans’ court’s finding that he abandoned

A.R. nor its conclusion that he failed to exercise reasonable firmness in

attempting to overcome the obstacle of his incarceration. We disagree.

     In rejecting this claim, the trial court reasoned,

            During the six months in question, Father performed no
     parental duties. The Court recognizes that Father did not know
     of the child's whereabouts . . . until February of 2016 . . . , but
     [he] made no efforts to locate her. The Father's nephew is
     married to Mother's sister. Father is familiar with Mother's
     family[, but he] did not contact them to assist in locating
     Mother. Father took no legal action to locate his daughter. He
     was contacted in February of 2016 and told that A.R. was in
     foster care. Even after learning this, Father did not call the
     foster parents to inquire of A.R.'s well-being or send any cards,
     photos or gifts to her through CYS. Although the Court finds
     that . . . CYS . . . should have made a more thorough effort to
     locate Father, their performance has little to do with an
     examination of Father's conduct. Whether the child was with
     Mother or in foster care, the Father made no effort to be a part
     of her life. His conduct even after the filing of a termination
     petition, which he was served in April of 2016, shows his
     continued lack of effort. Father claims that he called the Agency
     or caseworker numerous times but never received a return
     phone call. The Court finds [the CYS] caseworker . . . credible

                                     -8-
J-S39028-17



       that he did receive messages from Father a few times and he
       spoke with Father.       Father never wrote to the Agency
       complaining o[r] demanding more contact. Communication with
       or by an incarcerated person is usually best done by mail. When
       Father was released from custody, he failed to contact either the
       child or CYS. Father was appointed counsel on May 2, 2016 and
       was provided contact information.        Father has clearly not
       performed any parental duty. Although incarcerated, Father
       could have made efforts to be a part of the child's life and did
       not do so.       Examining his conduct and considering his
       explanation establish that he failed to perform any parental
       duties and evidenced a settled purpose of relinquishing his
       parental rights.

Trial Court Opinion, 2/7/17, at 5-6.

       For all of the following reasons, we find that the certified record

sustains the orphans’ court’s rationale.     Our review of the record confirms

that Father failed to adduce any evidence to demonstrate that he exercised

any degree of firmness to overcome the obstacle of incarceration or to

support his stated excuses and justifications for his inaction.        To the

contrary, the certified record confirms that CYS established by clear and

convincing evidence that Father failed to utilize available resources to

establish a parental relationship with his daughter or exercise reasonable

firmness to resist the obstacles attendant to his incarceration. No relief is

due.

       Finally, while Father abandoned any issue with respect to § 2511(b),

we review the trial court’s needs and welfare analysis in an abundance of

caution.   We note that no parental bond exists between Father and A.R.

Rather, as the orphans’ court accurately observed in its opinion, the

                                       -9-
J-S39028-17



meaningful parental bond in this case is among A.R. and her foster parents,

a pre-adoptive resource.

      We highlight the court’s reasoning as follows:

      The Father has never met the child nor has he ever talked with
      her. The caseworker testified that no bond between Father and
      daughter exists. While the Father undoubtedly loves the child
      and feels a bond, the child could not experience any bond with
      him. She has been in placement since shortly after her birth. She
      has never met him, has never seen him and never has heard his
      voice; Father has never sent her a picture of himself. Because no
      bond exists, terminating the Father's rights and forever severing
      any bond would have no detrimental effect. The child is capable
      of bonding. She has no special needs. She is bonded with her
      current foster parents, who are also an adoptive resource.

Trial Court Opinion, 2/7/17, at 6.     As the certified record supports the

orphans’ court’s factual determinations, we do not disturb its conclusion that

terminating Father’s parental rights best satisfies A.R.’s developmental,

physical and emotional needs and welfare.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/31/2017




                                    - 10 -
