J-S22019-19

                              2019 PA Super 199

 IN RE: Q.R.D., A MINOR                 :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
 APPEAL OF: N.J.D., NATURAL             :
 FATHER                                 :
                                        :
                                        :
                                        :
                                        :   No. 150 MDA 2019

             Appeal from the Decree Entered January 15, 2019
    In the Court of Common Pleas of Schuylkill County Orphans' Court at
                           No(s): A63-245A-17


BEFORE:       SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.

OPINION BY DUBOW, J.:                                FILED JUNE 25, 2019

      Appellant, N.J.D. (“Father”), appeals from the January 15, 2019 Decree

that terminated Father’s parental rights to Q.R.D. (“Child”).   After careful

review, we affirm.

FACTUAL AND PROCEDURAL HISTORY

      This Court has previously summarized the factual and procedural history

as follows:

      Child was born in August of 2013 to K.D. (“Mother”) and Father.
      Mother and Father were unmarried at the time of Child’s birth and
      lived together until approximately December of 2013, when they
      separated. The parties subsequently entered into a custody
      agreement in the Carbon County Court of Common Pleas in April
      of 2014. The custody order provided Mother with primary custody
      of Child and partial custody to Father. When Mother subsequently
      refused to follow the custody order, Father filed a petition for
      contempt with the Carbon County Court of Common Pleas, and
      Mother was found to be in contempt.

      A second custody order was entered in June of 2014, which
      continued to give Mother primary custody and Father partial
      custody. In July of 2015, while Child was in Father’s custody,

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     Child suffered burn marks. The matter was referred to Children
     and Youth Services, but it was determined there was no need for
     services. Thereafter, Mother would not allow Father to have
     custody of Child outside of Mother’s home. Although Father had
     successfully filed a contempt action against Mother in May of
     2014, he chose not to seek another contempt finding. From July
     of 2015 until May of 2016, Father’s visits with Child were sporadic.
     Father saw Child on May 5, 2016, the day Father exited
     rehabilitation services [for treatment of depression and drug use],
     during a chance encounter at a local supermarket and later that
     day.

     There was also evidence provided that Father attempted to see
     Child on Child’s birthday in August of 2016. Father testified that
     Mother agreed to allow Father to see Child on that date and Father
     waited at Mother’s home until Child and Mother returned. Mother,
     however, testified that Father advised her that he was going to
     Mother’s house on that date, and she told him they were not home
     but that he could wait until Mother and Child returned home.
     While waiting, Father stated that Mother’s Father, A.H. (“Maternal
     Grandfather”), who lives with Mother, Child, and B.M.D.
     (“Stepfather”), started an argument with him, so he left before
     seeing Child. Father left birthday presents for Child. Father
     maintains that he attempted to contact Mother and Maternal
     Grandfather after August of 2016 in an effort to see Child. Father
     stated that his calls to Mother would “not go through,” and he
     speculated that Mother blocked his number or changed her
     number [despite the fact that Mother presented evidence showing
     that her phone number had not changed since 2014]. Father
     contends that neither Mother nor Maternal Grandfather returned
     his messages.

     In November or December of 2016, Father maintains that he
     advised Maternal Grandfather that he planned to move to
     Philadelphia, where he had accepted a job. Father asserts that
     neither Mother nor Maternal Grandfather responded. Father
     remained in Philadelphia until September of 2017, when he moved
     back to Schuylkill County because Mother and Stepfather had
     begun the process to terminate Father’s parental rights to Child.
     Father acknowledged that he had not seen Child since May 5,
     2016. Despite Mother’s efforts to keep Child from Father, Father
     has not filed any proceedings against Mother since the contempt
     action in 2014.



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In re Q.R.D., No. 1060 MDA 2018, unpublished memorandum at 1-2 (Pa.

Super. filed December 24, 2018).

       On November 21, 2017, Stepfather filed a Petition to Involuntarily

Terminate Father’s Parental Rights.1 The trial court appointed Constance A.

Calabrese, Esq. to represent Child. On June 8, 2018, after a hearing, the trial

court issued an Opinion and Final Decree that granted Stepfather’s Petition,

terminated Father’s parental rights, and awarded full legal and physical

custody to Mother and Stepfather.

       After the termination hearing, Attorney Calabrese notified the trial court

that she was retiring. The trial court appointed Shelby G. Hostetter, Esq., to

represent Child in further proceedings.

       Father timely appealed. On appeal, this Court addressed sua sponte

whether the representation of Child by Attorney Calabrese satisfied the

requirements of 23 Pa.C.S. § 2313(a), which provides, inter alia, that “[t]he

court shall appoint counsel to represent the child in an involuntary termination

proceeding when the proceeding is being contested by one or both of the

parents.”2    This Court determined that the record was devoid of evidence
____________________________________________


1  Pursuant to 23 Pa.C.S. § 2512(a)(3), a petition to terminate parental rights
with respect to a child under the age of eighteen years may be filed by “[t]he
individual having custody or standing in loco parentis to the child and who has
filed a report of intention to adopt required by section 2531 (relating to report
of intention to adopt).”
2 See In re K.J.H., 180 A.3d 411 (Pa. Super. 2018) (holding this Court must
raise the failure to appoint statutorily-required counsel for children sua sponte,
as children are unable to raise the issue on their own behalf due to their
minority).

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regarding Child’s preference regarding the involuntary termination proceeding

and, consequently, we found “no basis upon which to conclude that Attorney

Calabrese effectively represented Child’s legal interests in this matter.” In re

Q.R.D., supra, at 9. This Court vacated the Decree without prejudice and

remanded the case to permit the trial court to determine whether a conflict

existed between Child’s best interests and legal interests, if ascertainable. Id.

      On January 14, 2019, upon remand, the trial court held a hearing to

determine whether Child’s legal interests were ascertainable at the time of

trial. The trial court heard evidence from newly-appointed Attorney Hostetter,

who met with Child on January 7, 2019. Based on testimony from Attorney

Hostetter, the trial court made the following findings:      “It was [Attorney

Hostetter’s] impression that [Child], who is now five years old, was quite

immature for his age. He showed no recognition of [Father]’s name and no

memory related to [Father] other than [Stepfather].            It was Attorney

Hostetter’s opinion that [Child] had no understanding of the litigation and was

unable to express a preference for its outcome.” Opinion After Remand, filed

1/15/09, at 1.    On January 15, 2019, the trial court issued an Order that

concluded: “[Child]’s legal interests were unascertainable at the time of trial,

and [] Attorney Calabrese properly represented the best interest of [Child] at

trial,” and terminated Father’s parental rights pursuant to 23 Pa.C.S. §§

2511(a)(1) and (b). Order, 1/15/19.

      Father timely appealed.      Father and the trial court complied with

Pa.R.A.P. 1925.

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ISSUES RAISED ON APPEAL

      Father raises the following issues on appeal:

      A. Whether Attorney [] Calabrese, as the court[-]appointed
         counsel for [Child], failed to ascertain whether [Child]’s legal
         interests were satisfied as part of her representation of [Child]
         prior to the termination hearing?

      B. Whether the trial court abused its discretion in determining that
         [Stepfather] produced clear and convincing evidence that
         [Father’s] conduct satisfied at least one of the nine statutory
         grounds delineated in Section 2511(a) of the Pennsylvania
         Adoption Act, codified at 23 Pa.C.S. § 2101[,et. seq.]?

      C. Whether the trial court abused its discretion in addressing the
         second part of the bifurcated process by determining that the
         best interests of [Child] warrant the parental rights of [Father]
         to be terminated, in accordance with 23 Pa.C.S. [§ 2511(b)]?

Father’s Br. at 6 (reordered for ease of disposition; some capitalization

omitted).

LEGAL ANALYSIS

      When we review a trial court’s decision to terminate parental rights, we

must accept the findings of fact and credibility determinations of the trial court

if the record supports them. In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). “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. (citation

omitted).   “Absent an abuse of discretion, an error of law, or insufficient

evidentiary support for the trial court's decision, the decree must stand.” In

re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (citation omitted). We may

not reverse merely because the record could support a different result. In re



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T.S.M., 71 A.3d at 267. We give great deference to the trial courts “that often

have first-hand observations of the parties spanning multiple hearings.” Id.

Moreover, “[t]he trial court is free to believe all, part, or none of the evidence

presented, and is likewise free to make all credibility determinations and

resolve conflicts in the evidence.” In re M.G., 855 A.2d 68, 73-74 (Pa. Super.

2004) (citation omitted).

      Section 2511 of the Adoption Act, 23 Pa.C.S. § 2511, governs

termination of parental rights, and requires a bifurcated analysis. “Initially,

the focus is on the conduct of the parent.” In re Adoption of A.C., 162 A.3d

1123, 1128 (Pa. Super. 2017) (citation omitted).            “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).”   Id. (citation omitted).   Provided that the court determines the

parent’s conduct warrants termination of his or her parental rights, the court

then engages 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.” Id. (citation omitted). “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).

Child’s Legal Interests Are Unassertainable




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      In his first issue, Father avers that Attorney Calabrese, Child’s attorney

during the contested termination hearing, failed to ascertain Child’s preferred

outcome prior to the hearing, and, therefore, failed to represent Child’s legal

interests during the hearing. Father’s Br. at 27. Father acknowledges that

when newly-appointed Attorney Hofstetter interviewed Child in January 2019,

after this Court remanded the case, Child was unable to express a preferred

outcome. Id. at 28. Father argues, however, “it is possible that [Child] may

have remembered [Father] and been able to express a preference prior to the

initial trial nine months earlier.” Id. As the record supports the trial court’s

findings, Father is not entitled to relief on this issue.

      As stated above, Section 2313(a) mandates that counsel be appointed

to “represent the child” in contested termination of parental rights

proceedings. 23 Pa.C.S. § 2313(a). For purposes of Section 2313, a child’s

legal interests are synonymous with the child’s preference. In re T.S., 192

A.3d 1080, 1089 (Pa. 2018). Our Supreme Court has recently held that that,

“during contested termination-of-parental-rights proceedings, where there is

no conflict between a child's legal and best interests, an attorney-guardian ad

litem representing the child's best interests can also represent the child's legal

interests” Id. at 1092. Importantly, “if the preferred outcome of a child is

incapable of ascertainment because the child is very young and pre-verbal,

there can be no conflict between the child's legal interests and his or her best

interests[.]” Id. In this situation, “the mandate of Section 2313(a) of the

Adoption Act that counsel be appointed “to represent the child,” 23 Pa.C.S. §

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2313(a), is satisfied where the court has appointed an attorney-guardian ad

litem who represents the child's best interests during such proceedings.” Id.

      Our review of the record reveals that the trial court did not abuse its

discretion when it concluded that Child’s legal interests were unascertainable

at the time of the trial. The trial court found Attorney Hostetter’s testimony

to be credible that Child was immature, did not understand the legal

proceedings, did not remember who Father was, and did not have a preferred

outcome. The record supports the trial court’s findings. We decline to reweigh

the evidence or interfere with the trial court’s credibility determinations.

      Because Child’s preferred outcome was not ascertainable at the time of

the hearing, there was no conflict between Child’s legal interests and his best

interests.   See id.    Accordingly, the trial court’s appointment of Attorney

Calabrese, who represented Child’s best interests at the hearing, satisfied

Section 2313(a)’s mandate that trial court appoint counsel “to represent the

child[.]” See 23 Pa.C.S. § 2313; In re T.S., 192 A.3d at 1092. Thus, Father

is not entitled to relief on this issue.

Termination Pursuant to 23 Pa.C.S. § 2511(a)(1)

      In his second issue, Father asserts that Stepfather failed to present clear

and convincing evidence that Father’s rights should be terminated pursuant

to Section 2511(a)(1). Father’s Br. at 16. Father concedes that he did not

have contact with Child during the six months immediately preceding the filing

of the Petition, but argues that the trial court failed to consider Father’s




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explanations as to why he did not have contact with Child. Id. at 17. We find

no abuse of discretion.

      Section 2511(a)(1) provides that the trial court may terminate parental

rights if the Petitioner establishes 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.”       23 Pa.C.S. §

2511(a)(1).   The focus of involuntary termination proceedings is on the

conduct of the parent and whether that conduct justifies a termination of

parental rights.    In re B.L.L., 787 A.2d 1007, 1013 (Pa. Super. 2001).

Although the statute focuses on an analysis of the six months immediately

preceding the filing of the petition, “the court must consider the whole history

of a given case and not mechanically apply the six-month statutory provision.”

In re K.Z.S., 946 A.2d 753, 758 (Pa. Super. 2008) (citation omitted). Rather,

“[t]he 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. (citations

omitted).

      This Court has repeatedly defined “parental duties” in general as the

affirmative obligation to provide consistently for the physical and emotional

needs of a child:




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         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 . . . 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.

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

paragraph breaks omitted).

      Moreover, “[p]arental 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.” Id.   (citation omitted).   “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.” Id. (citation omitted). And most importantly,

“[p]arental 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.” Id. (citation omitted).

      Our review of the record supports the trial court’s determination that,

because Father has refused or failed to perform parental duties for more than

six months prior to the filing of the petition in order to preserve the parent-


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child relationship, Stepfather met his burden under 23 Pa.C.S. § 2511(a)(1).

At the time of the hearing, Father had not seen Child in approximately 2 years,

or half of Child’s life. The trial court acknowledged that Mother sometimes

prevented Father from visiting with Father, but concluded that Father’s efforts

to maintain a parent-child relationship in spite of those obstacles fell short.

The trial court opined:

      We find Father’s testimony credible that [Mother] sometimes
      acted in a manner to block his efforts to maintain a relationship
      with [Child]. However, [Father] is required to take an active an
      affirmative role in [pursuing] and maintaining that relationship.
      We find that he did not assert himself sufficiently to try to
      overcome those obstacles . . . Instead he allowed almost two
      years to pass without seeing [Child].

      [Father] asserted that there were periods of time when he could
      not telephone [Child] because he had deliberately smashed his
      phone while fighting with an ex-girlfriend. He recalled trying to
      call at least “four times.” [Father] admitted that he made no
      attempt to call after August 2016. He asserted that when he had
      tried calling, he could not get through or it would not ring. He
      said it was a “hassle” trying to arrange to see [Child], and he did
      not want to “bring drama” to [Child]. [Father] reported that while
      he was working in Philadelphia, he would travel to Schuylkill
      County almost every other weekend to see another child, but he
      made no attempt to arrange a visit with [Child] on any of those
      occasions.

      [Father]’s testimony about his efforts to maintain a relationship
      with [Child] falls short of establishing that he took an active role
      in pursuing his responsibilities as a parent to his child despite the
      limitations of some obstacles placed before him. He seems to
      deflect the blame on others as the reasons that he has failed to
      parent his child. He testified that the school would not give him
      any information; he was not told the physician’s name; others
      tried to contact [Mother] on his behalf but she would not
      communicate with them; [Maternal Grandfather] did not like him
      and prevented him from seeing [Child]; his telephone calls would
      not go through; he did not have an address to send a letter; and
      [Mother] never asked him for financial support. The evidence

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      shows that [Father] has been either unwilling or has refused to
      take on a parental role, and it is unlikely that any amount of time
      will remedy that. There is evidence that [Mother] was less than
      cooperative in enabling [Father] to schedule a visit, but he made
      no reasonable efforts to overcome her lack of cooperation or to
      maintain contact with his son. He made no attempt to contact her
      by mail or even threaten to go back to court. There were no cards
      and no more presents for [Child], who has been waiting for more
      than three years for [Father] to act like a parent.

Trial Ct. Op., filed 6/8/18, at 6-7. Our review of the records supports the trial

court’s findings.

      While Father argues that the trial court failed to consider his

explanations as to why he was not in contact with Child, our review of the

record belies this claim. The trial court considered all of Father’s explanations

and found them to fall short of Father’s affirmative obligation to perform his

“parental duties” and provide consistently for the physical and emotional

needs of Child.

      In light of the evidence, the trial court properly concluded that Father

failed to perform his parental duties for more than six months preceding the

filing of the Petition. Accordingly, the trial court did not abuse its discretion

when it terminated Father’s parental rights pursuant to 23 Pa.C.S. §

2511(a)(1).

Termination Pursuant to Section 2511(b)

      In his last issue, Father contends that the trial court abused its discretion

when it determined that it was in Child’s best interest to terminate Father’s

parental rights pursuant to Section 2511(b). Father’s Br. at 22. We disagree.



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      With respect to Section 2511(b), our analysis shifts focus from parental

actions in fulfilling parental duties to the effect that terminating the parental

bond will have on the child. Section 2511(b) “focuses on whether termination

of parental rights would best serve the developmental, physical, and

emotional needs and welfare of the child.” In re Adoption of J.M., 991 A.2d

321, 324 (Pa. Super. 2010). It is well settled that “[i]ntangibles such as love,

comfort, security, and stability are involved in the inquiry into needs and

welfare of the child.” In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005)

(citation omitted).   This Court has emphasized that although a parent’s

emotional bond with her child is a “major aspect of the subsection 2511(b)

best-interest analysis, it is nonetheless only one of many factors to be

considered by the trial court when determining what is in the best interest of

the child.” In re A.D., 93 A.3d 888, 897 (Pa. Super. 2014) (citation omitted).

Finally, “[i]n cases where there is no evidence of any bond between the parent

and child, it is reasonable to infer that no bond exists. The extent of any bond

analysis, therefore, necessarily depends on the circumstances of the particular

case.” In re K.Z.S., 946 A.2d at 762–63.

      The trial court opined:

      [Child] has been in the care of [Mother] for his entire life and has
      resided with [Stepfather] for approximately three years of his four
      and a half years of life. [Stepfather] has taken on the role of
      parent and has provided for [Child]’s physical, emotional, and
      spiritual needs. [Child] has some developmental needs which are
      being addressed, but he is healthy overall and doing well in
      preschool. [Child] most likely would not even recognize [Father],
      given his young age when he last saw him. [Father] may think

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      that he has developed a bond with [Child] due to his relationship
      immediately after he was born, but he has not acted in the past
      three years to maintain that bond. We conclude that there is no
      evidence showing that [Child]’s needs and welfare are better
      served by continuing [Father]’s parental rights. Instead, the
      termination of the parental rights of [Father] is in the best
      interest, needs, and welfare of [Child].

Trial Ct. Op. at 8. Our review the record supports the trial court’s findings.

      Father argues that the record does not support the trial court’s

conclusion that Child would probably not recognize Father. Father’s Br. at 24.

In making this assertion, Father relies on his own testimony that when Child

saw Father the day that Father left rehab in May 2016, Child recognized him

and jumped into his arms.      Id.   Father’s argument is unpersuasive.      The

evidence showed, and Father admitted, that at the time of the hearing, Father

had not seen Child in over two years. Accordingly, the record supports the

trial court’s inference that Child would probably not recognize Father.

      The record supports the trial court’s findings and, therefore, the trial

court did not abuse its discretion when it determined that it was in Child’s best

interest to terminate Father’s parental rights pursuant to Section 2511(b).

CONCLUSION

      In sum, the record supports the trial court’s findings that Child’s

preferred outcome was unascertainable at the time of the hearing.

Accordingly, there was no conflict between Child’s best interests and legal

interests and, therefore, the representation of Child by Attorney Calabrese

satisfied the requirements of 23 Pa.C.S. § 2313(a). In addition, our review of

the record reveals that Stepfather provided clear and convincing evidence to

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support the termination of Father’s parental rights pursuant to 23 Pa.C.S. §§

2511(a)(1) and (b).

     Decree affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 06/25/2019




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