J-S87004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: S.L.E.H., A                   IN THE SUPERIOR COURT OF
MINOR                                                   PENNSYLVANIA




APPEAL OF: A.S.H., FATHER

                                                       No. 1296 MDA 2016


                      Appeal from the Decree July 8, 2016
               in the Court of Common Pleas of Schuylkill County
                       Orphans' Court at No: A63-126B-16


BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED JANUARY 06, 2017

        Appellant, A.S.H. (Father), appeals the decree of the Orphans’ Court

Division of the Court of Common Pleas of Schuylkill County, entered July 8,

2016, that terminated his parental rights to his son, S.L.E.H. (Child), born in

February 2011. We affirm the decree on the basis of the trial court opinion.

        In its opinion, entered July 8, 2016, the trial court fully and correctly

sets forth the relevant facts and procedural history of this case. (See Trial

Court Opinion, 7/08/16, at 3-8). Therefore, we have no reason to restate

them at length here.

        For the convenience of the reader, we note briefly that T.L.E. (Mother)

and Father lived together with Child until Child was five months old, at which
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S87004-16



point Mother obtained a Protection From Abuse (PFA) order and Father left

the residence. Mother filed for, and was granted, primary custody. Father

was given partial custody, with three supervised two-hour visits with Child

each week.      After the first supervisor refused to continue overseeing the

visits, Catholic Charities Agency volunteered to supervise them.        Father

attended one visit supervised by Catholic Charities Agency; however,

because of his behavior, they too refused to continue supervising.      Father

has not seen, nor made any attempt to see Child, since September 4, 2012.

On March 16, 2016, Mother and W.A.S. (Stepfather), filed a petition to

terminate Father’s parental rights to Child. The trial court held a hearing on

that petition on June 27, 2016. It entered its decrees terminating Father’s

parental rights, pursuant to 23 Pa.C.S.A. §§ 2511(a)(1) and (b), on July 8,

2016. Father’s timely appeal followed on August 5, 2016.1

       Father raises the following questions on appeal:

       1. Did the trial court err and commit an abuse of discretion when
       it determined that [] Father failed or refused to perform parental
       duties for the [] [C]hild?

       2. Did the trial court err and commit an abuse of discretion when
       it determined that the [C]hild’s best interests, needs, and
       welfare were best served by terminating [] [F]ather’s parental
       rights?

____________________________________________


1
  Father timely filed his notice of appeal and statement of errors complained
of on appeal on August 5, 2016. See Pa.R.A.P. 1925(a)(2)(i). The trial
court entered its opinion on August 9, 2016, in which it relied on the
reasoning set forth in its July 8, 2016 opinion. See Pa.R.A.P. 1925(a)(2)(ii).



                                           -2-
J-S87004-16



(Father’s Brief, at 4).

      Our standard of review is as follows:

      In an appeal from an order terminating parental rights, our
      scope of review is comprehensive: we consider all the evidence
      presented as well as the trial court’s factual findings and legal
      conclusions. However, our standard of review is narrow: we will
      reverse the trial court’s order only if we conclude that the trial
      court abused its discretion, made an error of law, or lacked
      competent evidence to support its findings. The trial judge’s
      decision is entitled to the same deference as a jury verdict.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).

      Further, we have stated:

            Where the hearing court’s findings are supported by
      competent evidence of record, we must affirm the hearing court
      even though the record could support an opposite result.

               We are bound by the findings of the trial court which
         have adequate support in the record so long as the
         findings do not evidence capricious disregard for
         competent and credible evidence. The 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. Though we are not
         bound by the trial court’s inferences and deductions, we
         may reject its conclusions only if they involve errors of law
         or are clearly unreasonable in light of the trial court’s
         sustainable findings.

In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citations omitted).

      The trial court terminated Father’s parental rights pursuant to 23

Pa.C.S.A. §§ 2511(a)(1) and (b).       Requests to have a natural parent’s

parental rights terminated are governed by 23 Pa.C.S.A. § 2511, which

provides, in pertinent part:



                                     -3-
J-S87004-16


     (a) General rule.—The rights of a parent in regard to a child
     may be terminated after a petition filed on any of the following
     grounds:

           (1) The parent by conduct continuing for a period of
           at least six months immediately preceding the filing
           of the petition either has evidenced a settled purpose
           of relinquishing parental claim to a child or has
           refused or failed to perform parental duties.

                                 *    *    *

     (b) Other considerations.—The court in terminating the rights
     of a parent shall give primary consideration to the
     developmental, physical and emotional needs and welfare of the
     child. The rights of a parent shall not be terminated solely on
     the basis of environmental factors such as inadequate housing,
     furnishings, income, clothing and medical care if found to be
     beyond the control of the parent. With respect to any petition
     filed pursuant to subsection (a)(1), (6) or (8), the court shall not
     consider any efforts by the parent to remedy the conditions
     described therein which are first initiated subsequent to the
     giving of notice of the filing of the petition.

23 Pa.C.S.A. §§ 2511(a), (b).

     It is well settled that a party seeking termination of a parent’s rights

bears the burden of proving the grounds to so do by “clear and convincing

evidence,” a standard which requires evidence 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 T.F., 847 A.2d 738, 742 (Pa. Super. 2004) (citation omitted). Further,

           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. . . .


                                     -4-
J-S87004-16



In the Interest of K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citation

omitted).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the trial court, we conclude

that there is no merit to the issues Father has raised on appeal. The trial

court opinion properly disposes of the questions presented. (See Trial Ct.

Op., 7/08/16, at 8-9 (finding that (1) Father last had contact with Child in

2012, and never acted to overcome any obstacles that his own actions put in

way of seeing Child, (2) Father had settled purpose of relinquishing his

parental rights, and (3) termination of Father’s parental rights is in best

interest, needs, and welfare of Child)). Accordingly, we affirm on the basis

of the trial court’s opinion.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/6/2017




                                    -5-
                                                                              Circulated   12/23/2016 04:11   PM




     COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY, PENNSYLVANIA
                     ORPHANS' COURT DIVISION

 In Re:                                           No. A63-126B-16
 S-L·E·-·HI                          l,
         a Minor
                                                  Contested Involuntary Termination

        Counsel of Record: Michael Beltrami, Esquire - for Petitioner
                           Julie A. Werdt, Esquire - for the Natural Father
                           Nicholas J. Watt, Esquire -for the Minor Child


                                      OPINION OF COURT
BALDWIN, P.J.
        1         L•    E•••      (hereinafter   65••••). the natural mother, and
~        A-      s•. her husband, filed a petition to involuntarily terminate the parental
rights of A            S.   H-     (hereinafter H...   ). the natural father of~      Le

E             Hma (hereinafter    s•. s•         was born on February•. 2011.
       The termination of parental rights is governed by statute. The party seeking

termination must prove by clear and convincing evidence that the parent's conduct
. satisfies at least one of the nine statutory grounds delineated in Section 2511 (a) of the

Pennsylvania Adoption Act, 23 Pa.C.S.A. §2101 et seq. See also In re I.J., 972 A.2d 5,

9 (Pa.Super. 2009). If the court determines that the parent's conduct warrants
termination, it must then engage in an analysis of the best interests of the child pursuant

to Section 2511(b)      and take into consideration the developmental, physical, and

emotional needs of the child. The best interests of the child may not be separately

considered until a finding has been made that the statutory requirements for termination
have been met. In re Adoption ofM.R.B., 25A.3d 1247 (Pa.Super. 2011).

       In this case, petitioners sought the involuntary termination of Hosier's parental
rights pursuant to 23 Pa.C.S.A.     §2511 (a)(1) and §2511(b) which provide as follows:

       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.A. § 2511 (a)(1 ).

       and
                            •
       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 ....
       23 Pa. C.S.A. § 2511(b).


       Parental rights may be terminated if, for a period of at least six months, a parent
either demonstrates a settled purpose of relinquishing a parental claim to a child or

refuses or fails to perform parental duties. In re Adoption of R.J.S., 901 A.2d 502, 510
(Pa.Super. 2006) (citing In the Matter of the_Adoption of J.M.M., 782 A.2d 1024, 1030

(Pe.Super. 20,01), appeal denied, 797 A.2dl114 (Pjl. 2002). The parental duties

re~quir~d by the tanguage of Section 2511(a)(1) have been defined as "many sided." In
re Adoptic;m of M.J..H., q01 A.2d 648, 652 (fa.Super.        1985), appeal denjed, 5.2.} A.2d

1105 (Pa. 1987). Not only is th.er~ a dutyto love, to protect, and to support one's child,

there is also a duty to maintain communication and association with that child. Id.

Further, being a parent is more than a passive state of mind, it is "an active occupation,
calling for constant affirmative demonstration" of love, protection, and concern. Id. A
parent must "exert himself to take and maintain a place of importance in the child's life."

Id. (Citations omitted). 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 C.M.S., 832 A.2d 457, 462 (Pa.Super. 2003) (citation omitted), appeal

denied, 859 A.2d 767 (Pa. 2004). 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. In re D.J.S., 737 A.2d

283 (Pa.Super. 1999).

      The failure or refusal to perform parental duties should be measured "in light of
what would be expected of an individual in similar circumstances" to the parent under
examination. Lookabi/1 v. Moreland, 485 A.2d at 1204, 1206 (Pa.Super. 1984). The

                                               2
totality of the circumstances surrounding the parent's failure to perform parental duties

must be considered, including the effect of certain barriers on the contact between the

parent and the child. In re Z.P., 994 A.2d 1108 (Pa.Super. 2010).

       A child needs love, protection, guidance and support, and these physical and

emotional needs cannot be met by a merely passive interest in the development of the

child by the natural parent. In re Shives, 525 A.2d 801 (Pa.Super. 1987). The

satisfaction of these needs requires the natural parent's affirmative performance,
including a genuine effort to maintain communication and association with the child. Id.

As we have repeatedly acknowledged, a "child's life simply cannot be put on hold in the
hope that the parent will summon the ability to handle the responsibilities of parenting."

In re I.J., supra. A parent who cannot, or will not, meet the minimum requirements of
care within a reasonable time may properly be considered unfit and have his parental

rights terminated. In re Z.P., supra.

       F I     I testified that she and H-.        lived together when   sa   was born, but

separated when ~       was about five months old due to H••           tendency for violent
behavior, fits of rage, physical abuse, and his controlling nature. She described an

event that took place in early August of 2011 when she returned to the home from her
mother's house. She said that H,,._began arguing with her and grabbed ~               from
her arms. She begged him to give the baby back to her, which he finally did, and she
got into her car to leave. H      again "started freaking out." [N.T., p. 7]. After a series
of scuffles and verbal arguments, E            managed to drive away from the home and

went directly to obtain a Protection From Abuse (PFA) order against H-. The couple

never lived together again after this event.

      On August 17, 2011, a final PFA order was entered which protected          E•••
until February 17, 2013. Pursuant to the PFA, H             contact with 591 was limited to
supervised visitation by H & 7 father, B             H-,     in his father's home, with three
two hour visits per week. All arrangements were to be made between E                  and

                                               3
treatment as recommended and to continue with such treatment until he was

successfully discharged.      He was also directed to sign any necessary releases.

         As required pursuant to the PFA,    E•••        filed for custody of S-. within thirty
days of the entry of the order and a conference was held. At the conference, an
agreement was reached between the parties that gave primary physical custody to
E ...                                                      1-1m-. on Fridays, Saturdays, and
Sundays for a few hours, with      11Bat••t H-       supervising those visits. A custody

stipulation was presented to the court and made an order of court on September 21,

2011.

         In April 2012, a modification of the custody order was pursued because       B-•
H-was          no longer willing to supervise the visits. A conference was held on July 9,

2012, at which time the parties could not reach an agreement. A new interim order was

entered on July 11, 2012, which kept the same custody scheme, but changed the visits
to the Catholic Charities Agency, who were willing to supervise the visits. H..          made
one visit with ~      at the Agency's office, but the second visit was cancelled due to

H          behavior at the office when he arrived.

         The Catholic Charities Agency, by correspondence to the Custody Conciliation
office dated August 23, 2012, decided to discontinue supervising H••             visits with
~       due to his "labile" behavior and his inability to control his actions. [N.T., p. 12]. A

custody conference was held, and after a discussion with the parties, their respective
counsel, and the custody conciliation officer, it was agreed that H••          custody rights
would be suspended until he accomplished certain things. The court order dated
September 4, 2012, provided that H ...        was to immediately contact Service Access
                                                                •'·

and Management, arrange for an intake evaluation, submit to the psychiatric evaluation,

follow all recommended treatment or medications, and execute all consents necessary
to release the information to the Custody Conciliation Office and to both counsel.

                                                 4
         H-       never completed the psychiatric evaluation and he never saw             S-. after
September 4, 2012. He did contact E                    once in 2014 asking to see~.           but has

not made any attempts since then, has not filed any request to modify the custody
order, and has never provided anyone with proof that he completed a mental health
evaluation or treatment.

         E         6 testified that she has resided at the same address where she and

Hmalived from August 2012 until December 2015, and that H-.had                          never visited

the home. She testified that she still has the same telephone number she had when

s•was         born and that H ....    knew the number. She also testified that she never
received any letters or gifts from H-.for         ~-      H.-.was       ordered in June of 2012

to pay child support for Sia, but sometime in 2014, Carbon County dropped the

support requirement and the arrears because it learned that Hma was seeking

governmental disability benefits. E                testified that the last time H-        saw ~

was September 4, 2012, and other than contacting her once in 2014, he has not made
any effort to visit with s•.       She also testified that Bg       I 1-1911 has maintained a
relationship with   Siii,    and has visited with him on a frequent basis as well as giving

s•    gifts for special occasions. We find that E                 testified credibly.

         In contrast, H...      first testified that he had not seen 8911 since September 4,

2012, but that was because he did not know where           E•••         lived. Later, he blamed
his failure to sees•         on the PFA, stating that he was "trying not to get in trouble

anymore." [N.T., p. 44]. H-            said that he had not been abusive to 57             I , and
had only agreed to the PFA because his "lawyer said to agree with everything." [N.T.,

p. 29]. He testified that his violent actions might have been only as a result of a pinched
nerve.

         H-      estimated that he telephoned     E•••          at least a dozen times from
September 2012 through the date of the hearing, but that not one of his calls was ever

returned. H-         testified that he had tried to maintain a relationship with Sl9 through
                                                  5
 telephone calls, but he did not get any phone calls back, and he believed that El                        d

 was keeping him from a relationship with Siii.

          He testified that he had sent many gifts for         Sia,     but because he was unsure

 where                  was residing the gifts he sent "got returned."        [N.T., p. 35). When

 pressed about what kind of gifts he sent and when, he replied that he sent "kid stuff'

 and toys, and that they were sent "from the time he was born, well after the time we

 separated" in 2012. [N.T.,         p. 36).

         H...     stated that his father stopped supervising the custody visits only because

 H....    stopped doing the hard physical work that his father required him to do when

visits with     Sia   took place.    H-.      did not like that B                  often told him "how

to raise a child" when he never raised his own kids.                [N.T., p. 31). H-       admitted that

he knew his father was seeing ~on a regular basis, but his father was "noted as a

liar as well." [N.T., p. 45).

         Hosier              that there was an incident when he picked up              c9   and Siii     had

black and blue marks on his back and bottom.               H ...     reported that Schuylkill County

Children and Youth Agency was contacted, but that they "opened and closed the case

in two weeks."        [N.T., p. 31). H-        admitted that the Children and Youth investigation

resulted in a finding of "unfounded",         but he stated that it "seemed a little strange" in his

book. '[N.T., p. 43). He was very concerned that 2                        was never arrested and the

Agency closed the case so quickly that the incident caused him to go "into a downward

spiral" believing that E               was abusing E81.. [N.T., p. 32). How.ever, he did not

pursue those concerns further, nor did he file for a modification of custody because

"things cost money" and he was "fighting for disability."             [N.T., p. 32).

         H-testified that the Catholic Charities Agency stopped supervising his visits

and "dishonored"       him only because he was pushing "Daddy" too much on his son by

calling him "Daddy's little man." [N.T., p. 32, 33). He denied acting irrationally              at the



                                                      6
office when he arrived for his visit and asserted that they had "yanked" S9a away from

him which made him angry. [N.T., p. 44].

        With regard to his mental health evaluation and treatment, H91i        testified that he

did not go to Service Access and Management, but went to New Beginnings in

September 2012, where he underwent a psychiatric evaluation and a number of therapy

sessions. He was not placed on any medications and recalled signing a release so that

the court could get that information.   H-       testified that he was diagnosed as free of _.

any mental health effects and had paperwork to show that, but he had "misplaced" the

paperwork. [N.T., p. 46]. He stated that his counselor told him that he would be willing

to come to court if he was needed, and that the counselor had "wrote high, high

recommendations on everything" about him. [N.T., p. 46]. H-also              remembered

that the court "wrote up a piece of paper" in response to his mental health records which

said that there was "no harm, no foul" and he should have full custody of Emil. [N.T., p.

34]. H ..    agreed that he had never presented anyone with paperwork confirming that

he had submitted to an evaluation, or diagnosed as not in need of treatment.          He also

admitted that any mental health treatment he may have pursued ended in 2012 .

       ._.._was     incarcerated in the Schuylkill County Prison from March 2016 through

June 2016 on a "bowl and weed charge." [N.T., p. 38].

       H-admitted       that he had not provided any child support for~          since August

2012. [N.T., p. 41]. He testified that he was never really able to provide for S911.and

that it was "pretty rough" because "of trying to survive off of what they give me." [N.T.,

p. 38]. He is currently receiving $730 a month which he said was from "Supplemental."

[N.T., p. 38]. He stated that he believed that   sa    was eligible for a check under his

name, and thats•      is not receiving the benefits because    E•••       refused to contact

the Social Security Office. However, S-.     is not eligible to receive a benefit as a

dependent in the program under which H_.           claims to be receiving benefits.



                                             7
        Finally, Htmladisagreed       that his parental rights should be terminated and

asserted that he did want a relationship with         s•.    He stated that when he had seen

891 in     2012, he would "jump out the window right into [his] arms." [N.T., p. 37]. H-

opined that although       S9a   was only months old at that time,    s•    knew it was him

coming to pick him up and that he would know it was him even if coming "through a

traffic jam." [N.T., p. 37].     He blamed E•••for           preventing him from seeing   59
because she would not return his phone calls and would not accept the gifts that he

sent for   Ema.    H        admitted that he had no relationship or bond with     S'a   and knew

nothing about him. [N.T., p. 41].

       Although H-           testified that he did not want his parental rights terminated, it is

difficult to find that he has not had a settled purpose of relinquishing those rights. His

last contact with ~        was in 2012 and he has never acted to overcome any of the

"obstacles" that his own actions put in the way of his seeing his son. H-.has              not

acted to maintain a relationship with      Sia that     was severed when ~       was only a little

over a year old.       He blames E•••for        obstructing his contact, yet the evidence

establishes that she resided in the same home until December 2015, kept the same

telephone number, and retained contact with H •                father. We find that clear and

convincing evidence establishes that H ...            had a settled purpose of relinquishing his

parental rights.

       In deciding the sensitive question of the involuntary termination of parental rights,

we are mindful of the irreversible nature and the serious emotional impact which

necessarily follow such an action. In re Adoptionof Ostrowski, 471 A.2d 541

(Pa.Super. 1984). It is well-established that the court must engage in a bifurcated
process in terminating parental rights. In re D.W., 856 A.2d 1231 (Pa.Super. 2004).

Initially, the court must focus on the conduct of the parent, and only after determining

that the parent's conduct warrants the termination of parental rights does the court

engage in the second part of the analysis, that is, determining the needs and welfare of

                                                  8
the child under the standard of the best interests of the child.   In re C.L.G., 56 A.2d 999

(Pa. Super. 2008). A major aspect of the needs and welfare analysis concerns the

"nature and status of the emotional bond between parent and child." In re Adoption of
R.J.S., supra. at 509 (citing In re C.M.S., 884 A.2d 1284, 1287 (Pa.Super. 2005)). We

must be careful not to destroy something necessary and beneficial to the child. In re
Z.P., supra.

        s•     has resided with E          since his birth. He is five years old and is doing

well.   SW does have some discipline problems which are being addressed and have
improved. El           and her husband attended classes to learn how to help~

improve his focusing and his ability to stay calm, and how to control his emotions.       S'WI
enjoys playing with Legos, watching movies and taking nature hikes. His daily needs

have been taken care of by     E•••
he and E            became a couple about a year and half ago and married in December

2015. There is a good relationship between 8911 and his stepfather. V'v9m S-.              is

interested in adopting   s•.
        We conclude that there is no evidence showing that the minor child's needs and
welfare are better served by continuing A            EIIII H       parental rights. Instead,

the termination of the parental rights of the natural father, l'      g S-. H          is in the

best interest, needs, and welfare of the minor child,   s•     L• E         H      .
        Accordingly, we enter the following:




                                               9
