J-S06016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: D.I.T., A MINOR AND S.P.T., A             IN THE SUPERIOR COURT OF
MINOR                                                  PENNSYLVANIA




APPEAL OF: T.D.T., JR., FATHER

                                                      No. 1341 MDA 2015


                      Appeal from the Decree July 15, 2015
                  In the Court of Common Pleas of York County
                       Orphans' Court at No(s): 2015-0069
                                                2015-0070


BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MUNDY, J.:                             FILED MARCH 02, 2016

        Appellant, T.D.T., Jr. (Father), appeals from the July 15, 2015 decrees

involuntarily terminating his parental rights to his minor sons, D.I.T. and

S.P.T., (collectively, the Children).1 After careful review, we affirm.

        This appeal arises from the petitions for involuntary termination of

parental rights filed by R.L.W. (Mother), and her husband, D.M.W.

(Stepfather), on May 22, 2015. Mother and Father are former spouses, and

both of the Children were born during their marriage.         See Petitions for

Involuntary Termination of Parental Rights, 5/22/2015, at 3.          By 2009,

Mother and Father’s relationship had become strained, and the parents were
____________________________________________


1
    D.I.T. was born in November 2007, and S.P.T. was born in August 2009.



*Former Justice specially assigned to the Superior Court.
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engaging in periods of “on and off separation.” N.T., 7/14/2015, at 21. In

December 2009, Father was charged with two counts of endangering the

welfare of a child, after he was found to be severely intoxicated while caring

for the Children. Id. at 6-7. Father pled guilty to these charges in 2010,

and was sentenced to three years of probation.              Id. at 7, 48.    Father

continued to spend time at Mother’s residence until October 2010, when he

was charged with sexually assaulting Mother. Id. at 7-8. As a result, Father

entered a guilty plea to indecent assault.           Id. at 8-9, 48.   In addition,

Mother obtained a protection from abuse (PFA) order against Father. Id. at

8. In November 2010, Father was charged with violating the PFA order by

contacting Mother.       Id. at 8-9.     As a result of these events, Father was

incarcerated until August 2011. Id. at 9.

       During his incarceration, Father filed a pro se custody complaint. Id.

at 9, 12, 43. At the conclusion of the parents’ custody proceeding, by order

dated January 26, 2012, Mother was awarded sole legal and physical

custody of the Children.2        Id. at 12.    As discussed in greater detail infra,

Father has not visited with the Children since November 2010, and the

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2
  During the custody proceedings, Father was evaluated by psychologist
Laurie S. Pittman, Ph.D. See Mother and Stepfather’s Petition to Adopt,
7/6/15, at Exhibit 2. Dr. Pittman recommended that Father not have any
contact with the Children until he is able to document six consecutive
months of sobriety, and that Father should not have unsupervised contact
with the Children until he completes two years of consistent psychotherapy.
Id. at 10 (unpaginated).



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parents have not participated in any subsequent custody proceedings. Id.

at 15.

         A termination hearing was held on July 14, 2015, during which the

orphans’ court heard the testimony of Mother; Stepfather; Father; and the

Children’s paternal grandmother, M.D. (Paternal Grandmother).              The

orphans’ court also interviewed the Children. On July 15, 2015, the orphans’

court entered its decrees, involuntarily terminating Father’s parental rights

to the Children. Father timely filed a notice of appeal on August 5, 2015,

along with a concise statement of errors complained of on appeal pursuant

to Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i).3

         On appeal, Father raises the following issues for our review.

               1. Whether the [orphans’ court] erred in finding that
               [Father] evidenced a settled purpose of relinquishing
               parental rights and failed or refused to perform
               parental duties towards the Children for a period in
               excess of six months preceding the petition[?]

               2. Whether the [orphans’] court erred in failing to
               consider Father’s abilities and willingness to remedy
               any findings of past failures to perform parental
               duties[?]
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3
  We note that it was improper for Father to file a single notice of appeal
from both of the termination decrees. See Pa.R.A.P. 341, Note (“Where,
however, one or more orders resolves issues arising on more than one
docket or relating to more than one judgment, separate notices of appeal
must be filed.”). However, we decline to quash Father’s appeal, as we
discern no prejudice stemming from Father’s procedural misstep. See, e.g.,
id. at 902 (stating, “[f]ailure of an appellant to take any step other than the
timely filing of a notice of appeal does not affect the validity of the
appeal[]”).



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            3. Whether the [orphans’] court’s finding that
            [Father] made no true effort to exercise his parental
            rights is against the weight of the evidence as
            [Father’s] explanations must be considered in the
            determination to terminate rights[?]

            4. Whether the [orphans’] court erred in finding that
            the best interest of the Children would be served by
            terminating [Father’s] parental rights[?]

Father’s Brief at 4 (unnecessary capitalization omitted).

      We consider Father’s claims, mindful of our well-settled standard of

review.

            The standard of review in termination of parental
            rights cases requires appellate courts to accept the
            findings of fact and credibility determinations of the
            trial court if they are supported by the record. If the
            factual findings are supported, appellate courts
            review to determine if the trial court made an error
            of law or abused its discretion. A decision may be
            reversed for an abuse of discretion only upon
            demonstration       of   manifest      unreasonableness,
            partiality, prejudice, bias, or ill-will. The trial court’s
            decision, however, should not be reversed merely
            because the record would support a different result.
            We have previously emphasized our deference to
            trial courts that often have first-hand observations of
            the parties spanning multiple hearings.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks

omitted).

      Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated

analysis.




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           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.

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

     In this case, the orphans’ court terminated Father’s parental rights

pursuant to Sections 2511(a)(1) and (b), which provide as follows.

           § 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.

                                     …

           (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

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            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)(1), (b).

      We first address whether the orphans’ court abused its discretion by

terminating Father’s parental rights pursuant to Section 2511(a)(1).           To

meet the requirements of this section, “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 re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008), citing In re

Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super. 2006).           The orphans’

court must then consider “the parent’s explanation for his or her conduct”

and “the post-abandonment contact between parent and child” before

moving on to analyze Section 2511(b).         Id., quoting In re Adoption of

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

      This Court has explained that a parent does not perform his or her

parental duties by displaying a “merely passive interest in the development

of the child.” In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004), appeal

denied, 872 A.2d 1200 (Pa. 2005), quoting In re C.M.S., 832 A.2d 457, 462

(Pa. Super. 2003), appeal denied, 859 A.2d 767 (Pa. 2004).                Rather,


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“[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).   Incarceration does not relieve a

parent of the obligation to perform parental duties. An incarcerated parent

must “utilize available resources to continue a relationship” with his or her

child. In re Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012), citing In re

Adoption of McCray, 331 A.2d 652 (Pa. 1975). Further, “[w]e review the

orphans’ court’s decision for abuse of discretion or error of law, and we must

defer to the orphans’ court’s findings of fact if the record supports them. As

we have already noted, termination of parental rights is appropriate only

where clear and convincing evidence supports termination under § 2511(a).”

In re S.S.W., 125 A.3d 413, 416 (Pa. Super. 2015) (internal citation

omitted).

      In his first three issues, Father asserts the orphans’ court erred in

terminating his parental rights pursuant to Section 2511(a)(1). Specifically,

Father argues that Mother created obstacles which prevented him from

contacting the Children.   Father’s Brief at 15.   Father contends, inter alia,

that Mother did not respond to Father’s attempts at communication, that

Mother denied his requests to see the Children, that Father feared that

Mother would file another PFA against him if he persisted in trying to contact

her, and that Father lacked recent contact information for Mother. Id. at 10,


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15-16.    According to Father, he attempted to maintain a relationship with

the Children by staying in contact with their maternal grandfather, who

provided Father with updates on the Children’s lives, and who provided the

Children with gifts and financial support from Father.       Id. at 15-16. Finally,

Father insists that he has been attempting to “get his life together” before

initiating a second custody action. Id. at 16-17.4

       Here, the orphans’ court provided the following reasoning as its basis

for terminating Father’s parental rights.

              Father apparently maintained a relationship with
              Maternal Grandfather and [the orphans’ court] is
              confident that had he wanted to reach out and obtain
              visitation or file for visitation, he certainly could have
              done that. Father was not incarcerated in 2013 and
              2014 and he could have certainly filed for visitation
              of the children again; he previously filed for custody
              pro se while incarcerated and was familiar with the
              process. Of course Father would still need to comply
              with the six months of sobriety recommended by Dr.
              Pittman in the previous custody action.

                     Father would also need to comply with the
              Section 5329 threat of harm evaluation as stated in
              Judge Ness’ custody order. Father presented no
              satisfactory explanation … as to why he couldn’t
              have six months of sobriety in the last two and a half
              years and clearly that’s an important factor when
              attempting to be a parent. Father has also failed to

____________________________________________


4
  In his third issue Father concedes, “he admittedly failed in seeking or
establishing physical custody of the Children, his failure to do so was based
on a flawed understanding that he had to get his own life together … Father
recognized that the Children were being properly cared for in []Mother’s
home and custody at the time.” Father’s Brief at 20.



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          undergo a threat of harm evaluation as previously
          ordered without any explanation. …

                 Father also failed to perform parental duties
          when he did not maintain sobriety in the last two and
          a half years. … Father testified that he has only
          inquired about the children in the last six months
          and has last seen the children about four years ago.
          Father’s explanation for the lack of contact was the
          difficulty of reaching Mother via her cellphone and
          her insisting to have visits supervised by a
          professional. However, later testimony revealed that
          Father at one point knew Mother’s cellphone number
          and that his uncle was able to contact Mother
          without any issue in regards to his grandfather’s
          estate. Mother also testified that her number is
          listed in the White Pages.      Father presented no
          evidence as to why he did not complete the Section
          5329 evaluation so that supervised visits could be
          arranged as stated in the previous custody order.

                                     ….

          Father’s actions in the past couple of years indicate
          that he has continued to struggle with substance
          abuse issues and is still attempting to get his life
          together. ….

          …. Father had the ability to demonstrate his
          parenting skills in 2013 and 2014 when he was not
          incarcerated and he failed to do so. In addition,
          Father’s continuing struggle with substance abuse
          greatly inhibits his ability to parent and his failure to
          undergo the Section 5329 threat of harm evaluation
          prevents him from seeking supervised visitation[.]
          Judge Ness’ custody order explicitly stated that the
          children would not be kept from Father so long as he
          maintains sobriety and complies with the required
          evaluations. In fact, supervised visitation with the
          children was previously suggested by Dr. Pittman so
          long as Father could document six months of
          continuous abstinence from controlled substances.
          Father has simply failed to comply with any of the


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            recommendations and presented no evidence to
            excuse his [non]compliance.

            …. Father has not shown any serious attempts to
            parent the children aside from inquiring about them
            in the past two years.       [] Father had a recent
            incident involving both alcohol and controlled
            substances that involved a period of incarceration
            and no documented progress that he has remained
            drug-free for at least six months in any recent years.

Orphans’ Court Opinion, 9/18/2015, at 12-15.

      After a thorough review of the record in this matter, we conclude that

the orphans’ court’s findings are supported by the record.     Therefore, the

orphans’ court did not abuse its discretion by involuntarily terminating

Father’s parental rights to the Children.    During the termination hearing,

Mother testified that Father has had no direct contact with the Children since

November 2010. N.T., 7/14/2015, at 15. Father has not requested contact

with the Children since the parents’ custody proceeding, which concluded in

January of 2012. Id. at 12-15. Father’s last direct contact with Mother was

a letter that he sent to her in 2012 or 2013 after the PFA order expired. Id.

at 30, 32. Mother conceded that she moved to a new address in April 2013,

but Mother’s current address is “listed in the white pages.” Id. at 26, 31.

Mother’s phone number has remained the same. Id. at 26.

      Mother acknowledged that Father has kept in touch with the Children’s

maternal grandfather, but she was not aware of Father asking the maternal

grandfather to see the Children. Id. at 25. Mother stated that Father sent

one or two birthday cards to the Children through their maternal grandfather

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in 2012 or 2013. Id. at 15. Father sent gifts along with the birthday cards,

and there also was “a monetary gift in Easter of 2014.” Id. at 16. Father

sent an approximately eighty dollar birthday gift for D.I.T. in October 2014.

Id. Mother noted that Father has never paid child support. Id. at 16-17.

Mother initiated a support action while Father was incarcerated in 2011, but

later withdrew her request for support in July of 2013. Id. at 16-17.

      Father testified that he sent twenty dollars per week to Mother and the

Children after he was incarcerated.   Id. 41-42.     According to Father, this

lasted “for a good five or six months.”      Id. at 49.   Father stated that he

stopped sending money because “I went to complete … a drug and alcohol

program.” Id. Father was incarcerated again from December 1, 2011, until

December 25, 2012, due to a probation violation. Id. at 42, 48, 58. Father

explained that he violated his probation because he found his “sex offender

class” too disturbing and refused to attend. Id. at 42. Father also admitted

to having failed a drug screen. Id. at 48.

      Concerning his lack of recent communication with the Children, Father

testified that he has contacted the Children’s maternal grandfather. Id. at

45, 54. Father claimed that he did not contact Mother to arrange supervised

visits with the Children after the PFA order expired because Mother “would

never agree on … who would supervise the visitation. She wanted me to pay

out-of-pocket to go through a third party … and I didn’t have the finances at

that point.”   Id. at 52.   Father also stated that he did not know where


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Mother was living, and that Mother’s phone number has changed. Id. at 45-

46.   When asked what efforts he has made to locate Mother’s address,

Father replied, “in the last six months every time I ran -- wrote her or tried

to call, she has never responded. Quite frankly, I didn’t see that [sic] the

purpose.”   Id. at 54.   Father admitted that the last time he tried to call

Mother was “a couple months” after he was released from incarceration,

although Father failed to specify which period of incarceration he was

referring to. Id. at 55. Father did not attempt to call Mother in the past six

months. Id.

      Father further testified that he has not filed any additional custody

actions because he did not think he was “ready.”          Id. at 53.    Father

explained that he wanted to go back to school, have a place of his own, own

a car, and have a stable job, so that he has “a better leg to stand on” when

he presents his case to the court. Id. at 53-54. Father insisted that he has

been “trying to get [his] life together,” and that he has made efforts to

maintain his sobriety.    Id. at 44, 55.     Father stated that he attended

parenting classes and voluntarily participated in a counseling class called the

“Freedom Program” while incarcerated. Id. at 44-45. Father also reported

that he attended intensive outpatient treatment.     Id. at 50.   According to

Father, he plans on seeing a psychiatrist and a counselor as part of

additional drug and alcohol treatment. Id. at 52.




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     Despite these efforts, Father admitted that he recently was arrested

due to a drug and alcohol related incident.      Id. at 46-47.    Father was

incarcerated from April 30, 2015 until May 15, 2015.      Id. at 58.     Father

insisted that this was an “isolated incident,” which resulted from the fact

that he was caring for his sick father and grandmother.        Id. at 46-47.

Father stated that he has been sober for three months. Id. at 47.

     Paternal Grandmother testified that Mother ended all contact between

the Children and Father’s extended family soon after S.P.T’s birth, when the

charges were filed against Father. Id. at 59. Paternal Grandmother recalled

that Father asked her to purchase Christmas gifts for the Children after he

was incarcerated, and Paternal Grandmother complied. Id. at 60. However,

Mother informed Paternal Grandmother that she could not deliver the

presents in person, and instructed Paternal Grandmother to drop the

presents off at the home of the Children’s maternal grandfather.            Id.

Paternal Grandmother indicated that she lost track of Mother and the

Children after they moved in August 2011, and that she has not seen the

Children in about four years. Id. Paternal Grandmother stated that Father

has “tried very hard” to keep in touch with the Children, and that he

contacted   the   Children’s   maternal     grandfather   “constantly”    while

incarcerated. Id. at 61.

     Herein, the record is replete with instances of Father’s inability to

maintain sobriety, to the detriment of the Children and any relationship with


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them.     It is also concerning that the initial incident, involved Father’s

substance abuse and the danger he posed to the Children.         Accordingly,

despite evidence of some effort on Father’s part, the record confirms that

Father has refused or failed to perform parental duties for a period of at

least six months prior to filing of the termination petitions on May 22, 2015.

Crucially, Father continues to be plagued by substance abuse issues, as

evidenced by his recent arrest. Therefore, no relief is due.

        We next consider whether the orphans’ court abused its discretion by

terminating Father’s parental rights pursuant to Section 2511(b). We have

discussed our analysis under Section 2511(b) as follows.

             Subsection 2511(b) focuses on whether termination
             of    parental    rights  would    best   serve   the
             developmental, physical, and emotional needs and
             welfare of the child. In In re C.M.S., 884 A.2d
             1284, 1287 (Pa. Super. 2005), this Court stated,
             “Intangibles such as love, comfort, security, and
             stability are involved in the inquiry into the needs
             and welfare of the child.” In addition, we instructed
             that the trial court must also discern the nature and
             status of the parent-child bond, with utmost
             attention to the effect on the child of permanently
             severing that bond. Id. However, in cases where
             there is no evidence of a bond between a parent and
             child, it is reasonable to infer that no bond exists.
             In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super.
             2008). Accordingly, the extent of the bond-effect
             analysis necessarily depends on the circumstances of
             the particular case. Id. at 63.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).

        Here, the orphans’ court found that there is no significant bond

between Father and the Children, due to their lack of recent contact.

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Orphans’ Court Opinion, 9/18/2015, at 16. As a result, terminating Father’s

parental rights would have a minimal impact on the Children. Id. The court

also found that the Children are bonded with Stepfather, and that it would

be in the best interests of the Children to be adopted by Stepfather. Id. at

16-17.

      Father argues that terminating his parental rights would not be in the

best interests of the Children, because Mother failed to permit or encourage

the Children to have a relationship with him. Father’s Brief at 22. Father

also contends that terminating his parental rights will prevent the Children

from having a relationship with Father’s extended family.          Id. at 23.

According to Father, preserving his parental rights will have no impact on

the relationship between Mother, Stepfather, and the Children, but Father’s

relationship with the Children will be “forever altered” if his parental rights

are terminated. Id. Father insists that he is “ready, willing, and able to be

a father to the Children….” Id.

      We again conclude that the orphans’ court did not abuse its discretion.

As previously noted, the Children have not seen Father since November

2010. Mother testified that she met Stepfather in March 2011, and that they

have resided together with the Children since August 2011.                N.T.,

7/14/2015, at 17-18. Mother stated that Stepfather cares for the Children in

every way that a parent would, and that the Children treat Stepfather “for all

practical purposes as their father. They refer to him as daddy.” Id. at 18.


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The Children look up to Stepfather and respect him, and Stepfather’s

extended family has accepted the Children and “treat them like their own.” 5

Id. Concerning the Children’s knowledge of Father, Mother stated that she

provides the Children with birthday cards sent by Father. Id. at 28. Mother

explained, “they do know about [Father] that he was their dad and they

know … they have seen pictures of themselves with him when they were

babies.    But they don’t ask a whole lot of questions.”    Id.   Additionally,

Alexis Sipe, Esquire, guardian ad litem for the Children, testified at the

hearing that “it appears that the boys are very well settled and adjusted with

the environment with [Mother and Stepfather] that they know and I feel

from what I have seen that this would be good for them.” Id. at 67. Thus,

we conclude the record supports the orphans’ court finding that it would best

serve the Children’s needs and welfare to terminate Father’s parental rights.

       Based on the foregoing, we conclude that the orphans’ court did not

abuse its discretion by involuntarily terminating Father’s parental rights to

the Children.     Accordingly, we affirm the orphans’ court’s July 15, 2015

decrees involuntarily terminating Father’s parental rights pursuant to 23

Pa.C.S.A. § 2511(a)(1) and (b).




____________________________________________


5
 Stepfather agreed that he has a good relationship with the Children, and
wants to adopt them. N.T., 7/14/2015, at 34-36.



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     Decrees affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/2/2016




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