J-S72031-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: S.E.E., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: M.S. MOTHER AND                 :
    S.S., STEPFATHER                           :
                                               :
                                               :
                                               :   No. 1779 EDA 2017

                  Appeal from the Order Entered May 17, 2017
      in the Court of Common Pleas of Philadelphia County Family Court at
                        No(s): CP-51-AP-0000997-2016


BEFORE:      BENDER, P.J.E., MUSMANNO, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                         FILED JANUARY 08, 2018

       Appellants, M.S. (“Mother”) and S.S. (“Stepfather”), file this appeal from

the order dated May 16, 2017, and entered May 17, 2017,1 in the Philadelphia

County Court of Common Pleas, Family Court Division, denying their petition

to involuntarily terminate the parental rights of R.E. (“Father”) to his minor

daughter with Mother, S.E.E. (“the Child”), born in October of 2011, pursuant

____________________________________________


* Former Justice specially assigned to the Superior Court.

1 The subject order was dated May 16, 2017. However, the clerk did not
provide notice pursuant to Pa.R.C.P. 236(b) until May 17, 2017. Our appellate
rules designate the date of entry of an order as “the day on which the clerk
makes the notation in the docket that notice of entry of the order has been
given as required by Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b). Further, our
Supreme Court has held that “an order is not appealable until it is entered on
the docket with the required notation that appropriate notice has been given.”
Frazier v. City of Philadelphia, 557 Pa. 618, 621, 735 A.2d 113, 115
(1999).
J-S72031-17



to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1) and (b). After careful review,

we reverse the trial court’s order, and remand for further proceedings.

       The trial court summarized the relevant procedural and factual history

as follows:

               The relevant facts and procedural history of this case are as
       follows: Mother and Father are the biological parents of S.E.[E.]
       (the “Child”). The Child was born [in October of 2011]. Father
       was involved in the Child’s life during the early period of the Child’s
       life, through visits facilitated by Mother approximately three times
       a week. During this time, Mother moved approximately two hours
       away.[2] Mother continued to facilitate visits, driving the Child to
       and from Father’s house. In 2013, Mother initiated a custody
       action; however, the matter was resolved by an informal
       arrangement between Mother and Father[] that allowed Father to
       see the Child every other weekend. . . .Mother testified that the
       arrangement was not beneficial to the Child because of behaviors
       the Child exhibited upon return from visits with Father, which
       included regressed potty-training, rashes, and frequently smelling
       of smoke.[3]

             On October 10, 2014, per a custody order issued by the
       Philadelphia Family Court, it was ordered that Mother and Father
       share legal custody of the Child. It was further ordered that
       Mother was to retain primary physical custody of the Child and
____________________________________________


2 Mother relocated to another section of Philadelphia. Notes of Testimony
(“N.T.”), 3/28/17, at 11-12; N.T., 3/16/17, at 37; Adoption Personal Interview
at 1.

3 Upon review of the certified record, which includes a copy of the docket of
the relevant custody action, it appears that Mother first filed a complaint for
custody of the Child in July 2012, which was later dismissed for lack of
prosecution in January 2013. Mother then re-filed for custody in August 2013.
This comports with the testimony of Mother. N.T., 3/16/17, at 38-42. We
observe that, while custody orders dated October 10, 2014, February 24,
2015, August 27, 2015, and August 26, 2016, were not included as part of
the certified record as exhibits from the termination hearing, despite
admission, N.T., 3/28/17, at 5, these orders were otherwise included as part
of the certified record and were reviewed by this Court.

                                           -2-
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       Father was to have partial physical custody of the Child. The order
       specified that Father’s partial physical custody was to be under
       the supervision of the paternal grandmother and that visits were
       to occur two days per week for at least three hours each day.
       Father was also permitted to have partial physical custody of the
       Child as the parties agreed.

             On February 24, 2015, Mother and Father appeared pro se
       at a custody hearing before the Honorable Angeles Roca. At the
       hearing, Mother was awarded primary physical and legal custody
       of the Child. Father was granted supervised physical custody of
       the Child every Sunday from 10:00 am until 3:00 pm at the Family
       Court nursery. The order indicated that if Father missed two
       consecutive visits with the Child, Father’s supervised physical
       custody would be suspended. At a hearing held on August 27,
       2015, before the Honorable Peter Rogers, Mother testified that
       Father missed visits for an entire month. Consequently, Father’s
       supervised custody was temporarily suspended, and it was
       ordered that Father was to have no contact with the Child. Father
       was not present at the August 27, 2015, hearing.

              On October 19, 2015, Mother filed a petition to modify
       custody. At a custody hearing held on August 26, 2016, before
       the Honorable Diane Thompson, the [c]ourt granted Mother’s
       petition to modify custody and Mother was granted sole physical
       and sole legal custody of the Child. The [c]ourt also continued the
       suspension of Father’s supervised partial custody, emphasizing
       that Father took no affirmative steps to reconnect with the Child
       in a year. In particular, the [c]ourt reasoned that Father did not
       petition the [c]ourt to reconsider the August 27, 2015 order
       suspending Father’s supervised visits.

             On October 24, 2016, petitioners filed a petition to
       involuntarily terminate the parental rights of Father.[4] Bifurcated
       hearings were held before this [c]ourt on March 16, 2017 and May
       16, 2017, respectively (collectively the “TPR [termination of
       parental rights] hearing”).[5] At the TPR hearing, Mother testified
____________________________________________


4Mother and Stepfather additionally filed a petition for adoption, which was
withdrawn per order dated May 16, 2017, and entered May 17, 2017.

5The termination hearing was also conducted on March 28, 2017. In support
of their petition to terminate Father’s parental rights, Mother and Stepfather



                                           -3-
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       that Father had no visitation with the Child for approximately two
       years. Furthermore, Mother claimed that Father had no contact
       with the Child for six months immediately prior to October 24,
       2016, the date petitioners filed the petition to terminate Father’s
       parental rights. Mother also indicated that there were two court
       orders indicating that Father was to have no contact with the
       Child.1

              Mother further testified that the Child has a close
       relationship with the Child’s paternal grandmother and paternal
       cousins. In fact, Mother stated that the Child visits her paternal
       grandmother regularly. In August 2016, the Child attended a
       family reunion hosted by [P]aternal [G]randmother, and Father
       was present at the reunion.2 Father also sent the Child clothing
       on several occasions. Mother claims that the Child has never
       asked to see Father and that the Child calls Father by his first
       name. Mother also reported that the Child is well adjusted, and
       that Father has never played a significant role in the Child’s life.
       Mother stated that Father has never filed for any custody of the
       Child or asked for visitation. When asked about the custody
       orders suspending Father’s custody-visitation, Mother testified
       that Father was not present at the August 26, 2016 custody
       hearing, at which time, Father’s partial custody was suspended.3
       Father was, however, present at all other custody hearings.[6]

             According to the testimony of both petitioners, the Child and
       Stepfather have a close relationship. Stepfather is the primary
       financial supporter of the Child and supports the Child’s
       educational efforts, including the Child’s speech therapy and
____________________________________________


each testified. Additionally, Father was present and testified on his own
behalf. Father further presented the testimony of family friend, B.B., and his
mother, Paternal Grandmother. The court-appointed child advocate was also
present and participated in the proceedings.

 We additionally note that, aside from custody orders and photographs
marked and admitted as P-1, additional photographs identified as photographs
of Father’s residence were marked as P-2. N.T., 3/28/17, at 32. Upon review,
P-2 was never admitted and was not included as part of the certified record.
This omission was not necessary for and does not affect our disposition.

6Mother admitted this testimony was incorrect. Father was not present at the
custody hearing on August 27, 2015. He was present at all other hearings.
N.T., 3/28/17, at 29; N.T., 3/16/16, at 48-51; N.T., 8/26/16, at 5-6.

                                           -4-
J-S72031-17


     homeschooling. Petitioners also testified that the Child calls
     Stepfather “dad.” The Child has resided with the petitioners for
     approximately three and a half years, and the petitioners have
     another child together. The petitioners recently moved to King of
     Prussia, Pennsylvania, which is approximately a thirty minute
     drive to Philadelphia.

            At the TPR hearing, [P]aternal [G]randmother testified that
     she has a very close relationship with the Child and has
     maintained a relationship with the Child for the entire duration of
     the Child’s life. Paternal [G]randmother indicated that she attends
     the Child’s school functions and brings the Child to family functions
     with the Child’s paternal family. Paternal [G]randmother has also
     picked the Child up from school when Mother was unable to.
     Paternal [G]randmother also testified that, up until December
     2016[,] when she was hospitalized for various illnesses, she would
     visit the Child in petitioners’ home approximately once a week.
     On numerous occasions, the petitioners took the Child to the
     hospital to visit with [P]aternal [G]randmother.             Paternal
     [G]randmother also stated that the Child did in fact attend a family
     picnic hosted by [P]aternal [G]randmother and that[,] while at the
     picnic[,] the Child asked for Father, who was not present at the
     picnic due to stay away orders. When the Child asked for Father,
     [P]aternal [G]randmother invited Father to the picnic so that he
     may see the Child. Paternal Grandmother also testified that every
     year Father purchases clothes for the Child on her birthday.
     Consistent      with    Mother’s    own    testimony,      [P]aternal
     [G]randmother testified that, in October of 2016, Father
     purchased clothes for the Child.

     ___
     1     Mother is apparently referencing the orders issued on
     August 27, 2015 by the Honorable Peter Rogers, suspending
     Father’s visitation with the Child, and August 26, 2016, continuing
     the suspension of Father’s visitation.
     2      Mother testified that Father purchased the Child Halloween
     clothes in October of 2016. Mother also testified that sometime
     [sic] in 2016, Father purchased the Child a winter jacket.
     3     It is important to note that, per the court certified
     transcripts of the August 26, 2016 hearing, Father was present
     and did in fact testify. Father failed to appeal at the August 27,
     2015 hearing, at which time his partial custody was temporarily
     suspended.

                                     -5-
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Trial Court Opinion (“T.C.O.”), 7/10/17, at 1-5 (citations to notes of testimony

omitted).

      Father testified to early contact with the Child as facilitated by Mother.

N.T., 3/28/17, at 11-12.      He confirmed the procedural history as to the

custody matter, which eventually resulted in an order for supervised visitation

at the court nursery.    Id. at 12-14.     Father acknowledged that visitation

ceased as he missed two visits. Id. at 17, 41, 43. He did not appear at the

custody hearing on August 27, 2015, which resulted in an order suspending

his visitation. Id. at 29. While testifying that he did attempt to file a challenge

to the suspension of his visitation, he indicated that he did not do so between

the August 27, 2015 hearing and the August 26, 2016 hearing. Id. at 27-29;

however, Father, had no supporting documentation with him.             Id. at 29.

Father testified that he bought the Child clothes, Christmas gifts and toys,

which have not been returned to him.     Id. at 19, 26. Father further confirmed

seeing the Child, who he indicated calls him “Papi,” at a family reunion in

August 2016. Id. at 21-22. He described a positive interaction at the reunion.

Id. at 23.

      By order dated May 16, 2017, and entered May 17, 2017, the trial court

denied the petition to terminate Father’s parental rights. Thereafter, on June

5, 2017, Mother and Stepfather filed a notice of appeal, along with a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b).




                                       -6-
J-S72031-17



      On appeal, Mother and Stepfather raise the following issues for our

review:

      1. Did the [c]ourt err by denying the Petition to Terminate
         Parental Rights of [F]ather pursuant to 23 Pa.C.S.[A.] §
         2511(a)(1)?

      2. Did the [t]rial [c]ourt err by ruling that it would not be in the
         child’s best interest pursuant to § 2511(b) to terminate the
         parental rights of [F]ather?

Appellants’ Brief at 3.

      In matters involving involuntary termination of parental rights, our

standard of review is as follows:

      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.” In re Adoption of S.P., [616 Pa. 309, 325, 47
      A.3d 817, 826 (2012)]. “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. “[A] decision may be
      reversed for an abuse of discretion only upon demonstration of
      manifest unreasonableness, partiality, prejudice, bias, or ill-will.”
      Id. The trial court’s decision, however, should not be reversed
      merely because the record would support a different result. Id.
      at [325-26, 47 A.3d at] 827. We have previously emphasized our
      deference to trial courts that often have first-hand observations of
      the parties spanning multiple hearings. See In re R.J.T., [608
      Pa. 9, 26-27, 9 A.3d 1179, 1190 (2010)].

In re T.S.M., 620 Pa. 602, 628, 71 A.3d 251, 267 (2013). “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.”

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

“[I]f competent evidence supports the trial court’s findings, we will affirm even

                                      -7-
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if the record could also support the opposite result.”      In re Adoption of

T.B.B., 835 A.2d 387, 394 (Pa.Super. 2003) (citation omitted).

      The termination of parental rights is governed by Section 2511 of the

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

of the grounds for termination followed by the needs and welfare of the child.

      Our case law has made clear that under Section 2511, the court
      must engage in a bifurcated process prior to terminating parental
      rights. 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). We have

defined clear and convincing evidence as that which 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

C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc) (quoting Matter of

Adoption of Charles E.D.M. II, 550 Pa. 595, 601, 708 A.2d 88, 91 (1998)).

      In the case sub judice, the trial court declined to terminate Father’s

parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1) and (b), which provide

as follows:



                                      -8-
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      (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)(1), (b).

      We first examine Section 2511(a)(1). We have explained this Court’s

review of a challenge to the sufficiency of the evidence to support the

involuntary termination of a parent’s rights pursuant to Section 2511(a)(1) as

follows:

      To satisfy the requirements of Section 2511(a)(1), the moving
      party must produce clear and convincing evidence of conduct,
      sustained for at least the six months prior to the filing of the
      termination petition, which reveals a settled intent to relinquish
      parental claim to a child or a refusal or failure to perform parental
      duties. In addition,

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

                                      -9-
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            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.

            Once the evidence establishes a failure to perform parental
            duties or a settled purpose of relinquishing parental rights,
            the court must engage in three lines of inquiry: (1) the
            parent’s explanation for his or her 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).

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

omitted).

      As it relates to the crucial six-month period prior to the filing of the

petition, this Court has instructed:

      [I]t is the six months immediately preceding the filing of the
      petition that is most critical to our analysis. However, the trial
      court must consider the whole history of a given case and not
      mechanically apply the six-month statutory provisions, but
      instead consider the individual circumstances of each case.

In re D.J.S., 737 A.2d 283, 286 (Pa.Super. 1999) (citations omitted). This

requires the Court to “examine the individual circumstances of each case and

consider all explanations offered by the parent facing termination of his or her

parental rights, to determine if the evidence, in light of the totality of the

circumstances, clearly warrants the involuntary termination.” In re B., N.M.,

856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa. 718, 872 A.2d

1200 (2005) (citation omitted).

      Further, we have stated:

      [t]o be legally significant, the [post-abandonment] contact must
      be steady and consistent over a period of time, contribute to the

                                       - 10 -
J-S72031-17


     psychological health of the child, and must demonstrate a serious
     intent on the part of the parent to recultivate a parent-child
     relationship and must also demonstrate a willingness and capacity
     to undertake the parental role. The parent wishing to reestablish
     his parental responsibilities bears the burden of proof on this
     question.

In re Z.P., 994 A.2d 1108, 1119 (Pa.Super. 2010) (citation omitted). See

also In re Adoption of C.L.G., 956 A.2d 999, 1006 (Pa.Super 2008) (en

banc).

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

     There is no simple or easy definition of parental duties. Parental
     duty is best understood in relation to the needs of a child. A child
     needs love, protection, guidance, and support. These needs,
     physical and emotional, cannot be met by a merely passive
     interest in the development of the child. Thus, this Court has held
     that the parental obligation is a positive duty which requires
     affirmative performance.

     This affirmative duty encompasses more than a financial
     obligation; it requires continuing interest in the child and a
     genuine effort to maintain communication and association with
     the child.

     Because a child needs more than a benefactor, parental duty
     requires that a parent exert himself to take and maintain a place
     of importance in the child’s life.

     Parental duty requires that the parent act affirmatively with good
     faith interest and effort, and not yield to every problem, in order
     to maintain the parent-child relationship to the best of his or her
     ability, even in difficult circumstances. A parent must utilize all
     available resources to preserve the parental relationship, and
     must exercise reasonable firmness in resisting obstacles placed in
     the path of maintaining the parent-child relationship. Parental
     rights are not preserved by waiting for a more suitable or
     convenient time to perform one’s parental responsibilities while
     others provide the child with . . . her physical and emotional
     needs.

In re B., N.M., 856 A.2d at 855 (internal citations omitted).

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      In the instant matter, in finding a lack of grounds for termination under

subsection (a)(1), the trial court concluded:

            Under these specific facts and circumstances, this [c]ourt
      did not abuse its discretion when it denied [the] petition to
      terminate the parental rights of Father as to the Child. The record
      supported a determination that, based upon the totality of the
      circumstances, termination was not warranted.            There was
      compelling evidence that Father loved the Child and wanted to
      maintain a relationship with the Child. There was also ample
      testimony that the Child maintained an ongoing relationship with
      [P]aternal [G]randmother and had a close relationship with the
      paternal relatives. According to Mother’s own testimony, the Child
      frequently visited with [P]aternal [G]randmother. At a family
      reunion hosted by [P]aternal [G]randmother, both the Child and
      Father were present. Based on the foregoing testimony, the
      [c]ourt determined that Father would have contact with the Child
      whether or not his parental rights were terminated because the
      [P]aternal [G]randmother and relatives would remain active in the
      Child’s life.

            Additionally, in making its decision, this [c]ourt gave great
      weight to the custody orders suspending Father’s visitation. But
      for those orders, this [c]ourt believes that Father would have
      maintained a relationship with the Child. This [c]ourt found
      [P]aternal [G]randmother’s testimony particularly compelling. For
      example, consistent with Mother’s own testimony, [P]aternal
      [G]randmother testified that in August of 2016, the Child attended
      a family picnic with the Child’s paternal relatives. Due to the no
      contact orders, Father did not attend the picnic. It was not until
      the Child inquired into the whereabouts of Father that [P]aternal
      [G]randmother invited Father to the picnic.

            Based on the foregoing reasons, and in light of the totality
      of the circumstances, this [c]ourt found that the evidence
      presented by petitioners did not warrant involuntary termination.
      In addition, this matter’s unique circumstances, particularly the
      custody orders prohibiting Father from contacting the Child, tilted
      the balance in favor of denying the [] petition to terminate
      Father’s parental rights.

T.C.O. at 8-9 (citations to the record omitted).


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J-S72031-17



      Mother and Stepfather, however, argue that “[t]here is absolutely no

compelling evidence from the testimony of [Paternal Grandmother] that

Father loved the [C]hild and wanted to maintain a relationship with the Child

. . . . Moreover, under the totality of the circumstances[,] there is absolutely

clear[] and convincing evidence that Father did not perform parental duties

for a period well in excess of the six months.” Appellants’ Brief at 18. Any

financial contribution was limited to an “infrequent gift.” Id. at 18. Mother

and Stepfather further challenge the trial court’s finding that the custody

orders suspending visitation and prohibiting contact presented an obstacle and

assert that this does not “excuse Father’s complete and utter abandonment of

the Child.”    Id. at 20-21.   Moreover, Mother and Stepfather contend that

Father did nothing to further his custodial rights. Id. at 20. They state:

             Father did nothing to have any custodial rights to the
      [C]hild. The only thing the father ever did was appear in the
      adoption court when the [p]etition to [t]erminate his [p]arental
      [r]ights was scheduled. One could search the record, one could
      go through all of the transcripts. There is nothing to show an
      effort by [F]ather to have a day[-]to[-]day relationship with the
      [C]hild. . . .

Id.

      Upon our review, we find the record does not support the trial court’s

determinations as to subsection (a)(1).       While Father maintained an early

relationship with the Child, this was largely facilitated by Mother, even after

she moved further away from Father. N.T., 3/28/17, at 11-12; N.T., 3/16/17,

at 35-37.     Moreover, and most importantly, the evidence establishes that,



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despite providing some birthday and Christmas gifts along with Paternal

Grandmother and seeing the Child at a family reunion in August 2016, Father

failed to maintain regular contact with and support the Child.7 Father did not

exercise visitation as afforded with the Child,8 ultimately leading to the

suspension of visitation in August 2015. N.T., 3/28/17, at 15-17, 41; N.T.

8/26/16 at 3-4, 13, 17-18. Although the trial court suggests that the custody

orders suspending visitation and providing for no contact between Father and

the Child essentially created an obstacle to Father’s ability to maintain a

relationship with the Child, T.C.O. at 9, the court ignores that Father remained

idle and made no legal efforts to regain custodial rights for at least one year,

if at all. Father simply stopped attending visitation after he missed two visits,

assuming he could not go anymore. N.T., 3/28/17, at 17, 41, 43.

       Additionally, Father failed to appear for the custody hearing on August

27, 2015, stemming from Mother’s petition due to Father’s missed visitation

and resulting in the temporary suspension of his visitation. N.T., 3/28/17, at

29; N.T., 3/16/16, at 48-51; N.T., 8/26/16, at 5-6; Custody Order, 8/27/15.



____________________________________________


7 Despite the testimony of paternal family friend, B.B., that she saw Father
with the Child on multiple occasions, Paternal Grandmother, whom the trial
court relies on heavily, testified that Father saw the Child “very seldom” over
the last three years due to the court proceedings between Mother and Father.
N.T., 5/16/17, at 7-8.

8Father explained that he initially missed visitation due to side agreements
with Mother, on which Mother reneged. N.T., 3/28/17, at 15-17.



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Father admittedly did not file for modification or reconsideration thereafter.9

N.T., 3/28/16, at 28-29, 47. One year later, on August 26, 2016, after a

hearing at which Father appeared and was represented by counsel, the

suspension was made final. N.T., 8/26/16, at 15-16; Custody Order, 8/26/16.

Again, Father sought no reconsideration or further contest. Father testified

he made two attempts to file documents pertaining to his visitation, but lacked

the requisite funds for filing and received no notification from the trial court

that his filings had been rejected.10 Father failed to present proof to support

this contention. N.T., 3/28/17, at 17-19, 27-29. Regardless, Father went at

least one year without visitation and without efforts to reinstate visitation with

the Child. Moreover, Father did not appreciate this as the reason the trial

court made the suspension of visitation a final order. Id. at 48. Thus, the

evidence clearly demonstrates Father’s failure to utilize all available resources

to preserve his parental relationship with the Child and a lack of reasonable

firmness in resisting obstacles in the path of maintaining this relationship.

See In re B., N.M., 856 A.2d at 855.
____________________________________________


9 This was a key factor in the trial court’s making this order final on August
26, 2016. N.T., 8/26/16, at 16, 19-20. Critically, counsel for Father at the
time admitted Father’s lack of legal efforts. Id. at 18-19.

10 It is unclear from the record what exactly Father tried to file and when
exactly he attempted to do so. However, despite a similar assertion at the
August 26, 2016 hearing, N.T., 8/26/16, at 15-16, at the termination hearing
on March 28, 2016, in response to cross-examination from counsel for Mother
and Stepfather, he clearly stated that he did not attempt to file anything
between the two custody hearings. N.T., 3/28/17, at 28-29. Notably, the
docket for the custody matter, which was printed in December 2016, does not
reflect any filings by Father.

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        We next review the propriety of termination under Section 2511(b). Our

Supreme Court has stated:

        if the grounds for termination under subsection (a) are met, a
        court “shall give primary consideration to the developmental,
        physical and emotional needs and welfare of the child.” 23
        Pa.C.S.[A.] § 2511(b). The emotional needs and welfare of the
        child have been properly interpreted to include “[i]ntangibles such
        as love, comfort, security, and stability.” In re K.M., 53 A.3d
        781, 791 (Pa.Super. 2012). In In re E.M. [a/k/a E.W.C. &
        L.M. a/k/a L.C., Jr.], [533 Pa. 115, 123, 620 A.2d 481, 485
        1993)], this Court held that the determination of the child’s “needs
        and welfare” requires consideration of the emotional bonds
        between the parent and child. The “utmost attention” should be
        paid to discerning the effect on the child of permanently severing
        the parental bond. In re K.M., 53 A.3d at 791. However, as
        discussed below, evaluation of a child’s bonds is not always an
        easy task.

In re T.S.M., 620 Pa. at 628-29, 71 A.3d at 267. The breadth of any bond

analysis necessarily depends on the circumstances of a particular case

especially where a bond exists to some extent. In re K.Z.S., 946 A.2d 753,

762-63 (Pa.Super. 2008) (citation omitted). Additionally, we have stated that

the trial court should consider the importance of continuity of relationships

and whether any existing parent-child bond may be severed without

detrimental effects on the child. Id. at 763.

        When evaluating a parental bond, “the court is not required to use

expert testimony. Social workers and caseworkers can offer evaluations as

well.    Additionally, Section 2511(b) does not require a formal bonding

evaluation.”    In re Z.P., 994 A.2d at 1121 (internal citations omitted).

Moreover,


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J-S72031-17


      [w]hile a parent’s emotional bond with his or 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
      court when determining what is in the best interest of the child.

            [I]n addition to a bond examination, the trial court can
            equally emphasize the safety needs of the child, and
            should also consider the intangibles, such as the love,
            comfort, security, and stability the child might have
            with the foster parent. . . .

In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa.Super. 2015) (quoting

In re N.A.M., 33 A.3d 95, 103 (Pa.Super. 2011)) (quotation marks and

citations omitted). Further,

      [t]he mere existence of an emotional bond does not preclude the
      termination of parental rights. See In re T.D., 949 A.2d 910 (Pa.
      Super. 2008) (trial court's decision to terminate parents' parental
      rights was affirmed where court balanced strong emotional bond
      against parents' inability to serve needs of child). Rather, the
      orphans' court must examine the status of the bond to determine
      whether its termination “would destroy an existing, necessary and
      beneficial relationship.” In re Adoption of T.B.B., 835 A.2d 387,
      397 (Pa. Super. 2003).

In re N.A.M., 33 A.3d at 103. See also In re C.S., 761 A.2d at 1202 (court

must consider whether natural parental bond exists between child and parent,

and whether termination would destroy existing, necessary and beneficial

relationship).

      In the case sub judice, Mother and Stepfather argue the trial court

abused its discretion in determining the Child would suffer irreparable

emotional harm if Father’s parental rights were terminated. Appellants’ Brief

at 22. They challenge the trial court’s finding that their custody orders served




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as an obstacle to Father.    Id. at 22-23.     Lastly, they highlight the Child’s

positive relationship with Stepfather. Id. at 23-25.

      In concluding that termination of Father’s parental rights does not favor

the Child’s needs and welfare and is not in the Child’s best interest pursuant

to Section 2511(b), the trial court reasoned as follows:

             In the instant matter, this [c]ourt determined that the Child
      would suffer irreparable emotional harm if Father’s parental rights
      were terminated. The testimony of both Mother and [P]aternal
      [G]randmother established that the Child has a bond with the
      Child’s paternal relatives. As to the existence of a parent-child
      bond between Father and the Child, this [c]ourt considered that
      Father, based on Mother’s own testimony, was involved in the
      Child’s life during the early years of the Child’s life. In fact, prior
      to August 27, 2015, when Father’s supervised visits were
      suspended, Father maintained contact with the Child through
      visits facilitated by Mother and subsequently supervised at the
      Court Nursery. This [c]ourt also found that the orders prohibiting
      Father from visiting the Child has been an obstacle for Father to
      maintain a close relationship with the Child.              Particularly
      compelling to this [c]ourt was that Father was not present at the
      custody hearing on August 27, 2015, at which time his partial
      supervised custody of the Child was suspended. Furthermore, this
      [c]ourt acknowledged that a bond does exist between the Child
      and Stepfather and emphasized that allowing the Child to maintain
      a relationship with Father would not in any way hinder the bond
      between the Child and Stepfather. In fact, based upon the
      testimony of all parties, it is clear to this [c]ourt that the Child is
      loved by all parties and that it would be in the Child’s best interest
      to have two father figures.

             For the foregoing reasons, this [c]ourt properly denied [the]
      petition to terminate the parental rights of Father pursuant to
      [S]ection 2511(b). Overwhelming evidence was submitted at the
      TPR hearing to support a finding that petitioners failed to show by
      clear and convincing evidence that termination was in the best
      interest of Child.

T.C.O. at 11-12 (citations to the record omitted).


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J-S72031-17



      We find the record fails to corroborate the trial court’s determination

that terminating Father’s parental rights was not in the Child’s best interests

pursuant to Section 2511(b). Testimony of Father’s family friend confirmed

early contact between Father and the Child.       N.T., 3/16/17, at 35-37.   In

addition, Father and Paternal Grandmother testified to the positive interaction

between Father and the Child at the family reunion in August 2016. N.T.,

5/16/17, at 9-10; N.T., 3/28/17, at 23.        Likewise, Paternal Grandmother

opined that Father and the Child miss one another and love one another. N.T.,

5/16/17, at 10. However, the record lacks evidence that in light of the minimal

recent contact between Father and the Child that termination would have a

detrimental impact on the Child. Indeed, as the trial court stated, the existing

bond is with the Child’s paternal relatives.

      While the trial court emphasizes the custody orders suspending

visitation and providing for no contact served as an obstacle to Father

maintaining a close relationship with the Child, as indicated previously, Father

took no legal efforts for at least one year, if at all, to regain visitation.

Additionally, both Mother and Stepfather testified that the Child was upset and

not herself when picked up from the paternal family reunion. N.T., 3/16/17,

at 13-14, 57; N.T., 8/26/16, at 8-9. Mother testified that the Child does not

ask for Father, N.T., 3/16/17, at 20, and, as confirmed by Paternal

Grandmother, the Child now calls Father by his first name. N.T., 5/16/17, at

10; N.T., 3/16/17, at 16. Further, Mother has facilitated and maintained a

relationship between the Child and paternal family, despite the custody

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orders, and there is nothing to suggest this would cease. N.T., 3/16/17, at

15.

      Moreover, and more importantly, the Child shares a close bond with

Stepfather whom she calls “daddy” and with whom she has lived since she

was two years old.      N.T., 3/16/17, at 8-10, 55. Stepfather supports the

Child in all aspects, including educationally, religiously and financially. Id. at

10, 55-56.

      The record confirms that the termination of Father’s parental rights

serves the Child’s needs and welfare. Accordingly, based upon our review of

the record, we conclude that the trial court abused its discretion by failing to

terminate Father’s parental rights under 23 Pa.C.S.A. § 2511(a)(1) and (b).

We, therefore, reverse the order of the trial court, and remand the matter for

further proceedings.

      Order reversed. Appeal remanded for further proceedings. Jurisdiction

relinquished.

      P.J.E. Bender joins the memorandum.

      Judge Musmanno files a dissenting statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date:1/8/18

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