J. A26001/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF H.D.V.,             :    IN THE SUPERIOR COURT OF
A MINOR                                :          PENNSYLVANIA
                                       :
APPEAL OF: T.M.R., MOTHER,             :          No. 720 MDA 2015
                                       :
                      Appellant        :

              Appeal from the Order Entered March 23, 2015,
           in the Court of Common Pleas of Cumberland County
               Orphans’ Court Division at No. 67 ADOPT 2014


BEFORE: FORD ELLIOTT, P.J.E., WECHT AND PLATT,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED OCTOBER 05, 2015

     T.M.R. (“Mother”) appeals from the order granting the petition filed by

T.A.H., her great aunt (“Aunt”), which sought to involuntarily terminate

Mother’s parental rights to her 14-year-old daughter, H.D.V. (“Child”),

pursuant to    Section 2511(a)(1), (2) and (b) of the Adoption Act,

23 Pa.C.S.A. § 2511(a)(1), (2) and (b). We affirm.

     The relevant facts and procedural history of this case are as follows.

Child has lived with Aunt since 2004. (Notes of testimony, 11/14/14 at 6.)

A custody order was entered on November 18, 2004, establishing primary

physical custody with Aunt. (Id.) Mother and C.M.V. (“Father”)1 agreed to

this order; the order did not provide a set schedule of visitation and/or



* Senior Judge assigned to the Superior Court.
1
  Father has filed a separate appeal at No. 778 MDA 2015 from the trial
court’s order terminating his parental rights.
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partial custody for the parents. Mother and Father never married; however,

they were in a 12-year relationship and are the parents of two other

children, ages 7 and 8, who reside with Mother.         (Notes of testimony,

3/12/15 at 32-33.) Mother has maintained some form of contact with Child;

such as, texting, and seeing her at family dinners and holidays.

        After ending her relationship with Father, Mother married T.R. (Notes

of testimony, 11/14/14 at 44-45.) At the time of the November 14, 2014

hearing in this matter, Mother, T.R., and her other two minor children were

homeless and living in a shelter called Carlisle CARES. (Id. at 44.) Mother

testified she has two jobs. She is employed by Med Staffers; she goes into

homes to provide home health care. (Id. at 79.) She has been employed in

this capacity for a little over a year. (Id.) Mother has had a second job for

two months. (Id.) Mother stated she is employed through EMS and cleans

at Amazon.2 (Id.)

        According to Aunt, Mother has never provided financial support or

taken an active role in Child’s life. (Id. at 11, 13.) Aunt pays for Child’s

private school tuition as well as health insurance. (Id.) Aunt takes Child to

doctors’ appointments.    (Id.)   Even though Aunt has taken on the role of

Mother for Child, Aunt has asked Mother to become more involved in Child’s

life, but Mother has chosen not to.      During the summer of 2014, Aunt

applied for a passport for Child. During that process, Aunt had to contact


2
    No details were provided regarding EMS or Amazon.


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Mother and Father and ask for their cooperation.      The parents ultimately

complied.   However, after Aunt realized she had to “go through hoops” to

get the passport, she decided “it was time” that she adopted Child. (Id. at

22.)

       Aunt filed petitions to involuntarily terminate Mother and Father’s

parental rights on August 7, 2014.     Hearings were held on November 14,

2014, and March 12, 2015.      The trial court entered an opinion and order

dated March 23, 2015, terminating the parents’ rights. Mother filed a timely

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).     The trial court filed a

Rule 1925(a) opinion on May 27, 2015.

       On appeal, Mother raises the following questions for our review:

            1.    Was the trial court’s decision to terminate the
                  parental rights of Mother due to failure to
                  perform        parental       duties     under
                  section 2511(a)(1) supported by sufficient
                  evidence where, Mother took actions to
                  maintain contact with the child, and perform
                  parental duties, and her attempts to maintain
                  contact and perform her duties were denied by
                  the Petitioner?

            2.    Did the trial court make the necessary
                  determination that the termination of parental
                  rights would serve the best interests of the
                  child, taking into primary consideration the
                  developmental, physical and emotional needs
                  and welfare of the child?

            3.    Was the trial court’s decision to terminate the
                  parental rights of Mother supported by clear
                  and convincing evidence where there was no


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                  consideration of child’s developmental, physical
                  and emotional needs and welfare, the parents
                  did not cause the child to be without essential
                  parental care, control or subsistence, and the
                  incapacity of Mother to remedy the situation
                  was caused by environmental factors beyond
                  her control?

Mother’s brief at 4.

      We will address Mother’s issues together as they are interrelated.

Basically, Mother asserts the trial court’s decision to terminate her parental

rights under Section 2511(a)(1) and (b) was not supported by sufficient

evidence.   We review Mother’s appeal in accordance with the following

standard:

            [A]ppellate courts must apply an abuse of discretion
            standard      when     considering       a  trial court’s
            determination of a petition for termination of
            parental rights.       As in dependency cases, our
            standard of review requires an appellate court to
            accept the findings of fact and credibility
            determinations of the trial court if they are supported
            by the record. In re: R.J.T., 608 Pa. 9, 9 A.3d
            1179, 1190 (2010).         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.[] As has been often stated, an abuse
            of discretion does not result merely because the
            reviewing court might have reached a different
            conclusion.     Id.[]    Instead, a decision may be
            reversed for an abuse of discretion only upon
            demonstration       of   manifest       unreasonableness,
            partiality, prejudice, bias, or ill-will. Id.

                  As   [the   Pennsylvania     Supreme     Court]
            discussed in R.J.T., there are clear reasons for
            applying an abuse of discretion standard of review in
            these cases. We observed that, unlike trial courts,
            appellate courts are not equipped to make the


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            fact-specific determinations on a cold record, where
            the trial judges are observing the parties during the
            relevant hearing and often presiding over numerous
            other hearings regarding the child and parents.
            [Id.] Therefore, even where the facts could support
            an opposite result, as is often the case in
            dependency and termination cases, an appellate
            court must resist the urge to second guess the trial
            court and impose its own credibility determinations
            and judgment; instead we must defer to the trial
            judges so long as the factual findings are supported
            by the record and the court’s legal conclusions are
            not the result of an error of law or an abuse of
            discretion.

In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012) (some citations

omitted).

      The burden is upon the petitioner to prove by clear and convincing

evidence that the asserted grounds for seeking the termination of parental

rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa.Super. 2009). “The

standard of clear and convincing evidence is defined as testimony that is so

clear, direct, weighty and convincing as to enable the trier of fact to come to

a clear conviction, without hesitance, of the truth of the precise facts in

issue.” Id. (citation and quotation marks omitted).

      Here, the trial court terminated Mother’s parental rights pursuant to

Section 2511(a)(1) and (b). We will focus on those subsections.

      Section 2511 provides, in relevant part, 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:


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                 (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.

     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.



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             ....

             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) (citations omitted).

        Under Section 2511(b), we must inquire whether the termination of

Mother’s parental rights would best serve the developmental, physical, and

emotional needs and welfare of Child.         See In re C.M.S., 884 A.2d 1284,

1286-1287 (Pa.Super. 2005), appeal denied, sub nom. C.M.S. v.

D.E.H., Jr., 897 A.2d 1183 (Pa. 2006); see also In re Z.P., 994 A.2d 1108,

1121 (Pa.Super. 2010) (stating that “the court must take into account

whether a bond exists between child and parent, and whether termination

would    destroy    an   existing,   necessary   and   beneficial   relationship.”).

“Intangibles such as love, comfort, security, and stability are involved in the

inquiry into the needs and welfare of the child.” In re C.M.S., 884 A.2d at

1287 (citation omitted). We 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.

        The focus in terminating parental rights under Section 2511(a) is on

the parent, but it is on the child pursuant to Section 2511(b).              In re

Adoption of C.L.G., 956 A.2d 999, 1008 (Pa.Super. 2008) (en banc). “In


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cases where there is no evidence of any bond between the parent and child,

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

analysis, therefore, necessarily depends on the circumstances of the

particular case.” In re K.Z.S., 946 A.2d 753, 762-763 (Pa.Super. 2008).

      Instantly, regarding the considerations set forth in Section 2511(a)(1),

the trial court found that while the parents may not have evidenced a

“settled purpose” of relinquishing their claim, it is “manifest” that Mother

and Father failed to perform parental duties for longer than the six months

prior to the filing of the petition. (Trial court opinion, 3/23/15 at 2.) The

trial court stated as follows:

                   There is no dispute that [Aunt] has cared for
            [Child] for at least the past eleven years. Nor, is
            there any question that the child desires to be
            adopted by [Aunt]. The initial custody arrangement
            was pursuant to an agreement between the parties,
            and neither parent has ever taken formal action to
            assume a greater role in their daughter’s life. In
            fact, they have not only acceded to the order, they
            have abdicated all responsibility.      The fact that
            [Aunt] is a relative and that she has clearly been
            better able to care for [Child] does not alleviate their
            obligation to perform basic parental duties.

Id. at 1.

      Mother contends that while her efforts to maintain contact with Child

“were not Herculean,” she argues her personal situation should be taken into

account.    (Mother’s brief at 10.)      It was undisputed that Mother has

struggled throughout her adult life. Mother lost her home two years ago and

was still living in a shelter.   (Id. at 69.)   Mother admitted she had credit


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problems. (Id.) Mother also has had problems maintaining an automobile.

(Id. at 14, 67.)       Mother’s financial plight along with Father’s physical

condition3 were documented and may have prevented them from providing a

home for Child. However, these conditions do not excuse their utter failure

to perform any parental duties or show Child even the most basic parental

love and emotional support. Other than attending family gatherings on the

holidays and the occasional Christmas play at Child’s school, Mother has

done nothing to show any type of parental involvement in Child’s life.

        We believe the following exchange between Aunt’s counsel and Mother

is telling:

              Q.    How much of a priority have you made it to
                    have a strong relationship with [Child] and be
                    involved in her life?

              [Mother:] I make it a point to text her a couple of
                   times each month. I make it a point to -- I
                   might not make it a point to call, but she’s flat
                   out told me that she prefers to text.

Notes of testimony, 11/14/14 at 70.

        This court has emphasized 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). We have explained:

              [T]his court has held that the parental obligation is a
              positive    duty     which     requires     affirmative
              performance.

3
    Father has spina bifida and is confined to a wheelchair.


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                  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.

Id. (internal citations omitted).

      Mother attempts to blame Aunt for not facilitating more contact

between her and Child.     (Mother’s brief at 10.)   Initially, we note Mother

failed to seek legal help to secure visitation or a partial custody schedule if

that is what she desired. At no time over the course of the last ten years did

Mother seek assistance from the court system.

      The record shows Aunt facilitated the parents’ involvement in Child’s

life by accommodating Father’s disability with her handicap-accessible

vehicle, welcoming Mother and Child’s two siblings into her home for meals

and housing, and providing financial assistance to Mother throughout


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Mother’s economic setbacks. (Notes of testimony, 11/14/14 at 19-20, 62;

3/12/15 at 65.) Evidently, Mother was content with this arrangement until

Aunt filed the petition for termination of parental rights.

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

Mother has failed to perform parental duties for the past 11 years and has

abdicated her responsibility to act as a parent to Child. In determining that

Aunt had sustained her burden under Section 2511(a)(1), we discern no

error of law or abuse of discretion by the trial court.

      Next, we turn our attention to Section 2511(b) to determine if the trial

court properly found that termination was in the best interest of Child. With

respect to Section 2511(b), this court has explained the requisite analysis 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 763.

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


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       When Mother was asked to describe her bond with Child, she replied,

“I realize it could be better, but I do enjoy speaking with her. [Child] is very

-- she’s a very intelligent young lady.”        (Notes of testimony, 11/14/14 at

76.)

       In its analysis of Section 2511(b), the trial court explained:

                   Although the words “best interests of the child”
             were not found in our brief opinion and order, let
             there be no doubt that we found the termination to
             serve just that purpose. Indeed, to force a 14 year
             old to remain legally tethered against her strongest
             desires to parents with whom she shares only a
             biological connection would be a disservice to her
             and to the law. [Child]’s sole parental bond is with
             [Aunt], her great aunt and the petitioner.

                    The fact that [Aunt] has no one to step in to
             care for the child should [Aunt] be incapacitated, as
             argued by parents, misses the inescapably sad point
             of this case -- [Child] is already a de facto orphan
             with respect to her biological parents and neither of
             them are capable of ever stepping into any breach
             that might occur. Frankly, we doubt [Child] would
             want them to and are more confident in her abilities
             to meet her needs. We will not cower in the murky
             shadow of this red herring.         Clearly, the best
             interests of [Child] are served by this termination
             and the subsequent formal adoption by the only
             source of care and support she has ever known.

Trial court opinion, 5/27/15 at 2-3.

       Here, our review of the record indicates there is competent evidence to

support the trial court’s decision that termination of Mother’s parental rights

best serves Child’s developmental, physical, and emotional needs and

welfare. Mother has failed to put herself in a position to develop a parental



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bond with Child. While Mother seeks credit for “putting her child first” and

“selflessly ensur[ing] her child was safe and stable” by allowing Aunt to have

custody of Child, the trial court saw that differently. Simply stated, Mother

allowed Aunt to raise her child while taking no part in Child’s upbringing.

Seeing Child a few times a year at family dinners and texting Child once or

twice a month evinces Mother’s abdication of a parental role in Child’s life.

      Moreover, the trial court found the Child is bonded with Aunt and

wants to be adopted by her. As such, we find that it was appropriate for the

trial court to determine that the termination of Mother’s parental rights

would not have a detrimental effect on Child and would be in Child’s best

interest. In consideration of these circumstances and our careful review of

the record, we conclude that the trial court did not abuse its discretion or

commit an error of law in finding competent evidence to support the

termination of Mother’s parental rights to Child under Section 2511(b).

      Accordingly, for the reasons stated above, we affirm the trial court’s

order involuntarily terminating Mother’s parental rights to Child pursuant to

23 Pa.C.S.A. § 2511(a)(1) and (b).




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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/5/2015




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