J-A10028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

S.D.H.,                                             IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                          Appellant

                    v.

B.R. (L.),

                          Appellee                      No. 1317 WDA 2015


                 Appeal from the Order Entered July 27, 2015
              In the Court of Common Pleas of Allegheny County
                      Civil Division at No(s): FD-09-2343


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PANELLA, J.

MEMORANDUM BY BENDER, P.J.E.:                                 FILED JUNE 1, 2016

      Appellant, S.D.H. (Father), appeals from the July 27, 2015 order

granting the petition to involuntary terminate his parental rights to his minor

male child, R.L.H. (Child) (born in November of 2008), filed by B.R. (L.)

(Mother), pursuant to section 2511(a)(1) and (b) of the Adoption Act. 23

Pa.C.S. § 2511(a)(1) and (b). We affirm.

      The    relevant    facts   and   procedural   history   of   this   case   were

summarized by the trial court as follows:

             The parties are unmarried parents of [Child]…. The parties
      lived together on and off between 2005 and 2008. Father has
      had substance abuse problems since he was fourteen. When
      Mother became pregnant, Father decided to seek treatment for
      his drug and alcohol addiction. His efforts were unsuccessful and
      Mother terminated their relationship in October of 2009. Father
      harassed Mother after their separation, causing her to file a
      Petition for Protection from Abuse (PFA). On December 23,
      2009, a PFA Order was entered barring Father from having any
      contact with Mother for two years. Father was granted two
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     supervised visits with [Child] each month. The visits were to be
     arranged by Father through either Mother’s stepfather or uncle,
     provided that Father provided documentation that he was drug
     free.   Father was represented by counsel at the time and
     consented to the terms. Father violated the terms of the order
     within a few months and was jailed. The PFA was extended
     three years by Order dated March 31, 2010.

            Mother filed a Complaint for Support on April 29, 2009 and
     a child support order was entered. After numerous unsuccessful
     efforts to collect child support from Father, including two
     incarcerations for non-payment, the [c]ourt found that Father
     was not capable of working due to his drug addiction and
     dismissed the support action. The only child support Mother
     ever received was a lump sum payment of $650 that Father’s
     parents made to get him out of jail. Father never exercised his
     rights to supervised visitation.      Father has not seen or
     communicated with [Child] since his first birthday.

            When [Child] was eighteen months old, he was diagnosed
     with MECP2 Duplication Syndrome, a rare genetic disorder that
     causes     neurological   problems,    muscle    spasticity    and
     developmental delays. He is non-verbal and wheel chair bound.
     Mother began dating William J. Lutz (Lutz) when [Child] was
     two. They married on October 20, 2012. They have one child,
     [B.L.], born [in] November [ ] 2013. Lutz is employed as a
     machinist for FPD Company. He works evenings and Mother
     works weekends so that one or the other is always available to
     care for the two children. At the time of the hearing, [Child] was
     six years old and attending kindergarten at the School for the
     Blind.

           Father was in and out of rehabilitation facilities between
     2008 and 2013. He claims a clean date of April 15, 2013. At
     the time of the hearing, he was gainfully employed and
     attending Community College of Allegheny County.

           On May 13, 2014, Father filed a Complaint for Custody
     with the assistance of the Family Division self-help center and
     was given a date to return for a court appearance. Father
     moved to Virginia Beach and failed to appear on the scheduled
     date, claiming car trouble. He appeared on July 28, 2014 to
     reschedule. An educational seminar was set for August 23, 2014
     and a mediation session on September 15, 2014. Father failed
     to appear for the educational seminar, claiming he thought that


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      was only for Mother and [Child]. When he appeared for the
      mediation, he learned that his custody action had been
      dismissed based on his failure to appear for the educational
      seminar. Father initiated a second custody action on October 2,
      2014. Father appeared at the educational seminar on October
      18, 2014 and the custody conciliation on January 6, 2015. No
      agreement was reached and a custody hearing was scheduled
      for April 1, 2015.

             On November 19, 2014, Mother filed a Petition for the
      Involuntary Termination of the Parental Rights of [Father]
      (Petition) in the Court of Common Pleas Orphans’ Court Division
      at case number A-130 of 2014. The Petition was filed under
      section 2511(a) (1) of the Adoption Act in conjunction with a
      Petition for Adoption filed by Lutz. By Order dated January 9,
      2015, the case was transferred to Family Division due to Father’s
      pending custody action. Mother re-filed her Petition in Family
      Division and a hearing was scheduled for July 1, 2015. The
      Court appointed Margaret Gold, Esq. (Gold) guardian ad litem for
      [Child], and Deborah Lesko, Esq. as counsel for Father. Gold
      issued a report on June 18, 2015 recommending that Father’s
      parental rights be terminated and that the Petition to Adopt
      [Child] filed by Lutz be granted.

           A hearing was held on July 1, 2015[,] at which time[,]
      Mother, Gold, Lutz and Father testified. The [c]ourt issued an
      Order dated August 3, 2015 finding that Mother had established
      a legal basis for termination of the parental rights of Father
      under 23 Pa.C.S.A. § 2511(a) (1).

Trial Court Opinion (TCO), 10/8/15, at 2-4.

      On August 25, 2015, Father filed a timely notice of appeal. He now

raises the following issues for our review:

      I.    Did the lower court abuse its discretion and commit an
            error of law when it held that [Mother] has established a
            legal basis for termination of parental rights of Father to
            Child?

      II.   Did the lower court abuse its discretion when it determined
            that the developmental, physical and emotional needs and
            welfare of Child were best served by terminating the
            parental rights of Father?


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Father’s Brief at 2-3.

      We review an appeal from the termination of parental rights 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 (Pa. 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.; R.I.S.,
      36 A.3d [567,] 572 [(Pa. 2011) (plurality opinion)]. As has been
      often stated, an abuse of discretion does not result merely
      because the reviewing court might have reached a different
      conclusion. Id.; see also Samuel Bassett v. Kia Motors
      America, Inc., 613 Pa. 371[, 455], 34 A.3d 1, 51 (Pa. 2011);
      Christianson v. Ely, 575 Pa. 647, [654-655,] 838 A.2d 630,
      634 (Pa. 2003). 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 we 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 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. R.J.T., 9 A.3d at
      1190.    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
      Atencio, 539 Pa. 161, [165,] 650 A.2d 1064, 1066 (Pa. 1994).

In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).


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      In termination cases, 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 S.H., 879 A.2d 802, 806 (Pa.

Super. 2005). We have previously stated:

      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.

In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003) (internal quotation

marks omitted).

      Termination of parental rights is governed by section 2511 of the

Adoption Act, which requires a bifurcated analysis.

      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 interest 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) (citing 23 Pa.C.S. § 2511;

other citations omitted). This Court must agree with only one subsection of

2511(a), in addition to section 2511(b), in order to affirm the termination of




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parental rights. See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004)

(en banc).

      In this case, the trial court concluded that Mother provided clear and

convincing evidence that Father’s parental rights should be terminated

pursuant to sections 2511(a)(1) and (b).         Those provisions provide as

follows:

      (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. § 2511(a)(1), (b).

      As we addressed the application of section 2511(a)(1) in In re C.M.S.,

832 A.2d 457, 461 (Pa. Super. 2003), we noted:

      To satisfy 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,

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      which reveals a settled intent to relinquish parental claim to a
      child or a refusal or failure to perform parental duties.

Id. (quoting Matter of Adoption of Charles E.D.M., II, 708 A.2d 88, 91

(Pa. 1998)). In C.M.S., we further acknowledged the following statement by

our Supreme Court:

      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[.’]

C.M.S., 832 A.2d at 462 (quoting In re Burns, 379 A.2d 535, 540 (Pa.

1977)).

      Here, in support of its finding that Father failed to perform his parental

duties, which established grounds for termination under 23 Pa.C.S. §

2511(a)(1), the trial court stated the following:

      For five years, Father manifested no interest in [Child] and no
      concern for his well-being, removing himself completely from the
      parent-child relationship.    He did not exercise his rights to
      visitation while the PFA Order was in effect. He did not request
      visitation after the PFA Order expired. He did not pay child
      support when he was under a court ordered obligation to do so.
      Father was clean, working two jobs and attending community
      college for over a year before he filed for partial custody. During
      that year, he made no effort to visit with [Child] or support him
      financially. The mere filing of a custody complaint within the six-

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      month period preceding the Petition is hardly sufficient to
      preserve Father’s claim to [Child] after a five-year period of total
      abandonment. The [c]ourt found that Mother established by
      clear, convincing and undisputed evidence that Father
      demonstrated both a settled purpose to relinquish his parental
      rights and a refusal to perform his parental duties.

TCO at 5-6.

      Moreover, the record belies Father’s assertion that the lower court

failed to look at the totality of circumstances and to consider the obstacles

that prevented him from maintaining a relationship with Child. Father’s Brief

at 9-10. The court thoroughly addressed this issue in its opinion as follows:

      Father blames his absence on the PFA; fear that Mother would
      file another PFA, lack of support from facilitators of his
      supervised visitation and substance abuse. Father claims to
      have tried once or twice to arrange visitation while the PFA was
      in effect, but the supervisors made it difficult and he did not
      follow up. He never called or contacted [Child] or Mother after
      the PFA expired for fear that she would file another PFA. The
      one time he claims to have called Mother, she told him to get in
      touch with her when he got a job. Father did not call when he
      got a job. Father did not call when he quit using drugs. Father
      did not use any of the available resources to preserve the
      relationship until he filed for custody in 2014.         Father’s
      explanation was that he needed to focus on his own mental,
      physical and emotional health for the past five years and could
      not be a parent. Father says now he is ready.

TCO at 6.

      As previously acknowledged by this Court:

      Parental rights may not be preserved by waiting for some more
      suitable financial circumstance or convenient time for the
      performance of parental duties and responsibilities.      In re
      Smith’s Adoption, 412 Pa. 501, 194 A.2d 919 (1963). Parental
      duty requires that the parent not yield to every problem, but
      must act affirmatively, with good faith interest and effort, to
      maintain the parent-child relationship to the best of his or her
      ability, even in difficult circumstances.

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In re Adoption of Dale A., II, 683 A.2d 297, 302 (Pa. Super. 1996)

(quoting In re Adoption of Sabrina, 472 A.2d 624, 629 (Pa. Super.

1984)). The record clearly reflects that Father made no attempts to form a

relationship with Child.   Accordingly, we conclude that the trial court’s

determinations regarding section 2511(a)(1) are supported by sufficient,

competent evidence in the record.

      After we determine that the requirements of section 2511(a) are

satisfied, we proceed to review whether the requirements of subsection (b)

are satisfied.   See In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa.

Super. 2008) (en banc). This Court has stated that 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). Id. at 1008.

      In reviewing the evidence in support of termination under section

2511(b), our Supreme Court recently stated as follows:

      [I]f 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. § 2511(b). The emotional needs and welfare of the child
      have been properly interpreted to include “intangibles such as
      love, comfort, security, and stability.” In re K.M., 53 A.3d 781,
      791 (Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa.
      1992)], 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.

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



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      Father argues that the lower court failed to “consider the impact that

severing the parental tie to Father may have on Child.” Father’s Brief at 11.

To the contrary, we note that after providing the foregoing summary of

Father’s lack of effort to preserve a relationship with Child, the court

expressly concluded: “Since there has been no contact between Father and

[Child] since his first birthday, [Child] will be unaffected by the termination

of Father’s rights.” TCO at 6.

      In further support of its conclusion that termination of Father’s

parental rights is in the best interest of Child, the court stated the following:

      The [c]ourt gave primary consideration to the developmental,
      physical and emotional needs and welfare of [Child]. [Child] has
      been parented by Lutz since he was two years old. He is doing
      well in a loving household with Mother, Lutz and a baby brother.
      Lutz is fully committed to [Child] and performs all the attendant
      duties of a Father. He goes to school functions and participates
      in school activities. He is aware that [Child] may never be
      capable of independent living. [Lutz] is fully prepared to take on
      all the obligations of parenthood for the rest of [Child’s] life. The
      guardian ad litem witnessed the bond between Lutz and [Child].
      It is unquestionably in the best interest of [Child] physically,
      emotionally and mentally to be adopted by Lutz.

TCO at 6-7.

      As there is competent evidence in the record that supports the lower

court’s credibility and weight assessments regarding Child’s needs and

welfare, and the absence of any bond with Father, we conclude that the

court did not abuse its discretion as to section 2511(b). See S.P., 47 A.3d

at 826-27.    Accordingly, we affirm the order terminating Father’s parental

rights to Child.


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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/1/2016




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