J-S79030-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: INVOLUNTARY TERMINATION OF               IN THE SUPERIOR COURT OF
PARENTAL RIGHTS TO C.N.M., A MINOR                    PENNSYLVANIA


APPEAL OF: J.M., FATHER                         No. 2568 EDA 2014


                Appeal from the Decree entered July 22, 2014,
          in the Court of Common Pleas of Lehigh County, Orphans’
                         Court, at No(s): A2013-0040

BEFORE:     ALLEN, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                          FILED JANUARY 08, 2015

      J.M., (“Father”), appeals from the decree entered July 22, 2014 which

granted the petition filed by S.E.D. and her husband, D.A.D. (“Petitioners”),

to terminate involuntarily Father’s parental rights to his minor, female child,

C.N.M. (“Child”). We affirm.

      The trial court accurately summarized the factual background of this

case as follows:

      [Child] was born in Virginia [in May] 2005. When [Child] was
      approximately six weeks old, her biological mother[, M.S.,]
      (“Mother”) was incarcerated, and Petitioners, [] who are
      Mother’s aunt and her husband, were summoned to Virginia to
      collect [Child] and provide care for her in a safe environment so
      as to avoid her placement in foster care. Upon their petition
      filed in July 2005, and with the consent of both Mother and
      [Father], . . . Petitioners were appointed [c]o-[g]uardians of the
      [p]erson of [Child] pursuant to 20 Pa.C.S.A. § 5111. Since that
      time, [Child], now nine years old, has been in the continuous
      care of Petitioners.




* Retired Senior Judge assigned to Superior Court.
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     Father is 36 years old and a high school and trade school
     graduate. He [was] incarcerated in Virginia continuously since
     September 2004, before [Child]’s birth, for assault and malicious
     wounding. . . . He [was] released from prison in October 2014,
     and [must] complete two years of supervised probation.[1 At
     the time of the hearing in this matter, h]e plan[ned] to live with
     his extended family in Alabama. Father has seen [C]hild only
     one time, during [C]hild’s first six weeks [following] birth. He
     has had no other direct contact with her. He has never spoken
     with [C]hild. He telephoned Petitioners one time, approximately
     nine years ago, but, according to Petitioners, he used foul
     language so they had his calls blocked from prison. Father
     testified he did not call more often because telephone calls from
     prison were expensive and he relied upon Mother during the first
     two years of [Child]’s life to keep him informed as to her
     progress. Over the years, Father sent [Child] two gifts, a
     dollhouse and a jewelry box he made through the arts and crafts
     program at the prison. He testified the arts and crafts program
     has since been cut from the prison’s budget.          There was
     conflicting testimony regarding the nature and frequency of
     Father’s correspondence with [Child]. Petitioners characterized
     it as sporadic and comprised of no more than a dozen letters and
     cards during the past nine years, a birthday card every year and
     some Christmas cards. They were all addressed to [Child]; no
     correspondence was addressed to Petitioners. Father has never
     requested any reports as to [C]hild’s schooling, behavior[,] or
     health. Father testified that he sent [Child] a card for every
     holiday and probably a hundred cards and/or letters during the
     past nine years. He last wrote to [Child] in May 2014, on her
     birthday.      Neither Father nor Petitioners produced any
     correspondence sent by Father; however, Petitioners testified
     that they saved all of them and when [Child] was younger, read
     them to her. [Child] is now able to read, and Petitioners
     testified that she shows no interest in Father’s correspondence.
     Father has provided no financial support for [C]hild. He never
     undertook any formal efforts to effect his custodial rights in
     [C]hild. Petitioners testified [Child] knows Father’s name and
     knows that she is biologically his daughter, but she calls
     petitioners “Mommy and Daddy.” Petitioners testified [Child] has
     never asked to see Father, and that they have a photograph of


1
  We take judicial notice that on October 10, 2014, during the pendency of
this appeal, Father was released from prison in Virginia.
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      Father, but [Child] has never asked to see it. She has no name
      for Father; he is a virtual stranger to her.

      Father acknowledges that Petitioners have been [Child]’s
      “mommy and daddy” for the past nine years and testified that he
      believes it is appropriate that they remain in those roles. Father
      testified that upon his release from prison, he would like to build
      a relationship with [Child] gradually because he realizes that she
      does not know him at all. He testified that his incarceration has
      kept him from performing parental duties and that he has been
      unable to provide [Child] with any essential parental care. He
      acknowledged he does not know how to approach a nine-year-
      old girl. He expressed profound gratitude to Petitioners for
      parenting [Child] in his and Mother’s stead. He explained his
      admittedly limited number of efforts to contact [Child] by
      telephone.

      Counsel for [Child] confirmed that [Child] has little interest in
      Father’s desire to begin to forge a relationship with her.

      [S.E.D.] is Mother's aunt, 59 years old and employed as a
      psychiatric nurse.      Her husband, [D.A.D.], is employed in
      inventory control for a technical company. He was adopted at
      the age of ten years, and testified from personal experience
      about the importance for stability and security in a child’s life.
      They have resided in the same home in Kempton, Lehigh
      County, for [13] years. In June 2005, when [Child] was six
      weeks old, they responded to a request to go to Virginia to take
      custody of [Child] because Mother had been taken to jail. Father
      was already incarcerated.      [Child] is enrolled in a public
      elementary school, has friends[,] and is doing well. She is in
      good health. By all accounts, even from Father, she is part of
      Petitioners’ family unit[.]

Trial Court Opinion, 7/22/14, at 1-3.

      The procedural history of this case is as follows.     On April 8, 2013,

Petitioners filed a petition to terminate involuntarily Father’s parental rights

pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), and (b), and to confirm the




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voluntary relinquishment of Mother’s parental rights.2 The trial court held a

hearing on the petitions on June 10, 2014.

      At the hearing on June 10, 2014, Petitioners testified on behalf of

themselves.   Father testified from prison in Virginia via videoconference.

The parties stipulated to the contents of the testimony that would have been

given by Child’s paternal grandparents, R.M. and her husband, E.M.          See

N.T., 6/10/14, at 112-114.     On July 22, 2014, the trial court entered a

decree involuntarily terminating Father’s parental rights. This timely appeal

followed.3

      Father raises four issues for our review:


      1. Whether the [trial c]ourt committed an error of law or abuse
         of discretion in terminating the parental rights of Father
         pursuant to 23 Pa.C.S.A. § 2511(a)(1) where the evidence
         demonstrated Father’s consistent efforts to present himself as
         a parent resource despite his incarceration?

      2. Whether the [trial c]ourt committed an error of law or abuse
         of discretion in terminating the parental rights of Father
         pursuant to 23 Pa.C.S.A. § 2511(a)(1) where the evidence
         demonstrated Father attempted to use the resources and
         educational services available to him . . . so that he can serve
         as a parent when he is released from prison in October 2014?

2
   On October 13, 2013, Mother signed a consent form, voluntarily
relinquishing her parental rights to Child.
3
    Father filed his concise statement of errors complained of on appeal
contemporaneously with his notice of appeal. See Pa.R.A.P. 1925(a)(2).
The trial court issued an opinion contemporaneously with its order
terminating Father’s parental rights.     After Father filed his concise
statement, the trial court issued an additional opinion on September 3,
2014.    All issues raised on appeal were included in Father’s concise
statement.
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        3. Whether the [trial c]ourt committed an error of law or abuse
           of discretion in terminating the parental rights of Father
           pursuant to 23 Pa.C.S.A. § 2511(a)(2) where the evidence
           demonstrated that Father’s period of incarceration which
           prevented him from exercising parental duties is imminently
           ending[,] thus the conditions and causes of the inability to
           provide parental care will be remedied[,] and Father has
           stated a commitment to provide an appropriate degree of
           care?

        4. Whether the [trial c]ourt committed an error of law or abuse
           of discretion in terminating the parental rights of Father
           pursuant to 23 Pa.C.S.A. § 2511(b) where the evidence
           demonstrated that Father availed himself of all means to
           develop and maintain a relationship with his daughter[,] but
           was obstructed by [Petitioners]?

Father’s Brief at 4.

        Father argues that his incarceration in an out-of-state facility, his lack

of financial means, and his rejection by Child’s guardians thwarted his efforts

to have a place of importance in Child’s life. Father asserts that, in prison,

he took every course available to improve himself, prepare to have gainful

employment, and to learn about parenting. Father states that he plans to

return to the community in Alabama where his parents and grandparents

live.   Father complains that the trial court ignored his testimony that his

release will permit him the freedom and flexibility to communicate, travel,

and work, and to become a contributing person in Child’s life. Father claims

that Child’s guardians, the Petitioners, obstructed his efforts to connect with

Child from prison, and marginalized and erased him from Child’s life. Father

asserts that involuntary termination of his parental rights and adoption of


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Child by Petitioners extinguishes any chance for him to have a place in

Child’s life.

       Our standard of review is well-settled:

       When reviewing an appeal from a decree terminating parental
       rights, we are limited to determining whether the decision of the
       trial court is supported by competent evidence. Absent an abuse
       of discretion, an error of law, or insufficient evidentiary support
       for the trial court’s decision, the decree must stand. Where a
       trial court has granted a petition to involuntarily terminate
       parental rights, this Court must accord the [trial court’s] decision
       the same deference that it would give to a jury verdict. We
       must employ a broad, comprehensive review of the record in
       order to determine whether the trial court’s decision is supported
       by competent evidence.

       Furthermore, we note that the trial court, as the finder of fact, is
       the sole determiner of the credibility of witnesses and all
       conflicts in testimony are to be resolved by the finder of fact.
       The burden of proof is on the party seeking termination to
       establish by clear and convincing evidence the existence of
       grounds for doing so.

       The standard of clear and convincing evidence means testimony
       that is so clear, direct, weighty, and convincing as to enable the
       trier of fact to come to a clear conviction, without hesitation, of
       the truth of the precise facts in issue. If the trial court’s findings
       are supported by competent evidence, we must affirm the
       court’s decision, even if the record could support the opposite
       result.

In re D.A.T., 91 A.3d 197, 203 (Pa. Super. 2014), appeal denied, 95 A.3d

278 (Pa. 2014) (internal alteration, quotation marks, and citations omitted).

       “This Court may affirm the trial court's decision regarding the

termination of parental rights with regard to any one subsection of section

2511(a).”       In re M.T., 101 A.3d 1163, 1179 (Pa. Super. 2014) (en banc)

(citation omitted). Here, we will focus on section 2511(a)(1), (2), and (b).

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     Section 2511 provides, in relevant part, 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.

     (2) The repeated and continued incapacity, abuse, neglect or
     refusal of the parent has caused the child to be without essential
     parental care, control or subsistence necessary for his physical
     or mental well-being and the conditions and causes of the
     incapacity, abuse, neglect or refusal cannot or will not be
     remedied by the parent.

                                    ***

     (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 supporting 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

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     parental claim to a child or a refusal or failure 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) (citations omitted).

     Furthermore:

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

     This Court has defined parental duties as follows:

     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.




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     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 847, 855 (Pa. Super. 2004).

     In In re Adoption of S.P., 47 A.3d 817 (Pa. 2012), our Supreme

Court discussed In re Adoption of McCray, 331 A.2d 652 (Pa. 1975), a

case wherein the Court considered the termination of an incarcerated

person’s parental rights based upon alleged abandonment. Our Supreme

Court stated:

     Applying in McCray the provision for termination of parental
     rights based upon abandonment . . . we noted that a parent has
     an affirmative duty to love, protect and support his child and to
     make an effort to maintain communication and association with
     that child. We observed that the father’s incarceration made his
     performance of this duty more difficult.

                                   ***

      [A] parent’s absence and/or failure to support due to
     incarceration is not conclusive on the issue of abandonment.
     Nevertheless, we are not willing to completely toll a parent’s
     responsibilities during his or her incarceration. Rather, we must
     inquire whether the parent has utilized those resources at his or
     her command while in prison in continuing a close relationship
     with the child. Where the parent does not exercise reasonable

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      firmness in declining to yield to obstacles, his other rights may
      be forfeited.

S.P., 47 A.3d at 828 (internal quotation marks and citations omitted).

      After our careful review of the trial court’s application of the law to the

facts of this case, we find no reason to disturb the trial court’s conclusions

that Father failed to perform his parental duties with regard to Child, as he

has been continuously incarcerated since before she was born. We also find

no reason to disturb the trial court’s conclusion that Father’s explanation for

his lack of contact, i.e., Petitioners were obstacles, lacked credibility.

Additionally, we find no reason to disturb the trial court’s determination that

Father failed to sustain his burden as to his post-abandonment contact,

which amounted to sending a few cards and letters to Child and sending two

gifts made through the arts and crafts program at prison.

      Father cites to In re R.I.S., 36 A.3d 567 (Pa. 2011), for the

proposition that sending cards shows that he did not abandon Child. R.I.S.,

however, is distinguishable. In that case, our Supreme Court noted that the

father continued to send the child cards on a monthly basis. Id. at 570. In

contrast, in the case at bar the trial court found that Father’s efforts were

sporadic and irregular, as he did not attempt to contact Child with regular

and sustained frequency. See Trial Court Opinion, 9/3/14, at 2. The trial

court found that Father’s testimony that he sent 100 cards was not credible.

See   Trial   Court   Opinion,   7/22/14,   at   3.   Thus,   the   trial   court’s



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

clear and convincing evidence in the record.

      To satisfy the requirements of section 2511(a)(2), the moving party

must produce clear and convincing evidence regarding the following

elements: (1) repeated and continued incapacity, abuse, neglect, or refusal;

(2) such incapacity, abuse, neglect, or refusal caused the child to be without

essential parental care, control, or subsistence necessary for her physical or

mental well-being; and (3) the causes of the incapacity, abuse, neglect, or

refusal cannot or will not be remedied. See In re Adoption of M.E.P., 825

A.2d 1266, 1272 (Pa. Super. 2003). The grounds for termination of parental

rights under section 2511(a)(2) are not limited to affirmative misconduct; to

the contrary, those grounds may include acts of refusal as well as incapacity

to perform parental duties.   In re A.L.D., 797 A.2d 326, 337 (Pa. Super.

2002).

      Our Supreme Court addressed the relevance of incarceration in

termination decisions under section 2511(a)(2) as follows:

      [I]ncarceration is a factor, and indeed can be a determinative
      factor, in a court’s conclusion that grounds for termination exist
      under § 2511(a)(2) where the repeated and continued incapacity
      of a parent due to incarceration has caused the child to be
      without essential parental care, control or subsistence and that
      the causes of the incapacity cannot or will not be remedied.

                                       ***

      [T]he length of the remaining confinement can be considered as
      highly relevant to whether the conditions and causes of the
      incapacity, abuse, neglect or refusal cannot or will not be

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      remedied by the parent, sufficient to provide grounds for
      termination pursuant to 23 Pa.C.S. § 2511(a)(2).

S.P., 47 A.3d at 829-830 (internal quotation marks and citation omitted).

      This Court has stated that a parent is required to make diligent efforts

towards the reasonably prompt assumption of full parental responsibilities.

A.L.D. 797 A.2d at 337. A parent’s vow to cooperate, after a long period of

uncooperativeness regarding the necessity or availability of services, may

properly be rejected as untimely or disingenuous. Id. at 340. The evidence

in this case demonstrated that Father’s continued incapacity, abuse, neglect,

or refusal to parent could not, or would not, be remedied, as he has been

incarcerated since before Child was born.      Further, we find no reason to

disturb the trial court’s conclusions that the Petitioners sustained their

burden to demonstrate that Father had an incapacity to parent Child, and

was unable to remedy the conditions or causes of his incapacity within a

reasonable amount of time, as he had no plan to care for Child upon his

release from prison.

      Father’s argument regarding section 2511(a)(2) essentially requests

that this Court make credibility and weight determinations different from

those of the trial court. While Father may claim to love Child, a parent’s own

feelings of love and affection for a child, alone, will not preclude termination

of parental rights. Z.P., 994 A.2d at 1121. As this Court stated in Z.P., a

child’s life “simply cannot be put on hold in the hope that [a parent] will

summon the ability to handle the responsibilities of parenting.” Id. at 1125.

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Rather, “a parent’s basic constitutional right to the custody and rearing of

his child is converted, upon the failure to fulfill his or her parental duties, to

the child’s right to have proper parenting and fulfillment of his or her

potential in a permanent, healthy, safe environment.” B., N.M., 856 A.2d at

856.

        After our careful review of the record in this matter, we find that the

trial   court’s   credibility   and   weight   determinations   are   supported   by

competent evidence in the record. The trial court properly considered the

history of the case, including Father’s neglect as a parent to Child, and his

incarceration, and determined that he would not remedy his failure to

parent.    Father cannot now shift the blame to Petitioners for his failure to

parent Child.      Accordingly, we find that the trial court’s determinations

regarding section 2511(a)(2) 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 has stated:


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      [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. The
      emotional needs and welfare of the child have been properly
      interpreted to include intangibles such as love, comfort, security,
      and stability. . . . [T]he 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: T.S.M., 71 A.3d 251, 267 (Pa. 2013) (internal alteration, quotation

marks, and citations omitted).

      Here, the trial court found that the Petitioners, not Father, have

provided for Child’s developmental, physical, and emotional needs and

welfare, and that Father will not be able to provide for her needs. To this

end, Father testified that Child’s interests would be best served by

continuing to live with the Petitioners. See Trial Court Opinion, 9/3/14, at 3.

Further, the trial court properly found that there is no bond between Child

and Father.   This Court has observed that no bond worth preserving is

formed between a child and a natural parent where the child has been in

foster care for most of the child’s life, and the resulting bond with the

natural parent is attenuated. In re K.Z.S., 946 A.2d 753, 764 (Pa. Super.

2008). Father failed to “exhibit [the] bilateral relationship which emanates

from the parent[’s] willingness to learn appropriate parenting . . . .” In re

K.K.R.S., 958 A.2d 529, 534 (Pa. Super. 2008).        The trial court properly

found that Father did not put himself in a position to assume daily parenting

responsibilities for Child so that he could develop a real bond with Child.

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See Trial Court Opinion, 9/3/14, at 3; In re J.L.C., 837 A.2d 1247, 1249

(Pa. Super. 2003). The trial court found:

      As a result of [Father’s] failure to take proactive steps to assert
      the role of a parent in [C]hild’s life, [C]hild has no bond with
      [Father].    Accordingly, she would suffer no harm from
      termination of [Father’s] parental rights. Her needs and welfare
      are being served in her present situation, living with the only
      parents she has ever known.

Trial Court Opinion, 9/3/14, at 3.

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

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

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

court did not abuse its discretion in finding that Father’s appeal lacks merit

as to section 2511(b). Accordingly, we affirm the termination decree.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/8/2015




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