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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF O.S.G.W.             :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
APPEAL OF L.A.W., FATHER                :
                                        :         No. 1944 MDA 2015


               Appeal from the Order Entered October 7, 2015,
            in the Court of Common Pleas of Cumberland County
              Orphans’ Court Division at No. 41 Adoptions 2015


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED JULY 08, 2016

      L.A.W. (“Father”) appeals from the order entered October 7, 2015, in

the Court of Common Pleas of Cumberland County, which terminated

Father’s parental rights with respect to his minor daughter, O.S.G.W.

(“Child”), born in October of 2006. After careful review, we affirm.

      This appeal arises from the petition for involuntarily termination of

parental rights filed by Child’s mother, M.K. (“Mother”), on May 15, 2015.1

While the details are not clear from the record, it appears that Father and

Mother dated until Father was incarcerated ten days after Child’s birth.

(Notes of testimony, 9/4/15 at 14-15.)      By the time Father was released

from incarceration ten or eleven months later, Mother had ended her




* Retired Senior Judge assigned to the Superior Court.
1
  Mother filed an amended petition for involuntary termination of parental
rights on June 24, 2015.
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relationship with Father, and was dating her current fiancé, H.M. (Id. at 15,

17-18.) In 2011, Mother commenced a custody action against Father, and

the parents entered into a stipulated custody agreement, whereby Mother

was awarded primary physical and sole legal custody of Child, and Father

was awarded partial physical custody when agreed to by the parties. (Id. at

11-13; Petitioner’s Exhibit 1.) Father never exercised any periods of partial

physical custody pursuant to this order, and he has had no contact with

Child at all since approximately September of 2007.    (Notes of testimony,

9/4/15 at 11.)    In March of 2015, Father began sending frequent text

messages to Mother via phone and social media, asking to see Child. (See

Respondent’s Exhibit 2 at 9-65.)     Father filed a petition to modify the

2011 custody order in April of 2015, shortly before Mother filed her

termination petition. (Notes of testimony, 9/4/15 at 96.)

     A termination of parental rights hearing was held on September 4,

2015, during which the orphans’ court heard the testimony of Mother; her

fiancé, H.M.; Father; and Father’s wife, A.W.     Following the hearing, on

October 7, 2015, the orphans’ court entered its order terminating Father’s

parental rights to Child.     Father timely filed a notice of appeal on

November 5, 2015, along with a concise statement of errors complained of

on appeal.

     Father now raises the following issues for our review.

             1.   Whether the [orphans’] court erred as a matter
                  of law in finding Mother established by clear


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                   and convincing evidence that Father refused or
                   failed to perform his parental duties for at least
                   the six month[s] immediately preceding the
                   filing of Mother’s Petition, particularly in light of
                   Mother’s obstructive tactics to prevent Father
                   from being able to perform said parental
                   duties?

            2.     Whether the [orphans’] court abused its
                   discretion by failing to assign greater weight to
                   Father’s actions in the six months immediately
                   preceding the filing of Mother’s Petition?

            3.     Whether the [orphans’] court abused its
                   discretion by failing to assign greater weight to
                   Mother’s actions, through the child’s life and
                   especially in the six months preceding the filing
                   of Mother’s Petition, to prevent Father from
                   performing his parental duties?

Father’s brief at 5.

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

review.

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




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

omitted).

      Termination of parental rights is governed by Section 2511 of the

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

analysis.

            Initially, the focus is on the conduct of the parent.
            The party seeking termination must prove by clear
            and convincing evidence that the parent’s conduct
            satisfies the statutory grounds for termination
            delineated in Section 2511(a). Only if the court
            determines that the parent’s conduct warrants
            termination of his or her parental rights does the
            court engage in the second part of the analysis
            pursuant to Section 2511(b): determination of the
            needs and welfare of the child under the standard of
            best interests of the child. One major aspect of the
            needs and welfare analysis concerns the nature and
            status of the emotional bond between parent and
            child, with close attention paid to the effect on the
            child of permanently severing any such bond.

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

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

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

            (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.


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                  ....

            (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 address whether the orphans’ court abused its discretion by

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

meet the requirements of this section, “the moving party must produce clear

and convincing evidence of conduct, sustained for at least the six months

prior to the filing of the termination petition, which reveals a settled intent to

relinquish parental claim to a child or a refusal or failure to perform parental

duties.”   In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008), citing

In re Adoption of R.J.S., 901 A.2d 502, 510 (Pa.Super. 2006). The court

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

post-abandonment contact between parent and child” before moving on to

analyze Section 2511(b). Id., quoting In re Adoption of Charles E.D.M.,

708 A.2d 88, 92 (Pa. 1998).


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

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

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

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

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

“[p]arental duty requires that the parent act affirmatively with good faith

interest and effort, and not yield to every problem, in order to maintain the

parent-child relationship to the best of his or her ability, even in difficult

circumstances.”     Id. (citation omitted).   Incarceration does not relieve a

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

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

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

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

         Instantly, the orphans’ court found that Father has failed to perform

parental duties for all but the first eleven months of Child’s life. (Orphans’

court opinion, 12/15/15 at 4.) The court acknowledged that Mother “put up

roadblocks” which prevented Father from having contact with Child, but the

court determined that Father made no attempts to overcome these

roadblocks until October of 2014.2      (Id. at 5.)   The court explained that

Father did “‘everything in his power’” to enforce his right to see Child during


2
  At the conclusion of the termination hearing, the orphans’ court indicated
that Father “began in earnest” attempting to re-establish contact with Child
in May of 2014. (Notes of testimony, 9/4/15 at 106.)


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the six months immediately preceding the filing of Mother’s termination

petition on May 15, 2015. (Id., quoting notes of testimony, 9/4/15 at 105-

106.)     However, the court concluded that Father’s belated attempts at

parenting Child did not make up for Father’s many years of failure. (Id. at

6.)     In doing so, the court emphasized this court’s instruction, that

“‘[a]lthough it is the six months immediately preceding the filing of the

petition that is most critical to the analysis, the trial court must consider the

whole history of a given case and not mechanically apply the six-month

statutory provision.’” (Id. at 5-6, quoting B.,N.M., 856 A.2d at 855.)

        In response, Father presents three interrelated arguments, which we

address together.    In his first issue, Father contends that Mother failed to

present clear and convincing evidence that he demonstrated a settled

purpose of relinquishing his parental claim to Child, or that he refused or

failed to perform parental duties for at least six months immediately

preceding the filing of her termination petition.    (Father’s brief at 10-27.)

Father asserts that he has never evidenced a settled purpose to relinquish

his parental claim to Child, and that he has done “everything within his

means” to perform parental duties for Child by writing letters, sending text

messages, attempting phone calls, and filing a petition to modify custody,

inter alia. (Id. at 12-19.) Father blames Mother for his failure to remain

involved in Child’s life, indicating that she engaged in “obstructive tactics,”

such as blocking Father on her phone and on social media. (Id. at 19-23.)



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Father asserts that he exercised reasonable firmness to overcome the

obstacles put in place by Mother. (Id. at 24-27.)

     In his second issue, Father argues that the orphans’ court abused its

discretion by failing to assign greater weight to Father’s actions in the

six months immediately preceding the filing of the termination petition. (Id.

at 27-30.) Father stresses the court’s conclusion that he did everything in

his power to see Child during the relevant six months. (Id. at 27-28.) In

addition, Father insists that he has attempted to perform parental duties

“over the lifetime of the child[.]” (Id. at 28-29.) Father suggests that the

court “misstated and misapplied” the burden of proof in this matter, by

placing the onus on Father to prove that his parental rights should not be

terminated, instead of requiring Mother to prove that his parental rights

should be terminated. (Id. at 29-30.)

     Finally, Father’s third issue is that the orphans’ court abused its

discretion by failing to assign greater weight to Mother’s attempts at

preventing Father from exercising parental duties. (Id. at 30-32.) Father

again insists that it was Mother’s obstructive tactics that prevented Father

from maintaining a relationship with Child.   (Id.)   Father emphasizes that

the orphans’ court acknowledged Mother’s bad behavior, but proceeded to

terminate his parental rights anyway. (Id.)

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

that the orphans’ court did not abuse its discretion by terminating Father’s



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parental rights pursuant Section 2511(a)(1). However, our reasoning differs

from that of the orphans’ court, as several of the court’s findings are not

supported by the record.       Most notably, our review of record belies the

court’s assertion that Father did “everything in his power” to perform

parental duties for Child in the six months immediately preceding the filing

of the termination petition.

      During the termination hearing, Mother testified that Father has not

had any contact with Child since she was eleven months old.         (Notes of

testimony, 9/4/15 at 5.) Mother admitted that Father has attempted to visit

Child by calling her “a few times,” but that “I don’t respond to the

voice mails or calls.” (Id. at 10.) Mother initially stated that Father called

her “one or two times a year” up until Father filed his custody petition in

April of 2015. (Id. at 10, 23, 25.) Since then, Father has asked to see Child

“numerous times.”    (Id. at 10.) Mother then clarified that she received a

voicemail from Father on March 26 or 27, 2015, during which Father stated

that “he was coming after us and he would find us and take [Child].” (Id. at

19, 33.) Mother believed that this was the only time that Father called her

between November of 2014 and May of 2015, and that “it was that phone

call that prompted all of this.”    (Id. at 25.)   Mother agreed that Father

“ramped up” his attempts at contacting her around this time, and that

Father also sent her text messages via her cell phone and social media. (Id.

at 33-37.)



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     Mother explained that she does not respond to Father’s requests to see

Child because their discussions always result in an argument, and because “I

don’t think that it is a safe environment.” (Id. at 10.) Mother expressed

concern relating to Father’s history of unstable housing, alcohol use, and

drug use. (Id. at 14.) Mother believed that Father has been incarcerated

repeatedly, and that Father’s incarcerations related primarily to drinking,

driving under the influence, fighting, and child support.3             (Id. at 14.)

Mother acknowledged that Father has paid child support for Child since

2007, but Mother stated that Father was “very frequently” delinquent on his

child support payments, and that contempt proceedings were initiated

against him on approximately six occasions.            (Id. at 6-7.)    Father was

incarcerated “two or three times” as a result of these contempt proceedings,

most recently in the fall of 2014. (Id. at 8.) At the time of the termination

hearing, Father was current on his child support. (Id. at 7.)

     Father    conceded   that   he   has      not   seen   Child   since   she   was

eleven months old. (Id. at 47.) However, Father testified that he has made

numerous attempts to contact Child.              Father explained that he was

incarcerated from 2007 or 2008 until 2011 or 2012 due to a driving under

the influence conviction. (Id. at 50.) During that time, Father claimed that


3
  A copy of Father criminal record was admitted during the termination
hearing. (See Petitioner’s Exhibit 2.) Father’s criminal record contains
numerous driving under the influence convictions, as well as convictions for
disorderly conduct (engaging in fighting), and public drunkenness,
inter alia. (Id.)


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he attempted to maintain a relationship with Child by calling Mother and

sending letters and pictures. (Id.) According to Father, he attempted to call

Mother two or three times a month during his incarceration.     (Id. at 52.)

Father also enlisted the aid of Child’s paternal grandmother in order to

deliver items to Mother’s residence. (Id. at 50.)

      Concerning the parties’ 2011 custody order, Father testified that he

asked to see Child “five minutes” after signing the stipulation, but Mother

refused to allow him to see Child. (Id. at 78-79.) Father claimed that he

was not aware that he could seek to modify the custody order, and that he

only recently discovered that this was possible. (Id. at 87-89, 96.) Father

stated that he did not continue to pursue custody pursuant to the 2011

order because he was afraid he would be incarcerated for harassment or

stalking.   (Id. at 94-95.)   Despite this setback, Father reported that he

continued to call Mother and to send her text messages via his phone and

social media.4 (Id. at 57, 89, 92.)

      In support of this claim, Father presented the orphans’ court with a

lengthy exhibit detailing his recent text messages to Mother.           (See

Respondent’s Exhibit 2.) Father described this exhibit as “a record of every

text message and picture I have sent via Facebook Messenger -- and it looks


4
  In addition, Father stated that he attempted to reach out to Mother’s
parents, and that he paid for a “background search” in order to discover
more information about Child. (Notes of testimony, 9/4/15 at 74-76, 79,
81.)



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to maybe be text messages [via phone], as well . . . .”5            (Notes of

testimony, 9/4/15 at 59.)     The exhibit indicates that Father sent Mother

several text messages in May of 2014.        (See Respondent’s Exhibit 2, at

1-6.)    Father next sent Mother a single text message in October of 2014.

(Id. at 9.) Starting on March 26, 2015, and continuing into May of 2015,

Father sent Mother frequent text messages and pictures. (Id. at 9-65.)

        Accordingly, the record indicates that Father made sporadic attempts

at contacting Mother from the time Child was eleven months old, in

September of 2007, until late March of 2015, when Father began attempting

to communicate more frequently. The record does not support the finding of

the orphans’ court that Father began making a serious effort to re-establish

contact with Child as early as May of 2014. The record demonstrates that

Father sent Mother a series of text messages in May of 2014, but then did

not attempt to contact her again until five months later in October of 2014.

Father sent a single text message in October of 2014, and then stopped

sending messages for another five months, until March of 2015.       Notably,

Mother’s petition to terminate Father’s parental rights was filed on May 15,

2015. By the time Father began sending regular text messages to Mother,




5
  Father later indicated that he sent additional text messages to Mother prior
to 2015, but that he was unable to print off those messages because they
were sent from a different phone, and “the phone that they were on just
shut off.” (Notes of testimony, 9/4/15 at 71.)


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the critical six-month period was already more than two-thirds of the way

over.

        Further, even after Father began sending regular text messages to

Mother in late March of 2015, it is clear that Father was not doing

“everything in his power” to enforce his right to see Child, as determined by

the orphans’ court. This is especially true given Father’s failure to perform

parental duties for the preceding seven and a half years.     While Father is

correct that Mother created an obstacle by refusing to allow him to visit with

Child, Father initially made no attempt to overcome this obstacle. Instead,

Father continued to send text messages that he knew, or should have

known, would have no chance of success.        While Father finally made an

effort to overcome the obstacle created by Mother by filing a petition to

modify custody in April of 2015, Father’s petition was simply too little, too

late. We conclude that Mother presented clear and convincing evidence that

Father refused or failed to perform parental duties for the six months

immediately preceding the filing of her termination petition, pursuant to

Section 2511(a)(1).




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

terminating Father’s parental rights pursuant to Section 2511(b).6 We have

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

            Subsection 2511(b) focuses on whether termination
            of    parental   rights   would    best   serve   the
            developmental, physical, and emotional needs and
            welfare of the child. In In re C.M.S., 884 A.2d
            1284, 1287 (Pa.Super. 2005), this Court stated,
            “Intangibles such as love, comfort, security, and
            stability are involved in the inquiry into the needs
            and welfare of the child.” In addition, we instructed
            that the trial court must also discern the nature and
            status of the parent-child bond, with utmost
            attention to the effect on the child of permanently
            severing that bond. 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.
            Accordingly, the extent of the bond-effect analysis
            necessarily depends on the circumstances of the
            particular case.

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

omitted).

     Here, the orphans’ court found that there is “absolutely no question”

that terminating Father’s parental rights will serve the needs and welfare of

Child. (Orphans’ court opinion, 12/15/15 at 6.) The court emphasized that

Child has no relationship with Father, and instead considers Mother’s fiancé,

H.M., to be her father. (Id.) We agree.



6
  While Father does not discuss Section 2511(b) in the argument section of
his brief, we will nonetheless consider this issue. See In re C.L.G., 956
A.2d 999, 1010 (Pa.Super. 2008) (en banc) (considering § 2511(b) despite
the appellant’s failure to challenge the trial court’s analysis).


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     During the termination hearing, Mother testified that she has been in a

relationship with H.M. since February of 2007. (Notes of testimony, 9/4/15

at 17-18.)     H.M. has assisted Mother in raising Child since Child was

six months old. (Id. at 17.) Child knows H.M. as her father, and she refers

to him as “dad.” (Id. at 17-18.) Thus, the record confirms that Child has

no relationship with Father.   It is clear that Child’s needs and welfare will

best be served by terminating Father’s parental rights, so that Child can be

adopted by H.M.7

     Accordingly, because we conclude that the orphans’ court did not

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

Sections 2511(a)(1) and (b), we affirm the order of the orphans’ court.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/8/2016

7
  We note that the orphans’ court was only permitted to terminate Father’s
parental rights if it found that an adoption of Child was anticipated. In re
E.M.I., 57 A.3d 1278, 1285 (Pa.Super. 2012); 23 Pa.C.S.A. § 2512(b).
Generally, an individual may not adopt the child of a non-spouse, unless that
non-spouse relinquishes his or her parental rights, or unless the individual
and the non-spouse are able to show cause pursuant to 23 Pa.C.S.A.
§ 2901. In re Adoption of R.B.F., 803 A.2d 1195, 1199-1202 (Pa. 2002);
In re Adoption of M.R.D., 128 A.3d 1249, 1260 (Pa.Super. 2015), appeal
granted, 133 A.3d 293 (Pa. 2015). Father does not challenge the feasibility
of H.M.’s proposed adoption of Child, so we do not address it here.


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