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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ADOPTION OF S.R., A MINOR           :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: D.R., NATURAL FATHER            :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 1850 WDA 2017

                     Appeal from the Order October 26, 2017
     In the Court of Common Pleas of Westmoreland County Orphans' Court
                           at No(s): No. 044 of 2017


BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                                 FILED JUNE 12, 2018

       D.R. (Father) appeals from the orphans’ court order involuntarily

terminating his parental rights to his daughter, S.R. (Child). The petition was

filed by Child’s current caregivers and legal custodians, A.R. (Great-Aunt) and

J.R. (Great-Uncle) (collectively, Petitioners),1 pursuant to 23 Pa.C.S.A. §




____________________________________________


1   Petitioners satisfied the requirements of 23 Pa.C.S.A. § 2512(a)(3),
regarding who may file a petition for involuntary termination of parental
rights. Section 2512(a)(3) provides that a petition to terminate parental
rights with respect to a child under the age of 18 years may be filed by “[t]he
individual having custody or standing in loco parentis to the child and who has
filed a report of intention to adopt required by section 2531 (relating to report
of intention to adopt).” 23 Pa.C.S.A. § 2512(a)(3). As noted, Petitioners had
legal custody of Child, and the record reflects that on May 24, 2017,
Petitioners filed a report of intention to adopt Child.
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2511(a)(1), (2), (5), (8), and (b) of the Adoption Act, 23 Pa.C.S.A. §§ 2101-

2938.2 For the reasons that follow, we affirm.

       The orphans’ court summarized the relevant factual and procedural

history of this case as follows:

       [Child] was born [i]n December [of] 2003. Thereafter, the minor
       child lived exclusively with Father and biological mother, R.R.
       (“Mother”). During the time period of approximately 2009 to
       2012, the Westmoreland County Children’s Bureau was involved
       with Mother and Father, providing general protective services for
       a time period of approximately three (3) years. Father alleges
       that this was caused primarily by Mother’s drug abuse and related
       criminal issues.

       Petitioners in this case are Maternal Great-Aunt and Great-Uncle
       of the minor child, A.R. and J.R. (“Petitioners”). On October 15,
       2012, A.R. was granted emergency custody of the minor child by
       the Honorable Christopher A. Feliciani at Case No. 2223 of 2012-
       D.    Petitioners were prompted to obtain custody based on
       allegations of abuse reported by the minor child to her school
       guidance counselor, including allegations of physical abuse,
       withholding of food, severe neglect and unsuitable housing,
       truancy, and Mother’s drug abuse. Father denies any drug use,
       although he has refused drug testing by the [c]ourts and the
       Children’s Bureau on three (3) separate occasions. An October
       26, 2012 Order of Court provided for Mother and Father to have
       supervised visitation through the Children’s Bureau, and ordered
       Mother and Father to obtain drug and alcohol evaluations and
       follow all recommended treatment.          On January 3, 2013,
       [Petitioners were] granted sole legal and primary physical custody

____________________________________________


2 The October 26, 2017 termination order also terminated the parental rights
of R.R. (Mother). On April 10, 2018, Mother’s counsel filed with this Court an
application to dismiss Mother from this appeal. Mother did not file a brief in
connection with this appeal, nor did she file a separate appeal. Accordingly,
to the extent that Mother could be deemed to have any involvement in this
appeal by virtue of being a subject of the termination order, we grant the
application to dismiss.


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       of [Child], with supervised visitation provided to Mother and
       Father, through JusticeWorks YouthCare.

       Father provided no evidence that a drug and alcohol evaluation
       was ever completed by himself or Mother. Since 2013, Father has
       failed to arrange for visits with [Child], either through
       JusticeWorks per the January 3, 2013 Order of Court, or to
       attempt to derive some alternative arrangement with Petitioners.
       Father stated that he was unable to afford supervised visitation
       through JusticeWorks YouthCare. Father has never petitioned to
       modify the January 3, 2017 Order of Court. The last contact
       Father has had with [Child] occurred in August of 2015. Father
       arrived unannounced at Petitioners’ home, bringing with him a
       bicycle he had purchased for the minor child, and then proceeded
       to speak with [Child] for approximately ten minutes.

       From 2012 through 2015, [Child] would speak on the phone with
       Father, however discussions were characterized as inappropriate
       by Petitioners, and included topics such as Mother’s drug use,
       criticism of the child’s diet and weight, and Father’s housing
       instability. Additionally, Great-Aunt indicated that initially the
       minor child would attempt at least once per month to reach out
       by phone to Mother and Father, however many of these calls were
       not returned, and after a few years, [Child] eventually stopped
       calling. Great-Uncle reports that the last phone call between
       [Child] and Father occurred in approximately September of 2015.
       Father testified that he has not had a phone call with [Child] since
       2016, despite attempts to call the child’s personal mobile phone.

Orphans’ Court Opinion, 12/20/17, at 2-4 (footnote omitted).

       On April 20, 2017, Petitioners filed a petition to involuntarily terminate

Father’s parental rights to Child. The orphans’ court conducted a termination

hearing on August 17, 2017, and October 26, 2017,3 during which Petitioners
____________________________________________


3 By order of court dated June 21, 2017, Diane Murphy, Esquire was appointed
to serve as both Child’s legal counsel and guardian ad litem. At the
termination hearing, Attorney Murphy stated that she believed terminating
Father’s parental rights was in Child’s best interests. See N.T., 10/26/17, at
70-72. Moreover, she stated that Child wanted Father’s parental rights



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testified on their own behalf and presented the testimony of Dawn Smitley, a

licensed clinical social worker who conducted a home study evaluation. Father

also testified on his own behalf. At the conclusion of the hearing, the orphans’

court delivered its decision from the bench, ordering that Father’s parental

rights to Child be terminated. It entered the written order on the same date.

Father filed a timely notice of appeal, along with a concise statement of

matters complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).4

The orphans’ court issued its opinion pursuant to Rule 1925(a) on December

20, 2017.

       On appeal, Father raises the following issues for our review:

       1. Was clear and convincing evidence presented to show that
          termination was warranted pursuant to 23 Pa.C.S.A. [§]
          2511(a)(1), [(2), (5), and (8)]?



____________________________________________


terminated. Id. at 72. Based upon this testimony, we can perceive of no
conflict between Child’s legal and best interests. Hence, the trial court was
not required in this case to appoint counsel, separate from the guardian ad
litem, to represent Child’s legal interests. See In re Adoption of L.B.M.,
161 A.3d 172 (Pa. 2017) (holding that the appointment of legal counsel to
represent a child is mandatory in a contested termination proceeding under
23 Pa.C.S.A. § 2313(a)).

4 Generally, a party must file his or her notice of appeal within thirty days after
the entry of the order being appealed. Pa.R.A.P. 903(a). Here, thirty days
after October 26, 2017, was November 25, 2017. Because November 25,
2017, was a Saturday, Father timely filed his notice of appeal on Monday,
November 27, 2017. See 1 Pa.C.S. § 1908 (“Whenever the last day of any
such period shall fall on Saturday or Sunday, . . . such day shall be omitted
from the computation.”).



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      2. Did the [orphans’] court err in terminating Father’s parental
         rights despite evidence that there existed environmental
         factor[s] such as inadequate housing, furnishings, income,
         clothing, and medical care that were beyond his control?

Father’s Brief at 4 (suggested answers omitted).

      We review an appeal from the termination of parental rights in

accordance with the following standard:

      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.

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

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      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 termination cases, the burden is upon [the petitioner] to prove by

clear and convincing evidence that its asserted grounds for seeking the

termination of parental rights are valid.” In re R.N.J., 985 A.2d 273, 276

(Pa. Super. 2009).    We have explained that “[t]he 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. (quoting

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

      The orphans’ court terminated Father’s parental rights pursuant to

Section 2511(a)(1), (2), (5), (8), and (b). This Court need only agree with

the orphans’ court’s decision as to any one subsection of Section 2511(a), as

well as Section 2511(b), to affirm the termination. See In re B.L.W., 843

A.2d 380, 384 (Pa. Super. 2004) (en banc).           Accordingly, we focus our

analysis on Section 2511(a)(1) and (b), which provides 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 notice of the filing
      of the petition.

23 Pa.C.S.A. § 2511(a)(1), (b).

      As it relates to Section 2511(a)(1), the pertinent inquiry for our review

is as follows:

      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, which
      reveals a settled intent to relinquish parental claim to a child or a
      refusal or failure to perform parental duties. . . . Section 2511
      does not require that the parent demonstrate both a settled
      purpose of relinquishing parental claim to a child and refusal or
      failure to perform parental duties. Accordingly, parental rights
      may be terminated pursuant to Section 2511(a)(1) if the parent
      either demonstrates a settled purpose of relinquishing parental
      claim to a child or fails to perform parental duties.

In re D.J.S., 737 A.2d 283, 285 (Pa. Super. 1999) (quoting In re Adoption

of Charles E.D.M., 708 A.2d 88, 91 (Pa. 1998)) (internal citations omitted).

Although the six months immediately preceding the filing of the petition are

the 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.” In re B., N.M., 856 A.2d 847 (Pa. Super. 2004). Additionally, to

the extent that the orphans’ court based its decision to terminate parental

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rights pursuant to subsection (a)(1), “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(b). In In re C.M.S., we explained, “[a] parent is required

to exert a sincere and genuine effort to maintain a parent-child relationship;

the parent must use 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.” In re C.M.S.,

832 A.2d 457, 462 (Pa. Super. 2003).

      Once the evidence establishes a failure to perform parental duties or a

settled purpose of relinquishing parental rights, the orphans’ court must then

engage in three additional 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) (quoting In re Adoption of Charles E.D.M., 708 A.2d at 91).

      Instantly, the orphans’ court explained:

      [Child] has been in the custody of the Petitioners since October
      12, 2012. The petition to terminate Father’s parental rights was
      filed on April 2[0], 2017. For over four (4) years, Petitioners have
      been the sole providers for the minor child. They have performed
      all parental duties necessary for [Child] to remain a healthy and
      thriving child.     As described above, Petitioners provide all
      financial, physical, and emotional support for the minor child, and
      have done so since October of 2012.




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      It is undisputed that Father has had no phone contact with [Child]
      since at least 2016, and no in-person contact since August of
      2015. Between August of 2015 and the April 2[0], 2017 . . . filing
      of the Petition for Termination of Parental Rights by Petitioners,
      Father admittedly failed to perform any parental duties
      whatsoever for [Child]. He provided no support for the minor child
      in any way, including providing financially for the child, performing
      any parental duties including providing shelter, clothing, medical
      care, or emotional support. This time period far exceeds the six
      (6) months necessary under 23 Pa.C.S.A. § 2511(a)(1) to provide
      a basis for termination. For this reason, termination of Father’s
      parental rights under 23 Pa.C.S.A. § 2511(a)(1) is proper.

Orphans’ Court Opinion, 12/20/17, at 7.

      Father argues that environmental factors existed that were “beyond his

control,” and thus asserts that he did not act willfully in failing to remedy the

conditions that led to Child’s removal. Father’s Brief at 9-11. Specifically,

Father contends that he could not afford an attorney “to aid him through the

custody case” and was never “advised of resources that he could pursue to

help pay” for visits with Child. Id.

      Our review of the record supports the orphans’ court’s findings.

Petitioners obtained custody of Child based upon concerns regarding physical

abuse, severe neglect, and unsuitable housing. N.T., 10/26/17, at 7. Father

has done very little to fulfill his parental duties since his last contact with Child

in August 2015. Great-Aunt testified that when she initially obtained custody

of Child in October 2012, Father had two visits with Child. However, since

2013, Father has not contacted Great-Aunt for visits, either at Petitioners’

home or through Justice Works. Id. at 8. Father never made phone calls to

Child or financially supported Child in any way.        Id. at 10-11.     Moreover,



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Father testified at the termination hearing that he does not have suitable

housing for Child, and that there was “no need” for him to obtain more

appropriate housing. Id. at 37. By the termination hearing, Child had waited

over four years for a permanent and stable home.          Based upon Father’s

absence from Child’s life, his relationship with Child, if any, lacks security,

stability and safety.

      Likewise, we reject Father’s claims that the trial court erred in

terminating his parental rights because environmental factors out of his

control, i.e., financial hardship, prevented him from parenting Child.       The

orphans’ court addressed Father’s challenge:

      Father maintains that he has been unable to obtain representation
      since the inception of the custody litigation in 2012 due to his
      financial circumstances, which were compounded by a house fire
      in 2015, as well as his attempts to support Mother throughout
      various terms of incarceration related to her criminal and drug
      issues. Despite this, Father also testified that he is able to eat
      expensive seafood meals every weekend, and that he is and has
      always been able to provide anything the minor child may need
      financially through his eBay and PayPal accounts. Father indicates
      that over the years that the minor child has lived with Petitioners,
      he purchased for her a bicycle, a Kindle tablet, yearly Easter
      baskets and Thanksgiving presents, two laptop computers, and a
      $2,500.00 diamond ring, among other things. He also testified
      that he did not make any serious attempt to attain representation,
      either privately or through the Westmoreland County pro bono
      office, at any time between 2012 and 2017. . . .

Orphans’ Court Opinion, 12/20/17, at 4-5.

      Our review indicates that the orphans’ court’s decision to terminate

Father’s parental rights was not based on environmental factors beyond his

control. Rather, the orphans’ court terminated Father’s rights because he was


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completely uninvolved in Child’s life.     Father did not make any efforts to

contact Child, either by visitation, telephone, or sending letters or cards. The

record reveals that Petitioners have performed all parental duties for Child

since they assumed custody of her in October 2012. N.T., 10/26/17, at 11.

Petitioners provide all financial, physical, and emotional support for Child, and

Child is thriving in their care. Id.

      “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 his or her physical and emotional needs.” B., N.M., 856 A.2d

at 855. Here, Father’s conduct evidenced to the court a lack of interest in

Child and a failure to perform affirmative parental duties.      Because Father

failed to act affirmatively to maintain his relationship with Child, even under

allegedly difficult circumstances, we find that Petitioners proved the statutory

elements for termination under Section 2511(a)(1). See id. (explaining that

a parent “must exercise reasonable firmness in resisting the obstacles” that

limit his or her ability to maintain a parent-child relationship).

      Thus, the record confirms that Father refused or failed to perform

parental duties during the six months immediately preceding the filing of the

termination petition. It was within the orphans’ court’s discretion to accept

the testimony of Petitioners, and to conclude that Father made no effort to

contact Child during the relevant six months. See In re T.S.M., 71 A.3d at

267. Accordingly, we discern no abuse of discretion.




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

terminating Father’s parental rights pursuant to § 2511(b).

      Section 2511(b) focuses on whether termination of parental rights
      would best serve the developmental, physical, and emotional
      needs and welfare of the child. As this Court has explained,
      Section 2511(b) does not explicitly require a bonding analysis and
      the term ‘bond’ is not defined in the Adoption Act. Case law,
      however, provides that analysis of the emotional bond, if any,
      between parent and child is a factor to be considered as part of
      our analysis. While a parent’s emotional bond with his or her child
      is a major aspect of the subsection 2511(b) best-interest analysis,
      it is nonetheless only one of many factors to be considered by the
      court when determining what is in the best interest of the child.

            [I]n addition to a bond examination, the trial court can
            equally emphasize the safety needs of the child, and
            should also consider the intangibles, such as the love,
            comfort, security, and stability the child might have
            with the foster parent. Additionally, this Court stated
            that the trial court should consider the importance of
            continuity of relationships and whether any existing
            parent-child bond can be severed without detrimental
            effects on the child.

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

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

citations omitted).

      Instantly, Father makes no effort to challenge the termination of his

parental rights pursuant to Section 2511(b) in the Argument section of his

brief, nor did he include any such challenge in his Statement of Questions

Involved. We thus conclude that Father waived his challenge with regard to

Section 2511(b).      See In re M.Z.T.M.W., 163 A.3d 462, 466 (Pa. Super.

2017) (concluding that appellant waived her challenge in regard to section


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2511(b) by failing to include it in her concise statement and statement of

questions involved). However, even if Father had preserved such a challenge,

we would conclude that the orphans’ court’s determination, i.e., that the

termination of Father’s parental rights was in Child’s best interest, see

Orphans’ Court Opinion, 12/20/17, at 10-11, is supported by the record and

free of legal error. See In re T.S.M., 71 A.3d at 267.

      For the above reasons, we find that the orphans’ court properly granted

Petitioners’ petition to terminate Father’s parental rights to Child.

      Order affirmed. Application to Dismiss granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/12/2018




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