J-S51018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: R.E.R.S., A MINOR                    :    IN THE SUPERIOR COURT OF
                                             :          PENNSYLVANIA
                                             :
                                             :
 APPEAL OF: K.S., III, FATHER                :            No. 561 MDA 2019

            Appeal from the Decree Entered November 13, 2018
            In the Court of Common Pleas of Huntingdon County
                   Orphans’ Court at No(s): OC-2017-38


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

MEMORANDUM BY GANTMAN, P.J.E.:                        FILED OCTOBER 08, 2019

      Appellant, K.S., III (“Father”), appeals from the decree entered in the

Orphans’ court of the Huntingdon County Court of Common Pleas, which

granted   the   petition   of   Appellees,       D.M.P.    (“Mother”)   and   M.D.P.

(“Stepfather”), for involuntary termination of Father’s parental rights to his

minor child, R.E.R.S. (“Child”). We affirm.

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

Father and Mother are the natural parents of Child, born in December 2015.

Father has been incarcerated since July 18, 2015 (before Child was born), and

is currently serving a sentence of eleven (11) to twenty-five (25) years’

imprisonment for third-degree murder. Mother is now married to Stepfather.

On December 11, 2017, Mother and Stepfather filed a petition for involuntary

termination of Father’s parental rights to Child. Father filed a pro se affidavit

on January 19, 2018, in opposition to the termination petition. The Orphans’

court appointed counsel for Father and an attorney-guardian ad litem (“GAL”)
J-S51018-19


for Child. On May 9, 2018, and October 10, 2018, the court held hearings on

the termination petition. At the time of the hearings, Child was less than three

years old.1 The court ultimately granted the petition on November 13, 2018,

and terminated Father’s parental rights to Child. Father filed a timely pro se

notice of appeal on November 21, 2018.2

       On April 11, 2019, Father’s counsel filed in this Court an application to

withdraw.     The Orphans’ court ordered Father on April 16, 2019, to file a

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925. On

April 17, 2019, this Court granted counsel’s application to withdraw, remanded

for the Orphans’ court to determine whether Father was eligible for

appointment of new counsel, and retained jurisdiction. On April 29, 2019, the

Orphans’ court appointed new counsel for Father.

       Father filed a pro se Rule 1925 statement on May 6, 2019. On May 7,

2019, new counsel filed a motion for an extension of time to file a Rule 1925

statement, which the Orphans’ court granted the following day. On June 6,

2019, Father filed another pro se Rule 1925 statement.           Father filed a

counseled Rule 1925 statement on June 24, 2019.


____________________________________________


1See In Re: T.S., ___ Pa. ___, 192 A.3d 1080 (2018), cert. denied, ___ U.S.
___, 139 S.Ct. 1187, 203 L.Ed.2d 220 (2019) (establishing presumption that
child who is three years of age or younger cannot form subjective, articulable
preference to be advanced during contested termination proceedings).

2Notwithstanding the procedural anomalies surrounding the filing of Father’s
notice of appeal, the court ultimately directed the clerk of courts to mark the
notice of appeal as filed on November 21, 2018.

                                           -2-
J-S51018-19


      Father raises the following issues for our review:

         WHETHER THE [ORPHANS’] COURT LACKED COMPETENT
         EVIDENCE TO SUPPORT THE COURT’S INFERENCES OR
         CONCLUSIONS OF LAW THAT [APPELLEES] PROVED, BY
         CLEAR AND CONVINCING EVIDENCE, GROUNDS FOR
         TERMINATION UNDER 23 PA.C.S.[A.] § 2511(A)(1)[?]

         WHETHER THE [ORPHANS’] COURT ERRED WHEN IT
         CONCLUDED THAT CONTINUING PARENTAL RIGHTS FOR
         [APPELLANT] WOULD BE CONTRARY TO…CHILD’S BEST
         INTEREST[?]

(Father’s Brief at 4).

      Appellate review in termination of parental rights cases implicates the

following principles:

         In cases involving termination of parental rights: “our
         standard of review is limited to determining whether the
         order of the trial court is supported by competent evidence,
         and whether the trial court gave adequate consideration to
         the effect of such a decree on the welfare of the child.”

In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972

A.2d 5, 8 (Pa.Super. 2009)).

            Absent an abuse of discretion, an error of law, or
            insufficient evidentiary support for the trial court’s
            decision, the decree must stand. … 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.

         In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en
         banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004)
         (internal citations omitted).

            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

                                     -3-
J-S51018-19


              is on the party seeking termination to establish by
              clear and convincing evidence the existence of
              grounds for doing so.

           In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.
           2002) (internal citations and quotation marks omitted). 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. In re
           J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We may
           uphold a termination decision if any proper basis exists for
           the result reached. In re C.S., 761 A.2d 1197, 1201
           (Pa.Super. 2000) (en banc). If the court’s findings are
           supported by competent evidence, we must affirm the
           court’s decision, even if the record could support an opposite
           result. In re R.L.T.M., 860 A.2d 190, 191[-92] (Pa.Super.
           2004).

In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d

1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d 1165

(2008)).

      Section 2512 governs who may bring a petition to terminate parental

rights, and what the petition must contain, as follows:

           § 2512. Petition for involuntary termination

           (a) Who may file.─A petition to terminate parental rights
           with respect to a child under the age of 18 years may be
           filed by any of the following:

              (1) Either parent when termination is sought with
              respect to the other parent.

              (2)   An agency.

              (3) The 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).

                                       -4-
J-S51018-19



            (4) An attorney representing a child or a guardian ad
            litem representing a child who has been adjudicated
            dependent under 42 Pa.C.S.A § 6341(c) (relating to
            adjudication).

         (b) Contents.─The petition shall set forth specifically
         those grounds and facts alleged as the basis for terminating
         parental rights. The petition filed under this section shall
         also contain an averment that the petitioner will assume
         custody of the child until such time as the child is adopted.
         If the petitioner is an agency it shall not be required to aver
         that an adoption is presently contemplated nor that a person
         with a present intention to adopt exists.

                                  *    *     *

23 Pa.C.S.A. § 2512. If the petitioner is not an agency, then the petition must

include “an averment that an adoption is presently contemplated or that a

person with a present intention to adopt exists.” In re Adoption of J.F.D.,

782 A.2d 564, 567 (Pa.Super. 2001).         In any event, the burden of proof

remains with the petitioning party, who must establish valid grounds for

termination by clear and convincing evidence. In re J.L.C., 837 A.2d 1247,

1251 (Pa.Super. 2003).

      After a thorough review of the record, Father’s brief, the applicable law,

and the well-reasoned opinion of the Honorable George N. Zanic, P.J., we

conclude Father’s issues merit no relief.        The Orphans’ court opinion

comprehensively discusses and properly disposes of the questions presented.

(See Orphans’ Court Opinion, filed November 16, 2018, at 3-5) (finding:

Father has failed to perform any parental duties for Child during six months

preceding termination petition; Father has been incarcerated for Child’s entire

                                      -5-
J-S51018-19


life; for majority of Child’s life, Father has had no contact with Child, because

he claims he was unaware of Mother’s whereabouts; Father began

communicating with Child via cards and biweekly phone calls only after Mother

and Stepfather filed termination petition; Stepfather has assumed role of

stepparent for Child and has cared for Child for several years; Child has

developed bond with Stepfather, and Child looks to him as paternal role

model; it is in best interest of Child to maintain stability in loving, supportive

environment she has at Mother and Stepfather’s home; it is not in best interest

of Child to visit Father in prison or communicate with Father via mail and

biweekly phone calls). Accordingly, we affirm based on the Orphans’ court

opinion.

      Decree affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/8/2019




                                      -6-
                                                                                Circulated 09/26/2019 11:43 AM




                IN THE COURT OF COMMON PLEAS OF HUNTINGDON
                           COUNTY, PENNSYLVANIA
                          ORPHANS' COURT DIVISION


       In re: Involuntary Termination of Parental              : NO.: OC-2017-00038
       Rights of K.S., III, Father, to: R.E.R.S.,
       A Minor


                                         MEMORANDUM
                After hearing, the Court finds that Petitioners,.     M.\).P. . and       DM�e.
   I       ,, have established a legal basis for terminating the parental rights of K.O.S. with
   I respect to the child, R.E.R.S., pursuant to 23 Pa.C.S.A. § 251 l(a)(l), specifically:
   I
,1
                1. K.O.S., by conduct continuing for a period of at least six (6) months
II immediately preceding the filing of the petition, either has evidenced a settled purpose of
!I relinquishing parental claims to the child or has refused or failed to perform parental
ii duties.
jl             2. Specifically, K.O.S., has for a period exceeding six (6) months prior to the
d      filing of this petition, failed or otherwise refused or neglected to have any contact with
Ii     the child whatsoever.
l1:i
   1            3. The continuing parental rights of K.O.S. would be contrary to the child's best
   I interest and well-being.

                                      FINDINGS OF FACT
   I          The Court makes the following factual findings in support of the termination of
   I   parental rights of Natural Father:
           I.                                         '.R.E.R.S was born on December         2015.
           2. The natural mother of R.E.R.S. is:                    ,D.M.P
           3. The natural father of R.E.R.S. is                               K.O.S
           4. D.M.P. is married to.                      �M.D.P , who is the step-father of
                R.E.R.S.
           5. K.O.S. has been incarcerated since July 18, 2015, at which time D.M.P. was
                pregnant with R.E.R.S.

                                                                    flt.ED IV s?k' e,pk B<\ J(.p , 20 .J.a.
                                                                         Viralnia Cooper Register of Wins
                                                  1
                                                                         and Clerk of the Orphans' Court
                                                                        ltuntinl(fon County, Pennsy_lvanfa
6. K.O.S. is currently housed at the State Correctional Institution at Albion in
    Albion, Pennsylvania.
7. On February 24, 2017, K.O.S. entered a guilty plea in Cambria County to Murder
    of the Third Degree (18 Pa.C.S. § 2502(c)).
8. K.O.S. was sentenced on the same date to a minimum of eleven (11) years and a
    maximum of twenty-five (25) years, with an effective date of July 18, 2015.
9. K.O.S. 's earliest possible parole date is July 18, 2026.
10. K.O.S.'s maximum incarceration date is July 18, 2040.
11. He is not eligible for early release in any form or capacity.
12. There are no pending appeals ofK.O.S.'s homicide conviction.
13. K.O.S. has remained incarcerated for the entirety of R.E.R.S. 's life.
14. R.E.R.S. will be between the ages of 11 and 25 years old at the time K.O.S. is
    released from prison.
15. K.O.S. has physically held R.E.R.S. only once, at the time of his sentencing.
16. When R.E.R.S. was an infant, D.M.P. would bring her to the Cambria County
    Correctional Facility on Saturdays to visit with K.O.S.
17. These visits occurred behind glass and for limited periods of time.
18. D.M.P. stopped visitations between K.O.S. and R.E.R.S. when he was transferred
   to SCI-Albion.
19. K.O.S. has not seen R.E.R.S. since she was approximately three months old.
20. K.O.S. began sending letters and pictures to R.E.R.S. after the petition for
   termination had been filed.
21. K.O.S. is participating in parenting classes offered by the Department of
   Corrections.
22. During periods of partial physical custody by K.O.S. 'smother every other
   Saturday, K.O.S. is able to make telephone contact with R.E.R.S.
23. K.O.S. has never performed daily parental duties or provided care to R.E.R.S.




                                      2
                                                ANALYSIS



                   The Pennsylvania Superior Court has explained the standard by which courts
           should decide parental termination cases:
                           "Termination of parental rights is controlled by statute. 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 251 l(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
       I                   pursuant to Section 251 l(b): determination of the needs and welfare of the
 11
                           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
 II                        emotional bond between parent and child, with close attention paid to the
     I                     effect on the child of permanently severing any such bond."
     I
I'.!
Ii                         In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007).
]i

Ii                 Courts have the authority to terminate parental rights where any one subsection of
/! 23 Pa.C.S. §251 l(a) is satisfied and the factors in §251 l{b) are considered. In re Z.P., 994
ii A.2d 1108, 1117 (Pa. Super. 2010). In this case, D.M.P. and M.D.P. petitioned for the
!!i, termination ofK.O.S. 's parental rights pursuant to 23 Pa.C.S.A. § 251 l(a)(l), which
ii
Ii states:
ii
I,'I                      The parent by conduct continuing for a period of at least six ( 6) months
p,I                       immediately preceding the filing of the petition, either has evidenced a
11
                          settled purpose of relinquishing parental claims to the child or has refused
                          or failed to perform parental duties.

                  The Petitioners allege K.O.S. failed to perform parental duties for R.E.R.S. for six

           ( 6) months preceding the filing of this petition based on his incarceration in a state
           correctional facility. Incarceration will not disqualify a parent from resuming parental
           responsibilities as long as the parent will be released from incarceration "quickly enough
           to permit the court to provide the child with timely permanency upon reunification." In
           re: Adoption of S.P., 47 A.3d 817, 829-30 (Pa. 2012).
                  Where a parent is incarcerated, the fact of incarceration does not, in itself, provide
                  grounds for the termination of parental rights. Id. at 286. However, a parent's

                                                      3
              responsibilities are not tolled during incarceration. Id. The focus is on whether the
              parent utilized resources available while in prison to maintain a relationship with
              his or her child. In re the Adoption of Dale, A., II, supra at 302. An incarcerated
              parent is expected to utilize all available resources to foster a continuing close
              relationship with his or her children. In the Interest of A.P., 692 A.2d 240, 245
              (Pa. Super. 1997) (internal citation omitted).

              This Court finds the Petitioners have established a legal basis for terminating the
      parental rights ofK.O.S., pursuant to 23 Pa.C.S. §251 l(a), as he has failed to perform any
      parental duties with respect to R.E.R.S. within the last six (6) months preceding this
      petition.
              It is clear that K.O.S. has been incarcerated for not only the previous six (6)
      months, but his daughter's entire three-year life and has therefore been unable to perform

,1    any parental duties whatsoever. For the majority of this time, K.O.S. has had no contact
I!
 I
      with R.E.R.S. because he claims he was unaware ofD.M.P.'s whereabouts. It was not
      until the parties originally came to court on this petition in May 2018 that K.O.S. began
! contacting R.E.R.S. via cards and biweekly telephone calls.
11
!!
              We believe K.O.S. is genuine in his desire to be a parent and establish a
ii
ii(   relationship with R.E.R.S., however his long-term incarceration prevents him from doing
  I                                                  -
!I    so. Despite whatever good intentions he may have, K.O.S. has never fulfilled any
JI
      parental duties for R.E.R.S.; he has never changed a diaper, bathed, fed, or consoled her.
I! D.M.P.'s husband, M.D.P., has assumed the role of stepfather and has cared for R.E.R.S.
Ii as a parent on a daily basis for several years. R.E.R.S. and M.D.P. have developed a bond
      and R.E.R.S. looks to him as a paternal role model.


              Not only has K.0.-S. never fulfilled the role of parent, his interactions with his
      daughter will be limited to cards and occasional telephone calls until 2026 at a minimum.
      IfK.O.S. is released from incarceration at that time, R.E.R.S. will be eleven (11) years
      old, and he will then have to begin establishing a meaningful relationship with her.




                                                 4
                 Having found that grounds for termination exist under § 2511 (a), it is our
         responsibility to now consider the needs and best interests of the children pursuant to§
         251 l(b).


                 It is in the best interest of R.E.R.S. to maintain stability in a loving and supportive
         environment. She has a stable, loving environment at home with her mother, step-father,
         and step siblings. She is well taken care of and provided for by her mother and step-
         father, as well as her paternal grandparents. We believe it is not in the best interest of
         R.E.R.S. to visit K.O.S. in state prison and try to establish a relationship through the
         confines of an inmate visitation room. Nor do we believe sporadic contact with K.O.S.,

·1 via mail and biweekly telephone calls, serves any of R.E.R.S. 's needs or interests.
11                                    .

!I               An Order consistent with this Opinion was entered on November 13, 2018.

I11i
                                                         BY THE COURT,
   I
   I

1l
!i
ti
Ii
II
                                                              <2��2s
                                                         GeofgeN.Zanic, P .J.

Ii
''iiIi
ii




                                                    5
