J-S15044-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ADOPTION OF J.T.S.                  :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
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    APPEAL OF: S.M.                            :      No. 1798 WDA 2018

               Appeal from the Order Entered November 19, 2018
                In the Court of Common Pleas of Cambria County
                     Orphans' Court at No(s): 2017-716 IVT


BEFORE:      GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.

MEMORANDUM BY GANTMAN, P.J.E.:                           FILED APRIL 26, 2019

        Appellant, S.M. (“Mother”), appeals from the order entered in the

Cambria County Court of Common Pleas, which granted the petition of

Appellees, S.P. and D.P., Jr., for involuntary termination of Mother’s parental

rights as to her minor child, J.T.S. (“Child”).1 We affirm.

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

August 2016, Mother was incarcerated in SCI when she gave birth to Child.

Child was addicted to methadone at birth and spent three weeks detoxing in

the NICU. Mother gave Father custody of Child while Mother was in prison

and, following Child’s detox, Father took Child home to live with Father and

Child’s paternal grandmother. On September 23, 2016, when Child was five


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1   J.S. (“Father”) is not a party to this appeal as he is now deceased.
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* Retired Senior Judge assigned to the Superior Court.
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weeks old, Child’s paternal grandfather asked Appellees (Child’s paternal

second cousin and her husband) to watch Child for “a while.”           Child has

remained with Appellees ever since.            During this time, Mother remained

incarcerated.

       On May 5, 2017, Appellees filed a complaint for custody of Child and a

petition for special relief.      As a result, Appellees acquired sole legal and

physical custody of Child per the order issued July 11, 2017, which provided

that Mother could not have contact with Child except by written request and

after a full hearing before the court. On August 8, 2017, Appellees filed a

petition for involuntary termination of Mother’s parental rights to Child. The

court appointed independent counsel for Mother and counsel for Child.

Following Mother’s release from prison on February 24, 2018, the court held

two hearings on the termination petition, on March 8, 2018, and November 9,

2018.2


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2  Throughout the termination proceedings, the same attorney-guardian ad
litem (“GAL”) represented Child’s interests. Because Child was less than three
years old at the time of the termination proceedings, we can presume, absent
any evidence in the record to the contrary, that there was no conflict between
Child’s best interests and his legal interests. See In Re: T.S., ___ Pa. ___,
192 A.3d 1080 (2018) , cert. denied, ___ U.S. ___, ___ S.Ct. ___, 2019 WL
659981 (Feb. 19, 2019) (holding appointment of second counsel for child, in
contested termination proceedings, is not required to represent separate legal
interests of child, where child’s legal interests and best interests do not
diverge; due to child’s young age (less than three years old), presumption
exists that child was too young to express subjective preferred outcome of
termination proceedings; therefore attorney-GAL could fulfill statutory
mandate for appointment of counsel and represent both best interests and
legal interests of child).

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      During the March 2018 termination hearing, Appellee S.P. testified that

Mother did not contact Appellees concerning Child until after Appellees filed

the custody complaint.    S.P. explained that Mother sent only one letter to

Appellees during the entire time they had Child, but Appellees did not respond

to that letter. S.P. also stated that following the July 11, 2017 order, Mother

made no written request to contact Child.     S.P. stated Appellees hoped to

adopt Child if the court granted their petition to terminate Mother’s parental

rights.    On cross-examination by Child’s attorney-GAL, S.P. discussed

Appellees’ relationship with Child and how Child views Appellees as his

parents. (See N.T. Termination Hearing, 3/8/18, at 4-28). Appellee D.P., Jr.

testified similarly. (Id. at 29-33).

      Mother also testified on her own behalf at the March termination

hearing.      Mother explained that while there were no formal custody

agreements in effect, all three of her other children lived with their fathers.

Mother, however, stated that she kept in contact with these children while she

was in prison through letters and phone calls. Mother explained she could not

communicate with Appellees concerning Child until after she obtained their

address through the custody complaint. Testimony also revealed, however,

that following the July 11, 2017 order, Mother made no requests for contact

with Child.

      Mother further testified regarding her extensive history of mental health

issues, incarceration, drug use, and failed rehabilitation attempts.   Mother


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admitted being incarcerated during thirty out of the thirty-six months

preceding February 24, 2018.       Mother also confessed that during the six

months Mother was not incarcerated, she used illegal drugs. Mother further

testified that since her release from prison, she had remained clean and was

living with her father while applying for jobs. Finally, Mother stated that if the

court denied Appellees’ petition, she hoped to seek custody time with Child

and was willing to have monitored supervision and random drug tests if

necessary. (Id. at 33-95).

      At the November 2018 termination hearing, Appellees’ counsel

introduced additional evidence that Mother had used illegal drugs, in violation

of the terms of her parole, and had been resentenced on November 6, 2018,

to three (3) to six (6) months in county prison.         (See N.T. Termination

Hearing, 11/9/18, at 2-4).     On November 19, 2018, the court terminated

Mother’s parental rights to Child under 23 Pa.C.S.A. § 2511(a)(1)-(2) and (b),

and allowed for adoption of Child by Appellees without further notice to or

consent of Mother. Mother timely filed a notice of appeal on December 17,

2018, as well as a statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925.

      Mother raises the following issue for our review:

         WHETHER THE COURT EITHER ABUSED ITS DISCRETION
         OR COMMITTED AN ERROR OF LAW WHEN IT GRANTED THE
         PETITION FOR INVOLUNTARY TERMINATION OF PARENTAL
         RIGHTS, THEREBY TERMINATING THE PARENTAL RIGHTS
         OF S.M. [MOTHER] TO J.T.S. [CHILD]?


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(Mother’s Brief at 2).

      Mother challenges the termination of her parental rights under Sections

2511(a)(1) and (2). Under Section 2511(a)(1), Mother argues she did not

show a settled purpose of relinquishing her parental claim, as she attempted

to defend Appellees’ custody action during the six months prior to the filing of

the termination petition.    Mother contends she also made an effort to

communicate with Appellees regarding Child when she sent a letter, which

Appellees ignored, less than two months before the filing of the termination

petition and within a month of learning Appellees’ address.       While Mother

stipulates she failed to perform her parental duties in the past, she asserts

that her failure is excused due to her incarceration and the barriers Appellees

erected, such as the July 11, 2017 custody order, which forbade Mother from

contacting Child unless she filed a written request and the court held a full

hearing.

      Similarly, under Section 2511(a)(2), Mother maintains Appellees failed

to present any proof of Mother’s refusal to parent Child. Mother again alleges

Appellees prevented Mother from parenting Child by ignoring her efforts to

communicate with Child and by seeking an onerous custody order.

Additionally, Mother emphasizes that, despite her past drug use, she should

be given the opportunity to parent Child and is willing to accept any

supervision the court finds suitable.      Mother stresses Appellees lacked

evidence to show that Mother’s prior criminal and drug issues were not already


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addressed or could not be addressed.       Mother claims her parole violation,

which resulted in a new sentence of three to six months, was not for drug use,

but for leaving rehab one day early.     Mother concludes the court erred in

terminating her parental rights to Child. We disagree.

      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
            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

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           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) 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

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         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).

      Appellees sought termination of Mother’s parental rights on the following

grounds:

         § 2511. Grounds for involuntary termination

         (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

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              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(a)(1)-(2), (b).        “Parental rights may be involuntarily

terminated where any one subsection of Section 2511(a) is satisfied, along

with consideration of the subsection 2511(b) provisions.” In re Z.P., supra

at 1117.

           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…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.

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

     Termination under Section 2511(a)(1) involves the following:

           To satisfy the requirements of [S]ection 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

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            intent to relinquish parental claim to a child or a refusal or
            failure to perform parental duties. In addition,

               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.

            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…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) (internal citations

omitted).      Regarding the six-month period prior to filing the termination

petition:

            [T]he trial court must consider the whole history of a given
            case and not mechanically apply the six-month statutory
            provision.     The court must examine the individual
            circumstances of each case and consider all explanations
            offered by the parent facing termination of…her parental
            rights, to determine if the evidence, in light of the totality of
            the circumstances, clearly warrants the involuntary
            termination.

In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.

718, 872 A.2d 1200 (2005) (internal citations omitted).

      The      grounds    for   termination   of   parental   rights   under    Section

2511(a)(2), due to parental incapacity that cannot be remedied, are not

limited to affirmative misconduct; to the contrary, those grounds may include

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acts of refusal as well as incapacity to perform parental duties. In re A.L.D.,

797 A.2d 326 (Pa.Super. 2002). “Parents are required to make diligent efforts

towards the reasonably prompt assumption of full parental responsibilities.”

Id. at 340.   The fundamental test in termination of parental rights under

Section 2511(a)(2) was long ago stated in the case of In re Geiger, 459 Pa.

636, 331 A.2d 172 (1975), where the Pennsylvania Supreme Court announced

that under what is now Section 2511(a)(2), “the petitioner for involuntary

termination must prove (1) repeated and continued incapacity, abuse, neglect

or refusal; (2) that such incapacity, abuse, neglect or refusal caused the child

to be without essential parental care, control or subsistence; and (3) that the

causes of the incapacity, abuse, neglect or refusal cannot or will not be

remedied.” In Interest of Lilley, 719 A.2d 327, 330 (Pa.Super. 1998).

      With respect to an incarcerated parent, this Court has stated:

         [I]ncarceration alone does not provide sufficient grounds for
         the termination of parental rights. Likewise, a parent’s
         incarceration does not preclude termination of parental
         rights if the incarcerated parent fails to utilize given
         resources and fails to take affirmative steps to support a
         parent-child    relationship.       As   such,    a   parent’s
         responsibilities are not tolled during incarceration.

In re Adoption of K.J., supra at 1133 (internal citations omitted).

      Under Section 2511(b), the court must consider whether the child’s

needs and welfare will be met by termination.       In re C.P., 901 A.2d 516

(Pa.Super. 2006).

         Intangibles such as love, comfort, security, and stability are
         involved when inquiring about the needs and welfare of the

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         child. The court must also discern the nature and status of
         the parent-child bond, paying close attention to the effect
         on the child of permanently severing the bond.

Id. at 520 (internal citation omitted). “In this context, the court must take

into account whether a bond exists between child and parent, and whether

termination would destroy an existing, necessary and beneficial relationship.”

In re Z.P., supra at 1121.

      The statute permitting the termination of parental rights outlines certain

irreducible minimum requirements of care that parents must provide for their

children, and a parent who cannot or will not meet the requirements within a

reasonable time following intervention by the state may properly be

considered unfit and have her parental rights terminated. In re B.L.L., 787

A.2d 1007 (Pa.Super. 2001). This Court has said:

            There is no simple or easy definition of parental
            duties. Parental duty is best understood in relation to
            the needs of a child. A child needs love, protection,
            guidance, and support. These needs, physical and
            emotional, cannot be met by a merely passive interest
            in the development of the child. Thus, this court has
            held that the parental obligation is a positive duty
            which requires affirmative performance.

            This affirmative duty encompasses more than a
            financial obligation; it requires continuing interest in
            the child and a genuine effort to maintain
            communication and association with the child.

            Because a child needs more than a benefactor,
            parental duty requires that a parent exert himself to
            take and maintain a place of importance in the child’s
            life.




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         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…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 [the child’s] physical and
         emotional needs.

In re B.,N.M., supra (internal citations and quotation marks omitted). “[A]

parent’s basic constitutional right to the custody and rearing of…her child is

converted, upon the failure to fulfill…her parental duties, to the child’s right to

have proper parenting and fulfillment of his…potential in a permanent,

healthy, safe environment.” Id. at 856.

      Instantly, the record supports the court’s decision to terminate Mother’s

parental rights under Section 2511(a).           Mother’s repeated drug use,

incarceration, and failed attempts at rehabilitation have characterized her life

for the past several years. Mother gave birth to Child while in prison in August

2016. Child was born addicted to methadone and spent three weeks in the

NICU detoxing. Following his detox, Child left the hospital with Father, only

to end up in Appellees’ care two weeks later.       Mother, however, remained

incarcerated until February 24, 2018. During the March termination hearing,

Mother admitted being incarcerated for thirty of the thirty-six months

preceding her February 2018 release and, for the six months she was not

incarcerated, Mother confessed to using illegal drugs. Mother also failed to

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complete several drug rehabilitation programs.    Finally, just a few months

after Mother’s February 2018 release, she violated the terms of her parole and

was resentenced to an additional three to six months’ imprisonment.

      During Mother’s incarceration, she made minimal effort to communicate

with Child. Prior to Appellees’ custody complaint, Mother had no contact with

Appellees.   Mother failed to use her family and friends to find Appellees’

address and phone number after Mother was given Appellees’ names. Though

Mother claimed she could not obtain Appellees’ address, even after doing so,

Mother sent them only one letter. Additionally, after entry of the July 11,

2017 court order, Mother made no written request to contact Child. Though

Mother’s incarceration does not, in itself, provide grounds for involuntary

termination of her parental rights, her parental responsibilities continued

during that time. See In re Adoption of K.J., supra. Mother failed to show

she utilized all available resources to foster a meaningful relationship with

Child. See B., N.M., supra.

      Moreover, the record supports the court’s decision to terminate Mother’s

parental rights under Section 2511(b). Mother has been incarcerated for the

vast majority of Child’s life. Having spent only two hours with Child on the

day of his birth, Mother has no parental bond with Child.        In contrast,

Appellees have raised Child since he was five weeks old. During the March

termination hearing, Appellees discussed their relationship with Child and how

Child views them as his parents. Appellees spoke of how they feed and bathe


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Child, read to him, and put him to sleep. Appellees also discussed Child’s

favorite colors, books, and television programs. Appellees have been the only

parents Child has ever known. Terminating Mother’s parental rights would

not sever any bond.       Allowing Appellees to adopt Child is in Child’s best

interest. Because competent evidence of record supports the court’s decision

to terminate Mother’s parental rights, we have no reason to disturb it. See

In re B.L.W., supra. Accordingly, we affirm.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/2019




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