J-S31029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: ADOPTION OF V.L.                   :   IN THE SUPERIOR COURT
 IN RE: ADOPTION OF N.S.L.                 :        OF PENNSYLVANIA
 IN RE: ADOPTION OF I.L.                   :
                                           :
                                           :
 APPEAL OF: D.F.L., JR.                    :
                                           :
                                           :
                                           :   No. 221 WDA 2019

             Appeal from the Order Entered December 28, 2018
           In the Court of Common Pleas of Westmoreland County
                Orphans' Court at Nos: 120, 121, 122 of 2018


BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY STABILE, J.:                            FILED AUGUST 20, 2019

      D.F.L., Jr., (“Father”) appeals from the orders entered on December 28,

2018, in the Court of Common Pleas of Westmoreland County, involuntarily

terminating his parental rights to his sons, V.L., born in June of 2011, and

N.S.L., born in May of 2009, and his daughter, I.L., born in July of 2012

(collectively, “the Children”). Upon review, we affirm.

      On   August   30,   2018,   A.F.   (“Mother”)   and   her   husband,   E.F.

(“Stepfather”) (collectively, “Appellees”), filed petitions for the involuntary

termination of Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1)

and (b). A hearing occurred on the petitions on December 6, 2018, during
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which Mother, Father, and C.L. (“Paternal Grandmother”) testified.1            In its

opinion accompanying the subject orders, the orphans’ court set forth its

factual findings, which the testimonial evidence supports. As such, we adopt

them herein. See Trial Court Opinion, 12/28/18, at 1-7.

       By orders dated and entered on December 28, 2018, the orphans’ court

involuntarily terminated Father’s parental rights. On January 23, 2019, Father

timely filed notices of appeal and concise statements of errors complained of

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

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

       1.    Whether the [orphans’] court erred in finding the clear and
       convincing evidence that [Appellees] met their burden, under 23
       Pa.C.S. § 2511(a)(1), when, in the six months preceding the filing
       of the termination petitions, Father filed a complaint in custody?

Father’s brief at 4.

       Our standard of review is abuse of discretion, as follows.

       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
____________________________________________


1 The Children were represented during the proceeding by legal counsel and a
guardian ad litem (“GAL”). The record supports the findings of the orphans’
court that the Children told their attorney that they want Stepfather to be
their father. Trial Court Opinion, 12/28/18, at ¶ 33 [N.T., 12/6/18, at 48-50].
Further, the court found that the Children do not want a relationship with
Father because they do not know him, inter alia. Id. at ¶ 34 [N.T., 12/6/18,
at 49-50].


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      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, 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).

      Section 2511(a)(1) and (b) 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.

                                       ...

      (b) Other considerations.―The court in terminating the rights
      of a parent shall give primary consideration to the developmental,


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      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. § 2511(a)(1), (b).

      With respect to 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.”    In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citation

omitted).

      It is well-established that “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 Adoption of Charles E.D.M., 708

A.2d 88, 91 (Pa. 1998) (emphasis in original) (citation omitted). In addition,

      [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 his or her parental rights, to determine if the


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      evidence, in light of the totality of the circumstances, clearly
      warrants the involuntary termination.

In re N.M.B., 856 A.2d 847, 854-855 (Pa. Super. 2004) (citations omitted).

      Our Supreme Court has explained that parental duty “is best understood

in relation to the needs of a child.” In re Burns, 379 A.2d 535, 540 (Pa.

1977).

      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.’

Id. (citations omitted).

      In In re Adoption of S.P., supra, our Supreme Court discussed In re

Adoption of McCray, 331 A.2d 652 (Pa. 1975), a case wherein the Court

considered the issue of the termination of parental rights of incarcerated

persons involving abandonment, which is currently codified at Section

2511(a)(1). The S.P. Court stated:


      Applying in McCray the provision for termination of parental
      rights based upon abandonment, now codified as § 2511(a)(1),
      we noted that a parent “has an affirmative duty to love, protect
      and support his child and to make an effort to maintain
      communication and association with that child.” Id. at 655. We
      observed that the father’s incarceration made his performance of
      this duty “more difficult.” Id.

In re Adoption of S.P., 47 A.3d at 828. The S.P. Court continued:


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

      [McCray] at 655 (footnotes and internal quotation marks
      omitted). . . .

In re Adoption of S.P., supra (emphasis added).

      With respect to Section 2511(b), we have explained, “[i]ntangibles such

as love, comfort, security, and stability are involved in the inquiry into the

needs and welfare of the child.” In re C.M.S., 884 A.2d 1284, 1287 (Pa.

Super. 2005) (citation omitted). Further, 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.” Id. (citation omitted).

However, “[i]n cases where there is no evidence of any bond between the

parent and child, it is reasonable to infer that no bond exists. The extent of

any bond analysis, therefore, necessarily depends on the circumstances of the

particular case.”     In re K.Z.S., 946 A.2d 753, 762-763 (Pa. Super. 2008)

(citation omitted).

      Instantly, Father contends that the court abused its discretion in

terminating his parental rights pursuant to Section 2511(a)(1) because he

erroneously believed that a Protection from Abuse (“PFA”) order entered

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against him in 2010 on behalf of Mother continued in effect. Because the

Children resided with Mother, he did not contact them. In addition, Father

contends that his conduct does not warrant termination because he filed a

child custody complaint on March 27, 2018, within six months immediately

preceding the filing of the involuntary termination petition.

      The orphans’ court set forth the following factual findings, in relevant

part, which the testimonial evidence supports.

      10. [Appellees] have been a couple and resided with one another
      since September 2013. [N.T., 12/6/18, at 14].

      11. The last time . . . Father saw [the C]hildren was at a public
      park in the Fall of 2013, over five (5) years ago. [N.T., 12/6/18,
      at 5].

      12. During the last five years, Mother’s and the [C]hildren’s
      address has been the same and is listed in the white pages of the
      telephone directory; Mother has a Facebook account; and Mother
      has maintained the same mobile phone number. [N.T., 12/6/18,
      at 5-6].

      13. Up until 2016, Mother was in contact with [Paternal
      Grandmother]. . . . [N.T., 12/6/18, at 7].

      14. Mother obtained a [PFA] Order against . . . Father in 2010, at
      a time when only the oldest child was born. [N.T., 12/6/18, at
      27-28, 44-45].

      15. After [the PFA] Order was issued, . . . Mother and . . . Father
      continued to have some contact, as their two youngest children
      were conceived and born after the issuance of the [PFA] Order.
      [N.T., 12/6/18, at 45].

      16. Father has been incarcerated several times over the course of
      the last several years. He was released from prison in the summer
      of 2017, and has not been incarcerated since. [N.T., 12/6/18, at
      8, 10].


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     17. Despite the fact that the [C]hildren’s location was
     ascertainable, in the six (6) months prior to the filing of the
     [p]etitions for [i]nvoluntary [t]ermination of Father’s parental
     rights, . . . Father did not send any cards, gifts or money to the
     [C]hildren, nor did he attempt to see the [C]hildren. [N.T.,
     12/6/18, at 5-6].

     18. Father testified he did not contact the [C]hildren through . . .
     Mother because he believed the [PFA] Order was still enforceable.
     [N.T., 12/6/18, at 18-19, 35-36].

     19. Father has provided little to no financial support for the
     [C]hildren during the last five years; he testified he made one
     child support payment sometime in 2015. [N.T., 12/6/18, at 8].

     20. Father is currently employed as a roofer and installer, yet he
     has not offered any form of financial support to [the C]hildren in
     the last six (6) months. [N.T., 12/6/18, at 24].

     21. Mother elected not to pursue child support from . . . Father
     after he was released from incarceration in the summer of 2017
     because she and her husband planned to move forward with the
     termination and adoption. [N.T., 12/6/18, at 9].

     22. In late 2017 and early 2018, [Appellees]’ attorney sent . . .
     Father notice of [Appellees]’ intent to pursue involuntary
     termination proceedings and a request to sign a Consent to Adopt.
     [N.T., 12/6/18, at 20].

     23. On March 27, 2018, . . . Father filed a “[c]omplaint for
     [c]ustody” in Allegheny County. When . . . Father learned that
     Allegheny County was not the appropriate venue because the
     [C]hildren did not reside there, he did not pursue the custody
     action in Westmoreland County. [N.T., 12/6/18, at 14, 25-27].

     24. Father took no      other steps to contact [the C]hildren during
     this period of time.     During the six (6) months prior to the filing
     of the [p]etitions in   August 2018, . . . Father never contacted . . .
     Mother to meet or       have visitations with the [C]hildren. [N.T.,
     12/6/18, at 12].

     25. The child, I.L., has had no contact with . . . Father since she
     was a little over one year old and[,] consequently, has no memory
     of him. [N.T., 12/6/18, at 14-15].

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      26. The child, V.L., is diagnosed with autism, and is
      developmentally delayed; he has no memory of . . . Father either.
      [N.T., 12/6/18, at 15].

      27. The child, N.S.L., can identify . . . Father on sight, and
      infrequently asks questions about him, but he has not seen him
      since he was a toddler. [N.T., 12/6/18, at 15].

      28. [Stepfather] has been the father figure in the [C]hildren’s lives
      for the past six years. The [C]hildren call him “Dad.” He provides
      financial and emotional support. [N.T., 12/6/18, at 15-16].

      ...

Trial Court Opinion, 12/28/18, at 2-5.

     Based on the foregoing facts, the orphans’ court concluded that Father’s

conduct warranted the termination of his parental rights pursuant to Section

2511(a)(1). We discern no abuse of discretion.

     The testimonial evidence demonstrates that Father has refused or failed

to perform his parental duties since 2013.          The court found Father’s

explanations in this regard disingenuous. Father testified that he erroneously

believed a PFA order issued against him on behalf of Mother in 2010 remained

in effect. Because the Children resided with Mother, he did not contact them

in the last five years. N.T., 12/6/18, at 27-28. However, Father testified that

he knew the address of the Children’s maternal grandfather, but he never sent

cards to the Children at that address. Id. at 36. Father further explained his

lack of contact with the Children as follows on direct examination:

      Q. Why haven’t you had contact with the [C]hildren?

      A. Since 2013?

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      Q. Yes.

      A. Because I was not the greatest person, and [Mother] didn’t
      want me in my kids[’] lives, and I really wasn’t fit to be in my
      children’s lives. I was wrapped up with myself and I was battling
      drug addiction very badly.

Id. at 28-29.

     With respect to the custody complaint that Father filed in the Allegheny

County Court of Common Pleas on March 27, 2018, Father testified, “I was

notified via mail that it was going to get thrown out due to lack of venue, and

I was going to have to re-file in Westmoreland County.” Id. at 26. Father did

not re-file the custody complaint. As such, we discern no abuse of discretion

by the court in failing to credit Father for filing a custody complaint within six

months immediately preceding the filing of the termination petition. Father’s

issue on appeal fails.

     With respect to Section 2511(b), Father does not raise an issue in the

statement of questions involved in his brief.      It follows that he does not

present a claim regarding Section 2511(b) in the argument section of his brief.

Therefore, we do not review the orders under this section. See Krebs v.

United Refining Company of Pennsylvania, 893 A.2d 776, 797 (Pa. Super.

2006) (stating that any issue not set forth in or suggested by an appellate

brief’s Statement of Questions Involved is deemed waived); see also In re

M.Z.T.M.W., 163 A.3d 462 (Pa. Super. 2017).          Accordingly, we affirm the

involuntary termination orders.


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      Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/2019




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