J-S64045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: P.G.F                                    :   IN THE SUPERIOR COURT OF
                                                    :        PENNSYLVANIA
                                                    :
    APPEAL OF: K.F., NATURAL FATHER                 :
                                                    :
                                                    :
                                                    :
                                                    :
                                                    :   No. 1284 WDA 2019

                 Appeal from the Order Entered August 7, 2019
       In the Court of Common Pleas of Bedford County Orphans' Court at
                            No(s): No. 3 AD 2018


BEFORE: BOWES, J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                              FILED JANUARY 27, 2020

        K.F. (Father) appeals from the August 7, 2019 order of the Bedford

County Orphans’ Court (trial court) granting the petition of T.G.H. (Mother)

and E.N.H. (Husband) to terminate Father’s parental rights to his son, P.G.F.

(Child). This case returns to our court after a remand to determine whether

Child was entitled to appointment of legal counsel in addition to his guardian

ad litem (GAL). See In re P.G.F., 1464 WDA 2018 at *10 (Pa. Super. March

13, 2019) (unpublished memorandum). After careful review, we affirm.

                                               I.

        The previous panel of this Court summarized the facts of this matter:

        Mother and Father, who never married, gave birth to Child in July
        2012. See N.T., 7/31/18, at 6-7. At the time of Child’s birth,
        Mother and Father were living with Mother’s parents (Maternal
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*   Retired Senior Judge assigned to the Superior Court.
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     Grandparents). Id. at 7. However, when Child was approximately
     a month-and-a-half or two months old, Mother and Father ended
     their romantic relationship, and Father moved out of the
     residence. Id. at 7-8.

     Mother and Child continued to reside with Maternal Grandparents
     until Maternal Grandparents ended their marriage. Id. at 9-10.
     Mother and Child moved with Maternal Grandmother among
     several residences in Bedford County. Id. at 8-10. In 2013,
     Mother filed a custody action against Father. Id. at 11. In May
     2014, Mother and Father entered into a custody agreement, where
     Father had physical custody every other weekend. Id. at 12.
     Father was able to exercise his custody rights for approximately
     eight months, when Child was approximately three years old. Id.
     at 20.

     In October 2017, Mother married [Husband]. Id. at 5. They
     began residing together immediately after marriage. Id. at 8. On
     February 27, 2018, Mother and Husband filed a petition seeking
     to involuntarily terminate Father’s parental rights. The court
     appointed Carole Rose, Esq., as guardian ad litem/legal counsel
     to represent Child.[]

     The court held evidentiary hearings on July 31, 2018, and
     September 11, 2018. Mother, D.H. (“Paternal Grandmother”),
     Husband, and Father testified. Attorney Rose was present at the
     hearing and cross-examined the witnesses.

     Mother testified that when she and Father first ended their
     relationship and up until the time that Child was approximately
     one year old, they attempted to co-parent. Id. at 10-11.
     Following the custody agreement in May 2014, Father exercised
     his custody rights for approximately eight months, or “a few”
     months into 2015. Id. at 17-23. However, visitation “slowed
     down,” and Paternal Grandmother became more involved with
     Child and took Child when Father was to exercise his custody
     rights. Id. at 12-14. Mother claimed that, over the last five years,
     custody had always been shared between Mother and Paternal
     Grandmother, and Father had not picked up Child from Mother’s
     custody in that time. Id. at 14.

     Mother also claimed that Father had no contact with her, and
     never inquired about Child on birthdays or holidays, or when Child
     required surgery to remove his tonsils and adenoids when Child

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     was three years old. Id. at 15-16. Mother texted Father and sent
     him Facebook messages about doctor’s appointments but never
     received a response. Id. at 15-16, 46-47. Mother denied that
     Father or Paternal Grandmother sent Child birthday cards,
     Christmas cards, or gifts, although he did give gifts and cards to
     his other child. Id. at 29, 35. However, Mother received child
     support from Father. Id. at 27.

     Mother admitted that Child sometimes stated that Father was at
     Paternal Grandmother’s house.        Id. at 26.     However, she
     disagreed that Child had an overnight stay with Father in the last
     three years. Id. at 29-30. Mother denied that Child referred to
     Father as “dad.” Id. at 26. According to Mother, Child refers to
     Husband as “dad,” and to Father by his first name, or as “Grammy
     [Paternal Grandmother]’s friend.” Id. at 29-31. Mother claimed
     that Child did not know Father was his biological father. Id. at
     31. Mother disagreed that she hid her whereabouts from Father
     or blocked him on social media. Id. at 20-21, 34. However, on
     cross-examination, she admitted that she sent text messages
     stating that she did not want Father to be around Child, and that
     she did not want Child to be taken to Paternal Great-
     Grandmother’s house. Id. at 55-62. Mother stated that if Father
     had contacted her at the end of 2015 regarding his court-ordered
     custody periods, she probably would have said “yes,” but as time
     passed without his visits, she would have said “no”. Id. at 63-64.

     Mother testified that she wishes for Husband to be able to adopt
     Child, because he performs fatherly duties for Child, and because
     Mother and Husband are expecting a child of their own. Id. at
     39-40.     Mother stated she would not prevent Paternal
     Grandmother from seeing Child if Father’s parental rights were
     terminated. Id. at 43-44.

     Paternal Grandmother testified that Father has seen Child “even
     more than what [Mother] has said or maybe even realized.” See
     N.T., 9/11/18, at 7. Paternal Grandmother indicated she does not
     refer to Father as such in front of Child, and instead calls Father
     by his first name to avoid confusing Child. Id. at 8. Although
     Father is often around when Paternal Grandmother has custody of
     Child, when Mother told Paternal Grandmother that she was not
     allowed to have Father around Child, she obeyed. Id. at 10.
     Paternal Grandmother believed that Mother made it difficult for
     Father to be in Child’s life and this was about the time that his
     relationship with Child changed. Id. at 13, 32. At first, Father

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     was there “one hundred percent” but that eventually “it just
     seemed like it was easier for him not to fight and argue to get
     [Child].” Id. at 14. Paternal Grandmother also admitted that
     Father had not had a father-son relationship with Child for the last
     two years. Id. at 22. However, she attributed this to the “strain”
     with Mother and noted that Father was a good father to his other
     child. Id. at 38. Paternal Grandmother denied that she took Child
     because Father was not caring for Child appropriately. Id. at 46-
     47.

     Husband testified that his relationship with Child is “really good,”
     and that he tries to not be involved in any issues involving Mother,
     Father, and Child. Id. at 53-54. Husband stated that Child calls
     him “dad,” and respects him as a paternal figure. Id. at 55-56.
     Child has never brought up Father to Husband. Id. at 55. In
     cross-examining Husband, Attorney Rose noted she had spoken
     with Child:

           [Attorney Rose]. So, when I spoke with [Child,] I
           asked him who he lived with and he named mom, and
           he must have named your parents[’] names and your
           brothers, but I had to ask him several times to get
           him to say it. He said, [Husband’s nickname].

           [Husband]. Yeah. Could be it.

           [Attorney Rose]. And I said, I’m sorry, I had to ask
           him a couple times to repeat that. He was very
           specific he lived with his mom and [Husband’s
           nickname]. I had to look at the petition for your name
           and he said yes. But he never referred to you as dad.
           Does that surprise you?

           [Husband]. Not necessarily.

     Id. at 61. Husband explained that Child, in addition to “dad,”
     occasionally calls Husband by his nickname. Id. at 61.

     Father testified that he has two children: Child and a younger
     daughter. Id. at 64-65. Although he has no custody order for his
     daughter, he has had no issues sharing custody with his
     daughter’s mother. Id. at 65. Father testified, that, at the time
     of Child’s birth, he and Mother were both working full time, and
     maternal and paternal grandparents helped care for Child. Id. at

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      68. When Father was home, he cared for Child, including changing
      his diaper. Id. at 68. After Father and Mother separated, Father
      had partial custody of Child at his home every other weekend, and
      one overnight during the week. Id. at 68-69. At some point,
      Paternal Grandmother began taking custody of Child; Father
      claimed this was because his daughter’s mother and Mother did
      not get along. Id. at 72-73. Father then “stopped trying” because
      he was “tired of the games.” Id. at 74-75. Father also noted that
      about a year prior to the termination hearing, Mother had asked
      him to voluntarily relinquish his parental rights. Id. at 100.

      With respect to his interactions with Child, Father described Child
      not talkative, and that Father did not want to “push” himself onto
      Child or scare him away. Id. at 80. Father stated that although
      Child calls Father by his first name, Child did “not always” do so.
      Id. at 94. Father testified that he was present for several of
      Child’s birthdays, including Child’s fourth, and Christmas in 2017.
      Id. at 82-83. Father denied taking inappropriate care of Child, in
      response to Mother’s averments that Father had failed to change
      Child’s diapers. Id. at 83-84. Father stated he could not attend
      Child’s tonsils surgeries because he had to work. Id. at 85.
      Father acknowledged that the garage where he works is very close
      to Paternal Grandmother’s residence, and he would often walk to
      the house to see Child. Id. at 95.

In re P.G.F., 1464 WDA 2018 at *1-7 (footnote omitted).

      On remand to the trial court to determine whether Child’s legal interests

conflicted with his best interests and, if necessary, to appoint separate legal

counsel for Child, the trial court found that there was no conflict between

Child’s legal and best interests.   Notes of Testimony (“Remand Hearing”),

8/7/19, at 23. The trial court reinstated its order of September 27, 2018,

terminating Father’s parental rights. Id. at 24-25. Father timely filed a notice

of appeal and statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925.




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       On appeal, Father argues that the trial court erred in determining that

there was no conflict between Child’s legal and best interests. He also argues

that his parental rights should not have been terminated because clear and

convincing evidence did not establish a settled purpose on his part of

relinquishing those rights or that he failed to perform parental duties for at

least six months prior to the filing of the petition.1

                                               II.

                                               A.

       As to his argument that that the trial court erred in determining that

there was no conflict between Child’s legal and best interests, the Adoption

Act requires that counsel be appointed for a minor child in any involuntary

termination of parental rights proceeding in which a parent contests the

termination. 23 Pa.C.S. § 2313(a). In In re Adoption of L.B.M., 161 A.3d

172 (Pa. 2017) (plurality), a majority of our Supreme Court held that this

provision requires that counsel be appointed to represent the child’s “legal

interests.”2    Id. at 183-84.        In addition to considering the child’s legal

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1 Father does not argue that termination of his parental rights did not serve
Child’s best interests pursuant to 23 Pa.C.S. § 2511(b). See In re J.T.M.,
193 A.3d 403, 408 n.5 (Pa. Super. 2018) (holding that appellant waived any
challenge to the trial court’s determination under Section 2511(b) by failing
to raise it in his concise statement and brief).

2A child’s legal interests “are synonymous with the child’s preferred outcome.”
In re Adoption of L.B.M., 161 A.3d 172, 174 (Pa. 2017) (plurality). In
contrast, “‘[b]est interests’ denotes that a [GAL] is to express what the [GAL]



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interests, the trial court must also determine what outcome would be in the

child’s best interests. Id. at 174; 23 Pa.C.S. § 2511(b).

       The Supreme Court later clarified that a GAL who is appointed to

represent the best interests of the child may also serve as the child’s legal

counsel when there is no conflict between the child’s legal and best interests.

In re T.S., 192 A.3d 1080, 1092 (Pa. 2018).        On review, this court must

afford substantial deference to the trial court’s factual and credibility

determinations regarding whether there is a conflict between the child’s legal

and best interests.       In re Adoption of K.M.G., __ A.3d __, 2019 WL

4392506, at *4 (Pa. Super. September 13, 2019) (en banc).

       The record reflects that on remand, Attorney Rose consulted with Child

and determined that Child’s preferred outcome was to remain with Mother and

Husband. Remand Hearing at 6, 8-9, 16. In fact, Child became upset when

considering the possibility of not living with Mother and Husband. Id. Child

identified Husband as his father and did not seem to remember Father at all.

Id. at 5, 12, 16. When asked if he knew anyone by Father’s name, Child could

only recall a classmate who shares the same name as Father. Id. at 5-6, 12,

18-19. He did not appear to recall spending any time with Father. Id. at 10-


____________________________________________


believes is best for the child’s care, protection, safety, and wholesome physical
and mental development regardless of whether the child agrees.” Id. at 174
n.2 (quoting Pa.R.J.C.P. 1154 cmt.).




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11. He identified Husband’s parents as his own grandparents. Id. at 5. In

light of these facts, the trial court’s determination that Child’s legal and best

interests do no conflict is well-supported by the record and it did not err in

declining to appoint separate legal interests’ counsel for Child.3

                                               B.

       As to the merits, Father contends that the trial court abused its

discretion in holding that there was clear and convincing evidence to support

the termination of his parental rights. “The party seeking termination must

prove by clear and convincing evidence that the parent’s conduct satisfies the

statutory grounds for termination delineated in [the subsections of 23 Pa.C.S.

§ 2511(a)].” In re Adoption of J.N.M., 177 A.3d 937, 942 (Pa. Super. 2018)

(quoting In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007)).            Clear and


____________________________________________


3 The dissent argues that Attorney Rose did not fulfill her duties as legal
interests counsel because she did not explain to Child that Father was his
biological father and specifically ask how Child felt about terminating Father’s
rights. When this case was remanded for a hearing on Child’s best and legal
interests over a year after the initial hearings, Attorney Rose determined that
Child no longer remembered Father. This Court held that legal counsel
correctly discharged her duty in similar circumstances in In re Adoption of
C.J.A., 204 A.3d 496, 502 (Pa. Super. 2019). There, legal counsel declined
to explain to the child that he had a biological father when the child was not
aware that the biological father existed. Id. We agreed that under the unique
circumstances, where the child did not know his father at all, legal counsel
had correctly discharged her duty based on the child’s age, mental condition
and emotional condition in declining to explain those circumstances,
particularly when the child had already bonded with his proposed adoptive
father. Id. The same analysis applies here.




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convincing evidence is that which 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.” In re D.L.B., 166 A.3d 322, 326

(Pa. Super. 2017) (citation and quotation marks omitted). The orphans’ court

may then enter a final decree of involuntary termination if it is in the child’s

best interests as outlined in Section 2511(b). Id.4

       To terminate parental rights, it must be shown “by conduct continuing

for a period of at least six months immediately preceding the filing of the

petition either [] evidenced a settled purpose of relinquishing parental claim

to a child or [] refused or failed to perform parental duties.” 23 Pa.C.S. §

2511(a)(1).      “[P]arental 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 C.M.S., 832 A.2d 457, 462 (Pa. Super. 2003) (citation omitted; emphasis

added). “Although the six month period immediately preceding the filing of


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4 We review such a decree for an abuse of discretion. In re G.M.S., 193 A.3d
395, 399 (Pa. Super. 2018) (citation omitted). Moreover, “[w]e give great
deference to trial courts that often have first-hand observations of the parties
spanning multiple hearings.” In re Interest of D.F., 165 A.3d 960, 966 (Pa.
Super. 2017). “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 S.H., 879 A.2d 802, 805 (Pa. Super. 2005). “The
trial court is free to believe all, part, or none of the evidence presented and is
likewise free to make all credibility determinations and resolve conflicts in the
evidence.” In re A.S., 11 A.3d 473, 477 (Pa. Super. 2010). “If competent
evidence supports the trial court’s findings, we will affirm even if the record
could also support the opposite result.” Id.

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the petition is most critical to the analysis, the court must consider the whole

history of the case and not mechanically apply the six-month statutory

provision.” In re I.J., 972 A.2d 5, 10 (Pa. Super. 2009).

      This court has defined “parental duties” as “a positive duty which

requires affirmative performance” to meet the physical and emotional needs

of the child. In re Adoption of N.N.H., 197 A.3d 777, 784 (Pa. Super. 2018)

(internal quotations and citation omitted). Moreover,

      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 his or 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 ... her physical and emotional needs.

Id.   Merely providing financial support without maintaining an emotional

relationship is not sufficient to fulfill parental duties. In re Shives, 525 A.2d

801, 803 (Pa. Super. 1987).        When one parent creates obstacles to a

noncustodial parent’s relationship with his child, this court must consider the

noncustodial parent’s explanation for failure to perform parental duties to

determine whether the parent used “all available resources to preserve the

parent-child relationship.” Id.

      Even when one parent creates obstacles to the other parent’s exercise

of parental rights and duties, the law requires that the noncustodial parent

exercise reasonable firmness to overcome those obstacles rather than

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passively acquiesce to the other parent’s actions. See C.M.S., 832 A.2d at

464. In C.M.S., mother unilaterally arranged for adoption and placement of

the child immediately following her birth and without notifying father. Id. at

459. When father learned of the placement, he was advised that he would

receive paperwork once the adoption process began and the adoption

intermediary refused to provide him with any information regarding the child’s

whereabouts. Id. at 463 (citation omitted). Rather than taking any further

action to initiate custody proceedings, father waited 14 months until he was

served with adoption paperwork to challenge the proceedings. Id.

      This court held that father’s failure to act for 14 months did not satisfy

his obligation to pursue his parental rights and duties with reasonable

firmness. Id. at 463-64. While father had verbally opposed adoption when

he spoke with the intermediary, he took no further action to assert his rights,

perform parental duties or form a relationship with his child.     Id. at 464.

Accordingly, we held that there was clear and convincing evidence to

terminate his parental rights under Section 2511(a)(1). Id.; compare In re

Adoption of C.J.A., 204 A.3d 496, 505 (Pa. Super. 2019) (holding that record

did not support termination when, despite mother’s efforts to prevent father

from seeing child, father did “everything in his power to reestablish a

relationship with [c]hild and perform parental duties,” including hiring a

private investigator and initiating a custody action).




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      In this case, the record supports the trial court’s conclusion that Father

failed to perform his parental duties for at least six months preceding the filing

of the petition.   Significantly, although Father was aware that the custody

order in place awarded him regular periods of custody of Child, he made no

effort to enforce the order once Mother stopped delivering Child for his periods

of custody. N.T., 9/11/18, at 68-69. Father knew that he could petition the

court to enforce or modify the custody order that was in place, as he had

petitioned pro se in 2014 to modify the order when he wanted to exercise

custody over Child during the holidays. Id. at 70, 75-78, 86-90. Nonetheless,

for at least two years before Mother filed the petition to terminate Father’s

parental rights, Father made no effort to enforce his right to custody of Child

or build the father-son relationship. Instead of showing reasonable firmness,

he passively acquiesced to Mother’s obstacles and testified that because he

was “tired of the games,” he elected to “stop trying.” Id. at 74-75.

      Both   Paternal   Grandmother     and   Father   admitted    that   Father’s

relationship with Child had become strained and Child does not see him as his

father. Id. at 20, 22, 80-81, 96. Paternal Grandmother also acknowledged

that Child currently views Husband as a father figure, though she believed

that given the chance, Father could reestablish himself as a father figure to

Child. Id. at 38, 50. Father stated that in the six months to one year prior

to the hearing, he had had contact with Child “a handful of times” and that he

did not have a relationship with Child for the prior two years. Id. at 79, 96.


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Further, Mother testified that Father had not spoken to her to request custody

of Child since 2015. N.T., 7/31/18, at 33, 50.

      While the record reflects that Mother, as early as December 2016,

created barriers to Father’s ability to exercise custody and maintain a parent-

child relationship, Father failed to respond to these efforts with any degree of

“reasonable firmness” to perform parental duties. Id. at 63-64. The obstacles

created by Mother were in place during the relevant six-month period prior to

the filing of the petition, but the record supports the trial court’s finding that

these obstacles emerged only after years of Father’s virtual non-participation

in the care and custody of Child. Id. at 17-23, 63-64. Further, even though

Father complied with a domestic relations order to pay child support to Mother,

payment of support in absence of a parent-child relationship or emotional

bond is insufficient to establish that Father performed his parental duties. Id.

at 27; N.T. 9/11/18 at 107-08; Shrives, supra.

      The record supports the trial court’s conclusion that Father failed to

perform his parental duties for at least six months prior to the filing of the

petition. Accordingly, we affirm the order terminating Father’s parental rights.

      Order affirmed.

      Judge Lazarus joins the memorandum.

      Judge Bowes files a dissenting memorandum.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/27/2020




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