J-A29030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: ADOPTION OF I.A.I.R.              :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
 APPEAL OF: H.R., FATHER                  :
                                          :
                                          :
                                          :
                                          :
                                          :   No. 2159 EDA 2018

               Appeal from the Order Entered June 21, 2018
  In the Court of Common Pleas of Montgomery County Orphans' Court at
                         No(s): No. 2016-A-0181


BEFORE:    OTT, J., DUBOW, J., and STEVENS, P.J.E. *

MEMORANDUM BY DUBOW, J.:                          FILED JANUARY 23, 2019

      Appellant, H.R. (“Father”), appeals from the June 21, 2018 Order

entered in the Montgomery County Orphans’ Court, which involuntarily

terminated his parental rights to I.A.I.R. (“Child”). Upon careful review, we

affirm.

      A detailed recitation of the factual and procedural history is unnecessary

to our disposition. Briefly, Child was born in February of 2016. On or around

March 22, 2016, Montgomery County Office of Children and Youth (“OCY”)

and the Norristown Police Department (“Police”) received a report that Child

was born as a result of incest and had not received any pre-natal or post-natal

medical care. OCY and Police went to the home of then-48-year-old Father

and his daughter, then-21-year-old N.R. (“Mother”), where Father admitted

to Police that he was the biological father to both Mother and Child. Police

subsequently arrested Father and OCY obtained an Order for Emergency

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* Former Justice specially assigned to the Superior Court.
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Custody. On April 5, 2016, the trial court adjudicated Child dependent and

placed Child in foster care after hearing evidence that Father was incarcerated,

charged with Incest,1 and had admitted to OCY and Police that he was the

biological father of both Mother and Child. The trial court also heard evidence

that OCY had concerns about Mother’s mental health and the safety of Child.

Specifically, Mother was unwilling to cooperate with OCY, was unwilling to

accept services and baby supplies from OCY, and was unwilling to obtain

medical care for Child.

        On September 9, 2016, Father entered a guilty plea to Incest, and on

April 17, 2018, the court sentenced Father to a term of 5 to 10 years’

incarceration.

        After Father entered his guilty plea but prior to his sentencing hearing,

on November 14, 2016, OCY filed a Petition to Terminate Father’s Parental

Rights.

        The trial court held termination of parental rights hearings on March 1,

2017 and June 21, 2018. Relevant to this appeal, Detective Kathleen Kelly

testified that Father admitted to Police that Child was conceived as a result of

incest: “Father said he was the baby’s father as well as Mother’s father.” N.T.

TPR Hearing, 3/1/17, at 9. Intake social worker Christin Salazar testified that

when she was investigating the allegations of incest, Father also told her that



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1   18 Pa.C.S. § 4302.


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he was the biological father of both Mother and Child.          Id.   Finally, CYS

introduced a certified copy of Father’s criminal record without objection.

        On June 21, 2018, the trial court granted the Petition and involuntarily

terminated Father’s parental rights to Child on the basis that Child was

conceived as a result of incest pursuant to 23 Pa.C.S. § 2511(a)(7) and that

termination would be in Child’s best interest pursuant to 23 Pa.C.S. §

2511(b).2

        Father timely appealed. Both Father and the trial court complied with

Pa.R.A.P. 1925.

        Father raises the following issues on appeal:

        1. Does [Pa.C.S. § 2511(a)(7)] violate 14th Amendment Equal
           Protection Clause safeguards where the basis for terminating
           parental rights apply only to men without any exceedingly
           persuasive justification for the distinction between genders and
           this distinction is not substantially related to any governmental
           interest?

        2. Did the trial court err in terminating birth father’s parental
           rights   where     insufficient  evidence     established   a
           consanguineous relationship between birth father and birth
           mother where no DNA evidence or testimony from family
           members established a blood relationship between birth
           mother and birth father?

Father’s Brief at 4 (some capitalization omitted).

        In his first issue, Father claims that the trial court erred in terminating

Father’s parental rights because the statute forming the basis of termination,

23 Pa.C.S. § 2511(a)(7), makes an unconstitutional gender distinction in
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2   The trial court also terminated Mother’s parental rights.

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violation of the 14th Amendment of the United States Constitution as well as

Article 1, Section 28 of the Pennsylvania Constitution. Father’s Brief at 7-8,

10 (citing U.S. Const. Am. XIV; Pa. Const. Art. 1, Sec. 28).

       Pennsylvania      law   is   clear      that   when   a   party   challenges   the

constitutionality of any statute, and the Commonwealth is not a party in the

matter, the challenging party is required to notify the Attorney General of

Pennsylvania so that the Attorney General has the opportunity to be heard.

In re J.Y., 754 A.2d 5, 11 (Pa. Super. 2000). See also Pa.R.C.P. No. 235;

Pa.R.A.P. 521(a). The party is required to file proof of service of such notice.

See Pa.R.C.P. No. 235; Pa.R.A.P. 521(a)               “Failure to do so results in waiver

of the claim.”    In re A.H., 763 A.2d 873, 880 (Pa. Super. 2000) (citation

omitted).

       Instantly, our review of the record reveals that the Commonwealth is

not a party in this matter and Father failed to notify the Attorney General of

Pennsylvania that he was challenging the constitutionality of Section

2511(a)(7). Accordingly, we are constrained to find that Father has waived

this claim and decline to address its merits.3
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3 We note that 23 Pa.C.S. § 2511(a)(7) states, in pertinent part, that a court
may involuntarily terminate parental rights if “[t]he parent is the father of a
child conceived as a result of a rape or incest.” 23 Pa.C.S. § 2511(a)(7)
(emphasis added). We acknowledge that the statute does, in fact, make a
distinction based on gender. Notably, the criminal statute defining Incest does
not make a distinction based on gender and provides: “a person is guilty
of incest, a felony of the second degree, if that person knowingly marries or
cohabits or has sexual intercourse with an ancestor or descendant, a brother



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       In his second issue, Father avers that OCY failed to present clear and

convincing evidence of a consanguineous relationship between Father and

Mother to warrant a termination of parental rights under Section 2511(a)(7).

Father argues that OCY failed to introduce any DNA evidence and that all of

the evidence regarding the blood relationship between Father and Mother

came from Father’s own statements.               Father argues that “[a]ny person

admitting to engaging in a sexual relationship with his or her progeny

inherently lacks credibility.”       Father’s Brief at 12.   Father’s argument is

nonsensical and lacks merit.

       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.” In re Adoption of

S.P., 47 A.3d 817, 826 (Pa. 2012). “If the factual findings are supported,

appellate courts review to determine if the trial court made an error of law or

abused its discretion.” Id. We may reverse a decision based on an abuse of

discretion only upon demonstration of “manifest unreasonableness, partiality,

prejudice, bias, or ill-will.” Id. We may not reverse, however, merely because

the record would support a different result. Id. at 826-27.




____________________________________________


or sister of the whole or half blood or an uncle, aunt, nephew or niece of the
whole blood.” 18 Pa.C.S. § 4302(a). In light of this disparity, it would be
beneficial for the legislature to reevaluate the language of 23 Pa.C.S. §
2511(a)(7).

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      The burden is upon the petitioner to prove by clear and convincing

evidence that the “asserted grounds for seeking the termination of parental

rights are valid.” In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). We

have explained that “[t]he standard of clear and convincing evidence is

defined as testimony that is so clear, direct, weighty and convincing as to

enable the trier of fact to come to a clear conviction, without hesitance, of the

truth of the precise facts in issue.” Id. (citation and quotation marks omitted).

      We give great 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). “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 M.G., 855 A.2d

68, 73-74 (Pa. Super. 2004).

      Instantly, the trial court terminated Father’s parental rights pursuant to

Section 2511(a)(7), which provides that a court may terminate parental rights

if the “parent is the father of a child conceived as a result of a rape or

incest.”   23 Pa.C.S. § 2511(a)(7).         While the Adoption Act does not

specifically define “incest,” the Crimes Code states, in pertinent part, that

“a person is guilty of incest . . . if that person knowingly . . . has sexual

intercourse with an ancestor or descendant.” 18 Pa.C.S. § 4302(a).

      The trial court made a finding that Father was the biological father of

Mother and the biological Father of Child. See Trial Ct. Op., dated 7/24/18,


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at 18. The trial court also made an uncontested finding that Father pleaded

guilty to the criminal charge of Incest in April 2018. Id. Finally, the trial

court determined that the certified document containing Father’s conviction

for the criminal charge of Incest provided the court with clear and

convincing evidence regarding Father’s conviction for Incest, thereby

proving the grounds for Section 2511(a)(7). Id. at 24.

      Our review of the record supports the trial court’s findings. Father fails

to cite, and our research fails to reveal, any case law requiring the introduction

of DNA evidence to prove an incestuous relationship pursuant to Section

2311(a)(7). The trial court heard evidence from the Police as well as the OCY

intake social worker that Father made multiple admissions that he was the

biological father of Mother as well as Child. Moreover, the trial court heard

evidence that Father pleaded guilty to the crime of Incest, thus admitting in

criminal court that he had sexual intercourse with a descendant, and OCY

introduced a certified copy of Father’s criminal record into the record without

objection. Finally, Father failed to present any evidence to indicate that he

was not, indeed, the biological father of Mother.

      Thus, the certified record supports the trial court’s findings of fact and

conclusions of law and the trial court did not abuse its discretion in concluding

that OCY met its burden of proof with respect to Section 2511(a)(7).




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      We also agree with the Orphans’ Court’s determination that OCY met its

burden under 23 Pa.C.S. § 2511(b) that terminating Father’s parental rights

is in the best interest of the Child.

      With respect to Section 2511(b), our analysis shifts focus from parental

actions in fulfilling parental duties to the effect that terminating the parental

bond will have on the child. Section 2511(b) “focuses on whether termination

of parental rights would best serve the developmental, physical, and

emotional needs and welfare of the child.” In re: Adoption of J.M., 991 A.2d

321, 324 (Pa. Super. 2010).

      In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005), this Court

found that “intangibles such as love, comfort, security, and stability are

involved in the inquiry into needs and welfare of the child.” In addition, the

Orphans’ 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.

      Most significantly, whether a meaningful bond exists is determined, first,

by the extent to which a parent provides safety, security, and support for the

child’s physical and mental needs, on a daily basis. If a meaningful bond is

found to exist, the analysis hinges on the extent to which the child will be

harmed by the severance of that bond.          Thus, the bond-effect analysis

necessarily depends on the circumstances of the particular case. In re K.Z.S.,

946 A.2d 753, 763 (Pa. Super. 2008). Importantly, in cases where there is


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no evidence of meaningful and extensive contact between a parent and a child,

it is reasonable to infer that no bond exists. Id. at 762-63.

      In this case, the evidence showed that Father has been incarcerated

since Child was approximately one month old and has not had any contact

with Child. The trial court opined, “[i]n this case credible testimony clearly

established that there is no significant bond between [Child] and his birth

parents.” See Trial Ct. Op., dated 7/24/18, at 27. The trial court further

concluded, “this court finds that [Child] had bonded with his foster parents

and their two other children in the family. [Child] is being nurtured there and

is thriving in that setting, which is a preadoptive resource. . . . [Child] will not

be irreparably harmed by the termination of his birth parents’ parental rights.”

Id. at 28. The trial court concluded that termination of Father’s parental rights

would be in Child’s best interests. Id. at 28.

      The certified record supports the trial court’s findings of fact and

credibility determinations. We discern no error of law and conclude that the

trial court properly exercised its discretion in terminating Father’s parental

rights.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/19




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