J-S47044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: B.S.G.                           :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
                                         :
                                         :
                                         :
                                         :
 APPEAL OF: G.G., III, NATURAL           :
 FATHER                                  :   No. 695 WDA 2018

                Appeal from the Order Entered March 26, 2018
              In the Court of Common Pleas of Jefferson County
                   Orphans’ Court at No(s): 17A-2017 O.C.

BEFORE:    OLSON, MCLAUGHLIN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:               FILED SEPTEMBER 19, 2018

      G.G., III (Father), appeals from the order entered March 26, 2018, in

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

B.S.S. (Mother) and G.S., II (Stepfather), and terminated involuntarily

Father’s parental rights to his minor daughter, B.S.G. (Child), born in

December 2015. We affirm.

      We summarize the relevant factual and procedural history of this matter

as follows. Mother and Father were in a relationship for almost two years.

Prior to Child’s birth, on October 21, 2015, Father pleaded guilty to delivery

of a controlled substance, for which he received a sentence of state

intermediate punishment.    Father served nearly one year in state prison

before transferring to a drug and alcohol rehabilitation program in Pittsburgh

in September 2016. Father completed the program in November 2016 and

continued serving his sentence at halfway houses in Pittsburgh and Erie. In


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* Retired Senior Judge assigned to the Superior Court.
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November 2017, Father returned home to Jefferson County and began

residing with Child’s paternal grandmother.

       Father maintained a cordial relationship with Mother at the start of his

criminal sentence, which allowed him to arrange occasional visits with Child.

However, Father’s relationship with Mother began to deteriorate in late 2016.

This coincided with Mother’s new romance with Stepfather. Father last visited

with Child at a park in Jefferson County in April 2017. Father has not had any

contact with Child since that time. Meanwhile, Mother and Stepfather married

in October 2017.

       On October 27, 2017, Mother and Stepfather filed a petition to terminate

involuntarily Father’s parental rights to Child.1 The orphans’ court conducted

a termination hearing on February 15, 2018.2 Following the hearing, on March

26, 2018, the court entered an order terminating Father’s parental rights.

Father timely filed a notice of appeal on April 24, 2018, along with a concise

statement of errors complained of on appeal.

____________________________________________


1Mother and Stepfather filed a petition for Stepfather to adopt Child that same
day.

2 The orphans’ court appointed a guardian ad litem (GAL) to represent Child.
Child turned three only two months prior to the hearing. Due to her age, it is
clear that she was unable to express her preferred outcome in this case. Thus,
the court’s appointment of a GAL satisfied Child’s right to counsel pursuant to
23 Pa.C.S. § 2313(a). See In re T.S., ___ A.3d ___, 2018 WL 4001825 at
*10 (Pa. filed August 22, 2018) (distinguishing two- and three-year-old
children whose young age rendered them unable to form a “subjective,
articulable preference” from “children as young as five or six years of age [who
have] opinions which are entitled to weight in legal proceedings concerning
their custody”) (citing Pa.R.P.C. 1.14, Explanatory Comment 1).

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     Father now raises the following claim for our review.       “Whether the

[orphans’] court erred in terminating [Father’s] parental rights where

insufficient evidence was presented to meet the burden required under 23

Pa.C.S.[] §[]2511(a).”    Father’s Brief at 4 (unnecessary capitalization

omitted).

     We consider this claim mindful of our well-settled standard of review.

     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
     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).

     Section 2511 of the Adoption Act governs involuntary termination of

parental rights. See 23 Pa.C.S. § 2511. It 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 [subs]ection 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 [subs]ection 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


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     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).

     The orphans’ court terminated Father’s parental rights pursuant to

subsections 2511(a)(1) and (b), which 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,
      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).

     In the instant matter, Father waived any claim regarding subsection

2511(b) by failing to include it in his statement of questions involved and

concise statement of errors complained of on appeal. See In re M.Z.T.M.W.,

163 A.3d 462, 466 (Pa. Super. 2017) (“[I]ssues not included in an appellant’s



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statement of questions involved and concise statement of errors complained

of on appeal are waived.”). Father also failed to develop any such claim in

the argument section of his brief. Id. at 465-66 (“[T]his Court will not review

a claim unless it is developed in the argument section of an appellant's brief,

and supported by citations to relevant authority.”).     Thus, we review only

whether the orphans’ court abused its discretion by terminating Father’s

parental rights pursuant to subsection 2511(a)(1).3

       To meet the requirements of subsection 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).

The orphans’ court must then consider the parent’s explanation for his or her

abandonment of the child, in addition to any post-abandonment contact. Id.

(quoting In re Adoption of Charles E.D.M., II, 708 A.2d 88, 92 (Pa. 1998)).



____________________________________________


3 Even if Father had preserved a challenge to subsection 2511(b), it would be
meritless. As discussed above, Father was serving a criminal sentence at the
time of Child’s birth in December 2015 and did not return to Jefferson County
until November 2017. Child never lived with Father and visited with him on
only a limited number of occasions. Father acknowledged during the hearing
that he and Child do not share a bond. N.T., 2/15/2018, at 76. Conversely,
Stepfather has served as a caregiver for Child since December 2016 and Child
refers to him as “Dada.” Id. at 22, 25. It is clear that Child and Father do
not have a necessary and beneficial relationship at this time, and that
terminating Father’s parental rights will best serve Child’s needs and welfare
because it will allow her to be adopted and grow up in an intact family.

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Our courts have emphasized that a parent does not perform parental duties

by displaying a merely passive interest in the development of his or her child.

In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (quoting In re C.M.S.,

832 A.2d 457, 462 (Pa. Super. 2003)). Rather,

      [p]arental 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 his or her physical and
      emotional needs.

Id. (citations omitted; emphasis added).

      Of particular relevance to this appeal, incarceration does not relieve a

parent of the obligation to perform parental duties. Our case law does not

require that an incarcerated parent “perform the impossible.”        Id. at 857.

However, that parent must utilize the resources available in prison to preserve

a relationship with his or her child. Id. at 855; see also In re Adoption of

S.P., 47 A.3d 817, 828 (Pa. 2012) (discussing In re Adoption of McCray,

331 A.2d 652 (Pa. 1975)).

      In the instant matter, the orphans’ court found that Father failed to

perform his parental duties for a period in excess of six months preceding the

filing of the termination petition, and that he evidenced a settled purpose of

relinquishing his parental rights.   Orphans’ Court Opinion, 3/26/2018, at 2

(unnumbered pages). The court acknowledged that Father’s incarceration and

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Mother’s uncooperativeness served as obstacles limiting his ability to maintain

a relationship with Child, but found that he failed to make sufficient efforts to

overcome those obstacles. Id. at 3-4. The court found that Father had no

contact with Child after his final visit in April 2017. Id. at 1. The court further

reasoned that Father could have written to Child, sent small gifts, or made

additional inquiries about her well-being. Id. at 3. Moreover, the court found

that “Father concentrated his efforts on his recovery from addiction, but in so

doing he lost all contact with his daughter.” Id. The court found Father’s

recovery efforts commendable, “but he cannot do so at the expense of his

daughter” and found that this was a case of “too little, too late[.]” Id. at 4.

      Father argues that he took whatever actions he could while incarcerated

to perform his parental duties and blames Mother for impeding his efforts.

Father’s Brief at 8-12. Father insists that he found ways to visit with Child

despite lacking a driver’s license and a car, requested updates and pictures of

Child from Mother, and provided limited financial support. Id. at 10. Father

also insists that he purchased gifts for Child in December 2017, which Mother

and Stepfather did not accept. Id. at 11.

      Our review of the record supports the findings and conclusions of the

orphans’ court. During the termination hearing, Mother testified that Father’s

last visit with Child occurred on April 22, 2017, while Father testified that the

visit occurred on June 22, 2017. N.T., 2/15/2018, at 4, 48. The orphans’

court accepted Mother’s version of events and found that the visit occurred in

April. Orphans’ Court Opinion, 3/26/2018, at 1 (unnumbered pages). Thus,

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Father had no contact with Child during the six months immediately preceding

the filing of the termination petition on October 27, 2017. See T.S.M., 71

A.3d at 267 (“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.”) (citation

and internal quotation marks omitted).

       Moreover, there is no indication in the record that Father made efforts

to arrange contact with Child during the six months at issue. Father lived at

halfway houses in Pittsburgh and Erie throughout the relevant six months due

to his criminal sentence. While Father’s sentence was an obstacle limiting his

ability to contact Child, he did nothing to overcome that obstacle. Mother

testified that Father did not request or attempt to schedule any additional

visits with Child after their final visit. N.T., 2/15/2018, at 6. Father did not

dispute that aspect of Mother’s testimony.

       Further, the record supports the finding of the orphans’ court that Father

did little outside of visits to maintain a relationship with Child. Mother testified

that Father did not send cards, letters, or gifts during the relevant six months.4

Id. at 7. In addition, Father provided financial support to Mother only once.

Father provided Mother with $60 in June 2017. Id. at 17.
____________________________________________


4 While Father argues that he purchased gifts for Child in December 2017, the
orphans’ court was not at liberty to consider this information when reaching
its decision. See 23 Pa.C.S. § 2511(b) (“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.”).

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      While Father entered into evidence copies of text messages from him to

Mother, which show that he inquired about Child and asked for pictures during

the relevant six months, that does not excuse the remainder of his conduct.

See Respondent’s Exhibit 1. Father’s text messages show that he attempted

to contact Mother about Child approximately once per month. He could have,

and should have, done more. For example, Father could have filed a complaint

for partial custody. This is especially true given Mother’s responses to the text

messages, and her occasional failures to respond, which made it apparent that

she had no interest in helping Father maintain a relationship with Child. See,

e.g., id. at 3-4 (“I’m not going to send pictures when I take them. That’s

stuff that me, [Stepfather] and [Child] do as a family.… You know it would be

so much better and easier if you just turned over the little right you have

away.”).

      We sympathize with Father’s situation and do not condone Mother’s

obstinate behavior in response to Father’s efforts, their minimal nature

notwithstanding, at maintaining a relationship with his daughter.       Like the

orphans’ court, we commend Father for his efforts at maintaining sobriety.

However, while those efforts are positive, they are not enough for Child who

is growing and progressing with Mother and Stepfather.

            This case epitomizes why appellate courts must employ an
      abuse of discretion standard of review, as we are not in a position
      to make the close calls based on fact-specific determinations. Not
      only are our trial judges observing the parties during the hearing,
      … and have a longitudinal understanding of the case and the best
      interests of the individual child involved. Thus, we must defer to


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      the trial judges who see and hear the parties and can determine
      the credibility to be placed on each witness and, premised
      thereon, gauge the likelihood of the success of the current
      permanency plan. Even if an appellate court would have made a
      different conclusion based on the cold record, we are not in a
      position to reweigh the evidence and the credibility determinations
      of the trial court.

In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).

      Accordingly, the record is clear that Father failed or refused to perform

parental duties during the six months preceding the filing of the termination

petition on October 27, 2017. Father had no contact with Child and made no

efforts to arrange contact. At best, he sent Mother sporadic text messages

inquiring about Child or asking for pictures. While Father’s criminal sentence,

and Mother’s uncooperativeness, were obstacles limiting his ability to perform

parental duties, the fact remains that he did little to overcome those obstacles.

Father’s actions demonstrate a merely passive interest in Child. They do not

demonstrate good faith interest and effort, nor do they demonstrate that he

utilized all available resources to preserve his parental relationship.      See

B.,N.M., 856 A.2d at 858-59 (terminating parental rights where father “sat

idle for most of [c]hild’s life, allowing [m]other and her spouse to perform all

parental duties[, and, m]erely stating that he did not wish to have his parental

rights terminated was insufficient to protect those rights without acting

affirmatively to foster a parental relationship with [c]hild during his

incarceration”). Therefore, we conclude that he is not entitled to relief.




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     Based on the foregoing, we conclude that the orphans’ court did not

abuse its discretion by terminating involuntarily Father’s parental rights to

Child, and we affirm the court’s March 26, 2018 order.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/2018




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