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                             2015 PA Super 204

IN RE: S.S.W., DOB 11/3/2010                   IN THE SUPERIOR COURT OF
IN RE: S.F.W., DOB 9/27/2012                         PENNSYLVANIA




APPEAL OF: S.W. NOW S.P.W. AND
M.J.W.

                                                   No. 1726 WDA 2014


             Appeal from the Order entered October 6, 2014
           In the Court of Common Pleas of Somerset County
     Orphans' Court at Nos: 15 Adoption 2014 and 15A Adoption 2014


BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.

OPINION BY STABILE, J.:                       FILED SEPTEMBER 24, 2015

     Appellants, S.P.W. (Mother) and M.J.W. (Stepfather), appeal from the

orphans’ court’s October 6, 2014 order denying their petition for involuntary

termination of the parental rights of J.M.W. (Father), to S.S.W. and S.F.W.

(the Children). We affirm.

     The orphans’ court set forth its findings of fact in its opinion of

November 13, 2014.     In relevant part, the court found that the Children

have been in sole custody of Mother since January 4, 2013. Orphans’ Court’

Opinion, 11/13/14, at ¶ 6. Father has not attempted contact with Mother or

Children since then. Id. at ¶ 25. Mother obtained an order pursuant to the
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Protection From Abuse (PFA) Act1 after a December 27, 2012 incident during

which Father threatened to shoot himself in Mother’s presence and also

grabbed Mother’s thigh, resulting in visible bruising. Id. at ¶¶ 8-9, 13. At a

January 10, 2013 PFA hearing, Father consented to entry of an order without

admitting the underlying facts. Id. at ¶ 17. Pursuant to that order, Mother

had sole physical and legal custody of the Children and Father was not

permitted any contact. Id. Also, on January 10, 2013, Father sent flowers

to Mother to apologize for his conduct. Id. at ¶ 19. On January 19, 2013,

Father took diapers for their baby to Mother’s office and left them as Mother

was out of town. Id. at ¶ 21. For this attempted contact, police charged

Father with indirect criminal contempt of the PFA order. Id. at ¶ 22. Father

pled guilty and received a 90-day suspended sentence. Id. at ¶ 23.

       Father participated in two months of counseling in April and May of

2013 for which a certificate of completion was provided to the Somerset

County probation officer.       Id. at ¶ 30.     Father also underwent faith-based

pastoral counseling.       Id. at 31.      The orphans’ court found Father “has

undergone a reversal in his mental outlook through having secured a new

job with job training and steady responsible work.” Id. at ¶ 31.

       The trial court extended the PFA order to January 10, 2016 because

Father failed to appear at a December 12, 2013 PFA extension hearing. Id.

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1
    23 Pa.C.S.A. § 6101, et seq.



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at ¶ 36.    Father’s employer denied his request for time off to attend the

hearing and Father did not believe his appearance at the hearing would alter

the result because he could not afford counsel.              Id. at ¶ 37.       Father

attempted to obtain counsel for the custody proceeding though Legal Aid,

but Legal Aid declined assistance due to criminal charges pending against

Father. Id. at ¶ 43.

       In   its   analysis,    the   orphans’    court   noted   Father’s    emotional

“turnaround” owing to psychiatric treatment.              Id. at 12.2       Concerning

§ 2511(b), the orphans’ court noted, “There was no testimony from either

party regarding the relationship between [Father] and [the Children] prior to

January 2013.” Id. Specifically, the court noted the older child was two at

the time of separation and neither party offered evidence on the nature of

the bond between the older child and Father. Id. at 13.

       The orphans’ court credited Father’s testimony that he could not afford

counsel and that the absence of competent counsel rendered him unaware of

the possibility of modifying the PFA to permit him to maintain a relationship

with the Children.       Id.    In addition, “[a]ny attempts he made to make

amends with [Mother] or to initiate contact with his in-laws was deemed

contemptuous by the court, resulting in his arrest.” Id.


____________________________________________


2
  We have assigned page numbers to the orphans’ court’s opinion as it is
not paginated and only the findings of fact appear in numbered paragraphs.



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       On July 31, 2014, Appellants filed a petition seeking termination of

Father’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1) and (b). At

the conclusion of an October 3, 2014 hearing on the petition, the orphans’

court found that Appellants failed to prove by clear and convincing evidence

that   termination     of   Father’s    parental   rights   was   appropriate   under

§ 2511(a)(1). The orphans’ court entered an order to that effect on October

6, 2014, and Appellants filed a timely appeal.3

       Section 2511(a)(1) permits involuntary termination of parental rights

where a parent exhibits a settled purpose of relinquishing his or her parental

claim or refuses to perform parental duties for six months prior to the filing

of a termination petition. 23 Pa.C.S.A. § 2511(a)(1). On appeal, Appellants

argue the orphans’ court erred because the record reflects clear and

convincing evidence of Father’s settled purpose of relinquishing his parental

rights or failure to perform parental duties for at least six months prior to

Appellants’ petition.

              Although the six month period immediately preceding the
       filing of 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. The trial
       court must examine the individual circumstances of each case
       and consider all of the explanations of the parent to decide if the
       evidence, under the totality of the circumstances, requires
       involuntary termination.

____________________________________________


3
  Appellants filed a concise statement of errors along with their notice of
appeal, in accord with Pa.R.A.P. 1925(a)(2)(i).



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In re I.J., 972 A.3d 5, 10 (Pa. Super. 2009).     “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.”   In re B.,N.M., 856 A.2d 847, 855 (Pa.

Super. 2004).

     Our courts have provided the following guidance on the meaning of

parental duty:

           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’.

In re C.M.S., 832 A.2d 457, 462 (Pa. Super. 2003) (quoting In re Burns,

379 A.2d 535, 540 (Pa. 1977)), appeal denied, 859 A.2d 757 (Pa. 2004).

     We review the orphans’ court’s decision for abuse of discretion or error

of law, and we must defer to the orphans’ court’s findings of fact if the

record supports them. In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007).

As we have already noted, termination of parental rights is appropriate only




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where clear and convincing evidence supports termination under § 2511(a).

Id.

      Appellants argue the orphans’ court erred because Father has not seen

the Children since the older one was two years old and the younger one was

three months old.     Appellants’ Brief at 11.    Appellants also argue that

Father’s repeated failure to appear at hearings and his failure to procure

counsel to pursue custody of the Children prove by clear and convincing

evidence that Father has evinced a settled purpose to relinquish his rights

and/or has failed to perform parental duties. As noted above, the orphans’

court was cognizant of these facts. The court found that Father’s absence

was not the result of a refusal to perform parental duties or a settled

purpose of relinquishing his rights. Rather:

             In the instant case we have gone to great length to detail
      the facts surrounding Father’s separation from [the Children]. In
      a short period of three weeks he was the subject of [1] a PFA
      action; [2] criminal charges of simple assault; [3] divorce action;
      [4] custody action; [5] loss of his employment; [6] loss of his
      home; [7] felony theft charges; [8] criminal contempt charges;
      and [9] inpatient mental health treatment. All of the foregoing
      rose at the outset of an unstable period of his emotional and
      mental health which resulted in his inpatient stay in a hospital
      psychiatric unit as well as the engagement of intensive mental
      health counseling[.] In the court’s anaylsis, Father underwent
      an extremely difficult time in his life when everything was turned
      upside down, and he was, for the most part, on his own to sort
      out all that had transpired.

Orphans’ Court Opinion, 11/13/14, at 11. The orphans’ court noted Father’s

successful counseling, his decision to seek spiritual guidance, and his self-




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described emotional turnaround. Id. at 12. The orphans’ court also noted

Father’s unsuccessful attempt to procure counsel through Legal Aid.

             It is the court’s sense that he has suffered throughout his
      custody and PFA matters from lack of competent counsel to
      educate him that the PFA order regarding custody could be
      modified to allow him to reframe a custodial relationship with
      [the Children]. While it may routinely be deemed evidence of
      lack of continuing interest by a father that he not proceed
      through the court system to enforce and define his legal
      custodial rights, it was the sense of the court that Father herein
      legitimately believed that he was bound by the PFA order and its
      contempt power to avoid any contact with [the Children]. Any
      attempt he made to make amends with his wife or to initiate
      contact with his in-laws was deemed contemptuous by the court,
      resulting in his arrest.

Id. at 13.

      The orphans’ court was free to credit Father’s testimony, and we must

accept the court’s credibility determinations for purposes of appellate review.

The court found as fact that Father has achieved a better mental outlook

through counseling, and has obtained a steady job. Id. at ¶¶ 30-31. The

court also found as fact that Father missed at least one court hearing

because he would have lost his job if he took time off to attend the hearing.

Id. at ¶ 37.

      Appellants also rely on a letter Father wrote to Mother in which he

offered to relinquish his rights in order to end what he believed was

harassment from Mother and her family.       The trial court quoted the letter

verbatim, and found that Father wrote it out of “desperation” and eventually




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refused to sign an agreement relinquishing his rights when Mother sent one.

Id. ¶¶ 39-40.

       In   summary,      the    orphans’      court   opinion   evinces   a   thorough

consideration of the facts, which are not substantially in dispute.             We are

cognizant, as was the orphans’ court, of Appellants’ argument that the PFA,

civil litigation, and criminal charges pending against Father were largely of

his own making. Nonetheless, the orphans’ court believed Father reached a

low point in his life and attempted to fight his way out of it. To that end,

Father sought psychiatric and spiritual counseling, and obtained job training

and a steady new job. He has been steady in paying his $400.00 per month

support obligation. Mother testified that she offered Father custody of the

Children if he attended counseling.            N.T. Hearing, 10/3/14, at 15, 21-22.

That plan never came to fruition because Mother did not know Father

underwent the requested counseling.               Id. at 15, 35.     For all of these

reasons, the orphans’ court determined the record did not contain clear and

convincing evidence warranting termination of Father’s parental rights under

§ 2511(a)(1).4

       As an appellate court, we are bound by the orphans’ court’s credibility

determinations and findings of fact.           The record reflects that the orphans’

____________________________________________


4
   Given this determination, the orphans’ court had no occasion to analyze
§ 2511(b). The orphans’ court observed that the parties produced “minimal
testimony” relevant to § 2511(b). Orphans’ Court Opinion, 11/13/14, at 12.



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court tailored its decision to the circumstances of this case, including

Father’s inability to obtain counsel and lack of awareness of his legal options

regarding custody of the Children. Under the totality of the circumstances,

the orphans’ court determined that termination of parental rights was not

warranted.   Based on all of the foregoing, we conclude the orphans’ court

correctly applied the law, and we discern neither abuse of discretion nor

legal error in its conclusion. We therefore affirm the orphans’ court’s order.

      Order affirmed.

      P.J.E. Bender joins the Opinion.

      J. Mundy files a Dissenting Statement.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/2015




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