J-S39029-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF D.K.I., A MINOR             IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA




APPEAL OF: K.A.I., NATURAL MOTHER

                                                    No. 205 WDA 2017


            Appeal from the Order Entered December 29, 2016
             In the Court of Common Pleas of Fayette County
                 Orphans' Court at No(s): 26 Adopt 2016


BEFORE: BENDER, P.J.E., BOWES AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                            FILED AUGUST 7, 2017

      K.A.I. (“Mother”) appeals from the order granting the private petition

filed by J.D. (“Father”) for the termination of her parental rights to her son

D.K.I. We affirm.

      During January 2011, D.K.I. was born of the brief relationship between

Mother and Father.    The family never resided together, and Mother gave

birth to D.K.I.’s half-brother approximately one year later.   Father did not

have any contact with D.K.I. for approximately two years after his son’s

birth until his paternity was confirmed by a DNA test issued concomitant to

Mother’s child support claim. Father married his current wife, S.D., during

December 2014 and they have two sons born in June 2015 and March 2016,

respectfully. Between 2013 and 2015, Father exercised weekend custody of


* Retired Senior Judge assigned to the Superior Court.
J-S39029-17



D.K.I. pursuant to an informal agreement.      In April 2015, Mother asked

Father to maintain temporary custody of D.K.I. while she recovered from her

father’s suicide. Mother has not had physical contact with her son since that

date, and her most recent conversation with him occurred during the

summer of 2015.

      After coming to Mother’s assistance and assuming temporary custody

of D.K.I., Father filed a custody complaint seeking sole physical custody, and

the matter proceeded to mediation.     Father challenged the results of that

proceeding on the ground that “the [m]ediator was being a little biased

because she was also female.” N.T., 7/14/16, at 31. Father’s protest was

successful.   The custody court assigned a new mediator and scheduled a

second mediation.   Mother was not represented during the mediation and

she alleges that the replacement mediator chastised her for associating with

black men and potentially having a bi-racial baby. Id. at 15-16. Father paid

for a court-administered urine screen and demanded that Mother comply

with it before exercising physical custody. The mediator agreed, and Father

was awarded temporary physical custody pending Mother’s compliance and

further proceedings. As Mother failed to submit to the drug test or advance

the custody litigation, that 2015 order effectively awarded Father sole

physical custody of D.K.I. without a trial to determine the child’s best

interest pursuant to the Child Custody Law, 23 Pa.C.S. § 5328(a).




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      On May 11, 2016, Father filed a petition for the involuntary

termination of Mother’s parental rights to D.K.I.      Invoking the statutory

grounds outlined in 23 Pa.C.S. § 2511(a)(1), Father asserted that, for the

six months preceding the filing of the petition, Mother either evinced a

settled purpose to relinquish her parental rights or failed to perform parental

duties.   The orphans’ court appointed attorneys to represent D.K.I. and

Mother, respectively, and scheduled an evidentiary hearing. Father testified

in support of his position, identified his wife, S.D., as the individual with

present intention to adopt D.K.I., and called Mother as a witness as if on

cross-examination.      In addition to outlining the statutory grounds for

terminating Mother’s parental rights, Father testified that D.K.I. shared

familial bonds with S.D., who had assumed Mother’s role as maternal

caregiver, and his two paternal half-brothers.        Mother countered with

testimony outlining her efforts to contact D.K.I. while he was in Father’s

custody   and   presented    the   testimony   of   her   mother    (“Maternal

Grandmother”) and cousin, A.K. On December 29, 2016, the orphans’ court

granted Father’s petition and terminated Mother’s parental rights.        This

timely appeal followed.

      Mother complied with Pa.R.A.P. 1925(a)(2)(i) by filing a statement of

errors complained of on appeal concurrent with her notice of appeal.

Mother’s Rule 1925(b) statement raised seven issues which she reiterated

on appeal as follows:

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      1. Whether the Trial Court erred in finding that the Appellee,
      J.D., Natural Father of D.K.I., met his burden by clear and
      convincing evidence with regard to 23 Pa.C.S.A. 2511 sufficient
      to support termination of Mother's parental rights?

      2. Whether the Trial Court erred in failing to consider the
      attempts that Mother had made in attempting to contact D.K.I.,
      within the six months immediately preceding the filing of the
      Petition for Involuntary Termination?

      3. Whether the Trial Court erred failing to consider the post
      termination consequences in that D.K.I., had a half sibling that
      he was raised with up until his separation from him by Father?

      4. Whether the Trial Court erred in failing to look at the
      reasonable attempts by Mother to overcome obstacles created
      by the party seeking to terminate her parental rights?

      5. Whether the Trial Court erred in considering the personal
      obstacles that Mother has overcome in the six months
      immediately preceding the filing of the termination petition?

      6. Whether the Trial Court erred in failing to consider Father's
      attempts to thwart the relationship Mother had with D.K.I.?

      7. Whether the Trial Court erred in finding that the termination
      of the child would be in the minor child's best interest,
      considering all of the relevant factors?

Mother’s brief at 4.   Father and D.K.I.’s appointed counsel both submitted

briefs supporting the orphans’ court’s order terminating Mother’s parental

rights.

      Mother discusses issues one, two, four, five, and six collectively.

Accordingly, we address those claims together.       The crux of Mother’s

aggregate complaint is that Father did not prove the statutory grounds to

terminate her parental rights.



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      Our standard of review is well settled.

      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).

      As the party petitioning for the termination of Mother’s parental rights,

Father “must prove the statutory criteria for that termination by at least

clear and convincing evidence.” In re T.R., 465 A.2d 642, 644 (Pa. 1983).

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 hesitancy, of the truth of the precise facts in issue.”

Matter of Sylvester, 555 A.2d 1202, 1203–04 (Pa. 1989).

      Termination of parental rights is governed by 23 Pa.C.S. § 2511, which

provides in pertinent part 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:




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            (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.

      With respect to § 2511(a)(1), this Court has explained,

            A court may terminate parental rights under Section
      2511(a)(1) where the parent demonstrates a settled purpose to
      relinquish parental claim to a child or fails to perform parental
      duties for at least the six months prior to the filing of the
      termination petition.    The court should consider the entire
      background of the case[.]

In re A.S., 11 A.3d 473, 482 (Pa.Super. 2010) (citations omitted).           While

the statute targets the six months immediately preceding the filing of the

petition to terminate, the trial court must consider the entire history of the

case and not apply the six-month statutory period mechanically.           In re

K.Z.S., 946 A.2d 753, 758 (Pa.Super. 2008).




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      Accordingly, in order to prevail, Father was required to produce clear

and convincing evidence of Mother’s conduct that fulfills either one of the

two requirements outlined in § 2511(a)(1).       He did not have to establish

both. In re D.J.S., 737 A.2d 283, 285 (Pa.Super. 1999) (“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.”)     Our Supreme Court has noted that

parental duty under § 2511(a)(1) includes “an affirmative duty to love,

protect and support” the child and “to make an effort to maintain

communication with that child.” In re Adoption of S.P., 47 A.3d 817, 828

(Pa. 2012). For example if the parent’s fulfillment of those duties is made

more difficult by impediments, “we must inquire whether the parent has

utilized those resources at his or her command . . . in continuing a close

relationship with the child.” Id.

      Once the evidence establishes a failure to perform parental duties or a

settled purpose of relinquishing parental rights, the court must then engage

in three additional lines of inquiry: (1) the parent's explanation for his or her

conduct; (2) the post-abandonment contact between parent and child; and

(3) consideration of the effect of termination of parental rights on the child

pursuant to Section 2511(b). In re Z.S.W., 946 A.2d 726, 730 (Pa.Super.

2008).




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      Instantly, the orphans’ court determined that Father satisfied his

statutory burden. The court concluded,

      [b]ased on the evidence presented, the Court finds that during
      the six month period in question, Mother never visited D.K.I.,
      sent him a card or letter, spoke with him on the telephone or via
      Skype/FaceTime, or acknowledged his birthday or other common
      gift-giving holidays and occasions. Mother's justification was
      alleged "road blocks" created by Father, even though his address
      and phone number had not changed since the last custody
      mediation between the parties.

Trial Court Opinion, 12/29/16, at 5.

      The record supports the orphans’ court’s conclusion that Mother failed

to perform her parental duties for more than the six months preceding the

date Father filed the petition to terminate parental rights.   Mother alleges

that Father capitalized upon her drug addiction, homelessness, and

unemployment to erect barriers that impaired her ability to contact D.K.I.

She argues that Father ignored her telephone calls and text messages and

blocked her on social media.    She also contends that Father rebuffed the

efforts of family members whom she enlisted to contact D.K.I. on her behalf.

Unfortunately for Mother, the certified record does not sustain either the

claim that her failure to perform parental duties was solely the product of

Father’s obstructionism or that she exercised reasonable efforts to overcome

the obstacles that Father did erect.

      During the evidentiary hearing, Mother outlined her efforts to maintain

contact with D.K.I. since July 2015. She testified that, following the second



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mediation during spring 2015, Father attempted to prevent her from

contacting their son by informing her that it was not included in the

mediation order granting him sole custody.      N.T., 7/14/16, at 8.       After

rectifying that misinformation, Mother attempted to call Father once or twice

per week to speak with D.K.I., but she eventually gave up during July or

August of that year because Father refused to answer the telephone or

return her calls.   Id. at 8-9, 61-62.   Only once during that summer did

Father permit a brief telephone conversation with their son. Id. at 8-9.

      However, Mother eventually yielded to Father’s impediments, and she

never spoke with the child again.    Mother testified that she attempted to

send Father text messages over a three-day period during October of 2015,

but she did not pursue her custody rights at that time due to her poor

financial condition. Id. at 9, 57. While Mother stated that she lost Father’s

telephone number between August and October 2015, she neglected to

proffer any supporting evidence or produce telephone records to confirm any

of her purported attempts to reestablish contact.     Id. at 10.    Likewise,

Mother failed to obtain Father’s address in order to mail her son

correspondence or gifts. Id. at 11-12. Again, Mother claimed that she did

not know Father’s address and did not recall exchanging contact information

with Father; however, she conceded that both parties disclosed their

addresses as part of the mediation and that she had no reason to believe

that Father had moved since the onset of the custody litigation. Id. at 12.

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Moreover, when Mother discovered Father’s address several months later,

she avoided the home because she was afraid of confronting Father due to

his anger issues and their stormy relationship.     She explained, “I was too

afraid [of getting] harassment charges.       So if something like [that] did

happen, I would definitely have lost my son.” Id. at 65.

      Mother also proffered various justifications for her failure to evade

Father’s alleged roadblocks. For example, Mother testified that she did not

comply with the drug test that the mediator ordered because she lacked

transportation to the testing site in Uniontown, Pennsylvania. Id. at 14-15.

However, that excuse fails because Mother subsequently conceded that she

started drug counseling in Uniontown during May 2015, and that although

she travelled to Uniontown for counseling at least once per month between

November 2015 and May 2016, she never obtained the drug test. Id. at 73.

      Similarly, Mother indicated that she avoided the custody mediation

office due to her lack of legal representation, unfamiliarity with the legal

system, and the intimidation by the replacement mediator’s alleged

derogatory remarks about her interracial relationship. Id. at 69. During the

evidentiary hearing, Mother expounded, “After [the mediator’s] racial

comment, I was completely done with the case.         I told her I would come

back when I had an attorney.” Id. at 16. She also indicated her hesitation

to contact Father without an attorney for fear of legal retaliation. Id. at 79.




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      As it relates to her lack of representation, Mother testified that she did

not have the resources to litigate a custody dispute.     Likewise, she stated

that her friends and family did not possess the financial wherewithal to assist

her in retaining counsel for the custody litigation.      Id. at 81.    Mother

explained that she contacted a legal aid service during the summer of 2015,

but was informed that there was a one-year waiting list. Id. at 79. After

she followed up with the agency during February or March of 2016, it placed

her on a shorter waiting list and conducted an intake interview. Id. at 79-

80.   Later, during May 2016, Mother contacted four attorneys looking for

legal assistance but was unable to retain one. Id. at 57-58.

      In sum, Mother stated that she intended to fight for D.K.I. once she

got her affairs in order, which she believes she finally attained during spring

2016. Id. at 63. She expounded that it took her over one year from the

date she placed D.K.I. in Father’s care to attain the stability and financial

capacity to retain an attorney and reengage the custody litigation.      Id. at

58.   Mother stresses that she was D.K.I.’s sole provider for the first two-

and-one-half years of the child’s life, while Father disputed paternity. Noting

that she did not seek to terminate Father’s parental rights during his

extended absence, she argues that the orphans’ court erred in failing to

provide her a similar opportunity to reconnect with D.K.I. We disagree.

      This case began as a contentious custody dispute. We are confident

that, had Mother demonstrated any meaningful effort to reunite with her son

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between April 2015 and March 2016, there would have been no basis to

terminate her parental rights. However, rather than exercising reasonable

diligence to overcome any obstacles that Father unquestionably placed in

her path, Mother elected to wait for Father to change his mind. Her placid

inaction did a great disservice to her son and transformed what was a one-

sided custody dispute into a successful claim of parental abandonment

pursuant to § 2511(a)(1).     Mother took no action to modify the custody

arrangement, and while she proffered myriad excuses for her failure to act

during the relevant period, there is no evidence of any affirmative efforts to

overcome any obstacles that Father erected. We recognize that, after May

2016, Mother took steps to address her drug addiction, homelessness, and

instability; however, those efforts were too late. See (“With respect to any

petition filed pursuant to subsection (a)(1) . . . the court shall not consider

any efforts by the parent . . . which are first initiated subsequent to the

giving of notice of the filing of the petition”); In re B.,N.M., 856 A.2d 847,

855 (Pa.Super. 2004) (“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.”); In re Adoption of M.E.P., 825 A.2d 1266, 1276 (Pa.Super. 2003)

(“A child's life simply cannot be put on hold in the hope that the parent will

summon the ability to handle the responsibilities of parenting.”).      As the

record supports the orphans’ court’s finding that Mother failed to perform

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parental duties for the six months preceding the petition, we cannot disturb

it.

      Mother’s remaining issues relate to the orphans’ court’s § 2511(b)

analysis. With respect to § 2511(b), this Court has explained the requisite

analysis as follows:

      Subsection 2511(b) focuses on whether termination of parental
      rights would best serve the developmental, physical, and
      emotional needs and welfare of the child. In In re C.M.S., 884
      A.2d 1284, 1287 (Pa.Super. 2005), this Court stated,
      “Intangibles such as love, comfort, security, and stability are
      involved in the inquiry into the needs and welfare of the child.”
      In addition, we instructed that 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. However, in cases where there is no evidence of a
      bond between a parent and child, it is reasonable to infer that no
      bond exists. In re K.Z.S., 946 A.2d 753, 762-63 (Pa.Super.
      2008).    Accordingly, the extent of the bond-effect analysis
      necessarily depends on the circumstances of the particular case.
      Id. at 63.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa.Super. 2010). Neither the

Adoption Act nor authoritative precedent requires the orphans’ court to enlist

a formal bonding evaluation, and the court’s needs and welfare analysis

need not hinge upon expert testimony.        In re Z.P., 994 A.2d 1108, 1121

(Pa.Super. 2011).

      Instantly, the orphans’ court’s needs-and-welfare analysis provided as

follows:

      D.K.I. has had no contact with Mother since April 2015; the most
      recent one–fifth of his lifetime. During that four to five-year-old
      stage, children are typically gaining more of an understanding of

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      their surroundings and building significant, lasting relationships
      with those around them.

            Since April 2015, D.K.I. has been with Father and
      Stepmother on a constant basis. Stepmother is a stay-at-home
      parent who has continuously cared for D.K.I. and fulfilled the
      maternal role in Mother's absence. While it is clear that Mother
      once had a bond with D.K.I., the Court cannot find that any bond
      remains. Mother has not shown D.K.I. any love, comfort, or
      support for more than one year; however, Stepmother has. If
      D.K.I. were to be reunited with Mother, it could adversely affect
      his developmental and emotional needs. For these reasons, the
      Court finds that termination is in the best interests of D.K.I.

Trial Court Opinion, 12/29/16, at 6.

      Mother does not challenge the orphans’ court’s finding that the bond

that had existed between her and D.K.I. diminished over the year-long

period that she has been absent from the five–year-old’s life.       Similarly,

Mother does not assail the orphans’ court’s conclusion that permanently

severing any remaining bond between Mother and D.K.I. would not be

detrimental to the child. Rather than contest either of those aspects of the

orphans’ court’s needs-and-welfare         analysis, Mother   argues that the

orphans’ court erred in failing to consider the effect of severing the bond

between D.K.I. and his maternal half-bother. No relief is due.

      Although Mother highlights that both parties testified about the bond

between D.K.I. and his maternal half-brother, she ignores Father’s evidence

that the siblings’ relationship was reduced by the passage of time and that

D.K.I. forged strong bonds with his two paternal half-brothers in its place.

The orphans’ court properly considered those existing relationships, as well

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as the noted parent-child bond between D.K.I. and his pre-adoptive

stepmother, and the importance of continuing those relationships.            See

Adoption of C.J.P., 114 A.3d 1046, 1054 (Pa.Super. 2015) (“In addition to

a bond examination, the trial court . . . should also consider the intangibles,

such as the love, comfort, security, and stability the child might have with

the   foster   parent   [and]   the   importance   of   continuity   of   [those]

relationships[.]”).

      As the record sustains the orphans’ court’s conclusion that terminating

Mother’s parental rights would best serve D.K.I.’s developmental, physical,

and emotional needs and welfare, we will not disturb it.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2017




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