J-S31013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: L.A.C.H.                        :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
APPEAL OF: C.H. & A.H.                 :
                                       :
                                       :
                                       :
                                       :
                                       :   No. 1911 WDA 2016

              Appeal from the Order Entered November 17, 2016
               In the Court of Common Pleas of Clarion County
                 Orphans’ Court at No(s): No. 227 OC 2016


BEFORE:   PANELLA, DUBOW, and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.                             FILED JUNE 2, 2017

     C.H. (“Father”) and A.H. (“Stepmother”) appeal the order entered on

November 17, 2016, that denied their petition seeking to involuntarily

terminate the parental rights of K.D.H. (“Mother”), pursuant to the Adoption

Act, 23 Pa.C.S.A. § 2511(a)(1) and (b), to L.A.C.H. (“Child”), the female

child of Father and Mother, born in August 2008. We affirm.

     In its opinion, the orphans’ court set forth the factual background and

procedural history of this appeal, which we adopt herein. See Orphans’

Court Opinion, 1/24/17, at 1-14 (unpaginated). On September 28, 2016,

Father and Stepmother filed the petition seeking to involuntarily terminate
J-S31013-17


the parental rights of Mother to Child pursuant to section 2511(a)(1),1 and a

report of intention for Stepmother to adopt Child. The orphans’ court held an

evidentiary hearing on November 16, 2016. At the hearing, Father and

Stepmother presented the testimony of Cami Hrisak, Child’s therapist, as an

expert as a licensed clinical social worker and in the field of counseling.

Stepmother and Father testified on their own behalf. They also presented

the testimony of S.J., who is Child’s teacher at school. Finally, Father and

Stepmother presented the testimony of D.S., the headmaster at Child’s

school.

       Mother testified on her own behalf. She also presented the testimony

of Jory Hubler, who is employed at Misty Isle Bridges; and S.M. and K.W.,

who are Mother’s friends.

       Based on this testimony and the documentary evidence admitted at

the hearing, the court entered its order denying the termination and

adoption petitions. Father and Stepmother timely filed a notice of appeal and

concise statement pursuant to Pa.R.A.P. 1925(a)(2)(i).

       On appeal, Father and Stepmother raise three issues:

       1. Did the Orphans Court abuse its discretion and err as a
          matter of law in failing to consider the statute in 23 Pa.C.S.A.
          § 2511 (a)(1) which states that “[t]he parent by conduct
____________________________________________


1
  The petition provided that Father and Stepmother were married in June
2014, and that Father had primary physical custody of Child since a March 6,
2015 stipulation and custody consent order, which provided Mother an
opportunity for supervised visits with child through Misty Isle Bridges.



                                           -2-
J-S31013-17


          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
          failed to perform parental duties.” [emphasis added]
                                       ...

       2. Did the Orphans Court abuse its discretion and err as a matter
       of law in failing to consider the statute in 23 Pa.C.S.A. § 2511
       (a)(2) which states that “[t]he repeated and continued
       incapacity, abuse, neglect or refusal of the parent has caused
       the child to be without essential parental care, control or
       subsistence necessary for his physical or mental well-being and
       the conditions and causes of the incapacity, abuse, neglect or
       refusal cannot or will not be remedied by the parent.”
       [emphasis added]
                                        …
       3. Did the Orphans Court abuse its discretion and err as a matter
       of law in failing to consider under “Other considerations” (23
       Pa.C.S.A. § 2511(c)[)] that Mother had been designated a sexual
       abuse perpetrator by the Pennsylvania Department of Welfare
       Children and Youth Services under the Child Line Abuse Registry
       for acts perpetrated on the child in question.
                                           …

Father’s and Stepmother’s Brief, at 5-6 (emphasis and brackets in original). 2

       In reviewing an appeal from an order terminating parental rights, we

adhere to the following standard:

       [A]ppellate courts must apply an abuse of discretion standard
       when considering a trial court’s determination of a petition for
       termination of parental rights. As in dependency cases, our
       standard of review requires an appellate court 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. As has been often
       stated, an abuse of discretion does not result merely because
____________________________________________


2
  We note that the concise statement did not include the statutory section in
the third issue. We, nevertheless, find the issue preserved for our review.



                                           -3-
J-S31013-17


     the reviewing court might have reached a different conclusion.
     Instead, a decision may be reversed for an abuse of discretion
     only upon demonstration of manifest unreasonableness,
     partiality, prejudice, bias, or ill-will.

           [T]here are clear reasons for applying an abuse of
     discretion standard of review in these cases. We observed that,
     unlike trial courts, appellate courts are not equipped to make the
     fact-specific determinations on a cold record, where the trial
     judges are observing the parties during the relevant hearing and
     often presiding over numerous other hearings regarding the child
     and parents. Therefore, even where the facts could support an
     opposite result, as is often the case in dependency and
     termination cases, an appellate court must resist the urge to
     second guess the trial court and impose its own credibility
     determinations and judgment; instead we must defer to the trial
     judges so long as the factual findings are supported by the
     record and the court’s legal conclusions are not the result of an
     error of law or an abuse of discretion.

In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012) (internal citations

omitted).

     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. See In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

     Moreover, 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. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).

     In their brief, Father and Stepmother contend that the orphans’ court

abused its discretion or erred as a matter of law in concluding that the

evidence was insufficient to support the involuntary termination of Mother’s


                                   -4-
J-S31013-17


parental rights under § 2511(a)(1). Alternatively, they argue the court

abused its discretion or erred as a matter of law in concluding that the

evidence was insufficient to support the involuntary termination of Mother’s

parental rights under § 2511(a)(2).3 Finally, they urge that the court abused

its discretion in failing to consider, under “Other considerations,”4 that

Mother had been designated a sexual abuse perpetrator by the Pennsylvania

Department of Welfare Children and Youth Services under the Child Line

Abuse Registry for acts perpetrated on Child.

       This Court may affirm the lower court’s decision regarding the

termination of parental rights with regard to any one subsection of section
____________________________________________


3
  The orphans’ court never reviewed § 2511(a)(2), finding that section was
not raised in the petition. We agree with the court that Father and
Stepmother waived § 2511(a)(2) by failing to raise that section in the lower
court. See Pa.R.A.P. 302(a). The fact that Father and Stepmother raised the
claim in their concise statement does not alter our conclusion. See
Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003) (stating
“[a] party cannot rectify the failure to preserve an issue [for appeal] by
proffering it in response” to the court’s request for a Rule 1925(b)
statement).
4
   Father and Stepmother cite § 2511(c) as providing for “Other
considerations.” This citation appears to be a typographical error, as the
section captioned “Other considerations” is § 2511(b), infra. Section
2511(c), is captioned, “(c) Right to file personal and medical history
information.” Section 2511(c) provides, “At the time the decree of
termination is transmitted to the parent whose rights have been terminated,
the court shall advise the parent, in writing, of his or her continuing right to
place and update personal and medical history information whether or not
the medical condition is in existence or discoverable at the time of adoption,
on file with the court and with the Department of Public Welfare pursuant to
Subchapter B of Chapter 29 (relating to records and access to information).”
(footnote omitted).



                                           -5-
J-S31013-17


2511(a), along with section 2511(b). See In re B.L.W., 843 A.2d 380, 384

(Pa. Super. 2004) (en banc). Section 2511(a)(1), (2), and (b), provide as

follows:

      § 2511. Grounds for involuntary termination

      (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.A. § 2511.

      With respect to § 2511(a)(1), our Supreme Court has held that


      [o]nce the evidence establishes a failure to perform parental
      duties or a settled purpose of relinquishing parental rights, the
      court must engage in three 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).


                                     -6-
J-S31013-17


In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1988).

      Further, this Court has stated that

      the trial court must consider the whole history of a given case
      and not mechanically apply the six-month statutory provision.
      The court must examine the individual circumstances of each
      case and consider all explanations offered by the parent facing
      termination of his or her parental rights, to determine if the
      evidence, in light of the totality of the circumstances, clearly
      warrants the involuntary termination.

In re B.,N.M., 856 A.2d 847, 854-855 (Pa. Super. 2004) (citations

omitted).

      Father and Stepmother argue that the record clearly established that

Mother’s conduct over the six months immediately preceding the filing of the

petition demonstrated that Mother had a settled purpose of relinquishing her

parental claim and failed to perform her parental duties with regard to Child

during the six-month period preceding the filing of the termination petition.

      In its opinion, the court ably and methodically considered the evidence

presented at the hearing, and addressed Father’s and Stepmother’s issues.

The court’s credibility determinations are supported by competent evidence

in the record, so we will not disturb them. Accordingly, we adopt the court’s

discussion   herein.   See   Orphans’    Court   Opinion,   1/24/17,   at   15-18

(unpaginated).

      Next, in regard to Father’s and Stepmother’s third issue, that the court

failed to properly consider Mother’s record as “indicated” for child abuse as

“Other considerations” under the Adoption Act, see Orphan’s Court Opinion,


                                        -7-
J-S31013-17


1/24/17, at 4-5 (explaining circumstances of the “indicated” finding)

(unpaginated), we view this issue as a matter being raised in relation to

Child’s needs and welfare, under § 2511(b), see note 4, supra.

     Here, the court found, on the record, that there had been a fairly

strong bond between Mother and Child at one time in this matter, and that

there might still be a bond. See N.T., 11/16/16, at 268. The court, however,

was unable to determine the present existence of a bond because of the

interference of Father and Stepmother with Mother having the supervised

visitation to which she was entitled. See id., at 267-268. Thus, the court

found that Father and Stepmother had failed to sustain their burden of

proof. See id., at 268-269.

     We have thoroughly reviewed the record, the parties’ briefs, and the

applicable law with the above standards of review in mind. The record

supports the court’s factual findings, and the court’s legal conclusions are

not the result of an error of law or an abuse of discretion. As we agree with

the court that termination of Mother’s parental rights under § 2511(a)(1)

was not warranted, and under section 2511(a)(2) was waived, the court

properly did not proceed to conduct a § 2511(b) analysis.

     We find no abuse of the court’s discretion in failing to find that

Mother’s record as “indicated” for child abuse impacted on Child’s needs and

welfare under § 2511(b). The court found from the evidence that Father and

Stepmother had interfered with Mother’s previous close relationship with


                                    -8-
J-S31013-17


Child by their placement of insurmountable obstacles between her and Child,

so that Father and Stepmother interfered with the bond between Mother and

Child. See Orphans’ Court Opinion, 1/24/17, at 18 (unpaginated). This

determination is supported by competent evidence in the record.

     Accordingly, we affirm the orphans’ court’s order based on the

discussion in the court’s opinion entered on January 24, 2017. See Orphans’

Court Opinion, 1/24/17, at 15-18 (unpaginated).

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/2/2017




                                   -9-
- ..   _ - --    - ·-        --   -   -·-                        __   _
                                                                          =-
                                                                               Circulated 05/16/2017 03:38 PM




                               IN THE COURT OF COMMON PLEAS                          .:RECEIVED
                              OF CLARION COUNTY, PENNSYLVANIA
                                  ORPHANS' COURT DIVISION                              JAN 2 4 2017
                INRE:
                ADOPTION OF L.A.C.H.                     No. 16-16-227
                (d.o.b.-2008)
                Millin, P.                                       January 23, 2017

                                              OPINION
                        The petition to involuntarily terminate the parental rights
                of the natural mother was filed on behalf of the natural father
                and stepmother who desires to adopt on September 28, 2016.
                The petition alleges as grounds for the termination at
                paragraph 10 of the petition: "The natural mother, by her
                conduct, has for a period in excess of six (6) months,
                clearly indicated a settled purpose of relinquishing
                parental claim to the adoptee. She has refused and failed
                to perform any parental duties whatsoever." This is an
                allegation under 23 Pa.C.S.A. Section 2511 (a)(l). No other
                section of the statute was cited in the petition as possible
                grounds for termination. After a hearing on November 16,
                2016 this court entered an order denying the petition for
                involuntary termination. The petitioners have appealed that
                decision, This opinion is entered to further explain the
                rationale of the court.
                           ... _   ,.,_   -   -   --- -




      The relevant facts are as follows:
      The natural father is C. J. H., born July 15, 1987. The
natural mother is K. D. H., born June 5, 1988. The step mother
and proposed adopting parent of the child is A. H., born March
12, 1990. The child is L.A.C.H., born                     2008.
(Transcript "T" pp. 38-40)
     The natural mother and the natural father were married
when the child was born and lived together with the child until
July 2010 when they separated. (T p.103)
     At the time of separation the mother obtained a
protection from abuse order against the father which was
entered by agreement and which made the natural mother the
primary custodian of the child and granted the father partial
custody three weekends per month. (T p. 103)
     In August 2011 father and mother agreed to a 50/50
custody arrangement. (T p. 158)
     On June 19, 2013 the parties entered into a stipulation
whereby the father became the primary custodian with mother
having partial physical custody every other weekend. The
mother testified that prior to the involvement of the
stepmother that she and the father successfully co-parented.
     A. When we first separated, I had primary physical
        custody and with him granted the first three weekends
        of the month. And through the week, I would know he
         would have certain days off, so I would let him go
         ahead and have [ child] on those days, or I would work
         with his mom if they wanted to do something through
         the week, and I worked with them.

      Q. Would you say that you successfully co-parented?
                                       ~       (~




      A. We had to go through his mom with the PFA in effect,
         but yes. (T pp.157-158)

      Mother testified that the co-parenting became more
difficult when the stepmother became involved. She stated that
the stepmother would give her parenting advice at the custody
exchange times. (T 159,160)
      Mother agreed to give up her weekday contact and to
have every other weekend at the time the child was entering
school. She stated that she had been living with her mother for
a short time and that they had had a falling out and for that
reason she agreed to meet with the father and stepmother at
the father's attorney's office for the purpose of working out
another custody agreement. (T p.160)
     Mother took the position that the child should be placed
in a public school rather than the church school. She said that
"I felt that it would be biased and all one-sided, her going to the
school being it's their church, it's their friends) it's their home
life all in the one but my concern was, I would be pushed out
   :.·   -   •   -   d   -   ..




 so I requested, can she please be put into a public school ... " (T
p.160)
             The father agreed that the child would be put in the
public schools for kindergarten but then told mother that they
had missed the deadlines and could notget the child in and he
enrolled her in the church school stating that she would be put
in the public school the next year, but that was not done. (T
pp.161-162)
             In January 2015 the father and stepmother became aware
that the mother had posted two nude pictures of the child
among forty pictures of the child and her half sister that
                                         ~    .
mother had posted on social media. Father and stepmother
took the photos to the child's therapist who filed a report with
ChildLine on January 20, 2015. (Transcript "T" pp.65-66)
             The report initiated a child protective services
investigation. The investigation led to a finding by the
Department of Human Services that the mother was the
perpetrator of an act pf sexual abuse. (Petitioners' Exhibit 1)
             The report states as the category of abuse "Causing Sexual
Abuse or Exploitation of a Child Through Any Act/Failure to
Act", and lists the subcategory of abuse as "Actual/Simulated
Sexual Activity for the Purpose of Producing Visual Depiction".
The outcome explanation states "This case is being indicated
 for sexual abuse. Based on the evidence it has been determined
that [Mother] was acting recklessly and carelessly when she
posted a picture of [ child] on the toilet with her genitals
exposed. Factors taken into consideration        are the hand gesture
[Mother] is making, [Mother's] facial expression, as well as
[child's] appearance."   (Petitioners'   Exhibit 1)
      Stepmother   has _a bachelor's degree in early child
development    and in special education and works as an autism
support teacher at the New Story School in Duflois,
Pennsylvania. (T p. 38) As such she is a mandatory        reporter
for child abuse and had just completed "twenty some hours of
training" about child sexual abuse. (T pp.65-66)
     When father and stepmother          became aware that a
Children and Youth investigation had been initiated they told
the mother that if they allowed the mother to have visitation
with the child that the stepmother       could possibly lose her
license to teach and her job. Father and stepmother sent
mother a message via Facebook that they were aware of the
children and youth investigation, knew what it was about and
would like to postpone the mother's next visit to see how the
children and youth investigation turned out. They also told
mother that they would tell the child that the visit was
postponed   due to the fact that the child had the flu. (T p.6 7)
,,...__   ...   --.       = - - ..




                            The children and youth investigation continued and
                       neither the father nor mother were kept informed of the status
                       of it. No one from Children and Youth had told the father or
                       step mother that the mother could not have the custody rights
                      expressed in the existing custody order, but father and step
                      mother "thought it would be best if custody was modified". For·
                      that purpose they .arranged a meeting with the mother and her
                      boyfriend at the father's attorney's office. The mother was not
                      represented by counsel. (T pp. 6 7-69)
                            On March 6, 2015 mother signed a stipulation and
                      custody consent order whereby father was granted primary
                      physical custody with mother having supervised visits through
                      Misty Isle Bridges, a private counseling center. (T p.69)
                           The mother believed that father and stepmother were
                      trying to help her through the trauma of the Children and
                      Youth investigation and that they would help her in
                      maintaining a relationship with the child, when, in fact,
                      Children and Youth never mandated any change in the
                      custodial arrangement. Father and mother were responsible
                      for the initiation of the Children and Youth investigation by
                      taking the photos to the child's therapist. (T pp. 65- 70)
                         . At the time mother signed the consent order terminating
                      her custody rights to non-supervised contact, she believed that
father and step mother would make the arrangement flexible,
                       ,,


that they would allow visits in the park and invite her for
dinner in their home, but once the agreement was signed they
took the position that the court order did not permit them to
do so. (T p. 70)
      When the mother attempted to initiate her supervised
visits she was told that Misty Isle Bridges needed to receive a
copy of the court order which had not been given to her by
father's attorney. She asked the father and stepmother about it
and was told that father had not received a copy of the order
either. Father did not receive a copy of the order for a month
after signing. (T p. 72)
     The father and stepmother refused to permit any type of
visits even supervised by them unless the Children and Youth
investigation was dismissed as unfounded. (T p. 73)
Even after the father and stepmother received a copy of the
order and were aware that the mother's visits could not be
initiated at Misty Isle Bridges without it and that mother did
not have a copy of the order they did not offer to give her a
copy. They gave. her the phone number for their attorney so
she could call and see why she had not been sent her copy of
the order. (T pp. 75-76)
The father testified as follows:
                                          - .   ...   .   -   -   -   --




 Q. Were you aware that Kayla did not receive a copy of
 the signed stipulation?

A. We had notified her when we received ours, and two
weeks later, she said that she still had not received hers,
which we then gave her contact for [father's attorney's]
office, since that's where we signed it, that would be the
easiest place for her to obtain a copy for herself.

Q. Were you concerned at all for [child] that she wasn't
getting any visitation with her mother when she had
previously, at least three weekends a month, you had
testified to?

A. That's what she was allotted. She didn't always take
them.

Q. But my question was, were you concerned that she
wasn't getting any visitation and the reason, at least at the
beginning, was that Misty Isle Bridges required the
custody order and she didn't have it?

A. I wasn't overly concerned. I was a little concerned, but
[ child] seem to be coping with it just fine.

Q. But she wouldn't have had to cope if there were other
ways to set up the visitation, correct?

A. Correct.
Q. And you chose to not facilitate that supervised
visitation whatsoever?

A. I did not feel that it was incumbent upon me to do that
work for Kayla.

                                                                           Op. 8
     Q. So you chose to-not allow your daughter to have any
     visitation during that time?

     A. I guess. (T pp. 121-122)


     The only explanation presented to the court concerning
the pictures which were the basis for the indicated finding of
child sexual abuse other than the language from Petitioner's
Exhibit 1 hereinabove quoted came from the mother:
     Q. So I want to talk about what stemmed from the CYS
     investigation. Can you tell me when you were notified
     that there was an investigation?

    A. I was notified in 2015 of photos that were taken in
    2014 of my girls. When they showed me the pictures, I'
    had taken pictures of my girls playing. We were all
     downstairs playing in the playroom, I mean, the
     downstairs in the playroom and her little sister was using
     an exersaucer like a little bit after Christmas. That's what
     she got for Christmas. [Child] had told me she had to use
    the bathroom, and she said, well, I want my baby sister to
     come. I said, you can go to the bathroom. Your baby sister
    will be fine. You'll be okay. And I was cleaning while they
    were playing, and I thought she went to the bathroom,
    and I heard them giggling, so I peeked over, and I saw
     [Child] was sitting on her potty, and she was playing
    peekaboo with her sister in the exersaucer. And I'm like,
    oh, this is adorable, you know, and not thinking, I like
    took pictures, you know, and I'm like, oh, my gos.h, look at
    this. These two are inseparable. And when I posted them,
    I posted them in a big group of like 30 photos, and I didn't
                                                                    Op. q
think about it, and I own up to that. I should have. But I
was notified of the CYS investigation after literally the
week after I lost--I didn't want to lose [Child], but I
handed her over after a visit, and they had notified+I'm
pretty sure it was like the beginning of February when
CYS had actually called me to set up saying there's
concerns about your child with sexual accusations, and I
said oh, my gosh ... (T pp.164-165)

Q. So then sometime after that, you were contacted to set
up a meeting with Caleb and Annie?

 A. Yes. We were actually-we wanted to have our
 visitation->I was supposed to get her Valentine's Day
 weekend, which is always a big deal with me and [Child].
 We always did a mommy/ daughter thing like where we
would make dinner together, and we would--I called her
 my love bug. So I was supposed to get her, and then I
 contacted them about like getting her that visit and stuff,
and they were--we had to have a conversation before and
that with [Child's] being sick, we'll go ahead and try--with
this going on, just until we know further what's going on.
We have no clue what this is about, and we're praying for
you, is what Annie and Caleb were telling me. And--I'm
sorry, I just--with that, they requested that we have a sit-
down conversation, the four of us, and talk things of what
we can do because knowing how well things went co--
parenting over the holidays and stuff, I was like more
trusting of them. So when she had shown me her concern
about her degree, she had told me she would lose her
degree and she would lose her job sending her with this
investigation, that we need to have a sit down
conversation to talk about what our options are, that we'll


                                                               Of. to
      go ahead and tell [Child] right now what we need to tell
      her, and then we'll go from what we discussed.

      Q. Did you believe that you had to change the custody
      agreement?

      A. With the investigation going on, they had told me that
      they would terminate my rights then when we were
      talking, that they wouldn't let me see her at all.

      Q. Who told you this?

     A. Annie and Caleb told me that the courts, with this
     investigation, would cut my rights off and that they were
     willing to set up some kind of supervision like visits
     where legally, it protects me, but it also lets me get to see
     them and be open to where we would could set up
     different times and dates where we could-

     Q. And were you represented by counsel during this time?

     A. No. I financially couldn't.

     Q. You financially couldn't? Is that what you said?

     A. I couldn't afford any kind of counsel, especially with
     the investigation and everything that went on, just--
     (Testimony pp.166-168)

     Mother stated that the stepmother had told her that they
were already having something written up which would
provide that until the investigation was completely over that
she would be limited to supervised visitations but that in the
                                                                     Op.   II
                                     _ ......   ~   -   --   -   ...




meantime they would be willing to "set up like park dates or
they would--we could meet for dinners or movies, something
where all of us can be together. That way, no body can be held
accountable for anything if anything was to come out, that they
didn't see me as a threat of anything."(T pp. 168-169)
      The mother called Misty Isle Bridges the next day after
signing the order to set up her visitations but was told that
Misty Isle Bridges could do nothing until they received the
court order. The mother also drove with her boyfriend's
mother to find the location of Misty Isle Bridges within a week
of signing the custody stipulation. (T pp. 171-172)
      The mother contacted the father's attorney's office to
request the order and was told, "They said there was nothing
they can do." (T p. 173)
     The mother did not receive the order until August 31,
2016. The father's attorney who prepared the stipulation and
order took the position that it was the responsibility of the
mother to make sure that the court had her current address.
(Tpp. 214-_215)
     The mother explained the initiation of her phone
contacts,
     Q. In the meantime, being that you couldn't set up your
     supervised visitations, what type of contact did you have
     with [Child]?
------       .



                 A. I would have phone conversations after a little bit.
                    [Stepmother] had told me--expressed to me about how
                    [Child] was having a hard time with electronic devices,
                   that she didn't like her pictures taken anymore or she
                   was leery about being on the phone or face time. I
                   suggested face time because my mother-in-law had an
                   !Phone and I know he had an !Phone, so I figured, you
                   know, my youngest daughter can't talk, and that way
                   they could see each other, but mainly phone calls with
                   on-and-off when allowed and we could schedule these
                   things.

                   Q. When you say when allowed, what do you mean by
                   that?

                   A. They were always doing something. There was
                   always this going on or they had this going on, like her
                   gymnastics, too. (T pp. 17 4

                 The mother was familiar with the address and contact
         information for the father throughout the entire lifetime of the
         Child. (T pp 104-105)
                 The mother had no custodial time with the child from the
         initiation of the Children and Youth investigation at the end of
         January, 2015 to the time of the hearing on termination of
         parental rights on November 16, 2016. (T pp105-106)
                 In a phone conversation between mother and the Child
         between March, 2015 and August, 2015 mother told daughter


                                                                              Op.''
that she was waiting on the papers to come in the mail so that
she could have in person visitation with the Child. (T p. 128)
       The mother had no phone contact with the child from
September, 2015 through the time of the hearing on
termination   of parental rights. (T pp106-107)
       The father did not feel comfortable with the mother
having supervised visits with the Child until he could question
her about where she was in her life. (T pp 118-119)
       When the father was contacted by Misty Isle Bridges that
the mother wanted to arrange the supervised visits
(September 19, 2016) he contacted his attorney to file the
papers for termination of parental rights which he had
discussed with the attorney previously. Father agreed to a visit
twice, but cancelled both times. (T pp123-124)
       The mother finally obtained a copy of the court order and
delivered it to Misty Isle· Bridges on August 31, 2016. (T p.
185)
       The mother's attempts at phone communication     were
resisted by the father and step mother and mother's attempts
lessened after a few months.   Letters and pictures sent by the
mother to [Child] were returned to her. (Transcript pp. 241-
245)
-------------------~----·------------·---··--···"·-------         - - -




               The statute involved, 2 3 Pa.C.S.A. Section 2 511 provides
         that the parental rights of a parent to a child may be
         terminated after a petition is filed on the grounds stated. Here
         the only section set forth in the termination petition is section
         (a) (1) which provides, "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." In Appellants' statement of
         matters complained of on appeal Appellant asserts that it was
         error for the court not to consider section (a)(2) in making the
         decision in this case, but section (a) (2) was not cited in the
        petition to terminate. Pa.0.C. Rule 15-4 requires that the
        petition to terminate include, "(6) facts constituting grounds
        for the involuntary termination under Section 311 of the
        Adoption Act.and a reference to the applicable subsection or
        subsections; ... n Since section (a)(2) was not cited in the
        petition it would be improper for the court to apply that
        section.
              In a termination of parental rights case, the burden of
        proof is on the party seeking termination to establish by clear
        and convincing evidence the existence of grounds for doing so.
        The standard of "clear and convincing evidence" means

                                                                             Op. JS
                        4   "




 testimony that is so clear, direct, weighty, and convincing as to
 enable the trier of fact to come to a clear conviction, without
 hesitation, of the truth of the precise facts in issue. In re Z.P.,
· 994 A.2d 1108, 2010 PA Super 56.
      The statute permitting involuntary termination of
 parental rights on the ground of evidencing a settled purpose
 of relinquishing a parental claim to a child or refusing or failing
to perform parental duties must be read in the disjunctive.
Termination may be ordered either if the parent has evidenced
for a period of six months a settled purpose of relinquishing
parental claims or if the parent has, for the same length of time,
refused or failed to form parental duties. Matter of Adoption of
Charles E.D.M.1/,   550 Pa. 595, 708 A.Zd 88 (1998)
      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. Although it is the six months immediately
preceding the filing of the petition that is most critical to the
analysis, the court must consider the whole history of a given
case and not mechanically apply the six month statutory
provision. The court must examine the individual·
circumstances of each case and consider all explanations

                                                                    OP·   I(;
                                                                    .-....   -   -   -   --


 offered by the parent facing termination of her parental rights,
 to determine if the evidence, in light of the totality of the
 circumstances, clearly warrants the involuntary termination.
In Re KZ.S., 946 A.2d 753 (2008), 2908 PA Super 62.
      At the conclusion of the hearing when I rendered my
decision I may have focused too much on the statutory six
month period, and the fact that immediately preceding the
filing of the petition the mother was finally getting around to
taking the steps necessary to reestablish her custodial rights.
There is no doubt that she was trying to get visitation restored
prior to the filing of the petition to terminate. I said in my
remarks at the conclusion of the hearing that it was almost
unfair to the father given the long period she went without
contact, but in reviewing the law and looking more closely at
the entire period of time and the explanations offered by the
mother for not having contact it became clear that the father
and step mother were making it difficult for the mother. All
circumstances must be considered when analyzing a parent's
performance or nonperformance of parental obligations. The
parent's performance must be measured in light of what would
be expected of an individual in circumstances in which the
parent under examination finds herself. Did she use the level of
resolve necessary to overcome the obstacles put in her way?

                                                                     Op.             11
            If




Given her circumstances I believe that she did. I believe her
testimony about interference with phone calls and return of
letters. I believe her testimony about her efforts to obtain a
copy of the court order. From January 31, 2015 to the time of
the hearing on termination the father and stepmother were
placing or maintaining roadblocks to her ability to parent.
There is no evidence that mother ever had an intent to
abandon the Child. Mother did not perform parental duties
because of the interference of the father and stepmother, and
mother was as of August 31, 2016 actively involved in
asserting her parental rights by the fact that she had delivered
a copy of the court order to Misty Isle Bridges and asked to
have her supervised visits established.    I also believe her
testimony about her previously close relationship with the
child and the relationship of the child to her other daughter.
Given the foregoing it is clear that father has failed to prove his
case by clear and convincing evidence.
                                 Respectfully submitted,



                                 Paul H.· Millin, S.J., S.P.
