J-S26017-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: ADOPTION OF J.M.H.                  :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
 APPEAL OF: J.J.H., FATHER                  :
                                            :
                                            :
                                            :
                                            :
                                            :   No. 84 EDA 2018

                 Appeal from the Decree December 1, 2017
  In the Court of Common Pleas of Montgomery County Orphans’ Court at
                            No(s): 2017-A0099


BEFORE:     BENDER, P.J.E., BOWES, J., and STEVENS*, P.J.E.

MEMORANDUM BY BOWES, J.:                                  FILED JUNE 18, 2018

      J.J.H. (“Father”) appeals from the December 1, 2017 decree that

granted the petition filed by L.L. (“Mother”) to involuntarily terminate his

parental rights to their son, J.M.H. We affirm.

      During July 2009, J.M.H. was born of Mother and Father’s relationship.

The parties cohabitated until 2011, when Mother and her then-two-year-old

son left the family home.      N.T., 11/29/17, at 7, 62.       Mother obtained a

protection from abuse (“PFA”) order with respect to Father during 2013. Id.

at 13.   Between March 2013 and October 2017, Father was incarcerated

intermittently for a total of twenty-eight months. Id. at 143-44. During this

period, Father failed to send letters, cards, or gifts to his son, although J.M.H.’s

paternal grandmother, L.C., did contribute to his private school costs. Id. at

14-15, 67, 75, 136.


____________________________________
* Former Justice specially assigned to the Superior Court.
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       On June 15, 2017, Mother filed the instant petition to involuntarily

terminate Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2),

and (b), in order to facilitate J.M.H.’s adoption by her husband, J.L.

(“Stepfather”), whom she married in August 2016.          The orphans’ court

appointed counsel for J.M.H. and Father, and it conducted an evidentiary

hearing on November 29, 2017.1 Mother and Stepfather testified in favor of

terminating Father’s parental rights. Father testified on his own behalf and

presented his mother as a witness.

       At the conclusion of the hearing, the orphans’ court terminated Father’s

parental rights to J.M.H. pursuant to 23 Pa.C.S. § 2511(a)(1) and (b). On



____________________________________________


1  The order appointing counsel for J.M.H. states that “Craig B. Bluestein,
Esquire, is hereby appointed as counsel for [J.M.H.] in the above contested
termination of parental rights proceeding, and any appeal that may be taken
in this matter.” Order of Court, 11/29/17. While Attorney Bluestein filed a
“Brief of the Guardian Ad Litem for the Child” in this Court, both the order
appointing Attorney Bluestein and the transcript from the hearing make it
apparent that Attorney Bluestein acted as legal counsel for J.M.H. For
example, during summations, Attorney Bluestein opined as follows:

       Mr. Bluestein: I am confident, based on my discussions with
       my client, that he’s aware of the issues involved, just like these
       two gentlemen talked to their clients who are aware of the issues
       involved. And based on my conversations with my client, as
       his counsel, legal counsel, I assert in favor of you finding
       that needs and welfare would be promoted by adoption, if
       you decide grounds are established.

N.T., 11/29/17, at 177-78 (emphases added). Hence, notwithstanding the
styling of his appellate brief, the certified record confirms that Attorney
Bluestein represented J.M.H.’s legal interest pursuant to 23 Pa.C.S. § 2313(a).


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December 27, 2017, Father filed a timely notice of appeal and a concise

statement of errors complained of on appeal.       Father raises the following

issues for our review:


       1. Did the honorable trial court commit error in terminating the
       parental rights of Father, pursuant to 23 Pa.C.S.A. § 2511(a)(1),
       when the testimony at trial demonstrated that Father had made
       significant efforts to comply with the terms of relevant court-
       ordered reunification efforts and had effectively been prevented
       by [Mother] from establishing a parental claim and performing
       parental duties[?]


       2. Did the honorable trial court commit error in terminating the
       parental rights of Father, pursuant to 23 Pa.C.S.A. [§] 2511(a)(2),
       when [Mother] did not establish by clear and convincing evidence
       that Father’s incapacity cannot or will not be remedied by father,
       particularly in light of the impressive strides made by father and
       the extent to which Father has endeavored to remain in contact
       with the child[?]

       3. Did the honorable trial court commit error by involuntarily
       terminating Father's parental rights where the evidence confirmed
       that (i) a strong and loving bond had existed at relevant times
       between father and the child and (ii) [Mother] was unable to
       establish by clear and convincing evidence that termination was
       in the best interests of the child as contemplated by 23
       Pa.C.S.A. [§] 2511(b)[?]

Father’s brief at 2.2


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2  The orphans’ court decree referenced only the statutory grounds for
terminating Father’s parental rights outlined in § 2511(a)(1). However, the
court’s contemporaneous on-the-record statements and its subsequent
opinion also included the grounds under § 2511(a)(2). Accordingly, Appellant
challenged both grounds in this appeal. Nevertheless, as noted in the body of
this memorandum, we sustain the termination of parental rights based on
§ 2511(a)(1), the grounds that the orphans’ court specifically stated in its
decree.

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      We review these claims 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).

      Termination of parental rights is governed by § 2511 of the Adoption

Act, 23 Pa.C.S. §§ 2101-2938, which 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 Section 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 Section 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 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).

      In this case, the orphans’ court terminated Father’s parental rights

pursuant to § 2511(a)(1), (2), and (b). We need only agree with the orphans’

court as to any one subsection of § 2511(a), as well as § 2511(b), in order to


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affirm. In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc). Here,

we analyze the orphans’ court’s decision to terminate pursuant to §

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 notice of the filing
      of the petition.

23 Pa.C.S. § 2511(a)(1), (b).

      As it relates to § 2511(a)(1), the pertinent inquiry for our review is as

follows:

           To satisfy Section 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. . . . Section 2511 does not require
           that the parent demonstrate both a settled purpose of
           relinquishing parental claim to a child and refusal or failure


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         to perform parental duties. Accordingly, 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.

In re D.J.S., 737 A.2d 283, 285 (Pa.Super. 1999) (quoting In re Adoption

of Charles E.D.M., 708 A.2d 88, 91 (Pa. 1998)). Although the six months

immediately preceding the filing of the petition are the most critical to the

analysis, “the trial court must consider the whole history of a given case and

not mechanically apply the six-month statutory provision.” In re B., N.M.,

856 A.2d 847, 855 (Pa.Super. 2004). Additionally, as it relates to the orphans’

court’s decision to terminate parental rights pursuant to § 2511(a)(1), “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(b). In In re C.M.S., 832 A.2d

457, 462 (Pa.Super. 2003), we explained, “[a] parent is required to exert a

sincere and genuine effort to maintain a parent-child relationship; the parent

must use 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.”

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

settled purpose of relinquishing parental rights, the trial 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

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

(Pa.Super. 2008) (quoting In re Adoption of Charles E.D.M., supra at 91).

     With regard to a parent’s incarceration, in In re Adoption of S.P., our

Supreme Court reiterated the standard of analysis pursuant to § 2511(a)(1)

for abandonment and added as follows:

     [a]pplying [In re: Adoption of McCray, 331 A.2d 652, 655 (Pa.
     1975)] the provision for termination of parental rights based upon
     abandonment, now codified as § 2511(a)(1), we noted that a
     parent “has an affirmative duty to love, protect and support his
     child and to make an effort to maintain communication and
     association with that child.” We observed that the father’s
     incarceration made his performance of this duty “more difficult.”
     Id.

           ....

         [A] parent’s absence and/or failure to support due to
         incarceration is not conclusive on the issue of
         abandonment.       Nevertheless, we are not willing to
         completely toll a parent’s responsibilities during his or her
         incarceration. Rather, we must inquire whether the parent
         has utilized those resources at his or her command while
         in prison in continuing a close relationship with the child.
         Where the parent does not exercise reasonable firmness in
         declining to yield to obstacles, his other rights may be
         forfeited.

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

Adoption of McCray, supra at 655) (footnotes and internal quotation marks

omitted). Further, the Supreme Court stated, “incarceration neither compels

nor precludes termination of parental rights.” In re Adoption of S.P., 47

A.3d at 828 (adopting this Court’s statement in In re Z.P., 994 A.2d 1108,

1120 (Pa.Super. 2010)).


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      Father argues that he did not have a settled purpose of relinquishing his

parental rights to J.M.H. and did not refuse or fail to perform parental duties.

Father’s brief at 17. He asserts that he demonstrated a settled purpose of

maintaining his relationship and made repeated efforts to facilitate counseling

and connect with his son that were not successful due to barriers Mother

erected. Id. We disagree.

      With regard to § 2511(a)(1), the orphans’ court explained its decision

to terminate Father’s parental rights as follows:

      There is simply no question on this record, where birth father has
      had no contact with his son since June of 2014, that [Mother] has
      established that birth father has failed to perform parental duties
      for more than six months prior to the filing of the petition for
      termination of parental rights.         This failure having been
      established, the court must now consider the parent’s explanation
      for his conduct, and that quality of any post-abandonment contact
      between parent and child. In re Z.S.W., 946 A.2d 726, 730 (Pa.
      Super. 2008) (citing In re Adoption of Charles E.D.M., 708
      A.2d 88, 91 (Pa 1998)).          This [c]ourt finds birth father’s
      explanations for his conduct unpersuasive.         His behavior in
      quibbling over the terms of proposed visits with his son was
      needlessly antagonistic and counterproductive. Birth father, even
      though granted opportunities by the family court, missed every
      opportunity to visit with his son and re-establish a relationship.
      There has been no contact between the parent and child for over
      three years before the filing of the petition; therefore there is no
      continuing relationship between the birth father and the child for
      the court to evaluate.

            ....

            In this case, the [c]ourt hereby determines that [Mother]
      has established by clear and convincing evidence that the parent
      has failed to perform any parental duties for a period of more than
      6 months prior to the filing of the petition for termination of
      parental rights. Therefore, [Mother] has established by clear and


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      convincing evidence a basis for termination of birth father’s
      parental rights under section 2511(a)(1).

Orphans’ Court Opinion, 3/6/18, at 6-8.

      Our review of the record supports the orphans’ court’s determination.

The record reveals the following. Father has not seen his son since June 2014,

at the latest. He failed to send letters, cards, or gifts, and he squandered his

opportunities to perform his parental duties. During June 2016, a custody

court awarded Father unsupervised partial physical custody of J.M.H. on

alternating Saturdays. However, since he and Mother could not agree on how

the exchanges would take place, Father failed to exercise his custodial rights.

N.T., 11/29/17, at 16-19, 131-32. Four months later, the custody court issued

an order requiring Father to begin reunification therapy with Jane Kessler, and

upon starting therapy, Father could exercise partial physical custody of the

child every other Saturday from noon until 6:00 p.m. Id. Again, Father failed

to act. Rather than employing any reasonable effort to overcome the barriers

to the performance of his parental duties, he did nothing. As Father did not

participate in reunification therapy, he never regained any form of physical

custody. N.T., 11/29/17, at 21, 133. Thus, the record supports the orphans’

court’s determination that Mother established clear and convincing evidence

of abandonment under § 2511(a)(1).

      With regard to Father’s explanation for his inaction, Father testified that

he did not attend any school events with his son because he believed that the

2013 PFA prevented it.    Id. at 100-101.     He also attempted to justify his

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failure to avail himself of his custodial periods by referencing his disagreement

with Mother regarding the logistics of the custody exchanges. Id. at 103-105.

Furthermore, Father claimed that he did not attend reunification therapy

because Dr. Kessler and Mother’s lawyer are friends on Facebook and Father

got “bad feelings” from Dr. Kessler. Id. at 106-107. As discussed infra, these

excuses are unavailing.

      In sum, the orphans court determined that Father failed to maintain

contact with J.M.H. for more than three years before Mother filed her petition

to terminate parental rights, and his explanations for his inaction were

unpersuasive.   In addition, the orphans’ court concluded that “there is no

continuing relationship between [Father] and [J.M.H.] for the court to

evaluate.” Orphans’ Court Opinion, 3/6/18, at 7. As Father has not had any

contact with his son since 2014, we find that the court’s conclusions are amply

supported by the record. Accordingly, we discern no abuse of discretion in its

decision to terminate Father’s parental rights to J.M.H. pursuant to

§ 2511(a)(1).

      Next, we address Father’s challenge to the orphans’ court’s § 2511(b)

analysis. In reviewing the evidence in support of termination under § 2511(b),

our Supreme Court has stated as follows.

             [I]f the grounds for termination under subsection (a) are
      met, a court “shall give primary consideration to the
      developmental, physical and emotional needs and welfare of the
      child.” 23 Pa.C.S. § 2511(b). The emotional needs and welfare
      of the child have been properly interpreted to include
      “[i]ntangibles such as love, comfort, security, and stability.” In

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        re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M., [533
        Pa. 115, 121, 620 A.2d 481, 485 (Pa. 1993)], this Court held that
        the determination of the child’s “needs and welfare” requires
        consideration of the emotional bonds between the parent and
        child. The “utmost attention” should be paid to discerning the
        effect on the child of permanently severing the parental bond. In
        re K.M., 53 A.3d at 791.

In re: T.S.M., supra at 267.

        When evaluating a parental bond, “the court is not required to use

expert testimony. Social workers and caseworkers can offer evaluations as

well.    Additionally, section 2511(b) does not require a formal bonding

evaluation.” In re Z.P., supra at 1121 (internal citations omitted). Although

it is often wise to have a bonding evaluation and make it part of the certified

record, “[t]here are some instances . . . where direct observation of the

interaction between the parent and the child is not necessary and may even

be detrimental to the child.”    In re K.Z.S., 946 A.2d 753, 762 (Pa.Super.

2008).

        With regard to § 2511(b), Father argues that “a bond truly exists

between [him] and [J.M.H.]” and that “[i]t is impossible to conclude that

terminating Father’s parental rights ‘will clearly promote the welfare of the

child.’” Father’s brief at 23. Further, Father argues that Mother “was not able

to establish that severing the . . . parent-child bond, given Father’s efforts to

maintain contact with his son and stabilize his life, was in the best interest of

the child.” Id. Father asserts that the “only testimony critical of the bond

between Father and his son came from Mother who, without any doubt


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whatsoever, presented as an extremely biased source who at all relevant

times has wanted Father permanently out of the lives of both herself and her

son.” Id.

     In rejecting Fathers assertions, the orphans’ court explained:

            In this case, the testimony clearly established that, although
     birth father maintains that he loves his son, he has not taken steps
     necessary to maintain contact and to maintain a place of
     importance in his son’s life. He has not seen his son since June of
     2014, nor has he sent his son letters, presents or cards for
     birthdays or other occasions. Although he asserts that the PFA
     against him obtained by birth mother impeded his contact with his
     son, he did not take advantage of the opportunity to arrange visits
     pursuant to an order of the family court for every other Saturday.

           Based upon all of the testimony, I conclude that no evidence
     was presented to support birth father’s contention that there is
     now any emotional attachment between birth father and son. I
     therefore conclude that the emotional needs and welfare of
     J.M.H. . . . can best be met by termination of the parental rights
     of the birth father and that J.M.H. . . . will not suffer a detriment
     as a result of termination of the parental rights of his birth father.

           The testimony also demonstrated that the parental bond
     between J.M.H. . . . and his step-father is strong and loving and
     that his step-father is involved with him on a daily basis, involved
     with his school and extracurricular activities, and supportive of his
     special needs.

Orphans’ Court Supplemental Opinion, 3/6/18, at 10-11.

     Again, our review of the certified record supports the orphans’ court’s

determination.   While Father testified regarding activities he and J.M.H.

engaged in, such as swimming, watching movies, reading, and crabbing, those

events occurred nearly three and one-half years ago when J.M.H. was no older

than four.   Father has not seen his son since at least June 2014.            N.T.,


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11/29/17, at 103, 111-13. In the interim, Father failed to send letters, cards,

or gifts. Id. at 14-15, 67, 136. Indeed, Mother testified that J.M.H. does not

remember Father and that he is excited to be adopted by Stepfather. Id. at

70, 71.

      In contrast to J.M.H.’s non-existent relationship with Father, the child

has a significant bond with Stepfather, whom he typically refers to as “dad.”

Id. at 70, 78-79.    The certified record demonstrates that Stepfather and

J.M.H. spend a substantial amount of time together playing, reading books,

and doing homework. Id. at 80-83. Stepfather takes J.M.H. to school events

and doctor’s appointments, and he attends the child’s Cub Scout meetings.

Id. at 80-83.

      In light of the foregoing evidence in the certified record, we sustain the

orphans’ court’s conclusion that an emotional attachment does not exist

between Father and J.M.H. and that J.M.H. will not suffer a detriment as a

result of the termination of the parental rights of Father. As the orphans’ court

accurately determined, the parental bond between J.M.H. and Stepfather is

strong and loving and J.M.H.’s needs and welfare can best be met by

terminating the parental rights of Father.      Hence, we do not disturb the

orphans’ court’s decree.

      Decree affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/18




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