J-S08042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ADOPTION OF K.L.V.                  :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: C.R.                            :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 1481 WDA 2017

                Appeal from the Order Dated September 7, 2017
       in the Court of Common Pleas of Fayette County Orphans' Court at
                            No(s): 34-ADOPT-2016


BEFORE:      LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                           FILED MARCH 19, 2018

        Appellant, C.R. (“Mother”), files this appeal from the Order dated

September 7, 2017, and filed September 8, 2017,1 in the Fayette County Court
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1 While the docket reflects a recorded date of September 8, 2017 and an
affidavit of service included with the order indicates that copies were sent on
September 8, 2017, there is no notation on the docket that notice was given
and that the order was entered for purposes of Pa.R.C.P. 236(b). See Frazier
v. City of Philadelphia, 557 Pa. 618, 621, 735 A.2d 113, 115 (1999) (holding
that “an order is not appealable until it is entered on the docket with the
required notation that appropriate notice has been given”); see also Pa.R.A.P.
108(a) (entry of an order is designated as “the day on which the clerk makes
the notation in the docket that notice of entry of the order has been given as
required by Pa.R.C.P. 236(b)”.). Thus, the order was not entered and the
appeal period not triggered. Moreover, in transmitting the certified record for
purposes of appeal, the Clerk of Orphans’ Court Division of the Court of
Common Pleas of Fayette County only provides this Court a list of documents
composing the certified record as opposed to a certified copy of the docket
entries as also required. See Pa.R.A.P. 1921 (requiring the record contain a
certified copy of the docket entries prepared by the clerk of the lower court).
J-S08042-18



of Common Pleas, denying her petition to involuntarily terminate the parental

rights of Father to his minor son, K.L.V. (“Child”), born in June of 2008. After

review, we affirm the trial court’s order.

       The trial court summarized the relevant procedural and factual history,

in part, as follows:

                                   BACKGROUND

             The background of this case in quite convoluted. [Child]
       was born [in] June [of] 2008 in New York. According to Mother,
       [Child] was conceived as the result of a “one-night stand.” She
       deliberately concealed her pregnancy and [Child]’s birth from
       Father. At the time, Mother was in a committed relationship with
       [another woman,] K.V., and had been since 2005. Mother and
       K.V.’s relationship has been tumultuous. The two moved to
       Fayette County in December 2007, while Mother was pregnant
       with [Child].[2] When [Child] was seven months old, Mother and
       K.V. separated, prompting K.V. to file a custody complaint
       claiming in loco parentis status of [Child] on February 6, 2009.[3]
       Neither party joined Father as an indispensable party to the
       action, but they entered into a consent order on March 2, 2009.
       The two women reconciled some time thereafter and were married
       in Connecticut in 2010.
____________________________________________


We do note, however, that a docket report is included with the notice of
appeal. While we consider the matter on the merits, we caution the Clerk as
to compliance with the rules with regard to the entry of orders and provision
of certified copy of docket entries.

2 Mother testified that she was temporarily residing in Wellsville, New York
when Child was conceived. Notes of Testimony (“N.T.”), 8/30/16, at 16. She
later suggests that she briefly resided in New York again in 2011 around the
time of the paternity proceedings. Id. at 34-35.

3 From the record, it is unclear as to when K.V. raised the issue of in loco
parentis standing. Nevertheless, this issue is irrelevant to and not dispositive
of our decision.



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             Sometime in April 2011, they separated again, and Mother,
       in an attempt to gain full custody of [Child], contacted Father and
       made him aware of [Child]’s existence and the pending custody
       action. Father quickly filed a paternity action in New York, and in
       May 2011, DNA testing confirmed that Father was [Child]’s
       biological father. Mother eventually reconciled with K.V. again,
       and the two women intentionally distanced [Child] from Father.
       When Father attempted to intervene in the custody action, he was
       told by Mother that she would file harassment charges against
       him.[4] Father actively tried to locate [Child], Mother, and K.V. to
       no avail.

              In early 2012, Father retained counsel, Brent Peck, Esq., in
       Fayette County and counsel was able to locate Mother, K.V. and
       the child. Due to financial hardship, however, Father did not file
       a new custody action until July 16, 2013. A mediation conference
       was held in December 2013,[5] and Father’s custody action was
       dismissed due to the existing action between Mother and K.V. [6]
       Mr. Peck attempted to refer Father to the Southwestern
       Pennsylvania Legal Aid Society due to Father’s inability to continue
       paying. Legal Aid was unable to represent Father. On July 28,
       2015, after Father was able to gather the money to pay counsel,
       he filed a petition to intervene in the custody action [between
       Mother and K.V.] Another custody mediation conference was
       held, and by Order dated February 24, 2016, Father was granted
       visitation with [Child] on February 25, 2016 and daily phone calls.
       By additional Order dated February 25, 2016, Father was awarded
       additional visitation on March 26, 2016 and April 22-23, 2016.
       Mother and K.V. failed to deliver the child for the first custody
       exchange, even though Father traveled from New York to exercise
____________________________________________


4 Father testified that, subsequent to the establishment of paternity, he was
threatened with harassment charges. N.T., 8/30/17, at 46, 55-56.

5 Evidence presented at the June 29, 2017 hearing reveals that this mediation
conference actually occurred in October 2013, not December 2013. See
Respondent’s Exhibit 2. Notably, Mother and K.V. failed to appear at this and
all other mediations, while Father traveled from New York to appear. N.T.,
6/29/17, at 14, 21, 23-24.

6  There appears to be some disparity as to whether the initial custody matter
filed by Father was dismissed or whether he agreed to withdraw the action.
N.T., 6/29/17, at 7, 14, 37. Regardless, the docket reflects that the referral
to mediation was vacated. See Respondent’s Exhibit 2.

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J-S08042-18


       his rights, and they never allowed a single phone call between
       Father and [Child].

              On March 3, 2016, Father filed a petition for contempt for
       their failure to deliver the child on February 25, 2016 and the
       failure to permit phone contact. On March 9, 2016, following a
       hearing where neither Mother nor K.V. appeared, the Honorable
       Judge Joseph M. George, Jr., found Mother and K.V. in contempt
       and ordered make-up custodial time on March 25, 2016 and again
       ordered Father’s visit on March 26, 201[6]. Father again traveled
       from New York in order to exercise his custodial time with [Child],
       and Mother and K.V. again failed to deliver the child as ordered.

             On March 31, 2016, Father filed another petition for
       contempt. Another contempt proceeding was held before Judge
       George on April 22, 2016, and neither Mother nor K.V. appeared.
       Judge George issued a bench warrant for their immediate arrest,
       and after they were apprehended on April 25, 2016, he sentenced
       both women to a period of thirty (30) days’ imprisonment.

             On June 2, 2016, another custody mediation conference was
       held, and Father was granted additional custodial time with [Child]
       due to Mother and K.V.’s continuing course of contemptuous
       conduct. Mother and K.V. continued to willfully disobey all court
       orders and instead filed the above-captioned Petition.[7] The first
       hearing was held before this [c]ourt on August 30, 2016, and
       Father appeared late and without counsel. At the time, this
       [c]ourt and the appointed Guardian ad Litem were completely
       unaware of the troubling history of the custody case, despite
       hearing testimony from both Mother and K.V., who were
       represented by counsel, and Father, who appeared pro se. Upon
       further review, the [c]ourt appointed counsel for Father. Court[-
       ]appointed counsel petitioned the [c]ourt for an additional
       hearing.

            On June 29, 2017, that second hearing was held. Counsel
       presented the court records and orders and offered the testimony
       of Attorney Peck.[8]    The Guardian ad Litem changed her
____________________________________________


7 Mother filed the instant Petition for Involuntary Termination of Parental
Rights on July 7, 2016.

8 Father additionally testified again on his own behalf and presented
Respondent’s Exhibits 1 through 3 and 5 through 10, which were admitted.


                                           -4-
J-S08042-18


        recommendation in light of the new evidence, and the parties
        submitted briefs and authority in support of their respective
        positions.

Opinion, 9/8/17, at 1-4 (citations to record omitted) (footnotes omitted).

        By Order dated September 7, 2017, and filed September 8, 2017, the

trial court denied Mother’s petition to terminate Father’s parental rights.

Accompanying this Order was an Opinion addressing the trial court’s rationale

for the failure to terminate Father’s parental rights. Thereafter, on October 7,

2017, Mother, through counsel, filed a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), and on October 10,

2017, a timely notice of appeal.9 See Pa.R.A.P. 903(a) (notice of appeal “shall

be filed within 30 days after the entry of the order from which the appeal is

taken.”) Pursuant to a Statement in Lieu of Opinion filed November 9, 2017,

the court incorporated the Opinion accompanying its Order, which addressed

the issues raised on appeal. See Statement in Lieu of Opinion, 11/9/17.

        On appeal, Mother raises the following issues for our review:

        1. Did the [t]rial [c]ourt commit an error of law and/or abuse of
           discretion when it held that [Father] made reasonable attempts
           to overcome any obstacles created by Appellant in asserting
           his parental rights?

        2. Did the [t]rial [c]ourt commit an error of law and/or abuse of
           discretion when it reversed its initial finding and held that



____________________________________________


9   Both the notice of appeal and concise statement are dated October 5, 2017.




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J-S08042-18


          [Father]’s failure to perform parental duties was solely due to
          [Father]’s “misconduct?”[10]

       3. Did the [t]rial [c]ourt commit an error of law and/or abuse of
          discretion when it failed to find that [Father] was estopped from
          asserting his parental rights after failing to pursue a custody
          action for over three years after his initial custody action was
          withdrawn?

       4. Did the [t]rial [c]ourt commit an error of law and/or abuse of
          discretion when it found that [Buccieri v. Campagna, 889
          A.2d 1220 (Pa.Super. 2005)] was inapplicable to the instant
          case?

Mother’s Brief at 4.

       In matters involving involuntary termination of parental rights, our

standard of review is as follows:

       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.” In re Adoption of S.P., [616 Pa. 309, 325, 47
       A.3d 817, 826 (2012)]. “If the factual findings are supported,
       appellate courts review to determine if the trial court made an
       error of law or abused its discretion.” Id. “[A] decision may be
       reversed for an abuse of discretion only upon demonstration of
       manifest unreasonableness, partiality, prejudice, bias, or ill-will.”
       Id. The trial court’s decision, however, should not be reversed
       merely because the record would support a different result. Id.
       at [325-26, 47 A.3d at] 827. We have previously emphasized our
____________________________________________


10 We observe that Mother fails to preserve a claim as to any “initial finding”
as she fails to address it in the argument section of her brief. See In re W.H.,
25 A.3d 330, 339 n.3 (Pa.Super. 2011), appeal denied, 611 Pa. 643, 24 A.3d
364 (2011) (quoting In re A.C., 991 A.2d 884, 897 (Pa.Super. 2010))
(“[W]here an appellate brief fails to provide any discussion of a claim with
citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived.”); see also In re
M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa.Super. 2017). We note, however,
that the trial court did not issue any finding after the initial August 30, 2016
hearing.

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J-S08042-18


      deference to trial courts that often have first-hand observations of
      the parties spanning multiple hearings. See In re R.J.T., [608
      Pa. 9, 26-27, 9 A.3d 1179, 1190 (2010)].

In re T.S.M., 620 Pa. 602, 628, 71 A.3d 251, 267 (2013). “The trial court is

free to believe all, part, or none of the evidence presented and is likewise free

to make all credibility determinations and resolve conflicts in the evidence.”

In re M.G. & J.G., 855 A.2d 68, 73-74 (Pa.Super. 2004) (citation omitted).

      The termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, and requires a bifurcated analysis

of the grounds for termination followed by the needs and welfare of the child.

      Our case law has made clear that under Section 2511, the court
      must engage in a bifurcated process prior to terminating parental
      rights. 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). We have

defined clear and convincing evidence as that which 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.” In re

C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc) (quoting Matter of

Adoption of Charles E.D.M., II, 550 Pa. 595, 601, 708 A.2d 88, 91 (1998)).

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       In the case sub judice, Mother sought to terminate Father’s parental

rights based upon his failure to perform parental duties.11       We, therefore,

review the court’s order pursuant to subsection 2511(a)(1) and (b), which

provide as follows:

       (a) General rule.--The rights of a parent in regard to a child may
       be terminated after a petition filed on any of the following
       grounds:

              (1) The parent by conduct continuing for a period of
              at least six months immediately preceding the filing of
              the petition either has evidenced a settled purpose of
              relinquishing parental claim to a child or has refused
              or failed to perform parental duties.

                                      * * *
       (b) Other considerations.--The court in terminating the rights
       of a parent shall give primary consideration to the developmental,
       physical and emotional needs and welfare of the child. The rights
       of a parent shall not be terminated solely on the basis of
       environmental factors such as inadequate housing, furnishings,
       income, clothing and medical care if found to be beyond the
       control of the parent. With respect to any petition filed pursuant
       to subsection (a)(1), (6) or (8), the court shall not consider any
       efforts by the parent to remedy the conditions described therein
       which are first initiated subsequent to the giving of notice of the
       filing of the petition.

23 Pa.C.S.A. § 2511(a)(1), (b).

       As to Section 2511(a)(1), we have explained as follows:

       To satisfy the requirements of 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
____________________________________________


11While Mother did not file for termination pursuant to specific subsections of
Section 2511, she used language suggestive of subsection (a)(1). Petition for
Involuntary Termination of Parental Rights, 7/7/16, at ¶7.


                                           -8-
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      termination petition, which reveals a settled intent to relinquish
      parental claim to a child or a refusal or failure to perform parental
      duties. In addition,

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

            Once 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).

In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations

omitted).

      As it relates to the crucial six-month period prior to the filing of the

petition, this Court has instructed:

      [I]t is the six months immediately preceding the filing of the
      petition that is most critical to our analysis. However, the trial
      court must consider the whole history of a given case and not
      mechanically apply the six-month statutory provisions, but
      instead consider the individual circumstances of each case.

In re D.J.S., 737 A.2d 283, 286 (Pa.Super. 1999) (citations omitted). This

requires the Court to “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.,



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856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa. 718, 872 A.2d

1200 (2005) (citation omitted).

     Further, we have stated:

     [T]o be legally significant, the [post-abandonment] contact must
     be steady and consistent over a period of time, contribute to the
     psychological health of the child, and must demonstrate a serious
     intent on the part of the parent to recultivate a parent-child
     relationship and must also demonstrate a willingness and capacity
     to undertake the parental role. The parent wishing to reestablish
     his parental responsibilities bears the burden of proof on this
     question.

In re Z.P., 994 A.2d 1108, 1119 (Pa.Super. 2010) (citation omitted); see

also In re Adoption of C.L.G., 956 A.2d 999, 1006 (Pa.Super 2008) (en

banc).

     Regarding the definition of “parental duties,” this Court has stated:

     There is no simple or easy definition of parental duties. Parental
     duty is best understood in relation to the needs of a child. A child
     needs love, protection, guidance, and support. These needs,
     physical and emotional, cannot be met by a merely passive
     interest in the development of the child. Thus, this Court has held
     that the parental obligation is a positive duty which requires
     affirmative performance.

     This affirmative duty encompasses more than a financial
     obligation; it requires continuing interest in the child and a
     genuine effort to maintain communication and association with
     the child.

     Because a child needs more than a benefactor, parental duty
     requires that a parent exert himself to take and maintain a place
     of importance in the child’s life.

     Parental duty requires that the parent act affirmatively with good
     faith interest and effort, and not yield to every problem, in order
     to maintain the parent-child relationship to the best of his or her
     ability, even in difficult circumstances. A parent must utilize all

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     available resources to preserve the parental relationship, and
     must exercise reasonable firmness in resisting obstacles placed in
     the path of maintaining the parent-child relationship. Parental
     rights are not preserved by waiting for a more suitable or
     convenient time to perform one’s parental responsibilities while
     others provide the child with . . . her physical and emotional
     needs.

In re B., N.M., 856 A.2d at 855 (internal citations omitted).

     In the instant matter, in finding a lack of grounds for termination under

subsection (a)(1), the trial court acknowledged that Father failed to perform

parental duties. The court, however, concluded that Father was not at fault.

Opinion, 9/8/17, at 7.   The court found that, once Child’s existence was

revealed to Father, Father made attempts toward a relationship with Child,

but faced numerous impediments.       Id. at 7-8.   The court likewise found

Mother’s reliance on Buccieri v. Campagna, 889 A.2d 1220 (Pa.Super.

2005), unfounded. Opinion, 9/8/17, at 8-9. The court reasoned as follows:

           It is true that Father has never performed parental duties
     for [Child]. However, this was not Father’s fault. Father and
     Mother never had a relationship beyond the single sexual
     encounter, and this event occurred while Mother was in a
     committed relationship with K.V. . . .

            [Child]’s existence was intentionally concealed from Father
     for almost three (3) years. When Mother and K.V. started battling
     over custody, Mother only included Father (and first notified him
     of [Child]’s birth) because she believed Father would give her a
     tactical advantage against K.V. Once she and K.V. reunited,
     Father was again an unnecessary nuisance. Father filed the
     paternity action in his home state, and as soon as it was confirmed
     that he fathered [Child], he began pursuing custodial rights in
     Fayette County.

           Father encountered several obstacles along the way,
     including his location in New York, the child’s location in Fayette
     County, financial hardships, and the intentional concealment of
     [Child]’s whereabouts. Father retained legal counsel but was

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     unable to pay in full for the necessary legal services. As soon as
     he had sufficient funds, he pursued the custody action, which
     included several trips to Fayette County from New York. He never
     missed a court proceeding or a custody exchange. In fact, Father
     made every reasonable effort to see [Child]. Mother and K.V.
     thwarted his efforts so stubbornly that they served jail time for
     contempt of court, serving the entire sentence imposed rather
     than revealing the whereabouts of [Child]. As noted above, most
     of this information was deliberately concealed from the Court and
     Guardian ad Litem at the first hearing in this matter.

            Mother heavily relies on the Pennsylvania Superior Court
     case Buccieri v. Campagna, 889 A.2d 1220 (Pa.Super. 2005) in
     support of her position. In that case, mother and father had a
     brief intimate relationship, and mother informed father that she
     was pregnant. Buccieri, supra, 889 A.2d at 1221. According to
     mother, father did not believe her, and father left mother one
     week later. Id. at 1221, 1223. The child was born on November
     8, 1996, and approximately four years later, father, mother, and
     child had a chance encounter at a park. Id. at 1221-22. Father
     did not commence custody and paternity actions until 2004,
     despite being fully aware of the child’s existence. Id. at 1222. He
     never asked to visit and did not buy the child gifts or offer any
     financial assistance. Id. In the interim, mother married another
     man, who sought to adopt the child, as he had been acting in loco
     parentis to her, and he and mother had another child that was
     biologically their own. Id. at 1222[,] 1228. The trial court
     permitted father’s paternity action to proceed, and mother
     appealed that order. Id. at 1222. The Superior Court reversed
     the trial court’s holding because mother did not hide her
     pregnancy from father, yet father failed to exercise any parental
     duties for eight (8) years. Id. at 1228. The court held, “When
     balanced against societal concerns for constancy in the child’s life,
     we see no reason to allow [father] to march into [the child’s] life
     at this late date.” Id.

            Buccieri is not applicable to this case. As soon as Father
     was made aware of [Child’s] existence, he commenced a paternity
     action, and as soon as scientific evidence established that he was
     the father of [Child], Father began taking the necessary steps to
     have a relationship with him. The father in Buccieri did not
     attempt to take responsibility for his child until four to eight years
     after he knew he had fathered the child. This case is completely
     different. Father cannot be penalized for the three years he was
     deliberately denied knowledge of [Child]’s existence, and he

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J-S08042-18


      cannot be penalized for the six and one half years since, when his
      efforts to establish a relationship with [Child] have been
      contemporaneously ignored and actively resisted throughout that
      time.

             While it is true that Father has not performed parental
      duties, this was only because of Mother’s and K.V.’s misconduct
      in the custody case. Father’s testimony in this regard is found to
      be true. Father never forfeited his right to have a relationship
      with [Child]. This [c]ourt cannot reward Mother’s abhorrent and
      illegal conduct by granting her petition against Father.

Opinion, 9/8/17, at 7-9.

      Mother, however, argues that, despite knowledge as to Child in April or

May 2011, Father did not file for custody until July 2013. Mother’s Brief at 9.

Further, once withdrawn, Father did not then file to intervene in the existing

custody action until July 2015. Id. Importantly, Mother indicates a lack of

contact or support between these filings. Id. at 9-10. She states as follows:

             In the instant matter, it is clear that despite his knowledge
      of [Child]’s existence, [Father] made a very minimal effort to
      perform parental duties or to cultivate a parent-child relationship.
      [Father] first learned of the child’s existence in April or May, 2011.
      However, he took no action legal or otherwise to even see the
      child until he filed a custody action on July 16, 2013. After that
      action was withdrawn, [Father] made no further attempt legal or
      otherwise to assert his parental rights to [Child] until he filed a
      petition to intervene in the custody action. . . . During the time
      periods between these filings, [Father] was aware of [Mother’s]
      address. [Mother and K.V.] did not relocate from May, 2011
      through July, 2015. Further, [Mother] was represented by the
      same counsel throughout the said period. However, [Father] at
      no time throughout the said period sent financial assistance, gifts
      or cards for [Child], nor did he attempt to contact [Child] through
      [Mother and K.V.] or their counsel.

Id. While recognizing Father’s claims of obstacles created by Mother and K.V.,

Mother asserts that any such activity did not occur until after the most recent

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custody order. Id. at 10. Mother indicates that, as to the period of time

between April or May 2011 and July 2015, Father points only to financial

difficulties and that “he could not financially afford to pursue litigation.” Id.

      Moreover, Mother argues that, regardless of any more recent action on

the part of Father prior to the filing of the termination petition, there was

already abandonment resulting in estoppel. Id. at 10-11.

             Finally, it is of no avail that [Father] finally took action prior
      to the filing of the instant petition. . . . Here[,] as in Buccieri,
      [Father] knew he was [Child]’s father in May, 2011. Due to his
      failure to assert his parental rights in any meaningful way until
      July, 2015, he is estopped from attempting to assert those rights
      now, as his abandonment of [Child] had already occurred by July
      2015.

Mother’s Brief at 11.

      Mother concludes and summarizes as follows:

                                  CONCLUSION

            . . .[Father]’s failure to assert his parental rights to [Child]
      through legal action or otherwise from May, 2011 until July, 2015
      constitute abandonment under 23 Pa.C.S.A. [§ 2511(a)(1)].
      [Father]’s justification that he could not afford counsel does not
      explain his failure to make other attempts to provide for or contact
      [Child].

             Further, it is not persuasive under this court’s precedents.
      Finally, as the abandonment had already occurred by July, 2015,
      [Father] is estopped from asserting his rights.

Id. at 12. We disagree.

      Upon review, as we discern no abuse of discretion with regard to the

trial court’s determinations, we do not disturb them.          The record reveals

efforts by Father to overcome obstacles, including those created by Mother,

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and to establish a relationship with and play a role in Child’s life and in the six

months prior to the filing of the petition for termination, as well as prior.

       There is no dispute that Father filed for and established paternity timely

upon being informed of Child’s existence in 2011. See Petitioner’s Exhibit 1.

Father thereafter filed for custody in July 2013, after he was able to locate

Mother, secure counsel, acquire the necessary finances, and effectuate

service.12 N.T., 6/29/17, at 61-66; N.T., 8/30/16, at 47. Then, subsequent

to withdrawal and/or dismissal, Father filed to intervene in the existing

custody matter in July 2015, once able to acquire the necessary finances

again. Id. at 67, 72; 49.

       Counsel who represented Father with regard to custody confirmed

Father’s diligence in the face of financial difficulties and informational

obstacles with respect to Child’s whereabouts. N.T., 6/29/17, at 11, 13, 17.

Notably, counsel indicated that Father not only maintained a desire to seek

custody of Child, but maintained regular contact with counsel. Id. at 17-19.

In response to whether Father remained in contact from 2013 to 2015, counsel

stated, “Oh, numerous phone calls, numerous conversations, I have various

file notes where he called just to check in and say, hey, I saw this on Facebook,


____________________________________________


12 Father testified that after the paternity test results were disclosed in May
2011, Mother, Child, and K.V. “disappeared,” stating, “we couldn’t find them,
we couldn’t find them on anything.” N.T., 6/29/17, at 61. Father additionally
indicated that he was threatened with harassment charges. N.T., 8/30/16, at
46, 55-56.


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this is what’s going on, and please, I’m working, I’m trying to get the money

together.” Id. at 17. With regard to this period, he continued,

             . . . . This guy has steadfastly maintained to me that he
      wants to see this child, repeatedly, during all periods, particularly
      during the period from the filing of the original custody action
      which was vacated until he was able to come up with the retainer
      fee to [p]etition to [i]ntervene into the existing custody action.
      He maintained continuous contact with me asking to visit with his
      child.

Id. at 18-19.

      Moreover, once he filed for intervention in the existing custody matter

in July 2015, a full year prior to the filing of the petition to terminate, Father

has remained active and involved.         Father attended several mediation

conferences, and was awarded and attempted to exercise custody, traveling

from New York, only to be intentionally thwarted. As a result, Father filed

several petitions for contempt and attended hearings regarding these

petitions, again traveling from New York. N.T., 6/29/17, at 20-21, 23-31, 34,

48. Critically, at the hearing on June 29, 2017, the parties stipulated that

Father expended money on attorney’s fees, travel, lodging, food, and loss of

time from work. Id. at 56. As noted by the court, “Clearly, your client took

aggressive action during the last six months, so that’s not an issue. . . .” Id.

at 59. In fact, counsel for Mother conceded on the record that, once Father

filed to intervene, “he made a lot of efforts.” Id. at 21. Thus, the record fails

to support grounds for termination pursuant to Section 2511(a)(1).




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      Further, we reject Mother’s assertion that, as Father had already

abandoned Child by July 2015, he was now estopped from asserting parental

rights. We find that Buccieri is inapplicable as it applies to the establishment

of paternity, not the termination of parental rights. 889 A.2d at 1228. As this

court stated, “If [Father] had signed an Acknowledgment of Paternity within

the last 8 years, his action for custody would have proceeded as would

[Mother’s] action for termination of parental rights. The issue before this

court is not the termination of [Father]’s parental rights, but whether

those parental rights should be established to begin with.” Id. at 1227

(emphasis added). In the instant matter, Father has established his paternity

and has been attempting to enforce his parental rights through seeking

custody. Notably, Father sought to establish paternity in a timely manner

after Mother finally advised him about Child in 2011.      In addition, for the

reasons stated above, we find the contention that Father had abandoned Child

by July 2015 unfounded. Therefore, any argument of estoppel by Mother is

without merit and fails.

      As we find that the trial court did not abuse its discretion in concluding

Father’s conduct did not warrant the termination of his parental rights, there

is no need to engage in a subsection (b) analysis. See In re P.Z., 113 A.3d

840, 850 (Pa.Super. 2015) (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 (b)).




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      Accordingly, based upon our review of the record, we find no abuse of

discretion and conclude that the trial court appropriately declined to terminate

Father’s parental rights.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/19/2018




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