J-S65015-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE MATTER OF THE ADOPTION OF:                 IN THE SUPERIOR COURT OF
S.R.B.                                                  PENNSYLVANIA



APPEAL OF: C.R.B. AND S.B.
                                                      No. 531 WDA 2016


                 Appeal from the Order Entered March 10, 2016
                  In the Court of Common Pleas of Erie County
                 Orphans' Court at No(s): 55 IN Adoption 2015


BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                      FILED SEPTEMBER 08, 2016

        C.R.B. and S.B. appeal from the trial court’s order denying their

petition to involuntarily terminate the parental rights of Appellee, A.B.

(“Father”) to his daughter, S.R.B. (“Child”) (born 2/12).1       After careful

review, we affirm.

        Appellants are Child’s legal guardians.    C.R.B. is Child’s maternal

grandmother; S.B. is Child’s step-grandfather.        J.R. is Child’s maternal

grandfather and C.R.B.’s former husband. Mother and Father met in 2011;

Mother became pregnant with Child shortly thereafter. Mother has serious

drug abuse issues; Father was incarcerated for theft in early 2013, just after

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   The parental rights of Child’s mother, N.R, were also involuntarily
terminated. She, however, is not a party to this appeal.
J-S65015-16



Child’s first birthday.     Due to Mother and Father’s erratic and dangerous

behaviors, Appellants often cared for Child.              In May 2013 Child was

adjudicated dependent after Mother was arrested for driving under the

influence with Child in the vehicle.           Child remained in foster care for one

month and, in 2014, Child was placed in Appellants’ care.             In June 2014,

Appellants were awarded legal custodianship of Child.

        On July 20, 2015, Appellants filed a petition to terminate Father’s

parental rights under sections 23 Pa.C.S. §§ 2511(a)(1), (a)(2), (a)(5),

(a)(8) and (b) of the Adoption Act.2 On March 10, 2016, the trial court held

a termination hearing at which C.R.B., J.R., and Father (via telephone from

prison) testified.     On March 10, 2016, the trial court entered an order

denying Appellants’ petition to terminate Father’s parental rights.               This

timely appeal follows.

        On appeal, Appellants present the following issue for our review:

        Did the trial Court abuse its discretion and render its opinion on
        insufficient evidentiary support when it refused to terminate the
        parental rights of Father to his daughter [S.R.B.] where, in the
        first year of [S.R.B.’s] life, Father lived a chaotic lifestyle, abused
        drugs, used alcohol and failed to provide his daughter with a
        stable, safe living situation, and since that time has been
        incarcerated, has failed to indicate when he will be released, has
        failed to solidify tangible plans for housing and a job upon his
        release, has made only minimal attempts to contact his
        daughter, and has only a tenuous parental bond with her?


____________________________________________


2
    23 Pa.C.S. §§ 2101-2910.



                                           -2-
J-S65015-16



      When reviewing a trial court’s decision to grant or deny a termination

of parental rights petition, an appellate court should apply an abuse of

discretion standard, accepting the court’s findings of fact and credibility

determinations if they are supported by the record, and reversing only if the

trial court made an error of law or abused its discretion. In re S.P., 47 A.2d

817, 826 (Pa. 2011).        “[A] decision may be reversed for an abuse of

discretion only upon demonstration of manifest unreasonableness, partiality,

prejudice, bias, or ill-will.” Id.

      It is well established that “[i]ncarceration of a parent does not, in

itself, provide grounds for the termination of parental rights[;] a parent’s

responsibilities are not tolled during his incarceration.”   In re D.J.S., 737

A.2d 283, 286-87 (Pa. Super. 1999).            In In re S.P., supra, the

Pennsylvania Supreme Court further explored the relevance of incarceration

in termination cases under section (a)(2). The Court stated:

      [I]ncarceration, while not a litmus test for termination, can be
      determinative of the question of whether a parent is incapable of
      providing “essential parental care, control or subsistence” and
      the length of the remaining confinement can be considered as
      highly relevant to whether “the conditions and causes of the
      incapacity, abuse, neglect or refusal cannot or will not be
      remedied by the parent,” sufficient to provide grounds for
      termination pursuant to 23 Pa.C.S. § 2511(a)(2).

Id. at 830. Moreover, the Court noted that

      [a] parent’s absence or/or failure to support [his or her child]
      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


                                     -3-
J-S65015-16


      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.

Id. at 828 (emphasis added).

      Instantly, Father was incarcerated just after Child’s first birthday and

will remain incarcerated, at a minimum, until Child is 4 years of age, and

likely older.   See id. at 831 (“[L]ength of remaining confinement can be

considered as highly relevant to whether ‘the conditions and causes of the

incapacity, abuse, neglect or refusal cannot or will not be remedied by the

parent.’” ). However, “[p]arental duty requires that the parent not yield to

every problem, but must act affirmatively, with good faith interest and

effort, to maintain the parent-child relationship to the best of his or her

ability, even in difficult circumstances.” In re D.J.S., supra at 284.

      Here, the testimony unequivocally shows that Father calls Child at

least once or twice daily when she is in Maternal Grandfather, J.R’s care.

While Child has not visited with Father recently, this as a result of

Appellants’ decision “to not normalize the prison system for [Child].” N.T.

Termination Hearing, 3/10/16, at 43. Moreover, the trial court did not find

C.R.B.’s (Maternal Grandmother) testimony regarding Father’s failure to

request visits or call Child on the phone credible. See In re S.P., supra.

Instead, the court chose to credit Father’s testimony that: (1) he attempted

to call Child at least four times a month when she was in Appellants’ care;

(2) he has consistently sent Child letters, pictures of himself, and presents

during the holidays; (3) Appellants refused to allow him to talk or visit with

                                     -4-
J-S65015-16



Child    continuously      throughout      2014-2015;   (4)   despite   Appellants’

obstructionist tactics, Father has continued to remain in contact with Child

via reaching out to J.R. (Maternal Grandfather); (5) Father has been taking

classes and workshops in prison to address his behavior problems; (6)

Father is a trained laborer and currently works in a carpentry shop to build

his employability skill post-incarceration; (7) Father has a post-incarceration

plan for supporting him and Child; and (8) Father has a bond with Child.

        After reviewing the certified record, relevant case law and the parties’

briefs on appeal, we rely upon the comprehensive opinion authored by the

Honorable Robert A. Sambroak, Jr., to affirm the trial court’s order denying

Appellants’ petition to terminate Father’s parental rights to Child.           We

instruct the parties to attach a copy of Judge Sambroak, Jr.’s decision in the

event of further proceedings in the matter.

        Order affirmed.3



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


____________________________________________


3
  Child’s Guardian Ad Litem has also filed a brief in the instant appeal and
concurs with the trial court’s order denying termination of Father’s parental
rights to Child.



                                           -5-
J-S65015-16


Date: 9/8/2016




                 -6-
                                                                                                   Circulated 08/26/2016 09:12 AM




IN THE MATTER OF                                                     COlJRT OF COMMON PLEAS
run ADOPTION                 OF                                      01" ERlE COUNTY, PENNSYLVANIA
                                                                     ORPHANS COURT DIVISION

ssa· ••:.       r~nn.••r~                                            No. SS in Adoption 2015

                                                     19.25(n) OPINION

             The maternal grandmother and her husband, who are also the permanent legal custodians

of SIIIIJ RJllltB~> filed a petition lo involuntarily terminate the parental rights of both the

biological mother and biological father. Following a henring a Decree was entered granting the

petition to terminate the parental rights· of the mother.' A separate order wns entered denying the

petition as to the lather. · The grandparents flled             ii timely appeal   from that order. Because elem·

nnd convincing evidence was not presented to support the claims of the maternal grandparents

that father's pnrental rights should be terminated, it is requested the Superior Court afflrm the

order.
                                                  ISSUES J>RESENTF.,D

             Appellant raises the following Issues:

             First, this court erred in not terminating Father's pnrentul rights where Father was unable

to provide the court with a date on which his lengthy incarceration would end and/or what his

plans relative to avnilabillty for the child would be upon release                 «,




             Second, this court erred in not terminating the Father's parental rights where the weight

of the evidence suggests thot no bond has ever existed between the child and (he Father, even

prior to and during his lncarccration.

             Third, this court erred in not terminathig Father's parental rights where the weight of the

evidence suggests that Fa I her never performed any meaningful parental duties on behalf of the

child.
I
    Mother   did not   me an appeal   from the decree terminating her parental rights.




                                                                       COF7
        Fourth, this court erred in not terminating Father's parental rights where, since the

Petitioners were granted Permanent Legal Custodianship by the Juvenile Court, the only efforts

Father made to initiate or maintain a relationship with the child was the writing of an occasional

letter or card, had a few sporadic visits at a state prison, and made a small number of phone calls

to the child.

        Fifth, this courterred in determining that the Father had effectively utilized the resources

he had at his disposal when only a handful of written communications were sent to the child,

who could not even read, and that the programming the rather took advantage of during his

lengthy incarceration were aimed at addressing his own problems and had nothing to do with

parenting and/or the issues that led the child being placed with a Permanent Legal Custodian.

        Sixth, this court erred in not finding termination of Father's parental rights was

appropriate when the uncontroverted testimony indicated that Father had not had any meaningful

contact with the child since June of 2014.

                                         BACKGROUND
        Appellants became permanent legal custodians of the child (S.B.) at the conclusion of

dependency proceedings in June, 2014. Involuntary Terminatton of Parental Rights Hearing

Transcript, 3/10/16, p. 26. At the time, father was incarcerated in SCI Mercer. Soon after,

Father made consistent attempts to contact Appellants at least once a week to speak with S.D.

When Appellants were unavailable, he would call back at a later time, or on a different date.

Involuntary Termination of Parental Rights Hearing Transcript, JI l 0/ 16, p. 68.
        Appellants brought the child 10 visit the father in prison once or twice in 2013 but

subsequently refused to allow the child to see her father, despite father's numerous requests.

Appellant grandmother stated she and her husband "chose not to normalize the prison system for


                                                  2
an infant." Involuntary Termination of Parental NightsHearing Transcript, 3/10116, p 28, 43,

70.

       In addition to the relationship that exists with the maternal grandmother and her new

husband, S.B. also has an established relationship with her biological maternal grandfather who

she visits every Sunday. Involuntary Termination of Parental Rights Hearing Transcript,
3/10/16,p. 31, 54. When S.B. visits with her grandfather, the father makes regular phone calls to

speak with the child. Usually, their conversations Inst about u half hour. Involuntary

Termination of Parental Rights Hearing Transcript, 3/10116, p 56. Many Sundays} the father
calls to speak with the child twice. Involuntary Termination of Parental Rights Hearing

Transcript, 3/10116, p. 53, 56. During these phone calls, S.B. recognizes his voice and knows

him as her father, She calls him "daddy A-." She seems happy and excited when she gets to

talk with him and is "bubbly, outgoing, and very talkative." Involuntary Termination of Parental

Rights Hearing Transcript, 3/10/16, p. 54-55, 59, 77.

       Father's last request to have visitation with S.B. in prison was around Father's Day, 2015.

At first, Appellants agreed to bring the child to Mercer. Later, Appellants refused. When father

teamed Appellants were not bringing S.B. to visit, he called to speak with S.B. on Father's Day.

Though he could hear the child in the background, Appellants did not allow S.B. to speak to him.

At this time, Appellant told the father she and her husband were petitioning to terminate his

parental rights. She had no intention of allowing him to speak to the child again. Involuntary

Termlnatlon of Parental Rights Hearing Transcript, 3/10//6, p. 72. After this conversation,

father's attempts to contact the child through the Appellants ceased. Instead> the father directed

his focus to contacting S.B. while she visited with her grandfather, Involuntary Termination of

Parental Rights Hearing Transcript, 31101/6, p. 73.


                                                 3
        Though denied visits with the child, the father still wrote letters, sent cards, drawings,

pictures, and gifts to the child for her birthday, Christmas, and at various other times during the

year. Many of these gifts he made by hand. Involuntary Termination of Parental Rights

Hearing Transcript, 3//0/16, p. 28, 43, SJ, 6.9. Most of these gifts were sent to the child's

grandfather's home, in numbers too great to count. Involuntary Termination of Parental Rights

Hearing Transcript, 3/10/16, p. 53-54. Father even paid to have u picture taken of himself while

in prison, and sent this photo to the child so she would know what he looked like. Involuntary

Termination of Parental Rights Hearing Transcript, 31101/6, p. 68.

        When asked whether she or her husband ever argued with the father or denied him

contact with S.B., Appellant grandmother at first denied this. Involuntary Terminationof

Parental Rights Hearing Transcript, 31101/6, p. 29, However, she later admitted she

discontinued facilitating phone contact between the father and the child. Involuntary

Termination ofParental Rights Hearing Transcript, 3//0116, p. 38.

       Appellant's assertion father was inconsistent with his attempts to contact the child was

also directly contradicted by her own testimony, when she admitted she knew the father

contacted S.B. while she had weekly visits with her grandfather. Involuntary Termination of

Parental Rights Hearing Transcript, 3//0/16, p. 38.

       Father also testified he completed numerous programs, including a violence prevention

class and therapeutic community program. He was also considered a low-risk inmate, which

gave him the ability to work outside the prison and learn a tra~e. Currently, father is skilled in

welding and carpentry. Involuntary Termination of Parental Rights Hearing Transcript, 3/10/16,
               J            •

p. 75, 83. Father also formulated a relapse prevention plan to Implement upon his release,

Involuntary Termination of Parental Rights Hearing Transcript, 311 Oil 6, p. 78. His minimum


                                                  4
parole date is al the end of 2016. He wilt max out in 2019. Involuntary Termination of Parental

Rights Hearing Transcript, 3/10116, p. 73-74.

       At the conclusion of testimony, this court determined the Appellants had not met their

burden in proving grounds for termination existed relative to the father by clear and convincing
evidence. This court denied their petition to terminate the father's parental rights.

                                     STANDARD OF REYIRW

       ln reviewing an appeal from an order terminating parental rights,

                Appellate courts must apply an abuse of discretion standard when considering a
                trial court's determination of a petition for parental rights. (The] 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." In re: R.J. T.,
                608 Pa. 9, 9 A.3d 1179, 1190 (2010).

               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. An abuse of
               discretion does not result merely because the reviewing court might have reached
               a different conclusion. Id Instead, a decision may be reversed for an abuse of
               discretion only upon determination of manifest unreasonableness, partiality,
               prejudice, bias, or ill-will. Id.

                                            DlSCUSSION

       "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." In re B.N.M., 856 A.2d 847, 855 (Pa.

Super 2004). "A parent must utilize all available resources to preserve the parental relationship,

and must exercise reasonable firmness in resisting obstacles placed in the path of maintaining the

parent-child relationship."   Id. "Where a parent is incarcerated, the fact of incarceration does not,

in itself> provide grounds for the termination of parental rights." Id On the other hand, a parent's
incarceration docs not preclude termination of parental rights ff the incarcerated parent fails to

utilize given resources and to take affirmative steps to support a parent-child relatlonslp. In re

                                                   5
D.JS., 737 A. 2d 283 (Pasuper 1999). Where the parent does       not exercise reasonable firmness in

"declining to yield to obstacles" his parental rights may be forfeited. In re A.l.D., 797 A.2d 326

(Pasuper 2002)

       Appellants' contention this court erred in finding insufficient grounds to terminate

father's parental rights to the child is without merit. Appellants point to father's incarceration,

supposed "sporadic" contact, and inability to perform meaningful parental duties on behalf of the

child to show father's rights should be terminated. However, the testimony at the termination

hearing showed father's contact with S.B. was frequent, that S.B. was bonded to the father and

looked forward to interacting with him, and thut the father was committed to providing for the

child upon his release.

        It is clear to this court the father has done everything he could do from prison to better

himself, remedy the conditions which resulted in the child's placement, and foster a positive

relationship with S.B. Based on his frequent and continuing contact with the child and his

actions while incarcerated, he has shown "no settled purpose" of relinquishing his parental claim

to the child or refusal to remedy the conditions which led to her placement. Sea 23 Pa. C.S.A.

§251 l(n)(l) and (a)(2).

       The father completed numerous programs while in prison to address any problem he may

have had with drugs. He completed a violence prevention course and earned trustee status in the

prison. He is thus eligible to work outside the prison walls and learn trade skills that will make

him a marketable worker and productive member of society upon his release, Involuntary

Termination of Parental Rlghls Hearing Transcript, 3/101/6, p. 75, 83. In this way, father,

though incarcerated, continuously worked to remedy conditions that lead to the child's

placement.


                                                  6
        The father and the child's grandfather shared regular contact every day, and the father

has regular and meaningful contact with the child every Sunday: Involuntary Termination of

Parental Rights Hearing Transcript, 3//0/16, p. 54-56. The testimony showed the child looks

forward to talking to her father, recognizes his voice, recognizes his face, and has a positive

relationship with him. During father's incarceration, his attempts to contact the child were not

limited to letters. He sent pictures and gifts in numbers too great to count. Involunuiry

Termination of Parental Rights Hearing Transcrtpt, 3/10116, p. 28, 43, 53, 69. When Appellants

denied him contact with the child, father   continued to contact the child through her other

grandfather and was not discouraged.

        No credible testimony was presented to show a lack of bond or failure of the father to

take an interest in his daughter's life. To the contrary, testimony tended to show the Appellants

did everything in their power to thwart father's contact with   S.n.   and extinguish the bond

between them. Appellant grandmother testified she did not want to "normalize" the prison

system for her grandchild, and wanted to send S.B. lo school with the last name of Boyd, like all

the other children. Involuntary Termination of Parental Rights Hearing Transcript, 31I 0/16,

p.28, 43, 49, 70. She and her husband denied the father contact on Father's Day 2015. By all

accounts, they have never supported a relationship with the child's father and see no benefit to

her relationship with him. In light of these facts, clear and convincing evidence did not exist to

support termlnatlon of father's parental rights under §251 l(a)(t) or (2).

        The remaining statutory subsections permitting termination of parental rights are

inapplicable to the father.

        The father is the birth father of the child. Termination under (a)(3) is therefore improper.

See 23 Pa. C.S.J\. §2511 (a)(3).


                                                   7
        S.B. was not in the custody of an agency at the time the petition was filed, "under such

circumstances where the identity or the whereabouts of the parents is/are unknown and cannot be

ascertained." See 23 Pa. C.S.A. §251 l(a)(4).

        Subsection five is also inapplicable. The child was not removed from the father's care.

See 23 Pa. C.S.A. §251 l(a)(S).

        Subsection six is inapplicable. The child was four years old at the time of the termination

hearing. In light of the preceding analysis, it is clear father did everything he could to maintain

continuing and meaningful contact with the child, despite his inability to provide substantial

financial support for her due to Incarceration. See 23 Pa. C.S.A. §2511 (a)(6)

        Subsection seven is inapplicable. No testimony was presented to show the child was

conceived as a result of rape or incest See 23 Pa. C.S.A. §2511 (a)(7)

       Subsection eight is inapplicable. A permanent legal custodianship does not terminate a

parent's rights to his or her child, nor does it preclude   fl   parent from pursing custody and/or

visitation with the child in the future. To terminate father's rights under this subsection would

ignore the progress he has made while incarcerated and the very obvious bond he and S.B. share.

There is no evidence, outside father's incarceration, termination of fathers parental rights would

serve the needs and welfare of the child. See 23 Pu, C.S.A. §25 t 1 (a.)(8).

        Finally, subsection nine is inapplicable. Father has not been convicted of any of the

enumerated offences in §2511 (u)(9). See 23 Pa. C.S.A. §2511 (a)(9).

                                           CONCLUSION

       The evidence presented reflects the Appellants failed to meet their burden showing the

father failed to utilize available resources to maintain a close relationship with his child while

imprisoned. The father still docs all in hls power lo maintain contact with her. In denying


                                                   8
Appellants' request to terminate father's parental rights, this court did not on. ft is therefore

requested the Superior Court ~1ffir111.

               Dated this   ~~L day of May, 2016
                                                       BY"THE COURT:




cc:    Alison Scarpitti, Esq.
       I SO Enst 81h Street
       Etie, PA ·16507

       Deanna Heasley, Esq.
       333 State Street
       Suite 203
       Erie, PA 16507

       ~i~~neytEs-q-::'~·-
       2so3 West 261h Street
       Eric, PA J 6506




                                                  9
INRE:                                                IN THE COURT OF COMMON                                                   PLEAS
                                                     OFERJE COUNTY, PENNSYLVANIA
ADOPTION OF
                                                     ORPHANS' COURT DMSION
ss•      IRIISB:--                                   NO: 55-2015


                                              ORD   EB
        AND NOW, this 1 Olh day of March, 2016, following a hearing on the petition for

termination of parental rights filed by the maternal grandparents, and after consideration of the

evidence and applicable law, it is hereby ORDERED, ADJUDGED, and DECREED the

petition as to the biological father, A...   B-   is DENIED.




                                                     BY THE COURT:



                                                     R.. .,.~'-+-E-4-R--"~;;;.. .A. . :. ~L.a· "----", 1,,,.-0-AK-,-JR-.--J       .•




                                                                       F            ILED
                                                                                    MAR 10 2016
                                                                    ,. Register of Wills
                                                                                                                              "
IN THE MATTER OF                                     COURT OF COMMON PLEAS
THE ADOPTION OF:                                     ERIE COUNTY PENNSYLVANIA
                                                     ORPHANS COURT DIVISION

                                                     No SS in Adoption 2015

                    NOTICE OF Af PEAL-CHILDREN'S FAST TRACK
       Notice is hereby given that the Petitioners in the above-captioned action appeal the
attached Order concerning the parental rights to a minor child, entered by the Court on March I 0,
2016.
                                      Respectfully submitted,




                                      Patrick W. Kelley, Es .
                                      Atty ID# 207662
                                      2503 W. 261h St.
                                      Erie, PA 16506

                    NOTICE OF CHILDREN'S FAST TRACK APPEAL

       Pursuant to Pa.R.A.P. 102 and 904 Notice is hereby given that this is a Children's Fast
Track Appeal and should be marked as such by the Prothonotary..




                             REQUEST FOR TRANSCRIPT <NIA)

        Counsel is in receipt of the transcript of the proceedings on March l 0, 2016.




    F        LED
        lAPR 11 2016
I
    Register of Wills
IN THE MATTER OF                                     COURT OF COMMON PLEAS
THE ADOPTION OF:                                     ERIE COUNTY PENNSYLVANIA
                                                     ORPHANS COURT DIVISION
S ...     R_B      __                                No 55 in Adoption 2015

                                CERTIFICATE OF SERVICE

        I certify that a true and correct copy of the foregoing was duly served by hand or by mail
on the following:

Hon. Robert A. Sambroak, Jr.
Judicial Chambers
Erie County Courthouse
Alison Scarpitti, Esq.
Counsel for Respondent Father
e-mail/ Courthouse mail
Lisa Walbridge, Esq.
Counsel for Respondent Mother
e-mail/ Courthouse Mail

Deanna L. Heasley, Esq.
G.A.L.
Court Administration
Erie County Courthouse


                                      Respectfully submitted,




                                      Date
