J-S50030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: A.F.F., A MINOR                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: C.C., NATURAL FATHER            :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 780 WDA 2019

                Appeal from the Order Entered March 12, 2019
      In the Court of Common Pleas of Jefferson County Orphans' Court at
                           No(s): 11A-2018-O.C.


BEFORE:      LAZARUS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                           FILED NOVEMBER 07, 2019

        C.C. (Father) appeals from the order involuntarily terminating his

parental rights to his minor child, A.F.F. (Child), pursuant to 23 Pa.C.S.A. §

2511(a)(1), (2), and (b). After careful review, we affirm.

        Child was born in September 2011 to A.M. (Mother) and Father,

although the relationship did not last. See N.T., 6/13/18, at 6. Father had

two other children who were half-siblings of Child.        Id.   Mother began a

relationship with B.M. (Stepfather) in 2014, and the two were married in

August 2016. Mother subsequently gave birth to Child’s half-sibling, D.M. Id.

at 5-6, 14-15-20, 48-51. Mother, Stepfather, Child, and D.M. continue to live

together as a family, and Child looks to Stepfather as her father. Id. at 5-6,

15-19, 38-39, 48-51.

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S50030-19



       Father had contact with Child, despite the fact that he was incarcerated

three times between 2011 and 2018, and hospitalized in 2013 for issues

related to medication adjustment for his mental illness. Id. at 18, 51-52, 91-

92, 113-16. Child and Father had several visits while Father was incarcerated.

Id. at 18, 94-95, 99-100. However, Father has had no contact with Child

since April 2017, and, shortly thereafter, he was arrested in New York State

on drug-related offenses. Id. at 10-14. On May 23, 2017, while Father was

incarcerated, an emergency custody order was entered.        Id. at 6.   Father

claimed that he never received the emergency custody order, although the

order was served at his mother’s residence, Father’s last known address. Id.

at 8, 108-09, 130-33.

       Child stopped asking about Father around December 2017. Id. at 27.

During his most recent incarceration, Father telephoned his two other

children, but did not telephone Child. Id. at 11, 28, 88. Mother testified that

Father did not send Child gifts, letters, cards or support; however, paternal

grandfather testified that Father sent him letters, which he read to Child.1 Id.

at 11, 28, 61-66. Child never expressed a desire to write to Father. Id. at

70. Paternal grandfather continued to see Child during Father’s incarceration,

every 30 to 45 days for two or three hours; however, the visits ceased when

Mother discovered he had been taking Child to see her half-siblings. Id. at

22, 36-37, 55-58.
____________________________________________


1 Six letters, dated July 2017, August 2017, October 2017, December 2017,
January 2018, and May 2018, were admitted to the record. Id. at 66-67.

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J-S50030-19



      Father was released from jail in April 2018, and resides in a homeless

shelter in Bath, New York, while awaiting admission to a halfway house. Id.

at 90-91.   Father is on New York state parole, and probation in Jefferson

County, Pennsylvania. Id. at 101.

      On March 14, 2018, Mother and Stepfather filed a petition seeking the

involuntary termination of Father’s parental rights pursuant to 23 Pa.C.S.A. §

2511(a)(1), (2), and (b). A number of continuances were granted, and the

court held a hearing on the petition on June 13, 2018. Gina Bianco, Esquire,

served as Child’s guardian ad litem. Mother; maternal grandfather (J.F.); and

Stepfather testified in support of the petition. Father, represented by counsel,

testified on his own behalf. Additionally, Father presented the testimony of

paternal grandfather, C.C.; father’s sister, N.C.; and Father’s former

paramour and the mother of Child’s half siblings, C.R.

      On July 9, 2018, the court terminated Father’s parental rights. Father

timely filed a notice of appeal and concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).       On December 19,

2018, this Court remanded the matter to the trial court so that Child’s attorney

could determine Child’s preferred outcome. See In re A.F.F., 203 A.3d 333

(Pa. Super. 2018) (unpublished memorandum).

      On remand, the court appointed Keith Strano Taylor, Esquire, to serve

as Child’s attorney.   On March 1, 2019, Attorney Taylor sent the court

correspondence indicating that Child’s preference was consistent with Child’s

best interests, as indicated by Attorney Bianco. The letter specifically stated

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J-S50030-19



that Child would like to have the same last name as D.M., so “we can be a

family,” and noted that although Child knew Father was her biological father,

she viewed Stepfather as her father.     The letter misidentified Father’s last

name, mistakenly using Mother’s maiden name. On March 14, 2019, by order

dated March 12, 2019, the court terminated Father’s rights.

      On May 6, 2019, Father’s counsel filed a motion for leave to file a notice

of appeal nunc pro tunc, averring that Father desired to appeal, but that

“inexplicably,” counsel failed to file the notice of appeal. See Motion, 5/6/19,

at 1. Counsel argued that Father should not be penalized for counsel’s failure.

Id. On May 14, 2019, the court granted the motion, and thereafter, Father

timely filed a notice of appeal and concise statement of errors complained of

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

      Father raises the following issues for our review:

      I. WHETHER THE LOWER COURT ERRED IN TERMINATING
      [FATHER’S] PARENTAL RIGHTS WHERE INSUFFICIENT EVIDENCE
      WAS PRESENTED TO MEET THE BURDEN REQUIRED UNDER 23
      PA.C.S.A. § 2511(a)(1)?

      II. WHETHER THE LOWER COURT ERRED IN TERMINATING
      [FATHER’S] PARENTAL RIGHTS WHERE INSUFFICIENT EVIDENCE
      WAS PRESENTED TO MEET THE BURDEN REQUIRED UNDER 23
      PA.C.S.A. § 2511(a)(2)?

      III. WHETHER THE LOWER COURT ERRED IN TERMINATING
      [FATHER’S] PARENTAL RIGHTS WHERE INSUFFICIENT EVIDENCE
      WAS PRESENTED TO MEET THE BURDEN REQUIRED UNDER 23
      PA.C.S.A. § 2511(b)?

      IV. WHETHER THE LOWER COURT ERRED IN CONSIDERING A
      SUBMISSION FROM THE ATTORNEY FOR THE CHILD, WHERE SAID
      SUBMISSION DOES NOT ADDRESS THE CHILD’S POSITION

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J-S50030-19


      RELATIVE [TO HER NATURAL FATHER], AND MISIDENTIFIES SAID
      NATURAL FATHER[?]

Father’s Brief at 4.

      We review cases involving the termination of parental rights 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. 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) (internal citations and quotations

omitted).

      Further, termination 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).

      The relevant subsections of 23 Pa.C.S.A. § 2511 provide:




                                      -5-
J-S50030-19


     (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.

           (2) The repeated and continued incapacity, abuse, neglect
           or refusal of the parent has caused the child to be without
           essential parental care, control or subsistence necessary for
           his physical or mental well-being and the conditions and
           causes of the incapacity, abuse, neglect or refusal cannot or
           will not be remedied by the parent.

                                     ***

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

23 Pa.C.S.A. § 2511.

     With regard to Section 2511(a)(1), this Court has observed:

     To meet the requirements of this section, “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.” In re
     Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citing In re
     Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super. 2006)). The
     court must then consider “the parent’s explanation for his or her
     conduct” and “the post-abandonment contact between parent and

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J-S50030-19


      child” before moving on to analyze Section 2511(b). Id. (quoting
      In re Adoption of Charles E.D.M., 550 Pa. 595, 708 A.2d 88,
      92 (1998)).

      This Court has explained that a parent does not perform his or her
      parental duties by displaying a “merely passive interest in the
      development of the child.” In re B.,N.M., 856 A.2d 847, 855 (Pa.
      Super. 2004), appeal denied, 582 Pa. 718, 872 A.2d 1200 (2005)
      (quoting In re C.M.S., 832 A.2d 457, 462 (Pa. Super. 2003),
      appeal denied, 580 Pa. 687, 859 A.2d 767 (2004)). Rather,
      “[p]arental 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.” Id. (citation
      omitted). Critically, incarceration does not relieve a parent of the
      obligation to perform parental duties. An incarcerated parent
      must “utilize available resources to continue a relationship” with
      his or her child. In re Adoption of S.P., 616 Pa. 309, 47 A.3d
      817, 828 (2012) (discussing In re Adoption of McCray, 460 Pa.
      210, 331 A.2d 652 (1975)).

In re J.T.M., 193 A.3d 403, 409 (Pa. Super. 2018).

      To satisfy the requirements of Section 2511(a)(2), the moving party

must prove “(1) repeated and continued incapacity, abuse, neglect or refusal;

(2) that such incapacity, abuse, neglect or refusal caused the child to be

without essential parental care, control or subsistence; and (3) that the causes

of the incapacity, abuse, neglect or refusal cannot or will not be remedied.”

See In Interest of Lilley, 719 A.2d 327, 330 (Pa. Super. 1998).              The

grounds for termination are not limited to affirmative misconduct, but concern

parental incapacity that cannot be remedied.      In re Z.P., 994 A.2d 1108,

1117 (Pa. Super. 2010). Parents are required to make diligent efforts toward

the reasonably prompt assumption of full parental duties.        Id.   Further,

“evidence concerning a parent’s ability to care for another child is irrelevant

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J-S50030-19


and inadmissible in a proceeding to terminate parental rights with regard to

the child at issue.” In re A.L.D., 797 A.2d 326, 338 (citations omitted).

     With regard to a parent’s incarceration, in In re Adoption of S.P., 47

A.3d 817 (Pa. 2012), our Supreme Court reiterated the standard pursuant to

section 2511(a)(1) for abandonment, and added:


     [a]pplying [In re: Adoption of McCray,] 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.” [460 Pa. 210, 217, 331 A.2d 652, 655]. 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 at 828, quoting In re: Adoption of McCray,

331 A.2d 652, 655 (Pa. 1975) (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)).



                                     -8-
J-S50030-19


      In In re Adoption of S.P., our Supreme Court addressed Section

2511(a)(2), and concluded:

      [I]ncarceration is a factor, and indeed can be a determinative
      factor, in a court’s conclusion that grounds for termination exist
      under § 2511(a)(2) where the repeated and continued incapacity
      of a parent due to incarceration has caused the child to be without
      essential parental care, control or subsistence and that the causes
      of the incapacity cannot or will not be remedied.

Id. at 328-29, 47 A.3d at 828; see also In re D.C.D., 105 A.3d 662, 675

(Pa. 2014) (holding that incarceration prior to the child’s birth and until the

child was at least age seven renders family reunification an unrealistic goal

and the court was within its discretion to terminate parental rights

“notwithstanding the agency’s failure” to follow court’s initial directive that

reunification efforts be made). The Court in S.P. additionally stated:

      [W]e now definitively hold that incarceration, 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.[A.] § 2511(a)(2).
      See e.g. Adoption of J.J., [511 Pa. 590, 605,] 515 A.2d [883,
      891 (1986)] (“[A] parent who is incapable of performing parental
      duties is just as parentally unfit as one who refuses to perform the
      duties.”); [In re] E.A.P., 944 A.2d [79, 85 (Pa. Super.
      2008)](holding termination under § 2511(a)(2) was supported by
      mother’s repeated incarcerations and failure to be present for
      child, which caused child to be without essential care and
      subsistence for most of her life and which cannot be remedied
      despite mother’s compliance with various prison programs).

S.P., 47 A.3d at 830 (footnote omitted).




                                     -9-
J-S50030-19


     Instantly, Father argues that the evidence was not clear and convincing

to support the termination of his parental rights pursuant to Section

2511(a)(1) and (2). Father’s Brief at 7. Father contends that he has not

abandoned Child, and states that “he has a plan to improve himself and return

to Pennsylvania and parent and support his child.” Id. at 14.

     Pertinently, the trial court recounted:

     Father has been in and out of jail during [Child’s] life. Despite
     this, there is no doubt that he had a positive relationship with
     [Child], until this last jail term which started in April of 2017.

     Turning to the time period in question, dating from April 2017,
     [F]ather’s only contact has been through a number of letters he
     sent to his daughter by way of paternal grandfather, [C.C]. These
     letters were regularly shared with the child.        During prior
     incarcerations, [M]other was in touch with [F]ather, even taking
     the child to visit him in jail settings. This continued up until
     [M]other became very involved with [Stepfather].

     Thereafter, [M]other ceased visits with [F]ather, and gradually
     restricted paternal grandfather’s time with [Child]. All contact was
     stopped by [M]other and her family when the present proceeding
     commenced.

     Father could have telephoned [Child] as he did his other children,
     but did not do so. He could have made efforts to contact [Child]
     directly, but failed to do so even though he knew how to contact
     [M]other and her family. For example, during much of this time,
     he was in contact with his father who was seeing [Child] regularly.
     His excuses are not credible.

      ...

     Here, [F]ather wrote a number of letters, perhaps one a month.
     He did no more. Without much effort or expense, he could have
     had much more of a role in [Child’s] life. Thus, the [c]ourt must
     conclude that [F]ather failed to perform parental duties for a
     period in excess of six months.


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J-S50030-19



Trial Court Opinion, 7/9/18, at 3-4.

      We find no error in the court’s reasoning and its order terminating

Father’s rights pursuant to Section 2511(a)(1) and (2).         During Father’s

incarceration, while Father occasionally wrote letters, he did nothing more.

There is no indication Father attempted to arrange visits with Child, call Child,

or contact Mother to request visitation with Child. Father made no attempt to

modify the custody order or petition the court for visitation. Significantly, as

of the date of the hearing, Father had had no contact with Child since 2017.

      Additionally, Father is on parole in New York and did not indicate or

provide further proof of when he would complete his supervision. Indeed,

Father indicated that he would soon be living in a New York halfway house

rather than returning to Pennsylvania. The record is not clear as to Father’s

timeline for returning to Pennsylvania. Thus, contrary to his assertion that he

has remedied his parental incapacity, the record reflects that such incapacity

remains.

      Consistent with the foregoing, we discern no error in the trial court’s

finding that competent, clear and convincing evidence supported the

termination of Father’s parental rights pursuant to Section 2511(a)(1) and

(2), based upon Father’s failure to perform his parental duties and his

continued incapacity – namely, his lack of attempts to contact and maintain a

relationship with Child, and his failure to remedy the conditions leading to

Child’s placement – that resulted in Child being without essential parental




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J-S50030-19



care, the cause of which “cannot or will not be remedied.” See Lilley, 719

A.2d at 330; Z.P., 994 A.2d at 1117.

      Next, we consider whether Child’s needs and welfare will be met by

termination pursuant to Subsection (b). See Z.P., 994 A.2d at 1121. “In this

context, the court must take into account whether a bond exists between child

and parent, and whether termination would destroy an existing, necessary

and beneficial relationship.”   Id.   The court is not required to use expert

testimony, and social workers and caseworkers may offer evaluations as well.

Id. Ultimately, the concern is the needs and welfare of a child. Id.

      We have stated:

      [b]efore granting a petition to terminate parental rights, it is
      imperative that a trial court carefully consider the intangible
      dimension of the needs and welfare of a child—the love, comfort,
      security, and closeness—entailed in a parent-child relationship, as
      well as the tangible dimension. Continuity of the relationships is
      also important to a child, for whom severance of close parental
      ties is usually extremely painful. The trial court, in considering
      what situation would best serve the child[ren]’s needs and
      welfare, must examine the status of the natural parental bond to
      consider whether terminating the natural parents’ rights would
      destroy something in existence that is necessary and beneficial.

Z.P., 994 A.2d at 1121 (quoting In re C.S., 761 A.2d 1197, 1202 (Pa. Super.

2000)). The trial court may equally emphasize the safety needs of the child

and may consider intangibles, such as the love, comfort, security, and stability

the child might have with the foster parent. See In re N.A.M., 33 A.3d 95,

103 (Pa. Super. 2011). “[A] parent’s basic constitutional right to the custody

and rearing of . . . her child is converted, upon the failure to fulfill . . . her


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J-S50030-19



parental duties, to the child’s right to have proper parenting and fulfillment of

[the child’s] potential in a permanent, healthy, safe environment.”            In re

B.,N.M., 856 A.2d 847, 856 (Pa. Super. 2004) (internal citations omitted).

      Father argues that the court erred in terminating his rights under

Subsection (b) because the court ignored the relationship between Child and

Father’s family, including Child’s paternal grandfather, paternal aunt, and

Child’s half-siblings. The trial court observed:

      Whatever limited bond there was has been broken by [F]ather’s
      failure to act and be a substantial part of [C]hild’s life. [Child] is
      only 6 years old, and [F]ather has been absent for much of her
      life. She has a very positive relationship with her stepfather who
      plans to adopt her and [Stepfather] meets all of [Child’s] needs.

      In term[s] of post abandonment contact, [F]ather has done little
      beyond opposing the present petition. No direct letters, gifts,
      cards, and the like have been forthcoming. He is essentially
      homeless and hopes to live in a New York State halfway house.
      While [F]ather must be recognized for trying to get his own life
      together, the [court’s] ultimate focus is on [C]hild. [C]hild cannot
      wait for [F]ather to solve all of his own problems.

Trial Court Opinion, 7/9/18, at 4-5.

      The record supports the trial court’s disposition. We note that the law

is not concerned with parental relatives, but the bond between Child and

Father. See, e.g., T.S.M., 71 A.3d at 267 (noting that needs and welfare

requires consideration of emotional bonds between parent and child). In this

case, the court appropriately analyzed the evidence and concluded that Father

has not acted to maintain the bond, and Stepfather provides for Child’s needs

and welfare. The record reflects that Child does not ask about Father, was



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J-S50030-19



not interested in contacting him, and does not often speak of him. Rather,

Child wishes to be adopted by Stepfather. Accordingly, we discern no abuse

of discretion in the trial court’s conclusion that Child’s needs and welfare are

best served by termination.

      Finally, Father argues that the court erred in terminating his parental

rights where Child’s attorney filed a letter that misidentified Father’s last name

when indicating that Child wanted to be adopted by Stepfather. Father’s Brief

at 16. Counsel identified Father by Mother’s maiden name. Id. However, it

is clear from the record that this was a typographical error, where the letter

was otherwise accurate as to Father, and conveys Child’s position with regard

to Father and adoption — that while Child knows Father is her biological father,

she views Stepfather as her father in “all of the ways that matter,” including

being there for her on a day-to-day basis. See Letter, 3/1/19, at 1. Child did

not evidence any hesitation or remorse, although she expressed a desire to

see Father’s two children who are her half-sisters.        Id.   Mother offered

assurances that play dates had been arranged for Child to see her sisters. Id.

Thus, the court appropriately considered the letter.

      In sum, clear and convincing evidence supports the trial court’s

termination of Father’s parental rights under Section 2511(a)(1) and (2), as

well as its Section 2511(b) finding that any bond between Child and Father is

outweighed by the fact that adoption would best serve Child’s needs and

welfare. See Z.P., 994 A.2d at 1126-27; K.Z.S., 946 A.2d at 763.

      Order affirmed.

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J-S50030-19



     Judge Lazarus joins the memorandum.

     Judge Colins concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/19




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