J-S05044-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN RE: ADOPTION OF S.N.L., A MINOR              IN THE SUPERIOR COURT OF
CHILD                                                 PENNSYLVANIA


APPEAL OF: E.L., NATURAL FATHER                No. 1646 WDA 2014


            Appeal from the Decree entered September 22, 2014,
         in the Court of Common Pleas of Fayette County, Orphans’
                       Division, at No: 18 ADOPT 2014

BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                           FILED APRIL 06, 2015

      E.L. (Father) appeals from the decree entered September 22, 2014, in

the Fayette County Court of Common Pleas, which involuntarily terminated

his parental rights to his minor daughter, S.N.L. (Child). We affirm.

      Child was born in Fayette County, Pennsylvania, in September of

2008. At the time of Child’s birth, Father was residing with Child’s mother,

C.D. (Mother). When Child was about a year old, Father, Mother, and Child

moved to Virginia.   However, Father left Virginia after approximately one

month and returned to Fayette County.         Mother and Child returned to

Fayette County in 2010.

      On May 12, 2014, Mother filed a petition to involuntarily terminate

Father’s parental rights to Child.   In the petition, Mother indicated that

Father was presently incarcerated in Lehigh County.     Father responded by

mailing letters, dated June 8, 2014, to Mother’s counsel, the orphans’ court,

and to the orphans’ court clerk. In the letters, Father confirmed that he was
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incarcerated, and requested that his parental rights not be terminated.      A

termination hearing was held on August 14, 2014, during which the court

heard the testimony of Mother and her fiancé, L.R. (Fiancé).            At the

beginning of the hearing, Father’s court-appointed counsel indicated that he

had attempted to get in contact with Father, but that he had not been able

to do so until that morning.    N.T., 8/14/14, at 3-4.    While Father did not

participate in the hearing, Father’s counsel did participate, and cross-

examined Mother. At the conclusion of the hearing, the court requested that

an additional hearing be scheduled so that Father could have the opportunity

to testify.   Id. at 24-25.   The hearing was held on September 16, 2014,

during which Father participated remotely using a videoconferencing system.

Mother was recalled to the stand as a rebuttal witness following Father’s

testimony.

      On September 22, 2014, the orphans’ court entered its decree

terminating Father’s parental rights. Father timely filed a notice of appeal

on October 7, 2014, along with a concise statement of errors complained of

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

      Father now raises the following issue for our review.

      Did the [t]rial [c]ourt err by abusing its discretion in terminating
      [Father’s] rights as [Mother] failed to sustain [her] burden of
      proof by clear and convincing evidence to show that [Father]
      evidenced a settled purpose of relinquishing a settled claim to
      the child or refused or failed to perform parental duties?

Father’s Brief at 6.



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      We consider Father’s claim mindful of our well-settled standard of

review.

      The standard of review in termination of parental rights cases
      requires appellate courts to accept the findings of fact and
      credibility determinations of the trial court if they are supported
      by the record. If the factual findings are supported, appellate
      courts review to determine if the trial court made an error of law
      or abused its discretion. A decision may be reversed for an
      abuse of discretion only upon demonstration of manifest
      unreasonableness, partiality, prejudice, bias, or ill-will. The trial
      court’s decision, however, should not be reversed merely
      because the record would support a different result. We have
      previously emphasized our deference to trial courts that often
      have first-hand observations of the parties spanning multiple
      hearings.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks

omitted).

      Termination of parental rights is governed by Section 2511 of the

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

analysis.

      Initially, the focus is on the conduct of the parent. The party
      seeking termination must prove by clear and convincing
      evidence that the parent’s conduct satisfies the statutory
      grounds for termination delineated in Section 2511(a). Only if
      the court determines that the parent’s conduct warrants
      termination of his or her parental rights does the court engage in
      the second part of the analysis pursuant to Section 2511(b):
      determination of the needs and welfare of the child under the
      standard of best interests of the child. One major aspect of the
      needs and welfare analysis concerns the nature and status of the
      emotional bond between parent and child, with close attention
      paid to the effect on the child of permanently severing any such
      bond.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).


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

pursuant to Sections 2511(a)(1), (2), 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.

           (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(a)(1)-(2), (b).

     We need only agree with the orphans’ court as to any one subsection

of Section 2511(a) in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa.




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Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Here,

we analyze the court’s decision to terminate under Sections 2511(a)(1). 1

      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 child”

before moving on to analyze Section 2511(b). Id. (quoting In re Adoption

of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1998)).

      This Court has emphasized that a parent does not perform his or her

parental duties by displaying a “merely passive interest in the development

1
  Because Father only challenges the orphans’ court’s analysis with respect
to Section 2511(a)(1), we need not consider whether the court abused its
discretion by finding that termination was warranted under Section 2511(b).
See In re Adoption of R.K.Y., 72 A.3d 669, 679 n.4 (Pa. Super. 2013),
appeal denied, 76 A.3d 540 (Pa. 2013) (declining to address Section 2511(b)
where the appellant did not make an argument concerning that section).
Additionally, we note that the orphans’ court was only permitted to
terminate Father’s parental rights if it found that an adoption of Child was
anticipated. In re E.M.I., 57 A.3d 1278, 1285 (Pa. Super. 2012); 23
Pa.C.S.A. § 2512(b). Generally, an individual may not adopt the child of a
non-spouse unless that non-spouse relinquishes his or her parental rights, or
unless the individual and the non-spouse are able to show cause pursuant to
23 Pa.C.S.A. § 2901. In re Adoption of R.B.F., 803 A.2d 1195, 1199-1202
(Pa. 2002). Here, Father does not challenge the feasibility of Fiancé’s
proposed adoption of Child. Thus, we express no opinion on the issue
whether cause was shown to permit Mother’s fiancée to adopt Child.
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of the child.” In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004), appeal

denied, 872 A.2d 1200 (Pa. 2005) (quoting In re C.M.S., 832 A.2d 457, 462

(Pa. Super. 2003), appeal denied, 859 A.2d 767 (Pa. 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., 47 A.3d 817,

828 (Pa. 2012) (discussing In re Adoption of McCray, 331 A.2d 652 (Pa.

1975)).

      Instantly, the orphans’ court found that Father had abandoned Child

prior to being incarcerated in 2011, and that he made almost no effort to

maintain a relationship with Child thereafter.         Orphans’ Court Opinion,

10/24/14, at 6-7.   Thus, the court concluded that Father had refused and

failed to perform his parental duties for a period of four years prior to the

filing of the petition to terminate his parental rights.      Id. at 7.     Father

argues that his efforts at parenting Child were hampered by Mother.

Father’s Brief at 11.   Father also contends that Mother made no effort to

make Child available to Father, that Mother made no effort to keep in




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contact with Father, and that Mother “left the jurisdiction where they last

resided together.” Id.

     After a thorough review of the record in this matter, we conclude that

the orphans’ court did not abuse its discretion.    At the August 14, 2014,

termination hearing, Mother testified that she and Fiancé have been together

for nearly four years, and that they have a child, L.R., who also resides with

them. N.T., 8/14/14, at 6, 11. Mother testified that the last time she had

any contact with Father about Child was in November of 2009, when Father

spoke to Mother over the phone and sent her a “twenty dollar money order

that said it was child support.”     Id. at 8.   Mother testified that, upon

returning to Fayette County in 2010, she and Child first lived with her

grandmother.    Id. at 9.       According to Mother, Father knew Mother’s

grandmother, as well as Mother’s other family members in the area.        Id.

However, Father made no effort to contact Mother or Child.       Id.   Mother

testified that she received a message from Father’s mother in December of

2009, indicating that Father would not be in contact with Child during the

Christmas holiday because he had been incarcerated.         Id. at 15.   This

resulted in an argument between Father’s mother and Mother. Id. Mother

stated that she has not been in contact with Father’s mother since.       Id.

Mother also testified that she had not paid Father to stay away from Child,

or threatened him. Id. at 10.




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      Fiancé testified that he has never received a phone call from Father or

received any financial support for the care of Child from Father. Id. at 22.

He stated he has never seen or spoken to Father, and that he never

threatened Father to keep him away from Child. Id. Fiancé indicated that

he wanted to adopt Child, stating, “Like she is my daughter. She is one of

my best friends.” Id. at 22. Following Fiancé’s testimony, at the conclusion

of the August 14, 2014, hearing, the orphans’ court admitted into evidence

the letter that Father sent in response to Mother’s petition to terminate his

parental rights. Id. at 24. In the letter, Father admitted that he was active

in Child’s life for “almost the first two years,” but that, “[d]ue to my prior

immaturities and a failed relationship with [Child’s] mother, I lost the bond I

had with my daughter.” Petitioner’s Exhibit 1.

      During the September 16, 2014, hearing, Father testified that he is

facing a first degree felony aggravated assault charge, and that he plans on

pleading guilty and serving a prison sentence “in the near future.”       N.T.,

9/16/14, at 4-5, 19-20. Father admitted that his relationship with Mother

ended “around May of 2009,” and that he had only seen Child once since

that time.    Id. at 6-7.    Father stated that, around or shortly before

November of 2009, he had Child in his care in Fayette County for about five

or six days. Id. at 7, 13.

      Father explained that he moved to Lehigh County in early 2010. Id.

at 8. He claimed that “from early 2010 to mid 2010” he sent Mother twenty


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dollars each week and called “almost every other day.”         Id.   Father also

stated that he obtained a job in May of 2010 and sent Child letters and a

pair of shoes. Id. at 14. Father testified that he and Mother had agreed

that Father’s aunt would transport Child to Lehigh County, but that Mother

rejected this idea at the “last minute.” Id. at 8. Father stated that he last

spoke with Mother about Child when he visited Fayette County in May of

2011. Id. at 8-9. Father alleged that he called Mother, and that Mother told

him that he would never see Child again. Id. at 9.2 Father explained that

he was then incarcerated in Lehigh County for drug possession from August

4, 2011, until July 28, 2013. Id. at 9, 15. He stated that he lost track of

Mother’s whereabouts after his incarceration.     Id. at 22.    Father testified

that he sent a card for Child to Mother’s aunt in 2012 because it was “the

only address I knew of [Mother’s] family.” Id. at 15, 21.

      Father stated that he was again incarcerated on January 30, 2014.

Id. at 9. Father claimed that, prior to this second period of incarceration, he

had “no clue” where Mother and Child were and had “no way of getting in

contact with them through social media or her family.” Id. at 16. Father

asserted that he spoke with to Child’s “little cousin . . . . maybe once or

twice over social media to ask him about [Child].” Id. at 9-10. Reportedly,

the cousin stated to Father that he did not know where Mother was living

2
  Father later claimed on re-cross examination that Mother made this
statement in “early, mid 2010.” N.T., 9/16/14, at 23. Reportedly, Mother
became angry at Father after he missed some of his scheduled phone calls
with Child. Id.
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“because she wasn’t in immediate contact with the family.”          Id. at 10.

Father indicated that he wanted a chance to reconnect with Child, and

suggested that he could do this by writing to Child “on occasion, whenever

necessary,” by sending her a picture, by sending financial support, and by

talking on the phone. Id. at 11.

      After being recalled as a rebuttal witness, Mother denied that she

spoke to Father at any point after December of 2009. Id. at 26.3 Mother

agreed that Father wanted Mother to send Child to Allentown with an aunt,

but that she rejected Father’s plan because she “did not know about their

whereabouts . . . .” Id. She further denied that Father was ever scheduled

to call Child every day, that he ever did call Child every day, that he sent her

money more than once, that she ever had an argument with him over the

phone, and that she told him that he would not see Child again. Id. at 27.

Mother stated that she did not receive gifts from Father or his family, other

than “a box” from Father’s mother in 2009. Id. at 28.

      Mother also testified that, during the approximately six months when

Father was out of jail between July of 2013 to January of 2014, she was still

living with her grandmother in Uniontown. Id. at 29. She stated that this

was the same house where she was residing when Father first met her. Id.

Mother indicated that she did not know what cousin Father allegedly

contacted via social media, but that she always kept in touch with her

3
  This was slightly inconsistent with Mother’s earlier testimony that she last
spoke with Father about Child in November of 2009. N.T., 8/14/14, at 8.
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family, and that her family was aware of her address after she moved out of

her grandmother’s home. Id. at 28-29.

      Accordingly, the record supports the orphans’ court’s determination

that Father refused or failed to perform parental duties during the six

months prior to the filing of the termination petition on May 12, 2014.

Indeed, Father did not testify that he made any attempts at contacting

Mother or Child during this period.      At best, Father indicated that he

contacted Child’s cousin sometime between July of 2013 and January of

2014. This minimal effort by Father is insufficient to preserve his parental

rights.   While Father now complains that Mother did not exert herself to

make Child available to him, it was Father’s duty, not Mother’s, to ensure

that he maintained his parent/child relationship. B.,N.M., 856 A.2d at 855.

While Father testified that Mother was resistant to his attempts at contacting

Child in 2010 and 2011, the orphans’ court was free to reject this testimony

as not credible.   Even if Father’s statements were accurate, Father was

required to make a good faith effort in face of this resistance in order to

retain his parental rights. Id. He did not do so.

      Thus, because we conclude that the orphans’ court did not abuse its

discretion by involuntarily terminating Father’s parental rights pursuant to

Section 2511(a)(1), we affirm the decree of the orphans’ court.

      Decree affirmed.

      Judge Donohue joins the memorandum.


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     Judge Shogan files a concurring memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/6/2015




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