J. S12043/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: J.E.W., A MINOR                   :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                                         :
APPEAL OF: S.W., FATHER                  :          No. 1745 MDA 2017


                   Appeal from the Decree, October 2, 2017,
               in the Court of Common Pleas of Snyder County
                      Civil Division at No. OC-0003-2017


BEFORE: LAZARUS, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED APRIL 04, 2018

      S.W. (“Father”) appeals from the October 2, 2017 decree entered by the

Court of Common Pleas of Snyder County, granting the petition of

S.E. (“Mother”) and involuntarily terminating Father’s parental rights to minor

male child, J.E.W., born in January of 2011, pursuant to the Adoption Act, 23

Pa.C.S.A. § 2511(a)(1) and (b). After careful review, we reverse and remand

with instructions.

      The trial court provided the following relevant procedural history:

            [Mother] filed her petition for involuntary termination
            of parental rights on January 6, 2017. In her petition,
            she claimed that [Father] has evidenced a settled
            purpose of relinquishing his parental rights to [J.E.W.]
            or has refused or failed to perform his parental duties.
            On February 6, 2017, the [trial c]ourt appointed Brian
            Kerstetter, Esquire, as counsel for [J.E.W.] and
            scheduled a pretrial conference for February 27, 2017.
            [Father] filed an application for appointment of
            counsel on or about March 1, 2017. The [trial] court
            approved [Father’s] application and appointed Brian
            Ulmer, Esquire, as counsel for [Father.] The [trial
J. S12043/18


            court] conducted its pre-trial conference on August
            22, 2017. The [trial c]ourt conducted the hearing on
            the petition for involuntary termination of parental
            rights on October 2, 2017. [Father] did not appear at
            the hearing on October 2, 2017. The [trial c]ourt
            agreed to hold the record open to give counsel an
            opportunity to provide documentation to the [trial
            c]ourt that [Father] was not able to attend the hearing
            for medical reasons. Counsel did not supply any
            information to the [trial c]ourt that would excuse his
            non-appearance at the hearing on October 2, 2017.
            Nor did he request the opportunity to present
            evidence on behalf of [F]ather. On November 1,
            2017, [Father] filed a Notice of Appeal from the [trial
            c]ourt’s decision of October 2, 2017.

Trial court opinion, 11/17/17 at 1-2.

      Father filed a concise statement of errors complained of on appeal on

November 1, 2017. On November 17, 2017, the trial court filed its opinion

pursuant to Pa.R.A.P. 1925(a).

      Father raises the following two issues on appeal:

            1.     Should the Trial Court have denied termination
                   under 23 Pa.C.S.A. Section 2511(a)(1) as there
                   was no showing of a settled purpose to
                   relinquish a parental claim and Father’s filing of
                   a custody action rebutted the notion of a refusal
                   or failure to perform parental duties?

            2.     Should the Trial Court have denied termination
                   and ruled that the Petition under 23 Pa.C.S.A.
                   Section 2511(a)(1) failed as Mother did not
                   provide   Father   with    necessary   contact
                   information?

Father’s brief at 5.

      When reviewing a court’s grant of a petition involuntarily terminating

parental rights, we are held to the following standard:


                                        -2-
J. S12043/18


            [O]ur 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., 9 A.3d 1179, 1190 (Pa.
            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.; In re:
            R.I.S., 36 A.3d 567, 572 (Pa. 2011) (plurality). As
            has often been stated, 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      demonstration         of     manifest
            unreasonableness, partiality, bias, or ill-will. Id.

In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012) (citations omitted).

      In his first issue, Father avers that the trial court erred when it

determined that there was a “showing of a settled purpose to relinquish a

parental claim and Father’s filing of a custody action rebutted the notion of a

refusal or failure to perform parental duties.”    (Father’s brief at 9.)   Put

another way, Father challenges the sufficiency of the evidence to support the

involuntary termination of his parental rights pursuant to Section 2511(a)(1).

            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 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 Adoption of R.J.S.,
            901 A.2d 502, 510 (Pa.Super. 2006). In addition,
            Section 2511 does not require 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



                                     -3-
J. S12043/18


           relinquishing parental claim to a child or fails to
           perform parental duties.

           In re Adoption of Charles E.D.M., 708 A.2d 88, 91
           (Pa. 1998).

                 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).

           Id. at 92 (citation omitted).

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

     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


                                    -4-
J. S12043/18


            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 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 his or her physical and
            emotional needs.

In re B., N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 872

A.2d 1200 (Pa. 2005) (internal citations omitted).

      The trial court made the following determination of fact following the

termination of parental rights hearing:

            [Mother] testified that [F]ather has had no contact
            with the child since November of 2015. Father has
            not sent the child any gifts, cards, or, in any other
            way, shown any interest in the child since that time.
            He has not provided any financial support.[1] . . . He
            has not contacted [M]other about his child even
            though for some months he knew where she worked
            and could have contacted her at her place of
            employment.       He also knew [M]other’s current
            address because he served court papers on her at that
            address in connection with a complaint for custody
            that he filed in Union County. Mother also testified
            that [F]ather had her telephone number and that it
            was the same number she had for up to ten years.
            She also testified that [F]ather would text her at that
            phone number and that she knew it was [F]ather
            texting because he would mention [J.E.W.] in the
            texts.




1Mother testified that she did receive financial support that was automatically
withdrawn from Father’s social security check by the Social Security
Administration. (Notes of testimony, 8/22/17 at 10-11.)


                                     -5-
J. S12043/18


Trial court opinion, 11/17/17 at 2-3.

      None of Mother’s testimony was contradicted during the hearing, as

Father failed to appear. The trial court kept the record open for ten days

following the hearing in order to provide Father with the opportunity to provide

an explanation for his failure to appear and to provide testimony. (Notes of

testimony, 8/22/17 at 39.) Father failed to provide any further information

to the trial court.

      On appeal, Father avers that his filing of a custody action in

Union County rebuts Mother’s testimony and establishes that he attempted to

perform parental duties and “wished to remain present in [J.E.W.’s] life.”

(Father’s brief at 10.) This argument falls far short of the mark. The record

reflects that Father filed a complaint in custody in Union County in August of

2016. (Notes of testimony, 8/22/17 at 22.) We agree with the trial court’s

determination, however, that Father’s filing of a custody complaint was not

sufficient to rebut Mother’s testimony.

             Father did file a custody complaint in Union County
             and appeared at mediation. He did not appear at a
             custody conference.       Subsequently, the court
             dismissed his custody complaint. When the court
             denied his Motion for Reconsideration of the dismissal
             of his complaint, he failed to take any follow-up
             action. He did not file an appeal. Nor did he file a
             new custody action.

Trial court opinion, 11/17/17 at 3.

      Accordingly, we find that the record supports the trial court’s

determination that Mother has proven by clear and convincing evidence that


                                        -6-
J. S12043/18


in the six months prior to the filing of her petition for termination of parental

rights, Father had failed to perform parental duties. Therefore, Father’s first

issue is without merit.

      In his second issue for our review, Father contends that Mother did not

provide him with necessary contact information.        We agree with the trial

court’s determination that this claim is belied by the testimony of record. As

stated above, Mother’s testimony revealed that Father had Mother’s telephone

number, knew where she worked, and also knew her current address—which

he used to serve Mother with his complaint for custody.         (See trial court

opinion, 11/17/17 at 3.) Moreover, Father provided no evidence of record to

the trial court that any alleged failure by Mother to provide him with necessary

contact information prevented him from attempting to contact J.E.W. in any

way. Accordingly, Father’s second issue is without merit.

      We must also consider whether termination of father’s parental rights is

proper under Section 2511(b). The trial court, however, made no findings

under Section 2511(b).

      We find that the trial court did not abuse its discretion when it

determined that Mother presented sufficient evidence to terminate Father’s

parental rights under Section 2511(a)(1).       We, however, are constrained

remand to the trial court “for . . . subsequent findings as to the effect of

termination on the needs and welfare of [J.E.W.] under Section 2511(b)[,]”

based on the information of record.      In re B., N.M., 856 A.2d 847, 859



                                      -7-
J. S12043/18


(Pa.Super. 2004), appeal denied, 872 A.2d 1200 (Pa. 2005). Further, the

trial court “must also discern the nature and status of the parent-child bond,

with utmost attention to the effect on the child of permanently severing that

bond.” In re C.M.S., 884 A.2d 1284, 1287 (Pa.Super. 2005). However, “[i]n

cases where there is no evidence of any bond between the parent and

child, it is reasonable to infer that no bond exists. The extent of any

bond analysis, therefore, necessarily depend on the circumstances of the

particular case.”   In re K.Z.S., 946 A.2d 753, 762-763 (Pa.Super. 2008)

(emphasis added) (citation omitted). This determination, however, must be

made on the first instance by the trial court.

      Order reversed.     Case remanded for the trial court to produce a

supplemental opinion including Section 2511(b) determination based on the

testimony of record within 15 days of the filing of this memorandum.

Jurisdiction retained.




                                     -8-
