J-S85015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE MATTER OF: THE ADOPTION           :   IN THE SUPERIOR COURT OF
OF S.G.S.                                :        PENNSYLVANIA
                                         :
                                         :
APPEAL OF: A.J.G.                        :
                                         :
                                         :
                                         :
                                         :   No. 1372 WDA 2017

                   Appeal from the Order August 21, 2017
   In the Court of Common Pleas of Erie County Orphans' Court at No(s):
                          No. 51 in Adoption, 2017


BEFORE: BOWES, J., PANELLA, J., and STABILE, J.

MEMORANDUM BY BOWES, J.:                            FILED MARCH 16, 2018

      A.J.G. (“Mother”) appeals from the order entered on August 21, 2017,

that denied her petition to involuntarily terminate the parental rights of T.E.

(“Father”) to their daughter, S.G.S. We affirm.

      The trial court summarized the pertinent facts as follows:

             The Child was born out of wedlock on April 9, 2012. The
      parties resided together in the small town of Corry,
      Pennsylvania, at the time of birth, but separated a few months
      later. From the time of separation until 2014, Mother and Child
      lived in a house next door to Father. Father saw the Child on a
      daily basis and exercised partial custody every other weekend,
      by mutual agreement.

            In 2014, Mother moved in with her boyfriend, also a
      resident of Corry, whom she subsequently married in September
      of 2016. At around the same time, Father became involved with
      his current wife. As a result of Mother's move in 2014, Father no
      longer had daily contact with the Child. However, his every other
      weekend partial custody schedule continued into 2015, without
      incident.
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             The timeline in 2015 and 2016 is disputed by the parties.
      Mother asserted that Father's partial custody changed to every
      Saturday with no overnights, in early 2015, and then ceased
      altogether in April of 2015, because Father was having domestic
      issues that made his home unsuitable for overnight visitation.
      Father contended that the every other weekend schedule lasted
      until the fall of 2015, when it changed to every Saturday due to
      his having transportation difficulties, and then ceased altogether
      in March or April of 2016, when the Child asked to remain with
      him overnight, and Mother refused. The parties agree that
      whenever their last custody interaction occurred, it generally
      concluded with Father stating he would pursue a formal custody
      arrangement in Court.

Trial Court Opinion, 10/13/17, at 2-3.

      On May 8, 2017, Father filed a custody complaint seeking shared

custody of S.G.S.       Mother countered on June 8, 2017, by filing with the

orphans’ court a petition for the involuntary termination of Father’s parental

rights pursuant to 23 Pa.C.S. §2511(a)(1), a provision that relates to a

parent’s failure to perform parental duties for the preceding six months.

Specifically, Mother alleged that Father “failed to have anything to do with

[his daughter] since April 2015.” Petition for Involuntary Termination of

Parental Rights, 6/8/17, at unnumbered 3. She averred that her husband,

D.G., intended to adopt S.G.S. upon the termination of Father’s parental

rights.   The orphans’ court appointed counsel to represent Father and

S.G.S., respectively.

      During the ensuing two-day hearing on July 25, and August 18, 2017,

Mother testified in support of her assertion that Father had not interacted




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with his daughter since April 2015.1           Father refuted Mother’s timeline and

countered that he continued to exercise physical custody of S.G.S. on

alternating weekends until September or October of 2015, the date that

Mother unilaterally deprived him of overnight custody. Father testified that,

until Spring 2016, he continued to exercise daytime custody every Saturday.

In addition, he described four occasions between November 2016 and spring

2017, three of which occurred within the relevant six months period, where

he briefly interacted with S.G.S. outside maternal grandfather’s home. On

each occasion, S.G.S. either ran toward Father or embraced him before

Mother or a family member whisked her away.                    Father’s wife, C.E.,

corroborated Father’s account of his interactions with S.G.S. during 2016

and 2017.

       On August 21, 2017, the orphans’ court entered the above-captioned

order denying Mother’s petition to terminate Father’s parental rights.

____________________________________________


1 Mother neglected to present any evidence regarding the developmental,
physical, and emotional needs and welfare of S.G.S. or the effect of
permanently severing the bond the child shares with Father.           These
omissions presented an alternate basis for the orphans’ court to deny
Mother’s petition to terminate Father’s parental rights. However, mindful
that § 2511(a) and (b) require a bifurcated analysis, and that the certified
record sustained the orphans’ court’s conclusion that Mother failed to
establish the statutory grounds for termination under 2511(a), we do not
reach the remaining deficiencies relating to subsection (b). See In re B.C.,
36 A.3d 601, 606 (Pa.Super. 2012) (“The initial focus is on the conduct of
the parent. . . . If the trial court determines that the parent’s conduct
warrants termination under section 2511(a), it must engage in an analysis of
the best interests of the child under Section 2511(b)”).



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Mother timely filed a notice of appeal along with a concise statement of

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

She raises the following issues for our review, which we revise for clarity:

             1.    Whether the orphans’ court erred in failing to find
       that Father failed to perform his parental duties for a period of at
       least six months prior to the filing of Mother’s petition to
       terminate parental rights.

             2.    Whether the orphans’ court erred in finding that
       Father’s ephemeral contacts with S.G.S. during the six months
       immediately preceding the date Mother filed her petition
       constituted an effort to remain actively involved in his daughter’s
       life.

             3.    Whether the orphans’ court disregarded the facts
       concerning Father’s two-year failure to utilize the court system
       to preserve his custodial rights.

Mother’s brief at 10-11.2 We address the issues collectively.

       Our standard of review is well settled.

       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.

____________________________________________


2 While S.G.S.’s court-appointed counsel declined to file an independent
brief, she joined the arguments raised in Father’s brief.



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

omitted).

      Involuntary termination of parental rights is governed by § 2511 of the

Adoption Act, 23 Pa.C.S. §§ 2101-2938. The sole purpose of the involuntary

termination of parental rights is to facilitate adoption. In re B.E., 377 A.2d

153, 155 (Pa. 1977).     The measure is not punitive.     Id.   As the party

petitioning for termination of parental rights, Mother was required to “prove

the statutory criteria for that termination by at least clear and convincing

evidence.” In re T.R., 465 A.2d 642, 644 (Pa. 1983). Clear and convincing

evidence is defined as “testimony that is so clear, direct, weighty, and

convincing as to enable the trier of fact to come to a clear conviction,

without hesitancy, of the truth of the precise facts in issue.”    Matter of

Sylvester, 555 A.2d 1202, 1203–04 (Pa. 1989).

      As noted, Mother invoked the statutory grounds to terminate Father’s

parental rights pursuant to § 2511(a)(1) and (b), which provide as follows.

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

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

              ....

      (b) Other considerations.--The court in terminating the rights
      of a parent shall give primary consideration to the

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      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. § 2511(a)(1) and (b).

      With respect to § 2511(a)(1), this Court has explained,

            A court may terminate parental rights under Section
      2511(a)(1) where the parent demonstrates a settled purpose to
      relinquish parental claim to a child or fails to perform parental
      duties for at least the six months prior to the filing of the
      termination petition.    The court should consider the entire
      background of the case[.]

In re A.S., 11 A.3d 473, 482 (Pa.Super. 2010) (citations omitted). While

the statute targets the six months immediately preceding the filing of the

petition to terminate, the trial court must consider the entire history of the

case and not apply the six-month statutory period mechanically.                   In re

K.Z.S., 946 A.2d 753, 758 (Pa.Super. 2008).

      Accordingly, Mother was required to produce clear and convincing

evidence   of   Father’s   conduct    that   satisfied     either   one    of   the   two

requirements    outlined   in   §    2511(a)(1),   i.e.,     a   settled   purpose     of

relinquishing parental claim or a failure to perform parental duties. In re

D.J.S., 737 A.2d 283, 285 (Pa.Super. 1999). Our Supreme Court has noted

that parental duty under § 2511(a)(1) includes “an affirmative duty to love,

protect and support” the child and “to make an effort to maintain

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communication with that child.” In re Adoption of S.P., 47 A.3d 817, 828

(Pa. 2012).   When the parent’s fulfillment of those duties is made more

difficult by impediments, “we must inquire whether the parent has utilized

those resources at his or her command . . . in continuing a close relationship

with the child.” Id.

      Upon review of the evidence, the orphans’ court concluded that Mother

was unable to demonstrate by clear and convincing evidence that Father

failed to perform his parental duties or that he established a settled purpose

of relinquishing his parental rights. Specifically, the court reasoned,

      This is not a case where the parent was never present in a
      child's life, or without explanation disappeared from a child's life.
      Rather, Father and Mother allowed circumstances to develop
      such that Father essentially took a back seat to Mother and
      step–father when it came to providing for the Child's needs on a
      day to day basis.

             But that does not necessarily lead to the conclusion Mother
      draws[—]that Father lost interest in the Child, or abandoned his
      place of importance in her life. To the contrary, given that Father
      and Child had become accustomed to limited time together, it is
      not unreasonable to conclude that their parent-child bond
      remained relatively strong despite only occasional contact. Each
      time Father saw the Child within six months of Mother's IVT
      Petition, he reached out to her, and the Child recognized him as
      her father, and interacted with him affectionately. When Father
      purportedly learned that relinquishment of his parental rights
      was a topic of discussion in support enforcement proceedings, he
      acted swiftly to preserve his rights by filing a custody action with
      the Court. In fact, Father's Custody Complaint was filed a full
      month before Mother filed her IVT Petition.

Trial Court Opinion, 10/13/17, at 7 (emphasis in original). Significantly, the

court observed that, unlike Mother’s bare testimony that Father abandoned


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S.G.S. during 2015, Father provided corroborating evidence             from a

sequestered witness to confirm the dates and quality of his interactions with

S.G.S. during 2016 and 2017. Id. at 4.

      Mother’s first complaint assails the orphans’ court’s role as the

ultimate arbiter of fact.   Contending that Father abandoned contact with

S.G.S. during April 2015, rather than 2016, Mother argues that the trial

court’s credibility determination in Father’s favor is unwarranted.         In

essence, Mother discounts C.E.’s corroborating testimony as the product of

pretrial discussions about the case.   Mother’s response to the trial court’s

reference to C.E.’s testimony illustrates this position categorically, “For

goodness sakes, she is his wife! It is ludicrous to think they never spoke

about what was going on in the case and that their testimony would be

similar based on those talks.” Mother’s brief at 4.

      In the alternative, Mother contends that, presuming Father had

transitory contact with S.G.S. during November 2016, and March, April, and

May of 2017, those four isolated interactions were insignificant. She opined,

“It is unbelievable that the Court would find these contacts to mean that . . .

Father remained ‘actively involved in the child’s life.’”   Id. at 16. Indeed,

Mother argues that Father’s chance encounters with S.G.S. in the maternal

grandfather’s front yard evinced neither Father’s commitment to maintaining

communication with his daughter nor his pledge to satisfy the child’s need

for love, protection, guidance, or support, which our Supreme Court


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observed “cannot be met by merely a passive interest[.]” Id. at 17 (quoting

In Re Burns, 379 A.2d 535, 540 (Pa.1977)).

      The certified record sustains the trial court’s decision.    First, as it

relates to Father’s contacts with S.G.S. during 2016 and 2017, and his

attempts to overcome Mother’s impediments to communication, the orphans’

court explained its findings of fact as follows:

             Father's testimony and timeline were more credible than
      Mother's, as Mother appeared at times unsure about her
      chronology, and lacked specificity about how and when the
      parties' custodial relationship changed over time. Further, the
      testimony of both parties was more consistent with Father
      missing only one Christmas with the Child, Father having
      testified in detail about his efforts to give the Child a card and
      gift in December of 2016, while Mother only generally denied
      that any contact was made by Father after April of 2015.

             Through the summer and fall of 2016, Father credibly
      testified that he made regular attempts to contact Mother by
      telephone, text message and Facebook, to discuss resuming a
      custody schedule, none of which efforts produced a response
      from Mother. Beginning in December of 2016, within six months
      immediately preceding the filing of the IVT Petition, Father saw
      the Child on four occasions. The first was shortly before
      Christmas, when the Father observed Mother and Child outside
      the maternal grandfather's home, down the street from his own
      residence. Father approached Mother and asked for time with
      the Child over Christmas, and indicated that he had a card and
      gift for Child. The Child gave the Father a hug, and Mother
      carried the Child into the grandfather's house without a definitive
      response. [Three more interactions occurred during March and
      April with similar circumstances.] Each time, the child saw
      Father and ran to him for an embrace.

Trial Court Opinion, 10/13/17, at 3-4.

      Mother does not complain that the orphans’ court's determination was

unsupported by the record or even that the underlying evidence of record

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was so unreliable as to make the court's considerations pure conjecture.

Instead, she essentially entreats that this Court reweigh her and Father’s

evidence regarding the timeline of Father’s contacts with S.G.S. in order to

reach a conclusion in her favor.        Contrary to Mother’s protestations,

however, she cannot dictate the weight that the orphans’ court attributed to

the evidence or its consideration of any single factor.        Indeed, as we

explained in M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa.Super. 2013), “it is

within the trial court's purview as the finder of fact to determine which

factors are most salient and critical in each particular case.” We simply will

not revisit the trial court's factual findings which are based on the certified

record in order to reassess the weight of the evidence. J.R.M. v J.E.A., 647

33 A.3d 647, 650 (Pa.Super. 2011) (“with regard to issues of credibility and

weight of the evidence, we must defer to the presiding trial judge who

viewed and assessed the witnesses first-hand”).       Having found that the

certified record sustains the orphans’ court's findings of fact relating to

Father’s proposed timeline and his interactions with S.G.S. during 2016 and

2017, we do not disturb them.

      Accordingly, the record belies Mother’s assertion that Father failed to

perform parental duties or demonstrated a settled purpose of relinquishing

his parental rights. To the contrary, Father not only endeavored to establish

contact with S.G.S. through Mother’s telephone, text message and social




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media accounts, when Mother neglected to respond, he circumvented that

obstacle and interacted with his daughter on four occasions.

      The most convincing evidence of Father’s desire to fulfill his parental

obligations is the fact that he filed a custody complaint against Mother

seeking shared custody.       Mother attempts to discount Father’s efforts by

implying that the custody litigation was an eleventh-hour ploy designed by

Father to evade the termination of his parental rights.        Indeed, § 2511(b)

provides that the orphans’ court must disregard a parents efforts to alleviate

the grounds for terminating parental rights pursuant to,              inter alia,

§2511(a)(1), that were initiated after receiving notice of the petition to

terminate parental rights.       However, the record in the case at bar

establishes that Father retained private counsel and filed the custody

complaint against Mother at least one month before Mother responded with

her petition to terminate his parental rights.      Even if we give Mother the

benefit of the doubt and presume that Father anticipated Mother’s desire to

terminate his parental rights, a notion that Father ardently contests, the

acknowledged fact remains that Father’s custody action preceded Mother’s

termination petition by one month.            Hence, the exclusionary provision

outlined in § 2511(b) is patently inapplicable herein, and Mother’s attempt to

invoke that principle through thinly-veiled insinuation is unconvincing.

      Next, in relation to Mother’s alternative argument that Father’s

intermittent   interactions   with   S.G.S.    during   2016   and   2017   were


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insignificant, the record supports the court’s determination that the brief

encounters were meaningful.          First, the record reveals that Father and

S.G.S. maintained a close relationship when Mother and Father shared

separate halves of a duplex between 2012 and 2014. Recall that, during this

period Father exercised overnight physical custody on alternating weekends

and interacted with S.G.S. daily.       In fact, during the evidentiary hearing,

Mother complained that Father would visit his daughter spontaneously. She

stated, “any time we were outside or he would walk over and talk into my

windows and doors.” N.T., 7/25/17, at 23. The father-daughter relationship

continued after Mother and S.G.S. moved from the home during May or June

of 2014. Indeed, although the parties disputed how long Father continued

to interact with S.G.S. regularly, the trial court determined that Father’s

custodial periods persisted until April 2016, when Father grew tired of

Mother’s unilateral imposition of conditions and restrictions and informed her

that he intended to file a custody action. While Father did not act on that

threat   until   thirteen   months    later,    in   the   interim,   he   periodically

communicated with S.G.S. while she was visiting her maternal grandfather.

The parent-child relationship endured this period of restricted contact, as

evidenced by S.G.S.’s affectionate responses to Father during their fleeting

exchanges.

     Given the above evidence, we can find no basis to disturb the orphans’

court’s finding that “their parent-child bond remained relatively strong


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despite only occasional contact.” Hence, we reject Mother’s contention that

Father’s periodic exchanges with S.G.S. during late 2016 and early 2017

were manifestly inadequate to demonstrate Father’s commitment to his

daughter. No relief is due.

      As the record sustains the orphans’ courts’ determination that Father

not only maintained limited contact with his daughter, but also initiated

custody proceedings against Mother during the six months preceding the

date she filed her petition to involuntarily terminate his parental rights

pursuant to § 2511(a)(1), the trial court did not err in denying Mother’s

petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/16/2018




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