J-A23025-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: Z.T., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: M.T., BIOLOGICAL FATHER No. 322 WDA 2014
Appeal from the Decree entered January 28, 2014,
in the Court of Common Pleas of Allegheny County,
-13-087
BEFORE: DONOHUE, ALLEN, and MUSMANNO, JJ.
MEMORANDUM BY ALLEN, J.: FILED OCTOBER 07, 2014
rights
to his son, Z.T., born in September of 2002. We affirm.1
parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1) and (b). Attached to
the involuntary termination petition is a consent of the adult intending to
adopt, which was executed by Stepfather on June 19, 2013. See Petition,
January 17, 2014, during which the following witnesses testified: Mother;
1
The Guardian Ad Litem
9. Further, the
and welfare of Z.T. Id. at 19-20.
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Because the parties are well acquainted with the details of this case,
facts of record, we adopt
them here. See -3.2
Father timely filed a notice of appeal and a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
On appeal, Father presents the following issues for our review:
[Father] had, for a period of at least six (6) months preceding
the filing of the petition for termination of parental rights,
evidenced a settled purpose of relinquishing his parental claim to
. . . [Z.T.], and/or had refused to perform his parental duties?
II. Whether the [or
development[al], physical and emotional needs[] and welfare of
[Z.T.]?
al rights
according to the following standard:
[A]ppellate courts must apply an abuse of discretion standard
termination of parental rights. As in dependency cases, our
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 (Pa. 2010). If the factual findings are
2
1925(a) is not paginated.
Therefore, we have assigned each page a sequential number for ease of
reference.
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supported, appellate courts review to determine if the trial court
made an error of law or abused its discretion. Id.; R.I.S., [___
Pa. ___, ___, 36 A.3d 567, 572 (Pa. 2011) (plurality opinion)].
As has been often stated, an abuse of discretion does not result
merely because the reviewing court might have reached a
different conclusion. Id.; see also Samuel Bassett v. Kia
Motors America, Inc., [___ Pa. ___], 34 A.3d 1, 51 (Pa.
2011); Christianson v. Ely, [575 Pa. 647, 654-655], 838 A.2d
630, 634 (Pa. 2003). Instead, a decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. Id.
As we discussed in R.J.T., there are clear reasons for applying
an abuse of discretion standard of review in these cases. We
observed that, unlike trial courts, appellate courts are not
equipped to make the fact-specific determinations on a cold
record, where the trial judges are observing the parties during
the relevant hearing and often presiding over numerous other
hearings regarding the child and parents. R.J.T., [608 Pa. at
28-30], 9 A.3d at 1190. Therefore, even where the facts could
support an opposite result, as is often the case in dependency
and termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the
error of law or an abuse of discretion. In re Adoption of
Atencio, [539 Pa. 161, 165,] 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, which requires a bifurcated analysis.
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating
parental rights. Initially, the focus is on the conduct of the
parent. The party seeking termination must prove by clear and
convincing evidence th
statutory grounds for termination delineated in Section 2511(a).
termination of his or her parental rights does the court engage in
the second part of the analysis pursuant to Section 2511(b):
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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) (citing 23 Pa.C.S.A. §
2511). The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted statutory grounds for seeking the termination of
parental rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super.
2009).
pursuant to Section 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.
...
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.
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23 Pa.C.S.A § 2511(a)(1), (b).
With respect to 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 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)). Further:
Once the evidence establishes a failure to perform parental
duties or a settled purpose of relinquishing parental rights, the
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. (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
merely passive interest in the development
of the child. In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (internal
citations omitted). We have explained:
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
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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
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. 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
others provi
emotional needs.
Id.
With respect to Section 2511(b), this Court has explained the requisite
analysis as follows:
Subsection 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. In In re C.M.S., 884
A.2d 1284, 1287 (Pa. Super. 2005), this Court stated,
involved in the inquiry into the needs and w
In addition, we instructed that 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. Id. However, in cases where there is no evidence of a
bond between a parent and child, it is reasonable to infer that no
bond exists. In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super.
2008). Accordingly, the extent of the bond-effect analysis
necessarily depends on the circumstances of the particular case.
Id. at 63.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
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Specifically, Father
legitimate fear by [Father] that another PFA would be filed against him if he
3
Id. In addition, in prior custody
proceedings between the parties, Father and Mother were ordered by the
trial court to contact a reunification counselor for the purpose of Father
obtaining partial physical custody of Z.T. Father states that he never
participated in reunifi
of reunification counseling in the hands of his previous counsel [in the
Id. at 14.
With respect to S
Id.
his child until
Id. Father
3
Mother testified that the court issued two separate PFA orders against
Father after their marital separation. N.T., 1/17/14, at 18. Father testified
that the second PFA order was issued against him on June 29, 2011. Id. at
92. Father acknowledged on cross-
did not see Z.T. during the entire year of 2011, even though the aforesaid
PFA order expired after only four months. Id. at 94. Notably, in his
testimony, Father failed to acknowledge that his conduct resulted in the PFA
orders issued against him.
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further claims that he has not gained a strong bond with Z.T. because of
failures by his counsel in the custody proceedings.
Upon careful review, we conclude the testimonial evidence supports
2511(a)(1) and (b). We therefore discern no abuse of discretion by the
appeal See Trial
Court Opinion, 3/20/14. The parties are directed to attach a copy of the
Rule 1925(a) opinion in the event of further proceedings.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2014
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