J-A29027-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: B.W., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.W., NATURAL FATHER :
:
:
:
:
: No. 826 WDA 2019
Appeal from the Order Entered, February 19, 2019,
in the Court of Common Pleas of Washington County,
Orphans' Court at No(s): 63-18-1195.
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED DECEMBER 20, 2019
J.W. (Father) appeals from the orphan’s court order terminating his
parental rights to his nine-year-old son, B.W. (Child). The termination petition
was filed by K.B. (Mother). Mother’s husband, A.B. (Stepfather), intends to
adopt Child. After review, we affirm.
The orphan’s court stated the factual history of this case as follows:
Child was born of the marriage of Mother and Father, who were
married on August 1, 2009 in Virginia. The Child was born [i]n
August 2010, and his parents divorced in May of 2013 in
Pennsylvania. Mother then married Adoptive Father [i]n May 2017
in Pennsylvania.
During the Child's formative years, Father had been
incarcerated on multiple occasions, and was incarcerated at the
time of the termination proceedings before the orphan's court
(Father appeared by video with the consent of his counsel, who
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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was present in the courtroom.). Mother left Virginia in February of
2012, with Child, and returned to Pennsylvania due to Father's
alcohol problems and the abusive environment in the marital
home. Mother moved into her mother's home [in] Charleroi,
Pennsylvania.
On July 6, 2012, Mother and Father entered into a consent
custody order, although Father was incarcerated in Virginia at the
time and did not appear for the custody hearing. Father has not
seen Child in person since July of 2015, when Mother drove the
child to Virginia to facilitate a visit while Father was incarcerated.
Although Mother maintained the same e-mail address since 2015,
Father made no attempt to contact Mother or the Minor Child via
that e-mail address.
Father did make attempts to text or call Mother via cell
phone two to three times a week, but would not request to speak
with child. Father had made intermittent child support payments
to Mother for the Child, but the last payment of support occurred
on July 23, 2016. There was very little communication between
Mother and Father between July of 2016 and the time of his most
recent incarceration in 2017. Father has not recognized the Child's
birthday or Christmas since 2016, however, in 2018, Father did
send the Minor Child a birthday card, after being notified of the
termination proceedings.
Father did not start making efforts to communicate with the
Child until June or July of 2018, after he was given notice that
Mother was seeking to terminate his parental rights. Within the
six months leading up to that notice, Father made no attempts to
communicate with the Minor Child. Father has never been involved
in the health care decisions, education decisions, or
extracurricular activities relating to the Child. Ultimately, Birth
Father has not physically seen the Child since July of 2015, nor
has he made an effort to do so, and has not financially supported
the Child since July of 2016.
Trial Court Opinion, 7/8/19, at 1-3 (citations to record omitted).
Following a hearing, the orphan’s court entered an order on
February 15, 2019, terminating Father’s rights to B.W. After Father’s
counsel withdrew and new counsel was appointed, the orphan’s court
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allowed new counsel to perfect the appeal by June 3, 2019. Father’s
counsel filed a timely notice of appeal on May 31, 2019. Both Father
and the orphan’s court complied with Pa.R.A.P. 1925.
Father raises two issues in this appeal:
1. Did the trial court err in granting the Petition for Involuntary
Termination of Parental Rights under 23 Pa.C.S. §2511 (a)(1),
where [Mother] failed to prove by clear and convincing evidence
that anything other than incarceration prevented Father from
fulfilling his parental obligations?
2. Did the trial court err in granting the Petition for Involuntary
Termination of Parental Rights under 23 Pa.C.S. §2511(b) in that
[Mother] failed to prove by clear and convincing evidence that the
statutory grounds for termination best serves the needs and
welfare of the child?
Father’s Brief at 2
We are 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 Adoption of A.C., 162 A.3d 1123, 1128 (Pa. Super. 2017) (quoting In
re T.S.M., 71 A.3d 251, 267 (Pa. 2013).
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Termination of parental rights is governed by section 2511 of the
Adoption Act, 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.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
The petitioner must 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).
In his first issue, Father contends that the orphans’ court decision is
against the weight of the evidence. Father maintains that termination was
not warranted because he utilized all available resources during his
incarceration. See Father’s Brief at 6-8.
Section 2511(a)(1) provides that a court can terminate parental rights
if, inter alia, the petitioner provides clear and convincing evidence that the
respondent-parent failed to perform parental duties for a period of at least six
months immediately preceding the filing of the petition. See 23 Pa.C.S.A. §
2511(a)(1).
Although it is the six months immediately preceding the filing of the
petition that is most critical to the analysis, the trial court must consider the
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whole history of a given case and not mechanically apply the six-month
statutory provision. In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004)
(citation omitted). However, the court shall not consider any efforts by the
parent to which are initiated subsequent to the giving of notice of the filing of
the petition. See 23 Pa.C.S.A. § 2511(b) (in reference to Subsection
2511(a)(1).
In an analysis under this Subsection 2511(a)(1), we have acknowledged
there is no simple or easy definition of parental duties. But we have explained:
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.
***
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
convenient time to perform one's parental responsibilities
while others provide the child with [the child's] physical and
emotional needs.
In re B.,N.M., 856 A.2d at 855 (internal citations and quotations omitted).
The court must examine the individual circumstances of each case and
consider all explanations offered by the parent facing termination of his or her
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parental rights, to determine if the evidence, in light of the totality of the
circumstances, clearly warrants the involuntary termination. Id.
A parent’s incarceration does not, in itself, provide grounds for the
termination of parental rights. Id. An analysis of an incarceration case
depends upon which provision under section 2511(a) termination is sought.
When a petitioner seeks to terminate an incarcerated parent’s rights
under section 2511(a)(1), we have said a parent's responsibilities are not
tolled during incarceration. Id. The court’s focus is whether the parent
utilized resources available while in prison to maintain a relationship with his
or her child. Id. (citation omitted). An incarcerated parent is expected to
utilize all available resources to foster a continuing close relationship with his
or her children. Id. Where the parent does not exercise reasonable firmness
“in declining to yield to obstacles,” parental rights may be forfeited. In re
Adoption of A.C., 162 A.3d at 1130 (quoting In re Adoption of McCray,
331 A.2d 652, 655 (Pa. 1975)).
Finally, the court must account for an incarcerated parent’s self-imposed
barriers while simultaneously evaluating the parent’s duty to overcome them:
Where a non-custodial parent is facing termination of his or
her parental rights, the court must consider the non-
custodial parent's explanation, if any, for the apparent
neglect, including situations in which a custodial parent has
deliberately created obstacles and has by devious means
erected barriers intended to impede free communication
and regular association between the non-custodial parent
and his or her child. Although a parent is not required to
perform the impossible, he must act affirmatively to
maintain his relationship with his child, even in difficult
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circumstances. A parent has the duty to exert himself, to
take and maintain a place of importance in the child's life.
In re B.,N.M., 856 A.2d at 855-856 (citations omitted).
Father cites to sporadic conduct made over the last five years and efforts
to complete a divinity program while incarcerated. See Father’s Brief at 6-8.
Mother testified that the last time Father had physically seen Child was in
2015. The last time Mother received any type of support was in July 2016.
She testified that Father did not send Child any cards or presents for his
birthday or Christmas in 2017. In 2018, Father sent a birthday card. And
that the first time Father attempted to communicate with Child in 2018 was
in the summer, after Mother had served Father with notice of the filing of the
termination petition. The court determined that Mother met her evidentiary
burden under Section 2511(a). We conclude that the orphans’ court did not
abuse its discretion as to the first prong of the termination analysis. See 23
Pa.C.S.A. § 2511(a)(1).
We now turn to the second prong under section 2511(b). This Court
has stated that the focus in terminating parental rights under section 2511(a)
is on the parent, but it is on the child pursuant to section 2511(b). See In re
Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc). In
reviewing the evidence in support of termination under section 2511(b), our
Supreme Court has stated as follows:
[I]f the grounds for termination under subsection (a) are met, a
court “shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child.” 23 Pa.C.S.
§ 2511(b). The emotional needs and welfare of the child have
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been properly interpreted to include “[i]ntangibles such as love,
comfort, security, and stability.” In re K.M., 53 A.3d 781, 791
(Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa. 1993)],
this Court held that the determination of the child's “needs and
welfare” requires consideration of the emotional bonds between
the parent and child. The “utmost attention” should be paid to
discerning the effect on the child of permanently severing the
parental bond. In re K.M., 53 A.3d at 791.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013).
When evaluating a parental bond, “the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal
citations omitted). Although it is often wise to have a bonding evaluation and
make it part of the certified record, “[t]here are some instances...where direct
observation of the interaction between the parent and the child is not
necessary and may even be detrimental to the child.” In re K.Z.S., 946 A.2d
753, 762 (Pa. Super. 2008).
A parent’s abuse and neglect are also a relevant part of this analysis.
See In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008). Thus, the court
may emphasize the safety needs of the child. See In re K.Z.S., 946 A.2d at
763 (affirming involuntary termination of parental rights, despite existence of
some bond, where placement with mother would be contrary to child’s best
interests). “[A] parent's basic constitutional right to the custody and rearing
of ... her child is converted, upon the failure to fulfill ... her parental duties, to
the child’s right to have proper parenting and fulfillment of [the child's]
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potential in a permanent, healthy, safe environment.” In re B.,N.M., 856 A.2d
847, 856 (Pa. Super. 2004) (internal citations omitted).
Instantly, the record reveals that Child considers Stepfather to be his
dad. He refers to Stepfather as Daddy. Stepfather provides Child with care
and support. Child also desires to be adopted by Stepfather. Mother reported
that Child did not think he would be able to recognize Father. Child does not
talk about Father. And when Child did receive communication from Father,
Child was not interested in it. The orphans court determined that in the “six
years Child has known [Stepfather], it is clear they have developed an
extremely close bond as father and son.” The orphans’ court determined
Mother met the second prong of the termination analysis, concluding that
termination would best serve Child’s developmental, physical and emotional
needs and welfare. We conclude that this finding is supported by the record
and thus not an abuse of discretion.
In sum, the orphans’ court did not abuse its discretion when it
determined that Mother met both prongs of the termination analysis under
Sections 2511(a)(1) and (b).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/20/2019
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