Adoption of: M.M.M., Appeal of M.A.M.

J-S55026-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF M.M.M : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
:
APPEAL OF: M.A.M., FATHER : No. 886 WDA 2020

Appeal from the Order Entered July 27, 2020
In the Court of Common Pleas of Westmoreland County Orphans’ Court
at No(s): 91 of 2019

BEFORE: BOWES, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY McCAFFERY, J.: FILED JANUARY 14, 2021

M.A.M. (Father) appeals from the order entered in the Westmoreland

County Court of Common Pleas, Orphans’ Court, granting the petition of

A.M.K. (Mother) and her husband, T.K. (Stepfather) to involuntarily terminate

Father’s parental rights to M.M.M. (Child), born in August 2008. Father argues

the orphans’ court erred in: (1) permitting evidence of his criminal record; (2)

reasoning he should have filed a custody action and could have discovered

Mother and Child’s address; (3) allowing the guardian ad litem to examine

him “argumentatively;” (4) allowing Child’s attorney to read statements into

the record; and (5) concluding termination was proper under 23 Pa.C.S. §

2511(a)(1) and (2) and (b). After careful review, we affirm.

The factual and procedural history of this case is essentially undisputed.

Child was born as the result of Father and Mother’s relationship. By the time

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* Retired Senior Judge assigned to the Superior Court.
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of Child’s birth, however, the relationship had ended. N.T., 7/16/20, at 13-

14. For the first five years of Child’s life, Mother arranged for Father to visit

Child. Id. at 13-17. In “[t]he first couple of years,” Father saw Child

approximately once a week, but by the time she was three years old, Father

had visits approximately “once every couple of weeks.” Id. at 15. Mother

was present for all of these visits. Id. at 15-16. Father attributed the decline

of these visits to Mother’s resistance, while Mother attributed it to Father’s

disinterest. Id. at 14-17, 77-78. Mother ended all contact between Father

and Child, after a December 2013 criminal incident resulting in Father’s arrest

and conviction.1 Id. at 16-23. Father has had no contact with Child since

2013, and Child expresses little recollection of Father. Id. at 46, 51, 60.

Meanwhile, Mother began a relationship Stepfather in 2014. See N.T.

at 31. We note that at this time, Child was approximately six years old.

Mother and Stepfather married in 2016, and Stepfather has served as the

primary father figure in Child’s life. Id. at 33-34, 57. Child does not ask

about Father and views herself as a part of Stepfather’s family, even using

Stepfather’s last name on paperwork and school apparel instead of her own.

Id. at 31, 50-51, 55, 58.

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1Father was convicted of unlawful restraint, 18 Pa.C.S. § 2902(a)(1), in 2014.
Mother’s Exh. 1.

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On September 6, 2019, Mother and Stepfather filed a petition requesting

involuntary termination of Father’s parental rights, so that Stepfather could

adopt Child. The orphans’ court conducted a hearing on July 16, 2020, at

which Mother, Stepfather, and Father testified.

Much of the hearing focused on Mother’s decision to end Child’s contact

with Father three years earlier, in 2013, and on the obstacles Father allegedly

faced to resuming contact. Mother testified she made her decision due to

Father’s criminal charges and introduced, over his objection, copies of Father’s

criminal records. N.T. at 17-27. In addition to the 2014 conviction of unlawful

restraint, Father was also convicted: (1) in 2014 of simple assault, unlawful

restraint, and related offenses for a domestic violence incident involving his

girlfriend; and (2) in 2015 for possession of a controlled substance and

possession with intent to deliver a controlled substance. Mother’s Exhs. 1-3.

Mother was also concerned Father was engaged in drug use. N.T. at 22, 37,

42-43, 56-57. However, she explained she did not intend to end Child’s

relationship with Father permanently, and instead she anticipated Father

would one day reenter Child’s life. Id. at 22-27 (“[Father] was going to come

out . . . get his life together . . . and then whenever that’s all done, then I will

hear from him again. I just quit initiating — I didn’t want my daughter being

around that.”).

Nonetheless, Mother testified Father did not contact her or Child until an

unexpected phone call in 2018. N.T. at 28-30. She explained her phone

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number had remained the same since 2009. Id. at 27-28. After the phone

call, Mother and Father exchanged several text messages. Id. at 35. Mother

acknowledged she was resistant to communicating with Father at that time,

because she did not know whether “he had gone to rehab” nor “what’s going

on at that point.” Id. at 37. As a result, she blocked Father on her phone.

Id. at 38. Whereas Father alleged he sent Mother additional text messages,

Mother testified she did not receive them because she had blocked his

telephone number. Id. at 37-38. In August of 2019, Mother received a text

message from Father, wishing Child a happy birthday. Id. at 39. She

discovered that her previous phone block had expired, and thus she blocked

Father again. Id. at 39-41. Mother indicated that Father never filed for

custody or took any other action to make contact with Child.2 Id. at 38, 44-

45, 51.

In contrast, Father testified to the following: he attempted to contact

Mother and request visits with Child “countless times,” and had been sending

Mother text messages for Child on holidays and birthdays since 2014. N.T. at

80, 89, 97. Father went to Child’s maternal grandmother’s home “many

times,” but no one answered the door, and he was only able to speak to the

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2 However, Mother also testified about an incident, in which an unknown
juvenile contacted Child over social media, claimed to be living with Father,
and stated that Father loved Child and would be coming to her chorus concert.
N.T. at 51-55. The incident was very upsetting to Child. Id.

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maternal grandmother one time when she happened to be outside. Id. at 84,

103-05. Father claimed he searched for “four or five” years before calling

Mother on the phone in 2018. Id. at 84, 93. He reported he sent Mother

occasional text messages after the phone call but received no response. Id.

at 86-89. Nonetheless, Father conceded he did not take any other action to

make contact with Child, such as filing for custody. Id. at 90-111.

Relevant to Father’s issues on appeal, we note Child’s guardian ad litem

cross-examined Father on, inter alia, the issue of Child’s best interests. N.T.

at 107-112. Additionally, Father has another daughter, who was seven years

old at the time of the termination hearing, for whom he has a custody

agreement “through the court.” Id. at 97.

Child did not appear at the hearing, but her attorney, Judith Ciszek,

Esquire, stated she visited Child, Mother, and Stepfather at their home in

November of 2019. N.T. at 114. According to the GAL, Child told GAL: she

remembered Father, whom she called by his first name, from visits “when she

was small;” Child did not remember Father’s face; she had no feelings for

Father; Stepfather has been with Child “since she was very small” and “has

always been there for her, but [Father] wasn’t;” and Child “wants it to be

official that [Stepfather] is her father.” Id. at 115-17. Father did not object

to any of the statements by Child’s attorney. See id. at 120.

Child’s guardian ad litem (GAL), Diane Murphy, also advised the

orphans’ court of the following: she met Child and Mother in June of 2020,

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and spoke with Child individually. N.T. at 120. Child “spoke very lovingly of

her stepfather,” but with respect to Father, stated, “I really don’t know him at

all. I don’t know anything about him. I don’t know that I would recognize

him anywhere.” Id. at 121. The GAL stated there was no “parental/child

bonding” between Father and Child, and instead, Child has a bond with

Stepfather. Id. The GAL additionally stated Child understood “the adoption

process” and “is very desirous of being adopted by her stepfather.” Id. Father

likewise raised no objection to the GAL’s statements. See id. at 123.

Following the hearing, the orphans’ court entered the underlying decree

on July 27, 2020, terminating Father’s parental rights involuntarily. Father

timely filed a notice of appeal, along with a concise statement of errors

complained of on appeal, on August 24, 2020.

Father raises eight claims for our review:

I. Did the [orphans’] court abuse its discretion by allowing
[Mother] to introduce the criminal record of [Father] where
[Father] objected to their introduction on the grounds that they
were not relevant?

II. Did the [orphans’] court err by including in its reasoning
behind the termination of [Father’s] parental rights that a custody
action should have been filed by [Father]?

III. Did the [orphans’] court err by including [in its] reasoning
behind the termination of [Father’s] parental rights that it was
feasible for [Father] to locate the address of [Mother] and the
minor child?

IV. Did the [orphans’] court abuse its discretion by allowing
the guardian ad litem to examine [Father] argumentatively when
[Father] objected to such question on the grounds that it was in
contradiction of Pennsylvania’s Rules of Evidence?

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V. Did the [orphans’] court abuse its discretion by allowing
the attorney for the child to read statements into the record when
the declarant was not present?

VI. Did the [orphans’] court err in coming to its conclusion
that [Father], for a period of at least six months immediately
preceding the filing of the petition to involuntarily terminate
[Father’s] parental rights, had evidenced a settled purpose of
relinquishing his parental claim to the minor child when [Mother]
thwarted [Father’s] attempt at contact?

VII. Did the [orphans’] court err in coming to its conclusion
that [Father] demonstrated repeated and continued incapacity,
abuse, neglect, or refusal that caused the minor child to be
without essential parental care, control, or subsistence necessary
for her physical or mental wellbeing and the conditions and causes
of the incapacity, abuse, neglect or refusal cannot or would not be
remedied by [Father] when all attempt at contact with the minor
child was thwarted by [Mother]?

VIII. Did the [orphans’] court err in coming to its conclusion
that it would be in the best interests of the minor child to
involuntarily terminate the rights of [Father]?

Father’s Brief at 15-17.

Our standard of review in involuntarily termination matters is as follows:

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 omitted).

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Section 2511 of the Adoption Act governs involuntary termination of

parental rights. See 23 Pa.C.S. § 2511. It 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).

In the matter at bar, the orphans’ court terminated Father’s parental

rights pursuant to subsections 2511(a)(1), (2), and (b). We need only agree

with the court as to any one subsection of Section 2511(a), in addition to

Section 2511(b), to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super.

2004) (en banc). Here, we analyze the court’s decision to terminate pursuant

to Sections 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.

* * *

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(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. § 2511(a)(1), (b).

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

The orphans’ court must then consider the parent’s explanation for their

abandonment of the child, in addition to any post-abandonment contact. Id.

This Court has emphasized that a parent does not perform parental duties by

displaying “a merely passive interest in the development of [a] child.” In re

B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citation omitted). 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. 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

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others provide the child with his or her physical and emotional
needs. . . .

Id. (citations omitted).

We first consider Father’s first, fourth, and fifth issues, all of which

involve evidentiary challenges.3 In his first claim, Father contends the

orphans’ court committed an abuse of discretion by admitting irrelevant

evidence of his criminal history. Father’s Brief at 25-30. He relies on

Pennsylvania Rule of Evidence 401, which provides that evidence is relevant

if “it has any tendency to make a fact more or less probable than it would be

without the evidence; and . . . the fact is of consequence in determining the

action.” See Pa.R.E. 401(a)-(b). Father argues that his criminal conduct

occurred in 2013, years before the instant termination proceedings began,

and was of no consequence to determining whether the requirements of

Section 2511(a)(1) and (2) were satisfied. Father’s Brief at 27-28. He also

directs our attention to Rule 403, which permits a court to exclude relevant

evidence if the danger of unfair prejudice or confusing the issues outweighs

its probative value. See Pa.R.E. 403. Father asserts the evidence of his

criminal history prejudiced him and confused the issues by causing the court

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3 These evidentiary challenges are preserved for appeal, as Father raised
objections at the termination hearing. See Pa.R.E. 103(a)(1)(A)-(B) (“A party
may claim error in a ruling to admit . . . evidence only [if] a party, on the
record . . . makes a timely objection . . . and (2) states the specific ground,
unless it was apparent from the context.”); Thompson v. Thompson, 963
A.2d 474, 477 (Pa. Super. 2008) (failure to object to admission of testimony
waives any challenge on appeal).

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to focus on his character, rather than his attempts to contact and parent Child.

Father’s Brief at 28-29. Finally, Father contends that where Mother introduced

this evidence for its relevance to Section 2511(b), it was not permissible for

her to introduce evidence regarding Section 2511(b) without first establishing

grounds for termination pursuant to Section 2511(a). Id. at 29-30.

We note “the decision of whether to admit or exclude evidence is within

the sound discretion of the orphans’ court. A reviewing court will not disturb

these rulings absent an abuse of discretion. Discretion is abused if, inter alia,

the orphans’ court overrides or misapplies the law.” In re A.J.R.-H., 188

A.3d 1157, 1166-67 (Pa. 2018) (citations omitted).

The orphans’ court addressed the admission of Father’s criminal history

in its opinion as follows, in relevant part:

The criminal record was admitted in the context of the history
of [Father’s] personal life, and as one of the precipitating factors
that led to his absence for several years from the Child’s life. In
the Child’s early years, Mother was the one who initiated contact
between the Child and [F]ather. Mother did so in an attempt to
encourage Father to recognize the joys of fatherhood. In 2011,
Father and Child’s contact became less frequent because Mother’s
efforts at maintaining the relationship faded. At the end of 2013
and in the beginning of 2014, when Father was arrested and
eventually pled guilty to a felony as a result of illegal drug activity,
Mother ceased contacting him altogether. From 2013 through
2017, Father did not reach out to Mother or the Child, even though
Mother had the same telephone number since 2009.

We agree that a parent’s criminal conduct is not in and of
itself a factor in considering whether a parent has performed
parental duties or maintained contact with a child. However, in
this case, Father’s difficulties with the criminal justice system
explained why Mother stopped taking the initiative to contact him
and attempting to include him in the Child’s life. To that extent

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and for that purpose, evidence of Father’s criminal record was
relevant in this case and properly admissible.

Orphans’ Ct. Op., 9/9/20, at 2.

We agree with the analysis of the orphans’ court. Initially, while Father

is correct that a court must analyze Section 2511(a) first, before considering

Section 2511(b), this principle does not prevent a court from hearing evidence

relevant to both subsections at the same time. Father directs our attention to

no legal authority, and we are aware of none, that supports such a proposition.

Additionally, Father is mistaken that Mother sought to introduce this evidence

for its relevance to Section 2511(b) only. As the court observed, Mother cited

Father’s criminal history while explaining her relationship with Father, Father’s

relationship with Child, and the eventual decline of both relationships. See

N.T. at 13-17. When Father objected to the presentation of his criminal history

on the basis of relevance, Mother responded that the testimony was relevant

to establish her reasons for ending contact between Father and Child, to

address whether Father lacked parental capacity, and to show that adoption

would serve Child’s best interests. Id. at 17-19. The first and second of these

suggested purposes relate primarily to Sections 2511(a)(1) and (2), rather

than Section 2511(b).

Moreover, it was within the orphans’ court discretion to conclude

evidence of Father’s criminal history was relevant and admissible. See In re

A.J.R.-H., 188 A.3d at 1166-67. While it is true Father’s criminal activity

occurred years before the termination proceedings began, the evidence

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explained why Mother ended Father’s visits with Child, which assisted the

court in understanding the reasons for Father’s lack of contact, and the

obstacles that may have prevented him from resuming that contact, both of

which are important considerations pursuant to our case law regarding Section

2511(a)(1). See, e.g., B., N.M., 856 A.2d at 855-56 (“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[.]”). Thus, Father’s first claim is meritless.

We next consider Father’s fourth claim — that the orphans’ court abused

its discretion by permitting Child’s GAL to cross-examine him

“argumentatively.” Father’s Brief at 36-38. He directs our attention to the

following exchange, regarding whether adoption by Stepfather would be in

Child’s best interests:

[GAL:] Do you want what’s in the best interest of [Child]?

[Father:] Of course.

Q. Okay. And you are sitting in court today saying being
adopted into the family she’s been with for many years is not in
her best interest?

A. I know financially it would be probably in her best interest,
but I am talking about the love that I have for my child.

Q. So it’s about you and your love for a child that you didn’t
actively try to see for many, many years? [sic]

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A. No, nothing is about me. It’s all about her. It’s just, you
know — I don’t really understand what you are trying to say. You
are trying to say I’m being selfish or . . .

Q. What I am trying to say is a father, a biological father, and,
as you say, you are professing great love for her, would move
heaven and hell to see her —

[Father’s counsel]: Objection. Is that a question?

[GAL]: It is. I’m getting there.

Q. — you have not done that, have you?

A. I think I have done everything I could. I just think that
she was very hard to find.

N.T. at 110-11.

According to Father, this questioning ran afoul of Pennsylvania Rule of

Evidence 611(a), which directs that a “court should exercise reasonable

control over the mode . . . of examining witnesses” so as to make the process

“effective for determining the truth,” and “protect witnesses from harassment

or undue embarrassment.” See Pa.R.E. 611(a)(1), (3). Father complains the

GAL spoke to him in a narrative, rather than query, form, in order to place her

own opinions on the record and to embarrass him. Father’s Brief at 37. He

contends this examination prejudiced him because it caused a “deviation from

the fact-finding process and obscured the [orphans’] court[’]s process in

determining the truth of whether” the requirements of the Adoption Act had

been met. Id. at 37-38.

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While the orphans’ court did not rule on Father’s mid-examination

objection,4 we find no abuse of discretion in the court’s allowing the

examination to continue. See N.T. at 110-11. Father’s counsel requested

clarification as to what Child’s GAL was asking Father, and the GAL responded,

“I’m getting there. . . . [Y]ou have not done that, [i.e., “move heaven and

hell to see [Child,] have you?” Id. After reviewing the entire examination in

context, we conclude there was no abuse of discretion or violation of Rule 611.

See Pa.R.E. 611(a); In re A.J.R.-H., 188 A.3d at 1166-67.

Father’s fifth claim is that the orphans’ court abused its discretion by

permitting Child’s counsel to read statements, which Child allegedly made,

into evidence without proper authentication. Father’s Brief at 38-39. We

conclude this issue is waived, as Father raised no objection at the hearing.

See Pa.R.E. 103(a)(1)(A)-(B); Thompson, 963 A.2d at 477.

However, even if Father had not waived this claim, we would conclude

it is meritless. This Court has explained that legal counsel may indicate a

child’s preferred outcome as part of a termination proceeding, and that the

child’s statements in that context are admissible to establish their mental

state. In re B.J.Z., 207 A.3d 914, 917-20 (Pa. Super. 2019); see also In re

Adoption of K.M.G., ___ A.3d ___, 2020 WL 6580616 at *12-13 (Pa. Nov.

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4Father’s issue is preserved for our review. See Pa.R.E. 103(a)(1)(A)-(B);
Thompson, 963 A.2d at 477.

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10, 2020) (“recogniz[ing] that it may be a best practice for a child’s legal

counsel to divulge the child’s preferences,” but choosing to “leave the decision

of whether to place the child’s preference on the record to the child’s counsel

based upon counsel’s legal determinations in representing his client, as well

as the orphans’ court”). Here, Child’s counsel was not simply reading Child’s

statements into evidence, as Father contends. Counsel was presenting Child’s

wishes by describing her discussion with Child. See N.T. at 114-20 (Child’s

counsel recounting Child’s statements and concluding, “I found the child to be

very cogent, had a great ability to express her thoughts, and her thoughts

were [that] she wants to be adopted. [Stepfather] has been her father, and

he’s always been there for her, and she wants to be sure that it’s official.”).

We further note Child was eleven years old at the time of the hearing

and would be turning twelve the following month. The GAL pointed out that

after Child turned twelve, she would have to consent to being adopted, and

Child “wholeheartedly agreed to that.” N.T. at 121. See 23 Pa.C.S. §

2711(a)(1) (“[C]onsent to an adoption shall be required of . . . [t]he adoptee,

if over 12 years of age.”). As a result, it was not error for the orphans’ court

to consider Child’s wishes. This Court has emphasized the importance of

ensuring an older child consents to a proposed adoption prior to terminating

parental rights. See In the Interest of D.G., ___ A.3d ___, 2020 WL

6790746 at *7 (Pa. Super. filed Nov. 19, 2020) (explaining that the child’s

legal counsel provided deficient representation where, among other things, he

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did not argue that the child’s consent was essential to effectuate an adoption).

Accordingly, Father’s fifth claim fails.

We now consider Father’s second, third, and sixth claims, in which he

challenges the orphans’ court’s decision to terminate his parental rights. In

Father’s second claim, he contends the court erred by concluding his failure

to file for custody of Child was a sufficient reason to terminate. Father’s Brief

at 31-34. His related third claim is that the court erred in finding it was

feasible for him to locate Mother’s address so that he could file for custody.

Id. at 35-36. In both of these claims, Father places particular emphasis on

In re Adoption of C.M.W., 603 A.2d 622 (Pa. Super. 1992) (“C.M.W.”), in

which this Court observed that when a parent makes reasonable efforts to

overcome the obstacles preventing them from performing parental duties, “a

mere showing that [the] parent could conceivably have pursued legal action

more promptly cannot justify termination of parental rights.” See C.M.W.,

603 A.2d at 625.

The orphans’ court explained its decision as follows, in relevant part:

[Father] argues that the Court erred in noting [he] never filed a
Complaint for Custody, asserting that such action is not
mandatory in order for a parent to demonstrate support,
performance of parental duties or contact with the [c]hild.

It was not and is not this Court’s opinion that the filing of a
Complaint for Custody was mandatory. However, the fact that
[Father], a college-educated man, had some previous experience
with the legal process required to seek custodial time with his
Child, yet never availed himself of that process — coupled with
the fact he had not acknowledged her birthday or holidays with
cards or gifts for years, and never paid anything in the form of

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support, although he shared custody [of] his other daughter — led
to an inference that he did not desire to assume parental duties
or responsibilities for [Child]. His passivity and inaction speak
volumes.

[Father] argues that the Court erred in concluding that it was
feasible for [him] to locate Mother’s mailing address in order to
file a custody action relating to the Child.

This Court did not reach its conclusion based upon a finding
that it was feasible for [Father] to locate the Child in order to file
a custody action. This Court’s conclusion was based upon the fact
that [Father] was familiar with the legal process relating to
custody because he has a custody agreement with the mother of
his other child, and [Father’s] stated excuse for failing to act in
this case was because he believed he lacked the financial
resources to do so. Although the custody courts are a public
service available to all parents, without regard to economic
circumstances, [Father] never availed himself of the process,
again leading to an inference that he did not desire to assume
parental duties or responsibilities.

Father maintains he was unable to locate Mother, yet he knew
where Mother’s mother resided; Mother resided close by in
western Pennsylvania the entire time; and presumably Father
could have conducted a search through the internet or an
investigator to locate her, if he sincerely desired to do so.

Finally, when Mother and her husband filed the within
“Petition for Termination of Parental Rights” in September 2019,
Father would have been made aware of Mother’s address. He still
chose to do nothing. In other words, although Father expresses
love for his daughter and a desire to be her father, for several
years, he did not act to achieve that result.

Orphans’ Ct. Op. at 2-4.

Father mischaracterizes the reasoning of the orphans’ court. The court

did not state that Father’s failure to file a custody action was sufficient by itself

to terminate his parental rights. Instead, the court found his inaction or non-

participation in the court custody system was one relevant factor. We do not

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disturb the court’s conclusion that Father did not make reasonable efforts to

overcome the obstacles preventing him from maintaining a relationship with

Child as he contends, despite Father’s insistence at the hearing that “all I

thought about was my daughter.” See N.T. at 97. Similarly, the court was

free to determine the credibility of Father’s testimony that that he was unable

to locate Mother for “four or five” years, despite knowing where Child’s

maternal grandmother lived, and despite living in the same general area as

Mother, casts doubt on his assertion that he was actually looking. See id. at

84; see also In re T.S.M., 71 A.3d at 267.

Father’s sixth and final claim5 is that the orphans’ court erred in

terminating his parental rights under subsection 2511(a) because the court

failed to acknowledge Mother thwarted his attempts to contact Child. Father’s

Brief at 39-41. Father once again directs our attention to his termination

hearing testimony, that his lack of contact with Child was due to his inability

to locate Mother and her resistance to allowing his relationship with Child to

resume.6 Id. at 40-41.

____________________________________________

5Father combines the sixth, seventh, and eighth claims listed in his statement
of questions involved into a single claim in the argument section of his brief.
But see Pa.R.A.P. 2119(a) (“The argument shall be divided into as many parts
as there are questions to be argued[.]”).

6 While Father’s statement of questions involved articulates a subsection
2511(b) challenge to the orphans’ court finding that termination of parental
rights would be in Child’s best interests, he does not develop any such
argument in his brief. We note that even if Father had not abandoned this

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Father’s claim merits no relief. As indicated above, the orphans’ court

found Mother and Stepfather produced clear and convincing evidence in

support of their petition pursuant to Section 2511(a)(1): Father evidenced a

settled purpose of relinquishing his parental claim, or refused or failed to

perform his parental duties, for the six months immediately preceding the

filing of the petition on September 6, 2019. The record supports the court’s

finding. While Father began making a minimal effort to resume his

relationship with Child in 2018, by calling Mother on the phone and sending

her occasional text messages thereafter, we have explained that courts must

not apply the six-month period in Section 2511(a)(1) mechanically, but must

consider the whole history of a given case. See B., N.M., 856 A.2d at 855.

In this case, Father undertook no action to contact Child for years, until his

phone call in 2018. When Mother was resistant to allowing Father to reenter

Child’s life, and created an obstacle by blocking him on her phone, Father did

not nothing to overcome the obstacle. Instead, he simply continued sending

text messages that he knew, or should have known, would not reach Mother.

See id. (“Parental duty requires that the parent . . . not yield to every problem

. . . . A parent must . . . exercise reasonable firmness in resisting obstacles

placed in the path of maintaining the parent-child relationship.”) We further

note Father only sent six text messages during the relevant six month period,

____________________________________________

claim, the record includes evidence that Child has no relationship with Father
and that Child views Stepfather as her primary father figure.

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from March 6 to September 6, 2019. See Mother’s Exh. A. Thus, the court

did not abuse its discretion by terminating his parental rights pursuant to

Section 2511(a)(1).

As we conclude that none of Father’s claims merits relief, we affirm the

July 27, 2020, order involuntarily terminating his parental rights to Child.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/14/2021

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