Case Information
*1 J-S31015-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN RE: D.W.G., III : IN THE SUPERIOR COURT OF
: PENNSYLVANIA :
APPEAL OF: D.W.G., JR., NATURAL :
FATHER :
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: No. 77 WDA 2017 Appeal from the Order Entered December 14, 2016 In the Court of Common Pleas of Blair County Orphans’ Court at No(s): 2016 AD 11C IN RE: A.S.E.G. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA :
APPEAL OF: D.W.G., JR., NATURAL :
FATHER :
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: No. 78 WDA 2017 Appeal from the Order December 14, 2016 In the Court of Common Pleas of Blair County Orphans’ Court at No(s): 2016 AD 11B BEFORE: PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, J. FILED MAY 15, 2017
D.W.G., Jr. (“Father”) appeals from the order entered on December 14, 2016, granting the petition filed by S.D.S. (“Mother”) and her husband, J.M.S., (“Stepfather”) to involuntarily terminate his parental rights to his female child, A.S.E.G., born in August 2007, and his son, D.W.G., III, born *2 J-S31015-17
in December 2005, (collectively, the “Children”), pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1) and (b). We affirm.
In its opinion, the trial court set forth the factual background and procedural history of this appeal, which we adopt herein. See Orphans’ Court Opinion, 12/14/16, at 1-9. On March 16, 2016, Mother and Stepfather filed the petitions seeking to involuntarily terminate the parental rights of Father to the Children. The court held an evidentiary hearing on August 10, 2016. At the hearing, Mother and Stepfather testified on their own behalf. Father testified on his behalf, and presented the testimony of P.R., his mother.
Based on this testimony and the documentary evidence admitted at the hearing, the court entered its termination order and opinion on December 14, 2016. Father timely filed notices of appeal and concise statements pursuant to Pa.R.A.P. 1925(a)(2)(i). 1
On appeal, Father raises four issues:
I. Whether or not the Mother has demonstrated by clear and convincing evidence that the Father’s conduct over a period of at least six months immediately preceding the filing of the Petition demonstrates a settled purpose of relinquishing his parental claim?
II. Whether or not the Natural Father used all available resources to preserve the parent-child relationship such that the termination of parental rights should not have been granted?
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1 This Court, acting sua sponte , consolidated the two appeals.
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III Whether or not the termination of the parental rights of the responding parent should be granted where the petitioning parent actively sought to undermine and obstruct the relationship between the responding parent and his children? IV. Whether or not the Mother or the Guardian Ad Litem put forth adequate evidence to allow the Honorable Trial Court to make a constitutionally sufficient determination regarding whether or not there exists a bond between the Father and his Children that would have a detrimental impact on the Children if it were severed?
Father’s Brief, at 5.
In reviewing an appeal from an order terminating parental rights, we adhere to the following standard:
[A]ppellate courts must apply an abuse of discretion standard when considering a trial court’s determination of a petition for 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. If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will.
[T]here 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. 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 - 3 -
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record and the court’s legal conclusions are not the result of an error of law or an abuse of discretion.
In re Adoption of S.P. , 47 A.3d 817, 826-827 (Pa. 2012) (internal citations omitted).
The burden is upon the petitioner to prove by clear and convincing evidence that the asserted grounds for seeking the termination of parental rights are valid. See In re R.N.J. , 985 A.2d 273, 276 (Pa. Super. 2009). 2
Moreover, we have explained that
[t]he standard of 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 hesitance, of the truth of the precise facts in issue.” Id . (quoting In re J.L.C. , 837 A.2d 1247, 1251 (Pa. Super. 2003)).
In his brief, Father contends that the court abused its discretion or erred as a matter of law in concluding that the evidence was sufficient to support the involuntary termination of his parental rights under § 2511(a)(1) and (b).
This Court may affirm the trial court’s decision regarding the termination of parental rights with regard to any one subsection of section 2511(a). See In re B.L.W. , 843 A.2d 380, 384 (Pa. Super. 2004) ( en banc ). Here, as noted, the court terminated Father’s parental rights under § 2511(a)(1) and (b), which provides as follows:
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2 Thus, the burden to support the petition is not on both the petitioner and the guardian ad litem , as alleged by Father.
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§ 2511. Grounds for involuntary termination (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 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.A. § 2511(a)(1), (b).
With respect to subsection 2511(a)(1), our Supreme Court has held that
[o]nce 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).
In re Adoption of Charles E.D.M. , 708 A.2d 88, 92 (Pa. 1988) (citation omitted).
Further, this Court has stated that
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the trial court must consider the whole history of a given case and not mechanically apply the six-month statutory provision. The court must examine the individual circumstances of each case and consider all explanations offered by the parent facing termination of his or her parental rights, to determine if the evidence, in light of the totality of the circumstances, clearly warrants the involuntary termination.
In re B.,N.M. , 856 A.2d 847, 854-855 (Pa. Super. 2004) (citations omitted).
Father argues that the record clearly established that the Mother failed to sufficiently demonstrate that his conduct over the six months immediately preceding the filing of the petition demonstrated that he had a settled purpose of relinquishing his parental claim. Additionally, Father asserts that he put forth reasonable and significant efforts to find and contact the Children, and to maintain his bond with them, considering all of the circumstances surrounding this case.
Specifically, Father contends that he was incarcerated, and he utilized all of the resources available to him to attempt to establish a connection with the Children. At the same time, Mother was engaging in ongoing efforts to evade Father and prevent a relationship between him and the Children. Father alleges that Mother utilized his incarceration to further these efforts by refusing to provide him with a contact address, and by moving to Pennsylvania without telling him.
Moreover, Father contends that the record also clearly established that Mother actively sought to prevent and obstruct his relationship with the
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Children, and that, by terminating Father’s parental rights, the trial court rewarded Mother’s misconduct. Father claims that, considering the totality of the circumstances and the bad faith conduct of Mother, the trial court should have excused his lack of success in contacting the Children.
Obviously, incarceration makes performance of the duty to protect, support, and maintain communication with a child much more difficult. Our Supreme Court has instructed that
a parent’s absence and/or failure to support due to incarceration is not conclusive on the issue of abandonment. Nevertheless, we are not willing to completely toll a parent’s responsibilities during his or her incarceration. Rather, we must inquire whether the parent has utilized those resources at his or her command while in prison in continuing a close relationship with the child. Where the parent does not exercise reasonable firmness in declining to yield to obstacles, his other rights may be forfeited.
47 A.3d at 828 (quoting In re: Adoption of McCray , 331 A.2d 652, 655 (Pa. 1975)). “[I]ncarceration neither compels nor precludes termination of parental rights.” Id . (quoting In re Z.P. , 994 A.2d 1108, 1120 (Pa. Super. 2010)).
Regarding subsection (b), Father argues that neither Mother nor the guardian ad litem put forth sufficient evidence to allow the trial court to make a determination as to the existence of a bond between Father and the Children that, if severed, would have a detrimental impact on them.
This Court has stated that the focus in terminating parental rights under § 2511(a) is on the parent , but it is on the child pursuant to
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subsection (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 recently 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 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 at 1121 (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) (citation omitted).
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The fact that the child “harbors affection” for a parent and that there is a biological connection is not enough “to establish [that] a de facto beneficial bond exists.” In re K.K.R.-S. , 958 A.2d 529, 535 (Pa. Super. 2008) “The psychological aspect of parenthood is more important in terms of the development of the child and [his or her] mental and emotional health than the coincidence of biological or natural parenthood.” Id . (citations omitted).
“[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] potential in a permanent, healthy, safe environment.” In re B.,N.M. , 856 A.2d 847, 856 (Pa. Super. 2004) (internal citations omitted). “[W]e will not toll the well-being and permanency of [a child] indefinitely.” In re Adoption of C.L.G. , 956 A.2d at 1007 (citing In re Z.S.W. , 946 A.2d 726, 732 (Pa. Super. 2008) (noting that a child’s life “simply cannot be put on hold in the hope that [a parent] will summon the ability to handle the responsibilities of parenting.”)).
With the above standards of review in mind, we have thoroughly reviewed the record, the parties’ briefs, and the applicable law. We find that the court ably and methodically considered the evidence presented at trial, and addressed Father’s issues. The record supports the court’s factual findings, and the court’s legal conclusions are not the result of an error of law or an abuse of discretion; competent evidence supports the court’s
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determinations. Accordingly, we affirm the court’s order based on the discussion in the opinion entered on December 14, 2016. See Trial Court Opinion, 12/14/16.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/15/2017
- 10 - I [8] I [7] [4] *11 Circulated 04/26/2017 01:43 PM ' IN THE COURT OF COMMON PLEAS OF BLAIR. COUNTY, PENNSYLVANIA IN RE: NO. 2016 AD 11B
AJOMMOISIM1LSE10111111111110111111111 : NO. 2016 AD 11C DiION III PRESIDING JUDGE HON. WADE A. KAGARISE p5=7' -P. r---- c-) V--3 p. - ,.- 7.3- COUNSEL FOR PETIT1ONER.S c.::) rrl cJ MARYANN JOYCE BISTLINE, ESQUIRE ' r--- ..- :.:. `v ..-- v. 1._-: COUNSEL FOR RESPOWti\IT in JASON M. IMLER, ESQUIRE (DUNS GM. -, ,. n": ,r1 -, t..;,:1V-) - :11: --*-- _,Z, --10 GUARDIAN AD LITEM (c:;(,, JAMES V. MCGOUGH, ESQUIRE ul 2f.
LA) OPINION
Date: December 14, 2016
The Court has been called upon to decide Petition for Involuntary, Termination of Parental Rights regarding two minor children AINSSEap Gun, born August Mk 2007 and Da Gan III, born December, 2005.
PROCEDURAL mSTORY:
The Petitioners J:M.S. and S.D.S. filed Petitions for Involuntary Termination Parental Rights regarding two minor children, A.S.E.G. and D.W.G. III., on or about March 16, 2016. Petitioner S,D.S. is biological mother the subject children. J.M.S. is Petitioner S.D.S.'s husband. The Respondent D.W.G. Jr., the biological father the subject children. The Court entered an Order on March 30, 2016 scheduling a hearing for May 9, 2016 at 1:30 p.m. The Order March 30, also appointed James McGough, Esquire to serve as Guardian Ad Litem two subject children. On April 29, 2016, the Court entered an Order appointing Jason linter, Esquire to represent D.W.G. Jr,
The Court conducted a hearing on May 9, 2016. At the time of that hearing, Attorney D W,G. Jr. requested a continuance the scheduled hearing which was Itnler on be granted. The Court utilized the May 9, 2016 proceeding to conduct status conference with counsel. As result, the Court entered an Order on that day scheduling the matter for a full day evidentiary on August 10, 2016. Further, the Court indicated that another status conference would occur on June 29, 2016. The Court conducted a status conference on June 29, 2016. As a result of that status conference, the Court issued an Ordef on that date reaffirming that evidentiary hearing would take place on August 10, 2016.
The evidentiary hearing regarding the subject children occurred its conclusion on August 10, 2016. At the close evidentiary record, Court was requested by both Petitioners' Respondent's counsel to have time submit legal memorandums, Neither party objected the guardian ad litem counsel's desire simply place his position on the record at -40 close the evidentiary hearing. The Court entered an Order indicating that transcript would be transcribed no later than August 31, 2016 and that counsel would have until September 30, present written arguments and/or briefs support their position. The Court received the Petitioners' legal memorandum/brief on September 30, 2016. Respondent's counsel requested an extension and filed their legal memorandum/brief on October 4, 2016. This matter is now ripe for disposition.
FACTUAL HISTORY:
The Petitioner S.D.S. presented testimony the evidentiary hearing. S.D.S testified that she was born on December 40, 1988. She testified that she is the subject children's biological mother. She testified that Respondent the subject child's biological father. She testified subject child D.W.G. III was born on December 0, 2005. S.D.S. testified she lived *13 in California at the time of D.W.G. III's birth. She resided with her parents. She testified that her parents still reside in the same house they lived in when D.W.G. [111] was born, S.D.S. was in tenth grade when D.W.G. m was born and had just graduated from high school when A.S.E.G. was born. S.D.S. testified that the last time the Respondent D.W.G. Jr. visited with the children was in February of 2012. S.D.S. also testified that the last time that she had heard from D.W.G. Jr. was in February 2012. S.D.S. testified that when mail is sent to her Mother's house for her it forwarded her. S.D.S. testified that in addition to D.W.G. Jr. not having contact with the children she has also not received any cards, letters or gifts for the children from D.W.G. Jr. nor has he offered to provide support for the children. S.D.S. testified that he has not attempted call the children since February 2012.
S.D.S. testified that there is a custody order regarding the children in Fresno, California from which only referenced D.W.G III. S.D.S. indicated that the custody order required D.W.G. Jr.'s visitation be through third party which at time the parties agreed would be S.D.S's father. S.D.S testified that D.W.G. Jr. saw children a couple times but then he either did show up at all or would show up under the influence. At that time, S.D.S, told D.W.G. Jr. that they would either have to follow the Court Order he would have have his visits at Courthouse. S.D.S. testified that the visits ceased that time, S.D.S. testified that she now desires D.W.G. Jr.'s parental rights be terminated that she believes that termination is in best interest children. S.D.S. testified if parental rights D.G. Jr. are terminated that she will proceed with a Petition for Adoption allow her husband to adopt children.
On cross-examination, S.D.S. testified that she left Fresno, California May 2008 and returned Fresno in August 2010. She testified thatshe originally left Fresno, California due *14 to the fact that she did not believe that it was the best place to raise the children and also due to physical abuse that occurred during her relationship with the Respondent. S.D.S. also testified that she had sister in Pennsylvania that could provide support. S.D.S. testified that she returned back Pennsylvania in June 2015, S,D,S. testified that she returned to Fresno in 2010 due to the fact that she had dropped out.of nursing school and had two additional children and needed support from her parents. S.D.S. testified that she returned back Pennsylvania in 2015 because she got married and believed that the cost living would be better in Pennsylvania. She also indicated that after period time with the Respondent visiting the children he began acting out again. S.D,S. testified that on each occasion when she returned to Pennsylvania she lived in Altoona.
S.D.S. testified that she married her husband on May 25, 2013. S.D.S. testified on cross- examination that prior to relocating back to Pennsylvania in 2015 she checked with the Court in California and was informed that as long as original notarized letter was in place with Court that she was able to relocate, She testified on cross-examination that Respondent was aware of her parents' residence and also had contact information for her sister,
Upon questioning from Guardian Ad Litem counsel, S.D.S. indicated that she had no knowledge any attempts by the Respondent file for any modification the original custody order Fresno, California. S.D.S. testified that in when S,D.S. informed the Respondent that he would have have his visitations at Courthouse, the Respondent responded by indicating he was willing to pay for his visits. After that point Respondent's visits would be random would only occur when he asked to see the children at her parents' residence. On the occasions where Respondent requested see the children S.D.S's parents, he was permitted do so. S.D.S. testified this occurred approximately two three *15 times prior to her leaving California and moving to Pennsylvania. S .D.S clarified that the notarized letter that was on record with the Court was a statement permitting her relocate to Pennsylvania. S.D.S. testified that both her and D,W.G. Jr. signed the letter the presence a notary. S.D.S. explained that when she initially moved Pennsylvania D.W.G. Jr. would have contact with her by telephone pretty often. She testified that this contact occurred two maybe three times a week but it gradually stopped. S.D.S. testified that at one point the Respondent was incarcerated and the Respondent's incarceration would not allow free telephone calls and S.D.S, said she could not afford to pay for the calls. S.D.S. testified that even though the Father became incarcerated and could contact her by telephone she received couple letters from the Respondent that were sent her parents' house. S,D.S. testified that the last time that she would have received letter from the Respondent would have been in 2009 or the beginning 2010. S,D.S testified that while D.W.G. Jr. was incarcerated he never requested that S.D.S. bring the children see him.
S.DS. explained that when she returned California in 2010 and Respondent was no longer incarcerated that he would have visits with the children at her parents' home which_is where she resided. She testified that these visits ceased in 2012 when Respondent would act inappropriately and appear be under the influence during visits. This when S.D.S.
indicated again that the Respondent would have to utilize court system to get visitation.
S.D.S. testified that she always allowed visits during this period time provided that Respondent would act appropriately. It appears from S.D.S.'s testimony during questioning from the Guardian Ad Litem counsel at some point after Respondent's visits ceased in he was again incarcerated in southern California. During this period incarceration, S.D.S. testified that he did not send any letters or cards have any written communication with *16 the children. S.D.S.'s testimony revealed that on each occasion when she moved her residence that she notified the custody office in Fresno, California of her current address.
The period of no communication continued until the Respondent received a copy of the Petition for Involuntary Termination of Parental Rights. At that point, Respondent made contact with the Petitioner's Father in March 2016. After receiving the Petition for involuntary Termination Parental Rights, Respondent filed a Petition for Modification in courthouse in Fresno.
Petitioner J.M.S. also provided testimony at evidentiary hearing. J.M.S. testified that he was born on August 13, 1987. He testified that he married S.D.S. in 2013 and currently resides with her and children. J.M.S. corroborated S.D.S.'s testimony that there hasn't been *17 indicated that this written communication started in 2009 but in 2010 his letters started being returned to him. D. W.G. Jr. testified that the returned letters were marked "return sender". D.W.G. Jr. explained that he did not know why his letters were being returned. D.W.G. Jr.
testified that when he was released from incarceration in 2011 he was reunited with his children. Immediately after his release, D.W.G. Jr. said he would see his children every other week. This period contact eventually decreased to approximately twice a month and D.W.G. Jr. explained that as time went on the contact "trinkled down" until he started seeing the children only and after church on Sundays. D.W.G. Jr. explained that in he would have contact with the children "once in a blue moon" when he would see children outside S.D.S's parents' house and he would pull over and ask if he could spend time with the children. He testified that on these occasions he was permitted to spend time with the children.
D.W.G. Jr. explained during his testimony that his contact with the children ended when he was re -incarcerated in 2013. He indicated that he did not have any means attempting to contact S.D.S. by telephone. However, he testified that he would have his mother, sister, or grandmother attempt to go by make contact with S,D.S. and requested that they attempt to reach out her. D.W.G. Jr. explained that he did not have any positive results in attempts to contact S.D.S. because he did not have any contact numbers addresses for her. D.W.G. Jr. testified that he was released from prison in December 2015. When he was released he would see S.D.S.'s sister at church, D.W.G. Jr. explained that he would ask the sister to see children S.D.S.'s sister said she would have to discuss issue with her, D.W.G. Jr.
explained he would drive by her parents' house but did actually speak S.D.S.'s parents until end March. D.W.G. Jr. also explained during his testimony he filed for a modification his custody rights April 2016. D.W.G. Jr.'s counsel admitted into evidence original custody order regarding the children and pointed out the provision requiring each parent to provide telephone number where they could be reached. D.W.G. Jr. indicated that he had S,D.S.'s telephone number until he was incarcerated in 2013. D,W.G. Jr. stated his belief that he has bond with his children and that he traveled from California to present testimony at the hearing because he opposes the Petition for Involuutaiy Termination Parental Rights.
On examination from Petitioners' counsel, Guardian Ad Litem counsel, and the Court's questioning, D.W.G. Jr. testified that he had a good relationship with the Petitioners' father and that he did not send any letters to the children during his second period incarceration, D.W.G. Jr. testified that he had contact with the children approximately four times in prior being incarcerated, He indicated that this was because he the Petitioner were seeing eye eye. He also testified that he was unaware that Petitioner had moved back to Pennsylvania during his second period incarceration.
The Respondent also presented testimony at evidentiary hearing from Patricia Ross who D.W.G. Jr.'s mother, Ms. Ross testified that she lives with D.W,G, Jr. in California, Ms. Ross testified that D.W.G. Jr. wants see his children and often talks about seeing them. Ms, Ross also presented testimony that after she and her son visited the children in December 2012 that they attempted to contact the Petitioner after only find that her number had changed. When asked by Respondent's counsel if she had any experiences trying to contact Petitioner prior Respondent going jail in 2013, Ms. Ross indicated that they drove by a couple times her residence but the Petitioner wasn't home, Ms. Ross also testified that her and her son attempted to make contact with the Petitioner at her own residence that she had with children after she had moved from her parents. Ms. Ross also indicated she attempted to *19 contact Petitioner while D.W.G. Jr. was incarcerated the second time through the use of Facebook and also through word of mouth with his relatives.
The Court also heard the opinions of Guardian Ad Litem the evidentiary hearing. The Guardian Ad Litem testified about his observations and interactions with the subject children as well as bond The Guardian Ad Litem believes exists between the Petitioners the children. APPLICABLE LAW:
It has long been recognized that parent possesses a basic constitutional right care, custody, and control of his or her child. Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). Accordingly, the termination of parental rights "one of the most serious and severe steps a court can take." In re Adoption of Sarver, 444 Pa. 507, 281 A.2d 890, 891 (1971). Nevertheless, parent's right may be terminated if he or she fails fulfill his or her parental duties the child. In re B., N.M., 856 A.2d 847, 856 (Pa.Super, 2004), appeal denied, 582 Pa. 718, 872 A.2d 100 (2005), This right may be terminated if the child does not receive either proper parenting or care in a permanent, safe, healthy environment. Id. Due to gravity right at stake, court takes a careful look at each case, examining its individual circumstances and considering all explanations offered by the parent, to determine whether the totality the circumstances warrants an involuntary termination parental rights. In re .R.I.S.; 614 Pa. 275, 36 A.3d 567, (2011) (citing In the Matter the Adoption Charles E.D.M., 550 Pa. 595, 708 A.2d 88, 91 (1998)).
[1]
The Adoption Act governs who may bring a petition and what the petition must contain so as terminate parental rights. Strict adherence to the Adoption Act is a prerequisite to the court's jurisdiction hear a petition to terminate parental rights connection with a proposed adoption. In re Adoption of JED., A.2d 564, 565 (Pa.Super. 2001). Section 2512 states:
(a) Who may file.-A petition to terminate parental rights with respect to a child under the age of 18 years may be filed by any of the following: (1) Either parent when termination is sought with respect to the other parent. (2) An agency.
(3) The individual having custody standing in loco parentis to the child and who has filed a report of intention to adopt required by section 2531 (relating to report intention to adopt).
(4) An attorney representing a child or a guardian ad litem representing a child who has been adjudicated dependent under 42 Pa.C, S. § 6341(c) (relating to adjudication).
(b) Contents.-The petition shall set forth specifically those grounds and facts alleged as the basis for terminating parental rights. The petition filed wider this section shall also contain an averment the petitioner will assume custody the child until such time as child is adopted. If petitioner is an agency it shall be required aver an adoption is presently contemplated nor that a person with a present intention adopt exists.
23 Pa.C.S.A. § 2512. Assuming the petition meets the above threshold requirements, the court may then consider underlying procedural requirements merits request to terminate a parent's rights.
The party seeking the termination parental rights bears burden of proof in showing 614 Pa. 275, 36 A.3d at 572. Specifically, for court to grounds for termination. In re terminate a parent's rights, the petitioning party must prove asserted grounds for termination by clear and convincing evidence. id Clear and convincing evidence is defined as testimony that so "clear, direct, weighty and convincing as to enable the trier fact to come a. clear *21 conviction, without hesitance, of the truth of the precise facts in issue." In re J.L,C., 837 A.2d 1247, 1251 (Pa.Super. 2003).
The petitioning party is charged with satisfying the following two-part test to warrant termination, which the court considers in a bifurcated manner prior to terminating parental rights:
Initially, the focus on the conduct of the parent. The patty 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). Section 2511 (a) -(b) provides in pertinent part:
(a) General rule, --The rights of a parent 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 developmental, physical emotional needs and welfare of the child. The rights of 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 control of the parent. With respect to any petition filed pursuant subsection (a)(1), (6) or (8), the court shall not consider any efforts by parent remedy the conditions described therein which are first initiated subsequent giving notice the filing petition. 23 Pa.C.S.A. § 2511.
Pursuant Section 2511(a), statutory ground for termination is met "if parent either demonstrates a settled purpose relinquishing parental claim a child fails perform parental duties" for duration least six months. In re C.M.S., 832 A.2d 457, (Pa.Super. *22 2003), appeal denied, 580 Pa. 687, 859 A.2d 767 (2004) (emphasis added). The Pennsylvania Supreme Court has explained that parental duty "is best understood in relation needs of a child," In re JT., 983 A.2d 771, 777 (Pa.Super. 2009) (quoting In re Burns, 474 Pa. 615, 379 A.2d 535, 540 (1977)).
A child needs love, protection, guidance, and support. These needs, physical and emotional, cannot be met by a merely passive interest the development of the child. Thus, this court has held 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 child. Because a child needs more than a benefactor, parental duty requires that a parent exert himself take and maintain a place impOrtance in the child's life. Id.; In re CM.S., 832 A.2d at 462.
While termination will not occur when parental absence truly a result circumstances outside a parent's control, a parent must use all available resources preserve the parent - child relationship. Moreover, a parent must exercise reasonable firmness in resisting obstacles that may threaten impede the parent -child relationship. In re Shives, 525 A.2d 801, 803 (1987). The Commonwealth's courts have repeatedly recognized "parental rights are not preserved...by waiting for more suitable or convenient time perform one's parental responsibilities while others provide the child with his or her immediate physical emotional needs." In re C.MS., A.2d at 462 (citing In re Adoption Godzak, 719 A.2d 365, 368 (Pa.Super 1998)).
Upon finding either a settled purpose relinquishing parental rights or failure to perform parental duties, the court must then consider the following three factors: (1) parent's explanation for his her conduct; (2) the post -abandonment contact between the parent and
p [1] I child; and lastly (3) consideration of the effect of the termination of parental rights on the child pursuant to Section 2511(b). In re Adoption of Charles ED.M., 708 A,2d at 92.
Pursuant to first prong, the court must consider a parent's explanation for the apparent abandonment. Consideration should also be paid to any situations in which the custodial parent "has deliberately created obstacles and has by devious means erected barriers intended to impede free communication and regular association between non -custodial parent and his or her child" In re Shives, 525 A.2d 803. The pertinent inquiry is not degree of success a parent may have had in reaching his or her child, but whether, under circumstances, parent employed all available resources to preserve the parent -child relationship. Id. (citing In re Adoption of Faith M., 509 Pa. 238, 501 A.2d 1105, 1108 (1985)). Parental duty certainly does not require impossible, but may require which is difficult and demanding. In re Burns, 474 Pa. 615, 379 A.2d 535, 541 (1977). For instance, a temporary delegation of parental duties a suitable caregiver during a crisis may constitute evidence responsible parenting. Petition Lutheran Children Family Service Eastern Pennsylvania, 456 Pa. 429, A.2d 618, 620 (1974). However, a parent's failure to communicate with a child due drug addiction or even participation in a drug rehabilitation program may not be excused if it occurs over a lengthy period. In Interest Q.J.R., 664 A.2d 164, 166-67 (Pa.Super. 1995) (affirming termination of mother's rights when she did personally verbally contact child for over fourteen months due her drug addiction and treatment).
In accordance with the second prong, the court must examine the parent's post - abandonment conduct determine whether the parent attempted reestablish parent -child relationship. 23 Pa.C.S.A. § 2511(b). Taken alone, past incapacity is not sufficient to warrant termination; there must be evidence parent's present incapacity parent the child. In re
[1] Adoption of.A.N.D., 520 A.2d 31,.35 (Pa.Super. 1986). Nonetheless, a child cannot be put "on hold" until the parent finds it convenient to communicate and care for the child. In re D.J.S., 737 A.2d 283, 286-87 (Pa.Super. 1999). Merely because a parent experienced a renewed interest in the child after the six-month statutory period had elapsed does not necessarily bar termination. Id.
Pursuant to Section 2511(b) and as described in the above third prong, the court should consider presence the nature and status of emotional bond between the parent and child, with close attention paid the effect on the child if that bond were to be permanently severed. In re Adoption °P .M, 991 A.2d 321, 323 (Pa.Super. 2010) (citing In re L.M., 923 A.2d at 511). Specifically, the court must determine whether termination parental rights would best serve developmental, physical, and emotional needs and welfare child. 23 Pa.C.S.A, § 2511(b). While the emotional bond shared between a parent child is a major element emotional needs analysis, it is only one factor be considered; the natural attraction between parents and children does not equate a bond that will necessarily defeat a petition terminate parental rights. In re N.A.M., 33 A.3d 95, 104 (Pa.Super. 2011). In situations which there is no evidence bond between parent and child, it reasonable to infer that no bond exists. In re Adoption ofJ.M., 991 A.2d at (Pa.Super. 2010) (citing In re KZ.S., 946 A.2d 753, 762-63 (Pa.Super. 2008)). After all, Section 2511(b) requires the court determine what effect breaking an existing parent -child bond will currently have on the child; Section 2511(b) does ask courts speculate whether bond may be formed in the distant future. In re Adoption J.M., 991 A.2d 325. Because Adoption Act seeks to achieve permanency for the child, focus must be on the present rather than on the uncertain future. As a result, the court cannot consider
any efforts made by a parent to remedy conditions supporting termination when taken subsequent filing of the petition. In re D. W., 856 A.2d 1231, 1234 (Pa.Super, 2004).
In addition emotional needs, consideration must also be given to the child's developmental physical needs. A parent's rights may not be terminated solely on the basis of medical care or other environmental factors, including inadequate housing, furnishings, income, or clothing, provided those factors are deemed outside of the parent's control. 23 Pa.C,S.A. § 2511(b). A parent's rights further may not be terminated simply because the child may encounter greater advantages in another home. In re Anderson, 464 A.2d 428, 431 (Pa.Super. 1983).
Contained within the Section 2511(b) analysis of the needs and welfare the child, the court must also address and evaluate whether the proposed adoption is in the child's best interests. In re E.M.I., A.3d 1278, 1287 (Pa,Super. 2012) (citing In re Adoption L.J.B., 610 Pa. 213, 18 A.3d 1098 (2011)). Intangible benefits, such as love, comfort, security, and stability the child may experience with the adoptive parent, should also be considered this needs and welfare inquiry. In re A.S.,11 A.3d 473, 483 (Pa.Super. 2010). Based on the totality of circumstances from the above inquiries, court must then determine whether an involuntary termination of parental rights is warranted.
Incarceration, while not litmus test for termination, can be determinative question of whether parent incapable providing "essential parental care, control or subsistence" and the length of the remaining confinement can be considered as highly relevant to whether "the conditions and causes incapacity, abuse, neglect refusal cannot or will be remedied by the parent", In re.' Adoption of SP., 47 A.3d, 817, 830 (Pa. 2012).
, DISCUSSION:
We find the Petitioner's testimony the evidentiary hearing credible. We believe the Petitioners have met their burden to establish by clear and convincing evidence that the termination the Respondent's parental rights warranted. The evidence in this case suggests that that Respondent failed to have any meaningful contact with the subject children after 2012; The Respondent's testimony indicated that he saw children "once in blue moon" in 2013. The Respondent estimated the number contacts with the children during this period time to be approximately four. The Respondent indicated that he failed to have any additional contact with the children in 2013 because he and the Mother were not seeing "eye to eye". We also note that once the Respondent was re -incarcerated in late he failed to have any contact with the children. During his incarceration, he testified that he did not send any cards, gifts, or otherwise establish any contact with the children. He testified that he had his family members attempt to reach out Mother but claims they were unable to contact her. It was only when he received the Petition Terminate Parental Rights this case that he re-established contact with the Petitioner's family requested to see the children.
We believe that Respondent failed to exercise reasonable firmness in resisting any obstacles that may have impeded the parent/child relationship. Due fact that we find testimony Petitioners credible, we do believe that the Petitioner created any real obstacles. Nonetheless, even if obstacles existed, the Respondent clearly failed act in reasonable firmness overcome these obstacles. The evidence suggests the Respondent could have had contact with the children either directly or through the maternal grandparents prior his incarceration in 2013 and after his release in late 2015, The testimony established Mother's residence was always on record with the Court in Fresno, California. We also
to, # note that the Respondent's Mother testified that she was aware a residence that the Mother lived after she moved out her parents' residence, The testimony also established that the Respondent had a good relationship with the Maternal Grandfather and on every occasion when he attempted to haire contact with the children through the Maternal Grandfather the Maternal Grandfather allowed the contact, We also believe that during his incarceration he could have attempted maintain farther contact with the children, However, the evidence suggests that he had no contact with the children either by mail or otherwise during his incarceration. He could have filed a Petition with the Court in Fresno, California otherwise requested an alternative means maintaining communication with the children during his incarceration. Simply put, the Respondent failed to have any meaningful contact with the subject children, failed maintain parent/child relationship, and did engage any reasonable firmness maintain his relationship with the children since 2012.
We also believe that evidence suggests that children have strong bond with prospective adoptive father. We believe this conclusion supported by the evidence and also by the recommendation Guardian Ad Litem counsel, Furthermore, there is no evidence record to suggest bond remains between the Respondent and subject children, For these reasons, we will enter an Order granting the Petitioner's Petition to' Terminate Parental Rights,
For the above reasons, we enter following Order:
0
D any communication from the Father nor has the Father provided any letters, packages, or notes regarding children since 2012. J.M.S. also testified that he was aware no barriers that existed that would have prevented D.W.G. Jr. from having contact with the children. J.M.S. explained during his testimony that D.W. G. Jr. had relationship with S.D.S.'s father because he was his football coach in school. J.M.S. also provided testimony about his bond and relationship with subject children, The Respondent D.W.G, Jr. also presented testimony evidentiary hearing, D.W.G. Jr. testified that he was born on January 12, 1987. D.W.G. Jr. testified that he currently resides Fresno, California with his mother. D.W.G. Jr, testified that he works for the California Department Transportation doing maintenance. D.W.G. Jr. testified that he is the biological father of the subject children. D.W.G. Jr. testified he was incarcerated from 2009 2011 again from December to December 2015. D.W.G. Jr. testified during his first period incarceration he had contact with the children through written communication, He