In re D.J.S. , 1999 Pa. Super. 214 ( 1999 )

STEVENS, J.

¶ 1 This appeal is from the order of the Court of Common Pleas of Lycoming County which terminated Appellant J.S.’s parental rights to his daughter D.J.S. After a review of both the certified record and the briefs of the parties, we affirm.

¶ 2 The relevant facts and procedural history are as follows: D.J.S. was born to Appellant and Mother, J.S. on December 31, 1992. On February 24,1994, Appellant was arrested in New York State on various drug possession charges and lodged in the New York State prison system from the time of his arrest until his release on April 22,1997. On April 21, 1994, D.J.S.’s mother, who had drug addiction problems, voluntarily placed D.J.S. in foster care with the Lycoming County Children & Youth Services (CYS) where she has remained.¹ On April 28, 1994, Appellant executed a Power of Attorney appointing his Mother, H.C., as his attorney-in-fact to represent him in all proceedings pertaining to the welfare and custody of his child. On July 13, 1994, D.J.S. was adjudicated dependant and the trial court continued her placement in foster care under the supervision of CYS. CYS, by letter dated November 8, 1994, attempted to contact Father to determine his legal status and future plans. That letter went unanswered. CYS then changed the family service plan (FSP) goal from long-term foster care to that of adoption.² On March 23, 1995, after a hearing, the FSP goal was changed to adoption. By letter dated, April 26, 1995, Appellant requested visitation with D.J.S. and volunteered to make support payments for D.J.S.’s care. For a period of one year, from when D.J.S. was placed in foster care until the court changed the FSP goal to adoption, Appellant only contacted CYS once and never spoke to D.J.S. In fact, D.J.S.’s only contact with any part of Appellant’s family occurred with Appellant’s mother who visited biweekly with D.J.S. until CYS changed the goal to adoption and visitation was limited to one per month. On June 16, 1996, CYS filed a petition to terminate Appellant’s parental rights and on October 3, 1997, the trial court issued a decree nisi granting CYS’s petition to involuntary terminate Appellant’s parental rights. After Appellant’s exceptions were denied, this appeal followed.

¶ 3 Appellant raises three issues on appeal: First, Appellant claims the trial court applied an incorrect standard because it should have analyzed his parenting efforts after June 16, 1996 when CYS petitioned to terminate Appellant’s parental rights; second, Appellant claims the trial court erred in not accounting for Appellant’s efforts as an incarcerated Father; and lastly, Appellant claims that the trial court erred in terminating his rights because it was not in D.J.S.’s best interest.

¶ 4 Appellant first claims the trial court applied an incorrect standard because it should have analyzed his parenting efforts after June 16, 1996 when CYS petitioned to terminate Appellant’s parental rights. More specifically, Appellant claims that his actions after June 16, 1996 indicated that he did not wish to terminate his parental rights.

¶ 5 23 Pa.C.S.A. § 2511(a)(1) provides:

(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 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 needs and welfare of the child....

To satisfy 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. The 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.” It is well-established that a court must examine the individual circumstances of each and every case and consider all explanations offered by the parent to determine if the evidence in light of the totality of the circumstances clearly warrants the involuntary termination. Section 2511 does not require that the parent demonstrate both a settled purpose of relinquishing parental claim to a child and refusal or failure to perform parental duties. Accordingly, parental rights may be terminated pursuant to Section 2511(a)(1) if the parent either demonstrates a settled purpose of relinquishing parental claim to a child or fails to perform parental duties.

In re E.D.M., 550 Pa. 595, 601, 708 A.2d 88, 91 (1998).

¶ 6 Section 2511 also requires that the parent demonstrate either a settled purpose of relinquishing parental claim to a child or refusal or failure to perform parental duties. Baby Boy A. v. Catholic Social Services, 512 Pa. 517, 517 A.2d 1244 (1986). “Accordingly, parental rights may be terminated pursuant to Section 2511(a)(1) if the parent either demonstrates a settled purpose of relinquishing parental claim to a child or fails to perform parental duties.” E.D.M., 550 Pa. at 602, 708 A.2d at 92.

¶ 7 CYS filed the instant petition on June 16, 1996, and, although testimony was elicited concerning Appellant and DJ.S.’s entire relationship, it is the six months immediately preceding the filing of the petition that is most critical to our analysis. See In re A.P., 692 A.2d 240 (Pa.Super.1997). However, the trial court must consider the whole history of a given case and not mechanically apply the six-month statutory provisions, but instead consider the individual circumstances of each case. Id.; See, In re K.C.W., K.O.W. and K.S.W., 456 Pa.Super. 1, 689 A.2d 294 (1997). Further, this Court in In re Hamilton, 379 Pa.Super. 274, 549 A.2d 1291, 1295 (1988) stated:

To be legally significant, the [post-abandonment] contact must be steady and consistent over a period of time, contribute to the psychological health of the child, and must demonstrate a serious intent on the part of the parent to recul-tivate a parent-child relationship and must also demonstrate a willingness and capacity to undertake the parental role. The parent wishing to reestablish his parental responsibilities bears the burden of proof on this question.

¶ 8 It is first important to note that while the trial court focused on the six months prior to the filing of CYS’s petition, it specifically stated that it was not proper to mechanically apply this standard and, in fact, examined the entire time period. Trial Court Opinion, filed, October 3, 1997, p. 11. With this in mind, we will review the findings of the trial court.

¶ 9 The record reflects that D.J.S. has been in foster care since April 21,1994 and CYS moved to terminate Father’s parental rights in June of 1996. During that time, D.J.S. did not see or speak to Appellant. In fact, the record indicates that Appellant never had direct phone contact with D.J.S. during his incarceration. While Appellant sent an occasional card or gift to D.J.S., it was not until CYS changed the goal to adoption in March of 1995, thirteen (13) months after D.J.S. was placed in foster care, that Appellant sent any regular correspondence' to D.J.S. As stated supra, prior to the filing of the petition by CYS, Appellant did not contact CYS for a period of six months even though he was aware the child was in foster care. In fact, although apparently available to him, Father did not ascertain the name or address of the foster family caring for D.J.S. until March, 1995 and did not initiate any contact with the foster family or his daughter until May, 1995. Also, while Appellant showed an interest in supporting the child, he did not forward any money for support until September of 1996 after the termination petition was filed. Thus, based on the facts presented by the trial court, Appellant, for a period of six months, clearly failed to perform his parental duties.

¶ 10 Moreover, even after CYS filed its petition to terminate, the sum and substance of Appellant’s attempts to contact D.J.S. were letters, some support and gifts. In fact, Appellant never followed through with attempts to have more meaningful contact with D.J.S. The trial court found, and we agree, Appellant has simply placed all of the responsibility in the hands of CYS. This approach is not proactive, and Appellant has failed to prove, under the Hamilton test, a serious intent on his part to recultivate a parent-child relationship and a willingness and capacity to undertake a parental role. Hamilton, supra. Thus, his first claim fails.

¶ 11 Next, Appellant claims that any inability to maintain a parenting role is due to his incarceration. While incarceration of a parent does not, in itself, provide grounds for the termination of parental rights a parent’s responsibilities are not tolled during his incarceration. See In re Adoption of McCray, 460 Pa. 210, 331 A.2d 652 (1975). Moreover, parental rights may not be preserved by waiting for some more suitable financial circumstance or convenient time for the performance of parental duties and responsibilities. See In re Smith’s Adoption, 412 Pa. 501, 194 A.2d 919 (1963). “Parental duty requires that the parent not yield to every problem, but must act affirmatively, with good faith interest and effort, to maintain the parent-child relationship to the best of his or her ability, even in difficult circumstances.” In re Dale A., II, 453 Pa.Super. 106, 683 A.2d 297, 302 (1996). As stated supra, the record demonstrates that Appellant failed to utilize given resources and to take an. affirmative approach to fulfill his parental duties. While the record is replete with alleged inquiries by Appellant with CYS and prison officials, he has failed to follow through on these inquiries. Instead, Appellant now chooses to blame those entities for his inability to maintain contact with his daughter. In short, as the record clearly shows, Appellant has not made a good faith effort to maintain a parent-child relationship with D.J.S.

¶ 12 Appellant lastly complains that the trial court failed to inquire properly into whether termination of his rights clearly serves the needs and welfare of D.J.S.

“Before granting a petition to terminate parental rights, it is imperative that a trial court carefully consider the intangible dimension of the needs and welfare of a child — the love, comfort, security, and closeness — entailed in a parent-child relationship, as well as the tangible dimension.” In re Matsock, 416 Pa.Super. 520, 611 A.2d 737, 747 (1992). “Continuity of relationships is also important to a child, for whom severance of close parental ties is usually extremely painful.” In re William L., 477 Pa. 322, 348, 383 A.2d 1228, 1241 (1978).

In re Bowman, 436 Pa.Super. 10, 647 A.2d 217, 219 (1994).³

¶ 13 With this standard in mind, we will review the findings of the trial court. The record reflects that Appellant has had no oral or face-to-face contact with D.J.S. since 1994, when she was eighteen months old. Additionally, D.J.S. has been with a family who would like to adopt her, incidentally, the same family she was placed with since the inception of her foster care. In short, it is likely that D.J.S. does not know Appellant as her parent and, in fact, is now with the only family that she has ever known. Therefore, there exists ample information to indicate that terminating the parental rights of Appellant is in D.J.S.’s best interest.

¶ 14 Based on the forgoing, we affirm the judgment of the trial court.

¶ 15 Affirmed.

¶ 16 Judge BROSKY files a Dissenting Opinion. .

1 . The record reflects that Mother had an admitted drug addiction and, because she was unable to care for D.J.S., she voluntarily relinquished her parental rights on October 23, 1995.

2 . The record indicates that Appellant was sent a copy of the FSP change.

3 . The record reflects that the trial court did, in fact, make this same inquiry and made it’s findings which are clearly supported by the record.