In the Int. of: C.W.T., Appeal of: B.T. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: C.W.T., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: B.T., FATHER :
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: No. 1083 EDA 2022
Appeal from the Decree Entered March 23, 2022
In the Court of Common Pleas of Monroe County
Orphans' Court at No: 40 OCA 2021
BEFORE: STABILE, J., NICHOLS, J., and SULLIVAN, J.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 18, 2022
B.T. (“Father”) appeals from the March 23, 2022 decree,1 in the Monroe
County Court of Common Pleas, granting the petition of Stepfather, and
terminating involuntarily his parental rights to his minor son, C.W.T. (“Child”),
pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1) and (b). After careful
review, we affirm.
The orphans’ court set forth the following findings of fact:
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1 While dated March 23, 2022, the decree was not entered for purposes of
Pa.O.C.R. 4.6(b) (stating, “The clerk shall note in the docket the date when
notice was given to the party or to his or her counsel under subparagraph (a)
of this Rule.”) until March 24, 2022, upon the docketing of notice. See Note
Pa.O.C.R. 4.6 (noting that the Rule is “derived from Pa.R.C.P. No. 236.”); see
also Frazier v. City of Philadelphia, 735 A.2d 113, 115 (Pa. 1999) (holding
that “an order is not appealable until it is entered on the docket with the
required notation that appropriate notice has been given”); see also Pa.R.A.P.
108(a) (entry of an order is designated as “the day on which the clerk makes
the notation in the docket that notice of entry of the decree has been given
as required by Pa.R.Civ.P. 236(b)”.).
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1. [Child] was born [in] September [] 2017. . . .
2. [M.Z.] (“Mother”) is the natural mother of [Child] and resides
in Monroe County, PA.
3. [B.T.] (“Father”) is the natural father of [Child] and resides in
Monroe County, PA, but is currently incarcerated at SCI Coal
Township.
4. [S.G.] (“Stepfather”) is married to [Mother]. He resides with
[Mother and Child] and he and Mother have a younger child
together. Their date of marriage is June 7, 2020.
5. Mother and Father were never married[] but were in a
relationship for a period of time that resulted in the birth of
[Child].
6. Mother and Father continued to reside together until October
27, 2018. On that date, Father became intoxicated and was
belligerent and violent toward Mother and her mother. Mother
also reported that Father began shaking [Child] in a defiant
manner in front of her. Mother stated Father then left the
residence, crashed his truck, and returned to the residence at
which time he terrorized Mother and [Child] until police officers
arrived at the scene and arrested him.
7. Mother obtained a temporary Protection From Abuse Order
(“PFA”), and then a permanent three (3) year PFA against Father.
. . . Father was not allowed contact with Mother, except as to
custody of [Child].[2]
8. Mother also obtained a custody order dated December 13, 2018
. . ., granting her sole legal and physical custody.
9. Father was incarcerated following his arrest, and eventually
entered a guilty plea to endangering the welfare of a minor and
reckless endangerment. As a result, he served 18 months of
incarceration from October 2018 to May 2020. He has since
completed the maximum term of that sentence.
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2The PFA order granted Mother sole custodial rights with respect to Child.
N.T., 3/2/22, at 19.
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10. Father was previously incarcerated due to a conviction for drug
delivery resulting in death, for which he has 12 1/2 years of parole
left.
11. Father has been incarcerated since January 2022 for violating
that parole by taking pain pills. . . .
12. Father stated he is engaged in treatment programs required
of his parole violation order, and upon completion of the
programs, he expects to be re-released on parole at the end of
April 2022.
13. Father has not seen [Child] since the date of the incident on
October 27, 2018.
14. The PFA order expired on November 19, 2021.
15. Father never sought to modify the PFA order.
16. Father has sent no cards, gifts or letters to [Child].
17. Father has never provided any support for [Child].
18. Father did file for modification of custody on October 20, 2020,
after Mother had sent him correspondence seeking his voluntary
relinquishment of parental rights so Stepfather could adopt
[Child].
19. Following a custody conciliation conference on Father’s
petition for modification, Father was ordered to complete a
psychological evaluation and a drug and alcohol evaluation before
he would be granted any change to the prior custody order.
20. A follow-up custody conference was scheduled for March 30,
2021 as to Father’s progress on the evaluations. No further court
orders were issued[,] and Father blamed it on his attorney
notifying him at the last moment he could not attend the March
30, 2021 conference. The last custody order dated January 14,
2021 required Father to complete the evaluations. . . .
21. Father never submitted the completed evaluations, nor did he
request an additional conference, or a full hearing before the
court.
22. Father asserts the custody conciliator may have been willing
to accept prior evaluations done while he was incarcerated, but
neither he nor his attorney could get copies to provide to the
court.
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23. Father did eventually obtain a drug and alcohol evaluation
from Building and Enabling Sobriety Together (“BEST”)[] and
submitted a recommendation dated August 17, 2021, from an
assessment conducted on July 7, 2021.
24. Father has since engaged in drug treatment[] and sees a
psychologist since his January 2022 incarceration. He stated that
he completed the required co-parent class for custody after filing
for the modification on October 20, 2020. Father also testified
that he previously engaged in an anger management program,
family relations, and other programs while incarcerated.
25. [Child] is bonded to Stepfather, considers him to be his father,
and calls him “Dad.”
26. [Child] has no bond at this time with Father[] and would not
recognize him.
27. Stepfather wants to adopt [Child]. . . .
28. No one else in Father’s family has maintained contact with
[Child] since the 2018 incident.
Opinion, 3/23/22, at 2-5.
Stepfather filed a petition for adoption and a petition for the involuntary
termination of Father’s parental rights on July 2, 2021.3, 4 Mother executed a
consent to the proposed adoption. See 23 Pa.C.S.A. § 2711(a)(2) (Consents
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3 Despite references by the court and the parties to the contrary, careful
review of the pleadings confirms Stepfather is the sole named petitioner in
both petitions. See 23 Pa.C.S.A. § 2512(a)(3) (providing that a petition to
terminate parental rights may be filed by “[t]he individual having custody or
standing [in loco parentis] to the child and who has filed a report of intention
to adopt required by section 2531 (relating to report of intention to adopt);”
see also In re Adoption of J.D.S., 763 A.2d 867, 868 (Pa. Super. 2000)
(petitions for involuntary termination and adoption filed by stepfather).
4 We observe that the petition for termination of Father’s parental rights
references language suggestive of and/or citations to 23 Pa.C.S.A. §
2511(a)(1) and (b). Petition for involuntary Termination of Parental Rights,
7/2/21, at ¶¶ 5, 7.
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necessary to adoption) (requiring consent of “[t]he spouse of the adopting
parent, unless they join in the adoption petition.”). The orphans’ court
conducted a hearing on March 2, 2022.5 Father was represented by counsel
and participated telephonically as he was incarcerated in a state correctional
facility.6 Child, who was four and a half years old at the time, was represented
by legal counsel.7 Stepfather testified on his own behalf, and additionally
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5 Notably, during the hearing, the court took judicial notice of the PFA and
custody orders, as well as the entire custody record. N.T., 3/2/22, at 24, 96-
97. While these were not admitted as evidence and included with the certified
record, given the testimony regarding same, we do not find that this
hampered our review. Because Father does not assert error or claim
prejudice, we do not address the propriety of this judicial notice. We however
remind the court that “a court may not ordinarily take judicial notice in one
case of the records of another case, whether in another court or its own, even
though the contents of the records may be known to the court.” In re: T.B.,
2021 WL 4551600, at *7 (Pa. Super. 2021) (internal quotation marks and
citation omitted).
6 As noted supra, Father had been incarcerated on a parole violation. Father
testified that he was paroled with certain conditions and expected to be
released the following month, in mid to late April 2022, upon fulfilling those
conditions. N.T., 3/2/22, at 63-64, 93. He further confirmed 12 ½ years
remaining on parole. Id. The certified record is devoid of further details, such
as when and if Father was released from incarceration.
7 Pursuant to order dated July 7, 2021, and entered July 8, 2021, the court
appointed Victoria Strunk, Esquire, as counsel for Child. At the conclusion of
the proceeding, Attorney Strunk argued in support of termination of Father’s
parental rights. Id. at 94. Attorney Strunk further noted that, although she
spoke with Mother and Stepfather, she did not speak to Child, explaining, “As
you heard today, [Child] is unaware of [Father]. So[,] I did not have the
conversation with him about the TPR/adoption.” Id. Given the circumstances
of Child’s young age and his lack of awareness of Father and acknowledgement
of Stepfather as his father, we find that Attorney Strunk fulfilled her role. See
In re P.G.F., 247 A.3d 955, 966-968 (Pa. 2021) (finding counsel who declined
to inform six-year-old child, who was unaware of biological father and
(Footnote Continued Next Page)
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presented the testimony of Mother. Father testified on his own behalf. At the
conclusion of the hearing, the court held the matter under advisement. N.T.,
3/2/22, at 96-97.
On March 23, 2022, the orphans’ court issued a decree involuntarily
terminating Father’s parental rights, as well as a contemporaneous opinion.8
Thereafter, on April 22, 2022, Father, through appointed counsel, filed a
timely notice of appeal, along with a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). Pursuant to order
of May 2, 2022, the court indicated that all issues were addressed in its prior
opinion.
On appeal, Father raises the following issue for our review:
1. Whether the court erred in finding that petitioner proved the
elements of 23 [Pa.C.S.A. § 2511(a)(1)] by clear and convincing
evidence?
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identified stepfather as father, of biological father’s existence and provide a
full explanation of the termination proceedings had “properly fulfilled her
obligation,” stating, “We will not mandate that an attorney convey highly
sensitive, significant, and potentially emotionally damaging information to a
child, or engage in a raw inquiry, merely to discern the clearest indication of
a child’s preference. . . . Accordingly, and significantly, we deem concern for
a child’s physical, mental, and emotional well-being to be a valid consideration
when counsel attempts to discern the child’s preference.”); see also In re
Adoption of C.J.A., 204 A.3d 496, 502 (Pa. Super. 2019) (concluding that
counsel, who did not disclose father’s existence to six-year-old child, exercised
“reasonable judgment” and “discharged her duty as [c]hild’s counsel to the
best of her ability, based on his age, mental condition, and emotional
condition.”).
8 While the orphans’ court does not reference a specific subsection of Section
2511(a) as it relates to the termination of Father’s parental rights in its decree,
the court addresses subsections (a)(1) and (b) in its accompanying opinion.
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Father’s Brief at 4 (suggested answer omitted).
We review involuntary termination orders for an abuse of discretion,
which our Supreme Court has explained “is limited to a determination of
whether the decree of the termination court is supported by competent
evidence.” In re Adoption of C.M., 255 A.3d 343, 358 (Pa. 2021). When
applying this standard, appellate courts must accept the trial court’s findings
of fact and credibility determinations if they are supported by the record.
Interest of S.K.L.R., 256 A.3d 1108, 1123 (Pa. 2021). “Where the trial
court’s factual findings are supported by the evidence, an appellate court may
not disturb the trial court’s ruling unless it has discerned an error of law or
abuse of discretion.” In re Adoption of L.A.K., 265 A.3d 580, 591 (Pa.
2021). An appellate court may reverse for an abuse of discretion “only upon
demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-
will.” Id.Termination of parental rights is governed by Section 2511 of the
Adoption Act. If the trial court determines the petitioner established grounds
for termination under subsection 2511(a) by clear and convincing evidence,
then the court must assess the petition under subsection 2511(b), which
focuses on the child’s needs and welfare. In re T.S.M., 71 A.3d 251, 267 (Pa.
2013).
In this case, the orphans’ court terminated Father’s parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(1), and (b), which provide as follows:
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(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).
We have explained this Court’s review of a challenge to the sufficiency
of the evidence to support the involuntary termination of a parent’s rights
pursuant to Section 2511(a)(1) as follows:
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 addition,
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
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parental claim to a child or fails to perform parental
duties.
Once 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 Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (internal citations
omitted) (emphasis added).
As it relates to the crucial six-month period prior to the filing of the
petition, this Court has instructed, “[I]t is the six months immediately
preceding the filing of the petition that is most critical to our analysis.
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.” In re D.J.S., 737 A.2d
283, 286 (Pa. Super. 1999) (citations omitted). This requires the Court to
“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, 855 (Pa. Super. 2004) (citation omitted).
Further, we have stated:
[T]o 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 recultivate a parent-child
relationship and must also demonstrate a willingness and capacity
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to undertake the parental role. The parent wishing to reestablish
his parental responsibilities bears the burden of proof on this
question.
In re Z.P., 994 A.2d 1108, 1119 (Pa. Super. 2010) (citation omitted); see
also In re Adoption of C.L.G., 956 A.2d 999, 1006 (Pa. Super 2008) (en
banc).
Regarding the definition of “parental duties,” this Court has stated:
There is no simple or easy definition of parental
duties. Parental duty is best understood in relation to
the needs of a child. A child needs love, protection,
guidance, and support. These needs, physical and
emotional, cannot be met by a merely passive interest
in the development of the child. Thus, this Court has
held that the parental obligation is a positive duty
which requires affirmative performance.
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 the child.
Because a child needs more than a benefactor,
parental duty requires that a parent exert himself to
take and maintain a place of importance in the child’s
life.
Parental duty requires that the parent act affirmatively with good
faith interest and effort, and not yield to every problem, in order
to maintain the parent-child relationship to the best of his or her
ability, even in difficult circumstances. A parent must utilize all
available resources to preserve the parental relationship, and
must exercise reasonable firmness in resisting obstacles placed in
the path of maintaining the parent-child relationship. Parental
rights are not preserved by waiting for a more suitable or
convenient time to perform one’s parental responsibilities
while others provide the child with . . . her physical and
emotional needs.
In re B., N.M., 856 A.2d at 855 (internal citations omitted) (emphasis added).
Critically, incarceration does not relieve a parent of the obligation to perform
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parental duties. An incarcerated parent must “utilize available
resources to continue a relationship” with his or her child. In re
Adoption of S.P., 47 A.3d at 828 (discussing In re Adoption of McCray,
460 Pa. 210, 331 A.2d 652 (1975) (emphasis added)).
In the case at bar, in finding grounds for termination of Father’s parental
rights pursuant to Section 2511(a)(1), the orphans’ court reasoned that
Father’s lack of contact with Child without sufficient excuse established
grounds pursuant to Section 2511(a)(1). Opinion, 3/23/22, at 8-11. The
court stated:
Father has not seen or spoken to [Child] in over three years.
[Child] was only one year old when Father was last involved in his
life. Although Father has been incarcerated for a good portion of
that time, he did not call or send letters, cards or gifts to [Child].
He provided no support or essentials to [Child] of any kind, and
even though there was no child support order, he never provided
Mother with any kind of financial assistance. Father’s lack of
contact with [Child] meets the requirements under [23 Pa.C.S.A.
Section 2511(a)(1)] for failing or refusing to perform parental
duties for at least six months prior to the filing of the [termination
of parental rights] petition.
Id. at 8. The court noted Father’s reliance on his incarceration, the PFA order,
as well as the inaction of his attorney and difficulty in obtaining completed
evaluations related to the custody matter, for the lack of contact and delays.
Id. at 8-11. The court emphasized Father’s lack of any contact or activity
whatsoever during his incarceration to maintain a bond with Child. Id. at 8.
The court further suggested that the PFA order did not prohibit contact with
Child, or with Mother related to custody, and notes that Father failed to
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request any modification thereto. Id. at 9. Lastly, the court indicated that
Father waited two years, and until after Mother sent him documentation
regarding voluntarily termination of his parental rights and adoption by
Stepfather, to request a modification of custody. Id. at 10. Likewise, the
court noted ample time for Father to obtain the required evaluations and
proceed with his modification, recognizing that an additional eighteen months
had passed. Id. at 10-11. As such, the court dismissed Father’s excuses,
explaining, “We find the reasons Father set forth as barriers preventing him
from performing parental duties and maintaining a bond with [Child] to be
ones he could have overcome, or at least ones he could have made more of
an effort to accomplish. Therefore, we find that Father has failed to provide
a reasonable excuse for his lack of contact.” Id. at 11.
Father, however, emphasizes the importance of the six-month time-
period prior to the filing of the termination petition and argues that he engaged
in efforts to the extent available. He suggests that Mother created obstacles
through obtaining PFA and custody orders and that, in the significant six-
months prior to the filing of the termination, he had in fact been “actively
engaged” in the custody proceedings, his only available avenue. Father’s Brief
at 10-13. Specifically, Father relies on In re Adoption of C.M., 255 A.3d
343, 368 (Pa. 2021), and its stated proposition that “a parent’s legal efforts
to enforce custodial rights demonstrate affirmative performance of a positive
parental duty.” Id. at 11-12. He further asserts that Mother admitted that
she would not have let Child speak to him and would not have provided Child
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any gifts from Father. Id. at 10. Additionally, he maintains a fear of contact
with Mother due to her insistence to police that he was attempting to violate
the PFA order. Id. at 10-11. Father argues:
Viewing this case under the circumstances under which
[F]ather found himself, his explanation for his lack of parenting
was completely reasonable. Of major significance is that
[F]ather’s hands were tied both through a PFA and parole.[9]
Father did the only thing he could do by filing in court. Upon his
release from jail, he saved up enough money, hired a lawyer and
filed to modify his custody order. Father was still prevented
through the custody case from having contact with his son until
fulfilling certain requirements. Father was actively working on
fulfilling those requirements while taking care of a sick relative
and battling through the COVID pandemic. Father thought he had
already fulfilled the mental health evaluation and was trying to
obtain the results and did in fact engage in a drug and alcohol
evaluation. Mother waited barely six months from the time
[F]ather was ordered to do evaluations before filing for
termination of his rights. Custody proceedings were still being
held in that six-month time frame preceding the filing of the
petition with one as late as March, just four months from the date
of filing.
Father in no way evidenced a settled purpose of
relinquishing his parental rights as he had a reasonable
explanation for lack of contact and exhausted all remedies
available to him to parent his son.
Id. at 14-15.
Upon review, the record supports termination pursuant to Section
2511(a)(1). The record reveals that Father was incarcerated from October
2018, to May 2020. N.T., 3/2/22, at 14-15, 50. At the time of the termination
hearing, pursuant to PFA order and subsequent custody order, Father had not
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9 In addition to the PFA order, Father testified that his parole prevented him
from contact with Mother. N.T., 3/2/22, at 51-52, 59, 84-85.
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been afforded any custodial rights for a period of almost three and a half
years, since Child was one year old. Id. at 19, 32. The record further
evidences a lack of contact during this entire period of time, despite the PFA
order not prohibiting contact with Child, or contact with Mother related to
custody, and expiring in November 2021. Id. at 15-16, 20, 30-31, 34-35, 51,
59, 84-85. Father admitted that “there was nothing saying I couldn’t contact
[Child].”10 Id. at 52. Mother testified that she did not take any action to
prevent contact. Id. at 34. Mother further stated that her telephone number
and that of her mother have not changed, and that Father was aware of her
new address. Id. at 27, 33-34.
While Father filed a custody modification after approximately two years,
in October 2020, this came after communication from Mother in July 2020
requesting the voluntary termination of his parental rights so Stepfather could
adopt Child, and five months after Father had been released from prison in
May 2020. Id. at 15-16, 23, 26, 32, 52-53, 84; see also Petitioner’s Exhibit
1. Thereafter, another 18 months passed without Father furthering the
custody matter in any appreciable manner. Id. at 32-33.
In particular, following a conciliation/conference in late 2020, the court
required Father to complete certain evaluations, including psychological and
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10As noted above, Father contended that his parole prevented him from
contact with Mother. See supra n.6.
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drug and alcohol,11 with a focus on the need for additional anger management,
issuing an order on January 14, 2021. Id. at 23, 32-33, 53, 70-71, 89-90;
see also Motion to Continue, 10/28/21, Exhibit A, at ¶¶ 2, 16. Although
Father acknowledged these requirements and participated in a review
conference/conciliation in March 2021,12 he explained his understanding that
he could petition to again bring the custody matter before the court once he
completed these obligations. Id. at 80, 83-84, 89-91 (stating, in part, “[S]he
told me that once I get everything done, then I can petition and come back
in.”). Critically, Father testified to the completion of a drug and alcohol
evaluation in July 2021, previous completion of anger management, and
attempts to obtain copies of evaluations completed while incarcerated. Id. at
53-57, 68, 70-71, 81-84. Despite recognizing fulfillment of certain
components in the context of disposition of the criminal matter, and prior to
being ordered in the custody matter, Father noted the suggestion of the
custody master that these prior evaluations completed in relation to his
criminal matter may be accepted. Id. at 53, 55, 70, 76-78, 80. However, no
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11 Specifically, the order directed a psychological evaluation with Carbon-
Monroe-Pike Mental Health and Developmental Services and a drug and/or
alcohol evaluation with A Better Today, Inc., Outpatient Treatment Center.
Motion to Continue, 10/28/21, Exhibit A, at ¶ 2. The order further provided
for the “[f]ocus to include, but not be limited to[, the] need for additional
anger management counseling.” Id. at ¶ 16.
12 Father stated that his attorney in the custody matter notified him the night
prior to the March 2021 review conference/conciliation that he would not be
appearing on Father’s behalf. N.T., 3/2/22, at 55, 58, 70.
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evidence was presented that Father actively pursued his custody complaint in
court.13 As such, the record is devoid of evidence of Father’s proactive pursuit
of custodial rights during the six-month period prior to the filing of the
termination petition on July 2, 2021. See Cf. In re Adoption of C.M., 255
A.3d at 368 (finding, regardless of a prior absence, father “continuously
exercised parental duties during the two months preceding the filing of the
petition,” where he initiated and actively pursued his complaint for custody,
engaged in mediation and conciliation, and began compliance with court-
mandated requirements.).
Likewise, throughout this time, Father conceded a lack of financial
support of Child. Id. at 93. Moreover, Father experienced a relapse with
respect to drugs and alcohol and was re-incarcerated at the time of the
termination hearing.14 Id. at 6, 62, 69.
As such, the record supports the court’s determination, upon
consideration of the totality of the circumstances, as to Father’s failure to
perform parental duties, including lack of contact, within the six months prior
to the filing of the July 2021 termination petition and throughout most of
Child’s life, and lack of effort to overcome obstacles. We reiterate, “Parental
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13 Father testified to caring for sick relatives during this time and being
unaware of any time limit for meeting his obligations. Id. at 80-81, 87-88,
91.
14In connection with this incarceration, Father testified to participation in drug
and alcohol and growth programs. Id. at 63-64. He described the growth
program as “like an anger management, complete, like, with relationships,
with family, with kids, it’s everything.” Id. at 64.
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rights are not preserved by waiting for a more suitable or convenient time to
perform one’s parental responsibilities while others provide the child with the
child’s physical and emotional needs.” In re B., N.M., 856 A.2d at 855(citation omitted). Mindful of our standard of review set forth above that we
must not substitute our judgment for that of the trial court, as we discern no
error of law or abuse of discretion, we do not disturb the orphans’ court’s
finding of grounds for termination pursuant to Section 2511(a)(1).
We next determine whether termination was proper under Section
2511(b). As to Section 2511(b), our Supreme Court has stated as follows:
[I]f the grounds for termination under subsection (a) are met, a
court “shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child.” 23
Pa.C.S.[A.] § 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. However, as
discussed below, evaluation of a child’s bonds is not always an
easy task.
In re T.S.M., 71 A.3d at 267. “In cases where there is no evidence of any
bond between the parent and child, it is reasonable to infer that no bond
exists. The extent of any bond analysis, therefore, necessarily depends on
the circumstances of the particular case.” In re K.Z.S., 946 A.2d 753, 762-
63 (Pa. Super. 2008) (citation omitted). When evaluating a parental bond,
“[T]he court is not required to use expert testimony. Social workers and
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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). Nevertheless, “the mere existence of a bond or
attachment of a child to a parent will not necessarily result in the denial of a
termination petition.” T.S.M., 71 A.3d at 267. The Court directed that, in
weighing the bond considerations pursuant to Section 2511(b), “courts must
keep the ticking clock of childhood ever in mind.” Id. at 269. The T.S.M.
Court observed, “[c]hildren are young for a scant number of years, and we
have an obligation to see to their healthy development quickly. When courts
fail . . . the result, all too often, is catastrophically maladjusted children.” Id.
Moreover,
While a parent’s emotional bond with his or her child is a major
aspect of the Section 2511(b) best-interest analysis, it is
nonetheless only one of many factors to be considered by the
court when determining what is in the best interest of the child.
[I]n addition to a bond examination, the trial court can
equally emphasize the safety needs of the child, and
should also consider the intangibles, such as the love,
comfort, security, and stability the child might have
with the foster parent. . . .
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)) (quotation marks and
citations omitted).
Father, however, has failed to preserve and waived any challenge
related to Section 2511(b) for failure to raise same in the Statement of
Questions Involved portion of his brief and failure to offer any such discussion
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in his brief. See In re M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa. Super. 2017)
(citations omitted) (explaining this Court will not review an appellant’s claim
unless it is included in the statement of questions involved, developed in his
or her argument, and supported by citation to relevant legal authority).
Even if Father had preserved a challenge to Section 2511(b), we would
conclude that it is without merit. Instantly, in determining that termination
would serve Child’s needs and welfare pursuant to Section (b), as recognized
by the orphans’ court,
Here, [Child] is bonded with Stepfather. . . . [Child] looks to
Stepfather as his parent[] and believes him to be his father.
Stepfather has been involved in [Child’s] life since he was just
over a year old. [Child] has no bond with Father and would not
be able to recognize him. Father has had no involvement with
[Child] since he was one year old. Father’s family has had no
contact with [Child] for the same period of time. . . . [Child] is
now approaching school age and has only had Stepfather present
as his father figure for the majority of his life.
Opinion, 3/23/22, at 11-12.
This is supported by the record. As testified by Mother,
[Stepfather] has been in [Child]’s life since [Child] was a year old.
. . . [Child] has always looked up to [Stepfather]. He’s –
[Stepfather] has always been there for me and him with only good
intentions in his heart and soul. My son sees him as his best
friend. My son has seen [Stepfather] as his father and only father,
since that time. [Stepfather]has been his father, his only father,
for the past three years of his four years of life. And [Child] –
[Child] doesn’t know any other person to be his dad. He wouldn’t
ever understand because he loves [Stepfather] and [Stepfather]
loves him. And he has provided him and me with a nice, secure,
stable, happy, healthy lifestyle. . . .
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N.T., 3/2/22, at 17. This was confirmed by Stepfather who stated, in part, “I
love [Child] as he was my own child, and I always have. . . . . I will always
see him as my son and nothing else.” Id. at 46-47. Hence, regardless of
waiver, we would discern no error of law or abuse of discretion in the court’s
finding that termination of Father’s parental rights would best serve Child’s
needs and welfare pursuant to Section 2511(b).
Accordingly, based upon our review of the record, we find no abuse of
discretion and conclude that the orphans’ court appropriately terminated
Father’s parental rights under 23 Pa.C.S.A. § 2511(a)(1) and (b).
Decree affirmed.
Judge Sullivan joins the memorandum.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/2022
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