In Re: Invol. Term of Par. Rights of J.P.C. ( 2016 )

J-S55015-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: INVOLUNTARY TERMINATION OF IN THE SUPERIOR COURT OF
THE PARENTAL RIGHTS OF J.P.C., PENNSYLVANIA
FATHER, IN AND TO T.J.K., A MINOR
APPEAL OF: J.P.C., FATHER
No. 719 EDA 2016
Appeal from the Order Entered February 1, 2016
In the Court of Common Pleas of Carbon County
Orphans' Court at No(s): 15-9172
BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED JUNE 27, 2016
J.P.C. (Father) appeals from the trial court’s order involuntarily
terminating1 his parental rights to his son, T.J.K. (Child) (born 2/12) and
granting physical and legal custody of Child to maternal grandparents. After
careful review, we affirm.
Child lived with Father and biological Mother from the time of his birth
until he was almost four months old, when Mother and Father were charged
with retail theft after trying to steal a television from Walmart. At the time
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
We review a trial court’s decision to involuntarily terminate parental rights
for an abuse of discretion or error of law. In re A.R., 837 A.2d 560, 563
(Pa. Super. 2003). Our scope of review is limited to determining whether
the trial court’s order is supported by competent evidence. Id.J-S55015-16
both Mother and Father were addicted to heroin.2 On June 15, 2012, Child
was placed in kinship care where he lived for a brief period with Paternal
Uncle and then Paternal Great-Grandmother. On June 26, 2012, Child was
placed into the custody of Maternal Grandparents, with whom he continues
to reside. On July 3, 2012,3 Maternal Grandparents initiated custody
proceedings and obtained an interim order for primary custody of Child; they
continue to retain sole custody of Child.4
Father last saw Child in October 2012, after Mother initiated a meeting
between Father and Child at a local park. Father has had no contact with
Child since that date. Father pled guilty to attempted robbery and was
sentenced in February 2014 to 18-48 months’ incarceration. On May 29,
2015, Mother and Maternal Grandfather filed the instant petition to
terminate Father’s parental rights, seeking termination5 under sections
____________________________________________
2
Police found heroin and drug paraphernalia in Father’s car as a result of a
search following the Walmart incident.
3
Also in July 2012, Father pled guilty to driving under the influence (DUI)
after he caused a serious automobile accident resulting in Mother being
MedEvac’d to Lehigh Valley. N.T. Termination Hearing, 11/24/15, at 41.
Finally, in October 2014, Father was convicted of retail theft. Id. at 174.
4
In 2012, the court granted Maternal Grandparents’ petition to change
Child’s surname to their surname.
5
Grandfather also indicated his intent to adopt Child. Because this is an
intra-family adoption, no report of intent to adopt is required. See 23
Pa.C.S. § 2531(c). Nonetheless, Maternal Grandfather testified that he did
file a notice of intention to adopt Child pursuant to section 2531. N.T.
Termination Hearing, 11/24/15, at 55.
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2511(a)(1) and (b) of the Adoption Act.6 On June 29, 2015, Mother died of
a drug overdose. The court held a termination hearing on November 24,
2015, at which Father testified that he anticipated being released on parole,
on his attempted robbery sentence, within the next two to three weeks.
N.T. Termination Hearing, 11/24/15, at 12. On February 1, 2016,7 the court
granted Maternal Grandfather’s petition and terminated Father’s parental
rights under sections 2511(a)(1) and (b).8 This appeal follows.9
On appeal, Father presents the following issues for our consideration:
(1) Whether the trial court committed an error of law and/or
abuse of discretion by granting the petition to terminate
Father’s parental rights by concluding that the maternal
grandfather presented clear and convincing evidence that
Father exhibited a settled purpose to relinquish his
parental rights, and thereby ignored the Father’s
____________________________________________
6
23 Pa.C.S. §§ 2101-2910.
7
Following the termination hearing, the court left the record open for forty
days in light of the possibility that Father would voluntarily relinquish his
parental rights and come to an agreement with Maternal Grandparents to
maintain post-termination contact with Child. When no such agreement had
been reached at the conclusion of the forty days, the court entered its order
involuntarily terminating Father’s parental rights.
8
After Mother passed away following the filing of the termination petition,
Maternal Grandfather solely pursued the termination process due to his
standing under 23 Pa.C.S. § 2512(a)(3), which permits an individual who
has custody or standing in loco parentis to a child to file such petition. With
regard to a termination petition, a party stands in loco parentis to a child by
putting himself or herself in the situation of assuming the obligation incident
to the parental relationship without going through the formality of a legal
adoption. Argenio v. Fenton, 703 A.2d 1042, 1044 (Pa. Super. 1997).
9
At the time he filed his notice of appeal, Father remained incarcerated.
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incarceration and forthcoming parole/release, the maternal
grandfather’s efforts to limit or frustrate the parent-child
relationship, the strained/nonexistent relationship between
Father and maternal grandfather, the change of address of
maternal grandfather’s residence, and the Child’s young
age, etc., as factors beyond Father’s immediate control
which limited or prevented his exercise of parental rights
and duties to the child.
(2) Whether, in the alternative, the trial court committed an
error of law and/or abuse of discretion by concluding that
Father exhibited a settled intent to relinquish parental
rights and further that the maternal grandfather presented
clear and convincing evidence that Father would not
remedy the conditions/refusal to perform parental duties
where Father testified that his release/parole was
forthcoming?
(3) Whether the trial court committed an error of law or
abused its discretion by concluding that the natural father
exhibited a settled intent to relinquish parental rights,
failing to consider Father’s explanation for the lack of
conduct – including Father’s incarceration,
strained/nonexistent relationship with petitioner maternal
grandfather, petitioner maternal grandfather’s efforts to
limit or frustrate the parent-child relationship, the
petitioner maternal grandfather’s improperly[-] served
name change petition, petitioner maternal grandfather’s
insistence that the child refer to petitioner as “Dad,” the
change of address of petitioner’s residence, and the child’s
young age, as factors beyond Father’s immediate control
which limited or prevented his exercise of parental rights
and duties to the child; and by failing to consider the effect
of the termination, including the possibility of natural
father’s forthcoming release, the fact that natural father is
the only surviving biological parent, the fact that the
natural mother is deceased; the child’s young age, and the
possibility for a meaningful relationship between the child
and natural father?
(4) Whether the trial court committed an error of law and/or
abuse of discretion by failing to consider the needs and
welfare of the child analysis, including the paternal
grandparents were attending to the child’s needs; the
natural father’s explanation for the lack of conduct; the
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strained/non[-]existent relationship between the natural
father and petitioner maternal grandfather; the petitioner
maternal grandfather’s efforts to limit or frustrate the
parent-child relationship, including the petitioner maternal
grandfather’s improperly[-] served name change petition,
petitioner and maternal grandfather’s insistence that the
child refer to petitioner as “Dad,” and the change of
address of petitioner’s residence; the child’s young age;
the fact that natural father is the only surviving biological
parent and/or the fact that the natural mother is
deceased; the child’s young age; and the possibility for a
meaningful relationship between the child and natural
father?
Appellant’s brief at 4-5.
In In re adoption of S.M., 816 A.2d 1117, 1122 (Pa. Super. 2003),
our Court noted:
In a proceeding to terminate parental rights involuntarily, the
burden of proof is on the party seeking termination to establish
by clear and convincing evidence the existence of grounds for
doing so. 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
termination.
Id. at 1122 (citation omitted). See also In re C.P., 901 A.2d 516, 520 (Pa.
Super. 2006) (party seeking termination of parental rights bears burden of
proving by clear and convincing evidence that at least one of eight grounds
for termination under 23 Pa.C.S. § 2511(a) exists and that termination
promotes emotional needs and welfare of child as set forth in 23 Pa.C.S. §
2511(b)).
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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. In re Adoption of Dale A., II, 683 A.2d 297 (Pa. Super.
1996). Where a parent is incarcerated, the fact of incarceration does not, in
itself, provide grounds for the termination of parental rights. Id. However,
a parent’s responsibilities are not tolled during incarceration; rather, the
focus is on whether the parent utilized resources available while in prison to
maintain a relationship with his or her child. Id. An incarcerated parent is
expected to utilize all available resources to foster a continuing close
relationship with his or her children. In the Interest of A.P., 692 A.2d 240(Pa. Super. 1997).
Instantly, the trial court terminated Father’s parental rights pursuant
to section 2511(a)(1). Under section 2511(a)(1), a court may terminate
parental rights where the parent demonstrates a settled purpose to
relinquish parental claim to a child or fails to perform parental duties for at
least the six months prior to the filing of the termination petition. 23 Pa.C.S.
§ 2511(a)(1). The trial court, however, should consider the entire
background of the case and not simply
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 . . . parental rights, to determine if the evidence, in light
of the totality of the circumstances, clearly warrants the
involuntary termination.
-6-
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In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004).
With regard to section 2511(a)(1), Father contends that he attempted
to maintain contact with Child, while he has been incarcerated, by calling
Mother on the phone and sending her correspondence for Child. Father
claims that the court discounted such efforts in coming to its decision to
terminate his rights.
Despite these claims, we recognize that Father did nothing actively to
maintain contact with Child, either in person or over the phone, since Child
was five months old and in the care of Maternal Grandparents. While Father
did place two calls to Maternal Grandparents’ home prior to his incarceration
in June 2013, he did not ask to speak to Child. N.T. Termination Hearing,
11/24/15, at 54.10 Moreover, the only time that Father saw Child face-to-
face after his arrest in 2012 was as a result of Mother arranging a meeting
at a local park. Since his visit with Child at the park, Father sent Child one
Christmas card, through Mother, in December 2013. While Father initially
testified that he “couldn’t do anything” to father his son while he was
incarcerated, id. at 162, he later admitted that he could have obtained
Maternal Grandparent’s full address to send letters to him. Id. at 163.
____________________________________________
10
Maternal Grandfather testified that his phone number and address have
been the same for the last 20 years and that Father never attempted to visit
Child at Maternal Grandfather’s home or call to talk to Child. N.T.
Termination Hearing, 11/24/15, at 100. Even Father admitted he had not
tried to contact Child at their home. Id. at 149.
-7-
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Father also claims that he did not attempt to contact child or send him
letters because Maternal Grandparents do not allow Child to talk on the
phone and they would not deliver any letters he would send to him.
However, because Father never attempted to visit, call or send Child letters
at Maternal Grandparent’s home, any claim that Grandparents would thwart
his efforts is pure speculation.
The record is clear that Father has failed to perform his parental duties
since Child was five months old. Id. at 100, 132. Child is over four years
old now and has had no meaningful contact with Father since he was
removed from Father’s home in 2012 as a result of Father being arrested for
retail theft. See In re C.L.G., 956 A.2d 999, 1006 (Pa. Super. 2008) (en
banc) (cause of incarceration may be particularly relevant to section 2511(a)
analysis where imprisonment arises as direct result of parent’s actions which
were “part of the original reasons for the removal” of the child). Under such
circumstances, we conclude that the court properly terminated Father’s
parental rights under section 2511(a)(1).
With regard to subsection 2511(b), we note the following: (1) Child
has resided with Maternal Grandparents, who have interim custody of and
are a pre-adoptive resource for Child, for almost four years; (2) Maternal
Grandparents provide Child with a safe and stable environment that attends
to his financial, emotional, educational and physical needs; (3) Father
testified that Child likely does not know and would be unable to identify him
as his father; N.T. 11/24/15, at 164; (4) Child has formed a strong
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attachment with Maternal Grandparents, calling them “Mom” and “Dad”; (5)
termination is in Child’s best interest; (6) Child will not suffer any irreparable
harm if Father’s rights are terminated; and (7) Child needs permanency.
Accordingly, we rely upon the trial court opinion, authored by the
Honorable Roger Nanovic, in affirming the order involuntarily terminating
Father’s parental rights to Child. We instruct the parties to attach a copy of
Judge Nanovic’s 32-page decision in the event of further proceedings in the
matter.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/2016
-9-
'i:., Circulated 06/21/2016 04:07 PM
IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA
ORPHANS' COURT
In re:
TERMINATION OF PARENTAL
RIGHTS OF J.P.C. No. 15-9172
IN AND TO T.J.K., A MINOR
Kim R. Roberti, Esquire Counsel for G.J.K. ~
Joseph V. Sebelin, Jr., Esquire Counsel for J.P~C.
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Appellant, J.P.C. (hereafter "Appellant" or "Fat~r"), ·;".J.s
appealing our decree of February 1, 2016 which granted the
petition of G.J.K., the Child's Maternal Grandfather (hereafter
"Petitioner" or "Maternal Grandfather"), to terminate Father's
parental rights to T. J. K. (hereafter "Child") . 1
FACTUAL AND PROCEDURAL BACKGROUND
T. J. K. was born on February 6, 2012. (N.T., 11/24/2015,
p.15). Child is the biological son of R.K. (hereafter "Mother")
and Appellant-Father. On or about June 15, 2012, when the Child
was four months old, Mother and Father were arrested for
attempting to steal televisions from a Walmart in Hazleton. At
the time, the Mother and Father were both addicted to heroin and
this theft was to support their drug addictions. Id. at 39-40,
1
In this Court's Final Decree of February 1, 2016, we made twenty-four
separate findings of fact. To the exte t~-th-at,-,t;hese,vf.indings-~ have not
been challenged by Father on appeal, the /,~.Y.;~)/~inding on the Pfrties.
[FN-19-16). Pf: ·---······· ····· · ·-·· t. ncc.,tt:-t~trL/8
~CT~:=::.:~:=~=__.,::,-,~::::~J L_cs •. c, j 72-
1
I.
143, 177. Additionally, upon the parents' arrest, heroin and
drug paraphernalia was found in their vehicle. Id. at 39-40,
177. Upon their arrest, the Monroe County Off ice of Children
and Youth ("OCY") intervened and placed temporary custody of the
Child with his paternal uncle and the uncle's girlfriend for
approximately two weeks. Id. at 17-20, 95, 144, 178-81, 204.
The Child was next placed in the temporary custody of his
paternal great-grandmother, L. M., who was residing in the same
home as Mother and Father, for approximately seven to ten days.
Id. at 144, 179-81. On June 26, 2012, OCY placed the Child in
the custody of Petitioner, G.J.K., and his wife, V.K.,2 the
Child's maternal grandparents (hereafter "Maternal
Grandparents"). Id. at 181.
On July 3, 2012, the Maternal Grandparents filed a custody
complaint in the Monroe County Court of Common Pleas against the
Child's biological parents. This complaint is docketed to No.
2012-05609 in the Monroe County Prothonotary' s off ice. (N. T. I
11/24/2015, p. 6, 43; Petitioner's Exhibit 1). On December 20,
2012, an interim order was entered in this custody action
awarding the Maternal Grandparents sole legal custody and sole
2
V.K., the Child's Maternal Grandmother, is not a party to either the
termination petition or the adoption proceedings, docketed at 15-9173
in the Carbon County Register of Wills/Clerk of the Orphans' Court's
office, though she testified she now intends to join in G.J.K.'s
petition to adopt T.J.K. (N.T., 11/24/2015, p.130). At the time the
termination petition was filed, R. K., the Child's biological mother,
who has since died, was a joint petitioner with G.J.K.
[FN-19-16)
2
physical custody of the Child. (N.T., 11/24/2015, p. 7-10, 43;
Petitioner's Exhibit 2) • This order remains in place to the
present time. On October 10, 2012, the Maternal Grandparents
and Mother filed a petition in the Carbon County Court of Common
Pleas to change the Child1s surname, seeking to replace Father's
surname with their own. Id. at 36, 85, 121-22. The name change
action is docketed to No. 12-2194 in the Carbon County
Prothonotary's office. An .order granting this petition was
entered on February 7, 2013, by the Honorable Joseph J. Mati ka
of this court. (Petitioner's Exhibit No. 5) . Maternal
Grandfather initiated these termination proceedings in a joint
petition with R.K., the Child1s mother, on May 29, 2015.
Tragically, Mother died of a drug overdose on June 29, 2015.
Id. at 3, 39, 63, 67, 166. Since then Maternal Grandfather has
proceeded with these termination proceedings as the sole
petitioner.
From the time that the petition for termination was filed,
until the time of the termination hearing held on November 24,
2015, Father was incarcerated at SCI Chester, where he is
serving a state sentence of not less than eighteen months nor
more than forty-eight months in prison for attempted robbery.
(N . T. , 11/24/2015, pp . 2 7, 14 6, 170, 174 - 7 5, 2 0 3) . At the time
of the termination hearing, Father testified that he anticipated
being released on parole within the next two to three weeks.
[FN-19-16]
3
\.
Id. at 12, 27, 35, 146. When Father filed the instant appeal on
March 1, 2016, he simultaneously sought the continuation of his
in forma pauperis status on the grounds that he cannot afford
the filing fee because he remains incarcerated. (Father's
Petition for Continuation of In Forma Pauperis Status for
Purpose of Appeal, filed 03/01/2016).
Following a hearing on the petition to involuntarily
terminate Father's parental rights on November 24, 2015, we left
the record open for a period of forty (40) days at the request
of Father. The purpose of this request was to give the parties
an opportunity to discuss the possibility of a voluntary
termination of Father's parental rights and an agreement for
Father to thereafter maintain contact with his Child. No such
agreement was filed within this time period; consequently, on
February 1, 2016, we issued a Final Decree terminating Father's
parental rights in and to Child. Father filed a timely Notice
of Appeal along with a Concise Statement, pursuant to Pa.R.A.P.
1925(b) on March 1, 2016. See also Pa. R.A. P. 905 (a) (2),
1925 (a) (2) (i). This opinion is submitted in accordance with
Pa.R.A.P. 1925(a) (2) {ii). For the reasons discussed below, we
respectfully recommend that the termination of Father's parental
rights be affirmed.
[ FN-19-16)
4
DISCUSSION
In his Concise Statement, Father raises the following
claims of error, which we have re-ordered and consolidated3 for
the sake of clarity:
(1) We committed an error of law and/or abused our
discretion by finding that Petitioner presented
clear and convincing evidence that Father
exhibited a settled purpose to relinquish his
parental rights and by not considering the
explanations Father offered for his conduct and
Petitioner's attempts to limit or frustrate the
relationship between Father and Child.4
(2) We committed an error of law and/or abused our
discretion by finding that Petitioner presented
clear and convincing evidence that Father
"would not remedy the conditions/refusal to
perform parental duties where Father testified
that his release/parole was forthcoming.115
(3) We committed an error of law and/or abused our
discretion by failing to consider the needs and
welfare of the Child.6
We begin with a discussion of the standard this court applies
when ruling on a petition to terminate one's parental rights.7
3 The first paragraph of Father's 1925(b) Statement states "[the trial
courtJ committed an error of law and/or abuse of discretion by
granting the Petition to terminate Natural Father's [(J.P.C's))
Parental Rights.11 Father's 1925 (b) Statement, 'lll. Insofar as Father
is attempting to raise a separate claim of error with this paragraph,
any such claim is waived because this paragraph is insufficiently
specific for us to "identify and address the issue an appellant wishes
to raise on appeal." Commonwealth v. Hansley, 24 A.3d 410, 415
(Pa. Super. 2011) (citation and brackets omitted) , appeal denied, 32
A.3d 1275 (Pa. 2011}.
4
Father's 1925(b) Statement, ``2, 4.
5 Father's 1925(b) Statement, 'll3.
6
Father's 1925(b) Statement, 'll5.
We note the standard of review applied on appeal of an order
terminating parental rights as set forth by the Pennsylvania Supreme
Court:
(FN-19-16)
5
The termination of parental rights is controlled
by statute, 23 Pa.C.S.A. § 2511(,) et seq. Under
Section 2511, the trial court must engage in a
bifurcated process. The initial focus is on the
conduct of the parent. The party seeking
termination must prove by clear and convincing
evidence that the parent's conduct satisfies at
least one of the nine statutory grounds in
Section 2511 (a). If the trial court determines
that the parent's conduct warrants termination
under Section 25ll(a), it must engage in an
analysis of the best interests of the child under
Section 2511(b), taking into primary
consideration the developmental, physical, and
emotional needs of the child.
In re B.C., 36 A.3d 601, 606 (Pa.Super. 2012) (citations
omitted). We terminated Father's parental rights pursuant to
Section 2511 (a) (1) of the Adoption Act. This section, and
Section 251l(b), provide:
(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:
When reviewing a trial court's decision to grant or deny a
termination of parental rights petition, an appellate court
should apply an abuse of discretion standard, accepting the
findings of fact and credibility determinations if they are
supported by the record, and reversing only if the trial court
made an error of law or abused its discretion. As we have
noted, a decision may be reversed for an abuse of discretion
only upon demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will.
In re D.C.D., 105 A.3d 662, 670-71 (Pa. 2014) (citation and quotation
marks omitted). See also In re J.F.M., 71 A.3d 989, 992 (Pa.Super.
2013) ("If the findings of the trial court are supported by competent
evidence, we will affirm even if the record could also support the
opposite result."} (citation omitted); and In re B.L.W., 843 A.2d 380,
383 (Pa.Super. 2004} (en bane} ("Where a trial court has granted a
petition to involuntarily terminate parental rights, th [ e J [ Superior)
Court must accord the hearing judge's decision the same deference that
it would give to a jury verdict"} (citation omitted), appeal denied,
863 A.2d 1141 (Pa. 2004).
[FN-19-16)
6
(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). In order to establish a legal
basis for termination under Section 2511 (a) (1), Petitioner must
8
establish, by clear and convincing evidence, that during the
relevant six-month period Father either (1) demonstrated a
settled purpose of relinquishing parental rights or (2) refused
or failed to perform parental duties. See In re J.T., 983 A.2d
771, 776-77 (Pa.Super. 2009). These duties are broad, and
involve both the tangible and intangible aspects of being a
parent:
ll
"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.ll In re E.D.M.,
708 A.2d 88, 91 (Pa. 1998) (citation and quotation marks omitted).
[FN-19-16]
7
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 'suppor t . These
needs, physical and emotional, cannot be met by a
merely passive interest in the development of the
child. Thus, (the Pennsylvania Supreme 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.'
In re C.M.S., 832 A.2d 457, 462 (Pa.Super. 2003) (quoting In re
Burns, 379 A.2d 535, 540 (Pa. 1977)), appeal denied, 859 A.2d
767 (Pa. 2004).
Once Petitioner has established grounds for termination, we
must consider whether the totality of the circumstances clearly
warrant termination. In re B. ,N.M., 856 A.2d 847, 855
(Pa.Super. 2004) (citation omitted), appeal denied, 872 A.2d
1200 (Pa. 2005) . When looking at the totality of the
circumstances, our courts primarily look at three factors. In
re J.T., 983 A.2d at 777 (citing In re E.D.M., 708 A.2d 88, 92
(Pa. 1998)). First, the court analyzes the parent's explanation
for his or her conduct. Id. Second, the court analyzes post-
abandonment contact between parent and child. Id. Finally, the
[FN-19-16)
8
court analyzes the effect termination will have on the child as
required by Section 2511 (b) . Id. We will discuss the issues
Father is raising on appeal as they relate to the aforementioned
standards we applied in terminating Father's parental rights.
A. Father Exhibited a Settled Purpose to Relinquish His
Parental Claim
In his first claim of error raised on appellate review,
Father asserts that we abused our discretion in finding that
Petitioner had demonstrated, by clear and convincing evidence,
that Father had exhibited a settled intent to relinquish his
parental rights. Father also contends that we abused our
discretion by not considering a number of factors showing that
he was limited and/or prevented in exercising his parental
rights and duties, namely, his incarceration at the present
time, the strained relationship between Father and Maternal
Grandfather, Maternal Grandfather's efforts to limit or
frustrate Father's relationship with Child, Maternal Grandfather
failed to properly serve Father with the petition to change
Child's name, Maternal Grandfather's insistence that Child
address him as "Dad,n and that Maternal Grandfather changed the
address of his residence. Lastly, Father asserts that we failed
to consider the possibility for the development of a meaningful
relationship between Father and Child, as he is now the Child's
sole living biological parent and he will soon be released from
[ FN-19-16]
9
prison. As previously stated, we must first determine if clear
and convincing evidence establishes a statutory basis for
termination set forth in Section 2511 (a) ( 1) and then consider,
inter alia, Father's explanation for his or her conduct. There
is considerable overlap in the evidence relevant to these
determinations and Father has essentially merged the two into
one in his Concise Statement; therefore we address both issues
together.
As a preliminary matter we note that Father's claims
relating to Child addressing Petitioner as "Dad," the fact that
Father is the Child's sole remaining biological parent, and the
possibility of Father remedying his past failure to perform
parental duties and of developing a meaningful relationship with
the Child upon his release from prison are not relevant to our
determination that Father exhibited a settled purpose of
relinquishing his parental claim to the Child, nor are they
relevant to our analysis of Father's explanations for his
conduct. Instead, because these issues are relevant to our
determination of the best interests of the Child, they are
discussed as part of our analysis of that factor, infra.
Maternal Grandfather and Mother filed the petition to
terminate Father's parental rights on May 29, 2015. Therefore,
while the statutory six-month period between November 29, 2014
and May 29, 2015 is the primary period to be examined, it is not
[FN-19-16]
10
the exclusive peri_od. ''Although the six month period
immediately preceding the filing of the petition is most
critical to [our] analysis, (we] must consider the whole history
of the case and not mechanically apply the six-month statuto_ry
provision." In re I.J., 972 A.2d 5, 10 (Pa.Super, 2009)
(citation omitted). In order to decide if the totality of the
circumstances requires the involuntary termination of Father's
parental rights, we must "examine the indi victual circumstances
of [his] case and consider all of the explanations of [Father)
II
Id. (citing In re B.,N.M., 856 A.2d at 855).
Additionally, because Father was a non-custodial parent at the
time the termination petition was filed, we must also consider
whether the Petitioner, as the party with custody of the Child,
"deliberately created obstacles and has by devious means erected
barriers intended to 'Lmpede free communication and regular
association between [Father) and his [) child." In re c. M. s. ,
832 A.2d at 463 (quoting In re Shives, 525 A.2d 801, 803
(Pa.Super. 1987)).
In examining a parent's explanation for failing to perform
his parental duties, we must consider all explanations offered.
See In re K.Z.S., 946 A.2d 753, 758 (Pa.Super. 2008). "The
pertinent inquiry is not the degree of success a parent may have
had in reaching the child, but whether, under the circumstances,
the parent has utilized all available resources to preserve the
( FN-19-16)
11
parent-child relationship.11 In re Shives, 525 A.2d at 803
(citing In re Adoption of Faith M., 501 A.2d 1105, 1108 (Pa.
1985)). Included in this effort is the need for the parent to
"exercise reasonable firmness in resisting obstacles placed in
11
the path of maintaining the parent-child relationship. In re
B.,N.M., 856 A.2d at 855 (citation omitted).
Nevertheless, a parent "is not required to perform the
impossible, [but] he must act affirmatively to maintain his
relationship with his child, even in difficult circumstances. 11
In re G.P.-R., 851 A.2d 967, 977 (Pa.Super. 2004) (citing In re
Burns, 379 A.2d 535, 541 (Pa. 1977)). As previously noted,
Father has been incarcerated for longer than the six month
statutory period under Section 2511(a) (1). However, it is well-
established that "the fact of incarceration does not, in itself,
provide grounds for the termination of parental rights." In re
B.,N.M., 856 A.2d at 855 (citation omitted). At the same time,
"a parent's responsibilities are not tolled during
incarceration." Id. The law recognizes that while
incarceration "may make it more difficult [for one) to parent in
a traditional fashion, the fact of incarceration alone does not
obviate the duty to exercise reasonable firmness under the
circumstances to maintain a secure parent/child bond." In
Interest of A.P., 692 A.2d 240, 245 (Pa.Super. 1997) (citation
omitted). The court, therefore, "must analyze whether the
[FN-19-16)
12
parent utilized those resources available while in prison to
maintain a relationship with his child." In re Adoption of Dale
A., II, 683 A.2d 297, 302 (Pa.Super. 1996) (citation omitted).
Father has not had custody of the Child since approximately
July of 2012 when OCY placed the Child in the care of various
relatives, before ultimately placing the Child in the care of
Maternal Grandparents. This custody arrangement was confirmed
by a custody order entered by the Monroe County Court of Common
Pleas on December 20, 2012. (Petitioner's Exhibits 1 & 2) .
Father testified he had no knowledge of these proceedings, and
that prior to the termination hearing, he believed Maternal
Grandparents' custody of the Child was still pursuant to the
initial OCY placement. (N . T . , 11/24I2015, pp. 21, 31-3 4 , 181-
84). Contradicting this assertion, Petitioner submitted a copy
of a certificate of service indicating that Father was
personally served with Maternal Grandparents1 complaint in the
aforementioned ·custody action. (N.T., 11/24/2015, pp.160, 183;
Petitioner's Exhibit 6).
Regardless of what order placed custody of the Child with
the Maternal Grandparents in Father's mind, since the time
custody of the Child has been with the Maternal Grandparents,
Father's visits with the Child have been few and far between,
the total number of visits and attempted visits being in
dispute. (N . T . , 11/24I2015, pp. 2 2-2 4 , 5 2-5 3, 6 5-67, 114 , 131-
(FN-19-16)
13
32, 157, 196-97). At the termination hearing, Maternal
Grandparents testified they had not received any requests from
Father to see the Child or any phone calls from Father asking to
speak to the Child for almost three years prior to the filing of
the termination petition. Id. at 52, 100, 132. No one
contacted the Maternal Grandparents on Father's behalf,
requesting permission for Father to visit the Child. Id. at 53.
Also, no letters or cards from the Father to the Child on the
Child's birthday or on major holidays were received by the
Maternal Grandparents. Id. at 53, 132. Nor did the Father
provide any monetary or non-monetary child support to Maternal
Grandparents. Id. at 15-16, 53, 132. The Petitioner also
testified that his phone number and home location have not
changed since custody was placed with the Maternal Grandparents.
Id. at 100.
Petitioner also testified that Father's brother came to his
house on or about July 12, 2012 and asked to take the Child.
(N . T . , 11I24I2015, pp. 5 2, 114 ) . Because Petitioner was unsure
as to whether Father's brother intended to take the Child for
the day or to keep the Child, he denied the request and called
the police. Id. at 52-53. Father testified that he had
accompanied his brother that day, but did not get out of the
car. Id. at 196. Father stated that his intent was to take the
Child out for the day and return him to the Maternal
[ FN-19-16)
14
Grandparents, not to take the Child away from them. Id. at 196-
97. Petitioner further testified that he had a telephone
conversation with Father in July of 2013, during which Father,
who was living in Arizona, asserted that Father would never
return to Pennsylvania. Id. at 54. Father disputes
Petitioner's account of this conversation.
Father's claims that Maternal Grandparents frustrated or
limited his relationship with the Child are without merit.
Petitioner testified that although his mailing address was
changed pursuant to a 911 reorganization plan, the physical
location of his home at which he and his wife resided with the
Child never changed. (N. T., 11/24/2015, pp.51-52, 100) .
Moreover, Father testified that he had been to the Maternal
Grandparents' home, was never aware of the mailing address, and
was not affected by the numerical change in the address. Id. at
161. Father also acknowledged that his relatives could have
provided him with Maternal Grandparents' mailing address if he
had asked them to do so, but he never made such a request. Id.
at 161-62.
As to Father's complaint that he was never properly served
with the petition to change the Child's surname, this did not
create an obstacle or barrier to Father's contact with the
Child. The Child's residence and the telephone number of his
guardians, Maternal Grandparents, remained unchanged and Father
[ FN-19-16]
15
had the means by which to contact Maternal Grandparents and/or
the Child if he had expended the necessary effort.9
Lastly, as to the· poor relationship between Maternal
Grandparents and Father, this was clear from the testimony at
the termination hearing. (N.T., 11/24/2015, pp.92, 98-99, 140,
149-150, 161, 163-64). There is, however, contradictory
testimony regarding the contents of a telephone conversation
between Father and Petitioner that occurred in July of 2013.
Father's account of this conversation is that Petitioner told
him that he would never see his Child again. Id. at 187-88.
Petitioner credibly testified that Father claimed he had won the
lottery and would never return to Pennsylvania and that Father
argued with Petitioner over testimony Petitioner gave at a
9
Father's assertion that his failure to contest the name change
petition should not be considered as evidence of a settled course to
relinquish his parental rights, does not establish an error of law or
abuse of discretion. According to the docket entries for the change
of name petition, Carbon County No. 2194 of 2012, the petition was
filed on November 10, 2012. Father testified that in October of 2012,
he relocated to Arizona. (N.T., 11/24/2015, pp.25, 27, 30, 163).
Father testified that he went to Arizona to attend school. Id. at 25,
28-29, 156, 163, 186. Furthermore, Father asserted that he had been
in contact with the Child's Mother, R. K., up until early 2015. Id. at
149-50, 157-58.
D.C., Father's mother, testified that whenever R.K. was present in
her home when Father called, R. K. and Father spoke with one another
about their son. (N.T., 11/24/2015, p.213); see also id. at 147, 149-
54, 157-59, 195. R. K. was one of the petitioners in the name change
action. Consequently, Father's testimony that R.K. never informed him
of the name-change proceedings is unlikely. Regardless, even if we
accepted Father's explanation that he did not contest the change of
name action because he was unaware of it, there is abundant other
competent evidence in the record to support our decision to
involuntarily terminate Father's parental rights.
(FN-19-16)
16
hearing concerning Father's worker's compensation benefits. Id.
at 54.
Even if we were to accept Father's account of this phone
conversation, at no time after this conversation did Father
demand that Maternal Grandparents allow him to communicate with
his son either by telephone or correspondence. Additionally,
Father offered his own personal belief that any correspondence
addressed to his son would be perfunctorily discarded without
being given or read to the Child. (N . T . , 11 I 2 4 / 2015 , pp . 1 4 9-
150, 161, 164). Father further testified that he did not send
any correspondence to Maternal Grandparents' residence because
he knew the Child's Mother no longer resided there. Id. at 153.
Father did not identify any instance in which Maternal
Grandparents actually discarded or refused correspondence of his
that was addressed to the Child.
As to the relationship between Father's family and the
Maternal Grandparents, Maternal Grandmother testified that in
her dealings with members of Father's family, she was initially
receptive to them visiting the Child and sending gifts to the
Child for his birthday and for Christmas. (N.T., 11/24/2015,
pp.132-34). Maternal Grandmother testified that over time,
there was less contact between members of Father's family and
the Child and said gifts for the Child were never delivered; as
a result she concluded that Father's relatives were not
[FN-19-16)
17
interested in developing a relationship with the Child. Id.
The evidence did not establish that the members of Father's
family were contacting her on Father's behalf as opposed to
doing so of their own accord. After the Child's Mother entered
drug rehab around December of 2014, Maternal Grandmother decided
that it was better that Father's family not be involved with
Mother10 or the Child and informed them of her decision. Id. at
104, 134.
D. C., Father's mother, also testified regarding her
attempts to have contact with the Child. (N.T., 11/24/2015,
PP , 211, 215 I 21 7 ) , D.C. testified that Father asked her to pass
letters to R.K., the Child's mother, but never read those
letters, so she did not know if there were any messages for the
Child in them. Id. at 210-11. Only once, according to D. C.,
did Father ask her to contact and send gifts directly to the
Child, around Christmas of 2012. Id. at 211. Father otherwise
did not ask D.C. to give letters for the Child to the Maternal
Grandparents. Id. at 215.
Father testified that he was aware that Maternal
Grandmother had asked his relatives to stay away from the Child.
( N. T. , 11/24I2015, pp. 15 0, 19 5) . When asked why Father did not
use his relatives as intermediaries to deliver correspondence
10
Prior testimony established that Mother had not begun using heroin
until after she began her relationship with Father, who was also a
heroin user at the time. (N.T., 11/24/2015, pp.63-64, 89-90).
[FN-19-16)
18
for his Child, he stated that he did not want to be accused of
harassing the Maternal Grandparents. Id. at 159. At the same
time, Father acknowledged that while he was in ·prison he was
able to communicate with botb R.K. and members of his family and
either could have served as intermediaries to deliver messages
to the Child. Id, at 153, 159-60,
Father was in contact with the Child's Mother during his
incarceration through at least early 2615. According to Father,
whenever they spoke with one another, he asked about their
Child. (N.T., 11/24/2015, pp.147, 149-54, 157-59, 195). In
2013, Father sent a Christmas card to Paternal Grandmother to be
given to Mother for delivery to their Child. Id. at 153.
Afterwards, Father never checked if this card had been
delivered. Id. Father also testified that because of the
relative costs of postage compared to those of making telephone
calls from prison, he communicated with his family by telephone,
rather than through the mail. Id. at 161. Father did not want
the Child to visit him while he was incarcerated, id. at 202,
but testified that he wanted OCY to arrange supervised visits
between him and the Child upon his release from prison on
parole. Id. at 155, 202.
Father testified that attempting to have contact with his
Child by correspondence would have been futile because he
believed Maternal Grandparents would not accept any
[FN-19-16]
19
correspondence from him, and even if they did, the Child would
have been too young to read, and he believed Maternal
Grandparents would not read any letters to the Child.
Importantly, Father never actually sent any correspondence
directly to the Child. Compare · In re Adoption of Atencio, 650
A.2d 1064, 1067 (Pa. 1994) (finding that mother impeded father's
reasonable efforts to maintain his relationship with his child
where mother refused to accept correspondence and presents that
were sent to the child by regular mail, withheld a present that
was sent to the child by certified mail, and did not permit the
child to speak to father over the telephone). Even if we were
to accept Father's explanation as to why he did not send cards
or other correspondence to the Child at the Maternal
Grandparents' residence, Father made no attempt to have
consistent contact with the Child through alternate means. The
Child's Mother, although she did not have custody of or reside
with the Child, sti 11 had contact with the Child and with the
Maternal Grandparents, i.e., her parents. Prior to the point at
which Father and Mother ceased communicating with each other in
early 2015, Mother would have been a logical intermediary for
Father to send messages and gifts to the Child, but aside from
one Christmas card Father sent in 2013 for R. K. to deliver to
their son, Father never asked Mother to keep their son advised
of his existence or his interest in the Child's life and well-
[FN-19-16}
20
being. Father made no other efforts to contact his Child,
including any attempt to contact OCY, whom he believed was
supervising the Child's placement with the Maternal
Grandparents, to assist him in having contact with his son
during his incarceration. (N.T., 11/24/2015, pp.201-203).
Based upon the foregoing, we concluded Petitioner
established by clear and convincing evidence that Father's
conduct for at least six months prior to the filing of the
petition for the termination of his parental rights demonstrated
a settled purpose of relinquishing his parental rights. We also
determined that under the totality of the circumstances,
Father's explanations for his conduct were insufficient to
excuse his failure to act affirmatively and with reasonable
firmness to maintain the parent/child bond between him and his
Child. Notably, Father did not utilized any of the resources
available to him while incarcerated to maintain a relationship
with his child, even though he was in contact with the Child's
Mother, had relatives who could have served as intermediaries,
and could have inquired of OCY what, if any, of their services
were available to him during his incarceration.
As to Father's failure to perform his parental duties,
al though he has been incarcerated since approximately February
of 2014, Father has not provided a sufficient excuse for his
failure to exercise parental duties after the Child was placed
{FN-19-16]
21
in the care of the Maternal Grandparents. Since Father's arrest
for theft when the Child was five months old, Father has
continued to engage in criminal activity and has been absent
from the Child's life. Father's continuing criminal activity
includes an attempted robbery, to which he later pled guilty and
for which he is currently incarcerated, and violating the
conditions of his bail by absconding to Arizona for nearly nine
months. At no time after the Child was placed in the care of
Maternal Grandparents did Father provide any financial or non-
monetary support to his Child. We find that under the totality
of the circumstances, Father's belief that any attempt to have
contact or a relationship with his Child would be futi.le in
.light of his belief that the Maternal Grandparents would thwart
any contact between him and the Child is inadequate to explain
his failure to perform parental duties.
In his second claim of error raised on appeal, Father
asserts that we abused our discretion by concluding that under
23 Pa.C.S.A. § 2511 (a) (1), Petitioner established by clear and
convincing evidence that Father would not remedy his past
failure to perform his parental duties where he testified at the
termination hearing that his parole from prison was forthcoming
and he would attempt to rectify his past absence from the
Child's life. This assertion was not relevant to our analysis
of whether Father exhibited a settled purpose of relinquishing
[FN-19-16)
22
'·
his parental claim to the Child, or has refused or failed to
perform parental duties. Section 2511(b) specifically prohibits
us from considering "any efforts by the parent to remedy the
conditions described'' in Section 2511 (a) ( 1) "which are first
initiated subsequent to the giving of notice of the filing of
the {termination) petition." Id. (emphasis added). See also
T.J.B. v. E.C., 652 A.2d 936, 945 (Pa.Super. 1995) (discussing
the application of Section 251l(b}'s prohibition on considering
remedial measures that begin after the filing of a termination
petition with respect to Section 2511(a) (6)). Any consideration
of Father's future involvement in the Child's life is limited to
our analysis of the best interests of the Child and is
discussed, infra. Because no abuse of discretion or error of
law has been committed in not considering Father's stated
intentions after his release from prison, Father is entitled to
no relief on this claim.
B. Father's Post-Abandonment Contact With Child
Once Petitioner has established grounds for termination, we
analyze post-abandonment contact between Father and Child as
part of our determination of whether the totality of the
circumstances clearly warrants termination of Father's parental
rights. In re J.T., 983 A.2d at 777. Father has not raised a
specific challenge as to this aspect of our decision to
terminate his parental rights in his concise statement.
[FN-19-16}
23
Nevertheless we discuss post-abandonment contact in the context
of whether Father's stated intent to rectify his past neglect of
his parental duties upon his release on parole is a required
element of our analysis.
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 ti vate 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.
In re Z.P., 994 A.2d 1108, 1119 (Pa.Super. 2010) (emphasis
added) (citations and brackets omitted). Applying this
standard, we do not rely solely on Father's stated intent to
resume his parental duties upon his release from prison, but
rather we examine his history of post-abandonment contact with
the Child. See id. at 1121 ("A parent's own feelings of love
and affection for a child, alone, do not prevent termination of
parental rights.") (citation omitted),
The Superior Court has held that when a parent is
incarcerated, the sending of occasional letters, child support
and gifts is insufficient post-abandonment contact to establish
a serious intent on a parent's part to recul ti vate a parent-
child relationship and a willingness and capacity to undertake a
parental role. In re D.J.S., 737 A.2d 283, 286 (Pa.Super.
[ FN-19-16)
24
f'
1999). See also In re C.L.G., 956 A. 2d 999, 1005-1006
(Pa. Super. 2008) ( en bane) (finding that sending a blanket and a
videotape of mother reading a book sent to her child from prison
as gifts were insufficient post-abandonment contact, and
affirming termination of mother's parental rights).
Here, Father's post-abandonment contact with T.J.K. was
anything but steady and consistent, in fact, it was nearly non-
existent. The only instance in which Father attempted to have
any contact with the Child since October of 2012 was when he
asked the Child's Mother to pass along a Christmas card from him
in 2013. Father testified that he asked the Child's Mother to
keep him updated as to the Child's well-being, but without any
actual communication with the Child, even indirectly through the
Child's Mother, the Paternal Grandmother, or other relatives, we
cannot conclude that Father has demonstrated his willingness and
capacity to undertake a parental role with respect to T.J.K. At
best, Father's actions prior to the filing of the termination
petition suggest a tangential interest in the Child's welfare.
Father has failed to carry his burden of proof that his post-
abandonment contact with the Child demonstrates his desire to
cultivate a parent-child relationship and to reestablish his
parental responsibilities.
(FN-19-16)
25
C. The Termination of Father's Parental Rights Was In the
Best Interest of the Child
In his third and final claim of error raised on appeal,
Father asserts that we abused our discretion by finding that the
termination of his parental rights was in the best interest of
T.J.K. In his Concise Statement, Father relies on largely the
same grounds previously asserted with respect to his claim of
error regarding our finding that he had exhibited a settled
intent to relinquish his parental claim and refused or failed to
perform his parental duties. We need not discuss those grounds
which we have already addressed with respect to that issue,
supra. Consequently the following grounds are addressed herein:
the Petitioner's insistence that the Child refer to Petitioner
as "Dad," Father is the Child's sole remaining biological
parent, and the possibility for the development of a meaningful
relationship between the Child and Father.11
11
Father also raised two other challenges to our determination that it
was in the best interests of the Child to terminate his parental
rights. First is that " [ t] he Paternal Grandparents were attending to
the [C]hild's needs(.)" Father's 1925(b) Statement, ~Sa. The Child's
paternal great-grandmother, i.e. Father's grandmother, had custody of
the Child for approximately seven to ten days before OCY placed the
Child in the care of Maternal Grandparents. (N. T., 11/24 /201 S,
pp.144, 179-80). Father did not raise any such claim, nor present
any testimony, that the Child's Paternal Grandparents, i.e. Father's
parents, were attending to the Child's needs at the termination
hearing. As such this issue is waived. See Pa.R.A.P. 302; In
Interest of R.P., 957 A.2d 1205, 1222 {Pa.Super. 2008) (issues raised
for the first time on appeal are waived and cannot be considered). In
addition, our Supreme Court has held that a Rule 1925 (b) statement
[FN-19-16)
26
I.
(1
Our analysis of the best interests of the Child focuses on
"whether termination of parental rights would best serve the
developmental, physical, and emotional needs and welfare of the
child." In re T.D., 949 A.2d 910, 920 (~a.Super. 2008}
(citation omitted), appeal denied, 970 A. 2d 1148 (Pa. 2009).
"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 T.S.M., 71 A.3d 251, 267 (Pa.
2013) (citation and quotation marks omitted). The court "must
also discern the nature and status of the parent-child bond,
paying close attention to the effect on the child of permanently
severing the bond." In re T.M.T., 64 A.3d 1119, 1127 (Pa.Super.
2013) (citation omitted). On this question, it was in T.J.K.'s
best interests to terminate Father's parental rights.
Father claims that we failed to consider the fact that
Petitioner-Maternal Grandfather insists that Child address him
as "Dad."12 The record does not support Father's contention that
cannot be used to raise a claim for the first time on appeal. Steiner
v. Markel, 968 A.2d 1253, 1257 (Pa. 2009).
Father also asserts that we failed to consider the Child's young
age in determining the best interests of the Child without further
elaboration. Father's 1925 (b) Statement, CJJ5e. This issue is waived
because it is too vague for us to "identify and address the issue
[Father) wishes to raise on appeal." Hansley, 24 A.3d at 415.
12
We note that Father does not raise any challenge to the fact that
11
Child addresses his Maternal Grandmother as "Mom. Therefore, to the
extent Father's challenge to our determination that it was in the best
interest of the Child to terminate Father's parental rights relies on
the manner in which the Child address his Maternal Grandmother, this
claim is waived. See Pa.R.A.P. 1925(b) (4) (vii) ("Issues not included
( FN-19-16}
27
Petitioner insists that the Child address him as such, rather
the Child has spontaneously decided to ref er to his Maternal
Grandfather as "Dad." ( N . T. , 11I24I2015, pp . 10 8, 12 2-2 5) .
Petitioner and his wife have attempted to correct the Child,
instructing him to address them with terms of endearment
consistent with those used for grandparents, but the Child
continues to address them as "Dad" and "Mom." Id. at 123, 135-
36.
Father claims that in light of his forthcoming parole there
exists a possibility that Father will develop a meaningful
relationship with his Child. Father also expressed an intent to
rectify his past neglect of his parental duties. At the time of
the termination hearing, Father expressed his belief that he
would be released on parole within two to three weeks of the
date of the hearing, but he did not indicate, what if any
measures he would take to be in contact with Child if he were
not released on parole within the time period he specified, and
remained incarcerated for the balance of his sentence. (N. T. I
11/24/2015, pp.12, 27, 35, 146). Father also testified that it
was his intention upon his release from prison to attend to any
outstanding issues regarding his injured elbow (i.e., surgery) ,
complete a motorcycle mechanic training program in Arizona, and
in the Statement and/or not raised in accordance with the provisions
of this paragraph (b) (4) are waived."); see also Commonwealth v. Lord,
719 A.2d 306, 309 (Pa. 1998) ("Any issues not raised in a 1925 (bl
statement will be deemed waived.").
(FN-19-16]
28
''
seek employment as a motorcycle mechanic in this area. Father
also testified that it was his intent to seek the assistance of
the Carbon County Office of Children and Youth to arrange
supervised visitation with his son upon his release. Id. at
155, 165, 168-69, 206. Lastly, Father asserted that he has not
used heroin or other illegal substances since 2012. Id. at 156.
However, Father has only had limited treatment for his drug
addiction, most recently a six-month therapeutic therapy
rehabilitation program while he has been incarcerated. Id. at
176-77.
Father also admitted to an extensive substance-abused
related criminal history beginning in 1999 when he was placed on
probation for possession of marijuana for a period of one year.
( N. T. , 11/24/2015, pp. 172-175) . Father has been incarcerated
seven times since then. Id. at 169, 172-175. Father lost
custody of the Child after he and the Child's Mother were
arrested for theft. A few weeks after that theft arrest, Father
was involved in a DOI-related accident, during which Mother was
seriously injured. Id. at 41, 115. In October of 2012, while
Father was on bail for the forgoing DUI and retail theft
charges, he was involved in an attempted robbery. Id. at 25,
186. Shortly after that, in November 2012, Father moved to
Arizona in violation of his existing bail conditions. Id. at
30. Father did not return to Pennsylvania until July 2013, and
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was subsequently arrested. Id. at 188-89, 205. Father pled
guilty in the attempted robbery case, and in or around February
2014, he was sentenced to his current term of incarceration.
Father acknowledged that all of his crimes were to support his
heroin usage, which he has been using, on and off, since 2 00 3.
Id. at 168, 174-76.
The uncontradicted testimony of Maternal Grandparents is
that they provide for the Child's developmental, physical and
emotional needs. (N.T., 11/24/2015, pp. 60-62, 113, 130-131).
Maternal Grandparents have been the Child's sole caregivers
since the Child was approximately five months old until the
present. They have provided his food, clothing and housing, for
his physical and mental well-being, and they have raised him as
their own child. Id. There is a parental bond between the
Maternal Grandparents and the· Child, so much so that the Child
refers to his Maternal Grandparents as "Dad" and "Mom." Id. at
108-109, 122-25, 135-36. The parental bond which has developed
between them is beneficial to the Child's continued physical,
mental, and emotional development. We believe this relationship
will be strengthened by allowing the Maternal Grandparents to
adopt the Child. Notwithstanding Father's argument that the
termination of his parental rights is not in the Child's best
interests because he is the Child's sole surviving biological
parent, Father has admitted that he has no relationship with the
[FN-19-16)
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Child at this time and that he believes his son would not even
recognize him as his father. Id. at 164. Father also testified
that it was not his intent, in contesting the termination of his
parental rights, to one day seek primary custody of his Child.
Id. at 155, 197.
Having taken all of these facts into consideration, we
found it was in the best interests of the Child to terminate
Father's parental rights. The Child will not suffer any
negative effects from the termination. Fa ther has not been
involved in the Child's life for over two years and his conduct
during his absence has shown that he has not remedied the
circumstances that led to the Child's initial placement with
Maternal Grandparents. At the time Father filed the instant
appeal, he remains incarcerated. The Child's best interests are
served by allowing him to remain with the Maternal Grandparents,
by allowing the bond between them to grow, and by allowing
Maternal Grandparents to adopt him. See In re J. F'.M., 71 A. 3d
at 997-98 (holding it was in a child's best interests to
terminate parental rights when the child would not suffer
negative effects from termination and child had bonded with
foster parents who had provided for the child's needs).
CONCLUSION
For the reasons stated above, we did not abuse our
discretion nor commit an error of law in terminating Father's
[ FN-19-16)
31
{\
parental rights. Furthermore, there is competent evidence to
support our findings. Accordingly, we respectfully recommend
that our decree terminating Father's parental rights be
affirmed.
BY THE COURT:
P.J.
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