In Re: I.J.N., a Minor, Appeal of: J.M.N., Father

J-A28044-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: I.J.N., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.M.N., FATHER :
:
:
:
:
: No. 874 MDA 2021
Appeal from the Decree Entered June 4, 2021
In the Court of Common Pleas of York County Orphans' Court at No(s):
2021-0003A
BEFORE: LAZARUS, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: JANUARY 7, 2022
Appellant, J.M.N. (“Father”), appeals from the decree entered on June
4, 2021, in the York County Court of Common Pleas, which granted the
petition of Child’s mother, A.F.N. (“Mother”), and future stepfather, C.V.
(“Future Stepfather”), and involuntarily terminated his parental rights to his
minor son, I.J.N., born in March of 2016 (“Child”), pursuant to the Adoption
Act, 23 Pa.C.S.A. § 2511(a)(1), and (b). After a careful review, we affirm.
Mother and Father married in April of 2017, and they separated on
October 8, 2017. N.T., 6/3/21, at 7-8, 35, 58. In connection with their
divorce, Mother and Father entered into a property settlement agreement,
dated April 7, 2018, which contained custody provisions providing Mother sole
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-A28044-21
legal and physical custody of Child. Id. at 9-10. Pursuant to this agreement,
while Mother was to encourage communication between Father and Child,
including virtual communication, Mother was afforded the right to decline
communication if deemed not in the best interests of Child. Id. at 11.
Shortly after his separation from Mother, Father was arrested related to
a robbery on November 17, 2017. Id. at 11-12, 76-77. Father was released
from incarceration on December 5, 2017, and, as a condition of his bail, he
went immediately to Clarity Way Rehab, which is rehabilitation facility in
Hanover, Pennsylvania. Id. at 77. Father was ordered to remain at the
rehabilitation facility until January 8, 2018. Id.
Thereafter, from January 16, 2018, to mid-January of 2019, Father
resided in a sober living facility in Florida. Id. at 78-79. On February 1, 2019,
Father then turned himself in to begin serving a five-to-ten-year sentence of
imprisonment, with an effective date of December 5, 2018.1 Id. at 72, 80.
Notably, Father has not seen Child since his separation from Mother in
October of 2017. Id. at 9, 58, 77, 96. Aside from a card and package of
snacks, until his incarceration almost a year and a half later, Father
communicated with Child for a total of approximately one hour via FaceTime
____________________________________________
1 Since his incarceration, Father has been moved from Cumberland County
Prison to SCI Camp Hill to SCI Coal Township, and, finally, to SCI Chester.
N.T., 6/3/21, at 80-88. Although Father remained incarcerated at the time of
the relevant termination hearing, it is unknown if Father currently remains
incarcerated, as he hoped to be released to a state drug treatment program.
Id. at 73.
-2-
J-A28044-21
and telephone calls. Id. at 13. Thereafter, during his incarceration, Father
began contact with Mother via letter, and he then engaged in email contact
with Mother in February of 2020. Id. at 22.
Mother and Future Stepfather2 filed a petition for the involuntary
termination of Father’s parental rights on January 8, 2021, pursuant to 23
Pa.C.S.A. § 2511(a)(1), (2), and (b). They also filed a contemporaneous
petition seeking Future Stepfather’s adoption of I.J.N. Amended petitions
were filed on March 10, 2021.
The trial court conducted a hearing on June 3, 2021. Father, who was
incarcerated at SCI Chester, was represented by counsel and participated
remotely via Zoom. Id. at 71. Child was represented by legal counsel.
Mother and Father each testified on their own behalf.3 At the conclusion of
the hearing, the trial court announced its determination to terminate Father’s
parental rights.4 Id. at 129. (“Because we find that the Petitioners here have
met their burden of proving by clear and convincing evidence both the
requirements of Section (a)(1) and Section [b], the court finds it appropriate
____________________________________________
2Mother and Future Stepfather had an intended wedding date of October 16,
2021. Amended Petition for Adoption, 3/10/21, at ¶¶1.a., 1.b.
3Due to the COVID-19 pandemic, counsel for Father, as well as counsel for
Child, participated in the termination hearing remotely via Zoom. Id. at 1.
We note that counsel for Child during this proceeding was substitute counsel.
Id. at 3.
4 Counsel for Child filed a brief with this Court in favor of this position.
-3-
J-A28044-21
to terminate [Father]’s parental rights.].”). The trial court issued a decree
memorializing its determination to terminate Father’s parental rights pursuant
to 23 Pa.C.S.[A.] § 2511(a)(1), and (b). Thereafter, on June 29, 2021, Father,
filed a timely notice of appeal, along with a contemporaneous concise
statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). On July 20, 2021, the trial court filed a Rule 1925(a)
Opinion indicating that it adequately addressed Father’s issues in rendering
its decision at the conclusion of the hearing.
On appeal, Father raises the following issue for our review: “Did the
lower [c]ourt abuse its discretion and/or err as a matter of law as the
Petitioner failed to meet its burden to terminate Father’s parental rights under
23 Pa.C.S.[A.] Section 2511(a)(1) and 2511(b)?”5 Father’s Brief at 5.
In matters involving the involuntary termination of parental rights, our
standard of review is as follows:
The standard of review in termination of parental rights cases
requires appellate courts “to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record.” In re Adoption of S.P., [616 Pa. 309, 325, 47
A.3d 817, 826 (2012)]. “If the factual findings are supported,
____________________________________________
5 While we observe that Father states his issue differently than in his Rule
1925(b) Statement, we nevertheless find that he preserved a challenge to the
trial court’s decree. However, to the extent Father raises several other issues
in his Rule 1925 Statement, which are not included in his Statement of
Questions Involved, we deem these issues to be waived. See Krebs v.
United Refining Co., 893 A.2d 776, 797 (Pa.Super. 2006) (stating that a
failure to preserve issues by raising them both in the concise statement of
errors complained of on appeal and statement of questions involved portion
of the brief on appeal results in a waiver of those issues).
-4-
J-A28044-21
appellate courts review to determine if the trial court made an
error of law or abused its discretion.” Id. “[A] decision may be
reversed for an abuse of discretion only upon demonstration of
manifest unreasonableness, partiality, prejudice, bias, or ill-will.”
Id. The trial court’s decision, however, should not be reversed
merely because the record would support a different result. Id.
at 827. We have previously emphasized our deference to trial
courts that often have first-hand observations of the parties
spanning multiple hearings. See In re R.J.T., [608 Pa. 9, 26-27,
9 A.3d 1179, 1190 (2010)].
In re T.S.M., 620 Pa. 602, 628, 71 A.3d 251, 267 (2013). “The trial court is
free to believe all, part, or none of the evidence presented and is likewise free
to make all credibility determinations and resolve conflicts in the evidence.”
In re M.G., 855 A.2d 68, 73-74 (Pa.Super. 2004) (citation omitted). “[I]f
competent evidence supports the trial court’s findings, we will affirm even if
the record could also support the opposite result.” In re Adoption of T.B.B.,
835 A.2d 387, 394 (Pa.Super. 2003) (citation omitted).
The termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, and requires a bifurcated analysis
of the grounds for termination followed by the needs and welfare of the child.
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating parental
rights. Initially, the focus is on the conduct of the parent. The
party seeking termination must prove by clear and convincing
evidence that the parent’s conduct satisfies the statutory grounds
for termination delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants termination of his
or her parental rights does the court engage in the second part of
the analysis pursuant to Section 2511(b): determination of the
needs and welfare of the child under the standard of best interests
of the child. One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between
-5-
J-A28044-21
parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted). We have
defined clear and convincing evidence as that which 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.” In re
C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (quoting Matter of Adoption
of Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)).
In the case sub judice, the trial court terminated Father’s parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(1), and (b), which provide as follows:
(a) General rule.--The rights of a parent in regard to a child may
be terminated after a petition filed on any of the following
grounds:
(1) The parent by conduct continuing for a period of at
least six months immediately preceding the filing of the
petition either has evidenced a settled purpose of
relinquishing parental claim to a child or has refused or
failed to perform parental duties.
***
(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).
-6-
J-A28044-21
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 [S]ection 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
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
-7-
J-A28044-21
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
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 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.
-8-
J-A28044-21
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 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)).
In the case sub judice, in finding grounds for termination of Father’s
parental rights pursuant to Section 2511(a)(1), the trial court reasoned that
Father’s attempts at communication were neither consistent nor of a nature
that were aimed at maintaining a relationship with Child. N.T., 6/3/21, at
122-24, 127. The trial court further observed that, despite Father’s assertions
of periods of difficulty communicating due to the COVID-19 pandemic, Father’s
actions and communication patterns were similar prior to the pandemic. Id.
at 125-27. Moreover, recognizing that Father had visitation and contact with
another one of his children, the trial court identified that Father did not file a
-9-
J-A28044-21
custody petition with the trial court seeking visitation of the subject child. Id.
at 124-25. The trial court stated:
[I]ncarceration in and of itself is not grounds to terminate
parental rights under Section (a)(1), but it is a factor to be
considered, and in considering the factor, we don’t ignore the
responsibilities of a parent during a period of incarceration. They
have a responsibility to continue, as the Court says, to utilize
those resources at his or her command while in prison.
No doubt [Father] used one of those resources available to
him by sending emails to [Mother], and many of which do make
reference to [I.J.N.] and his well-being. The [trial] court has had
the opportunity to review these emails fairly thoroughly, even
during the course of the proceeding, and if I were to describe the
overall theme of the email, it is that [Father] inquires about
[I.J.N.]. [Mother] responds to most of them in a fairly prompt
fashion and provides a response, but the type of inquiries that are
made aren’t -- are not what the [trial] [c]ourt would consider the
type of inquiries we would expect to see of a parent wanting to
know about their child’s well-being. . . .
Given the length of time that [Father] had not seen his child,
we would expect to see more -- some more detailed questions
about the child’s medical conditions, whether he’s been getting
checkups, how he’s growing, how tall he is, how much he weighs,
you know, things that happen in the course of a child’s life, any
milestones that may be going on, so that [Father] could use that
information garnered in the emails to communicate with [I.J.N.],
even if it were through [Mother].
And, you know, I can’t say that the communication is
completely without message to [I.J.N.]. . . .But the tone of the
email strikes me as more the tone of that – that you may inquire
of a cousin or a niece or a nephew -- Hey, how are things going?
Anything new happening? -- not the types of questions that I
would expect to see, again, from a father that wants to maintain
a close relationship with the child.
And [Father] points [to] two times when [Mother] did not
respond to his emails or respond promptly, and there are those,
but there are times when she responded very promptly, there are
times when she responded to, you know, an email string, and
there are times where [Father] emailed and there was some time
that went by without a response and there was no follow-up to
- 10 -
J-A28044-21
that email to see why he had not gotten a response. So that’s
certainly part of what the [trial] [c]ourt is considering in
determining whether [Father] has utilized all of those resources
at his command while in prison.
I note a couple other things, one is which in a[n] August 11,
2020, email, [Father] stated that, today, he had a video visit [with
respect to his older son]. . . . So, clearly, he was capable at that
point in time of having video visits. And [Father], in response to
that, says, [b]ut she wouldn’t let me.
. . .Any parent who is not satisfied with the custody situation
at any time has the right to petition the [trial] court and ask for a
change in the custody situation. If [Father] wasn’t happy with the
fact that he was [] being told he couldn’t have telephone calls,
couldn’t have video visits, he had the ability to petition for custody
and ask for that. You know, he need not be in a position to say,
I want to take on physical custody of the child. He can simply
petition for visitation.
And we do understand that [Father] is incarcerated, but it’s
the [trial] court’s experience that incarcerated individuals in
Pennsylvania have a pretty fair access to the legal system to file
filings, whether it be family related, civil related, or criminal
related, and I’ve not heard any testimony today of a specific
barrier that was placed in front of [Father] that would have
prevented him from filing a custody action within the six months
prior to the filing of the petition.
Let me also say that the [trial] court does understand that
there were COVID conditions, that there were lockdowns that
[Father] dealt with in communicating, and I’m not going to go so
far as to say during these time frames when he couldn’t attempt
to call or he couldn’t send an email, it was his obligation to send
a letter. But the time frame of those lockdowns, first of all, is
outside the six months that I am to primarily examine.
And I think it also -- given sort of the uniqueness of those
COVID lockdowns that everyone dealt with, I think it’s then fair to
not just look at the six months, but to look at the track record that
[Father] had prior to the six months immediately preceding the
petition, and, again, not because that’s what the statute directs,
but to look and see whether there was a change in pattern, say,
since 2019 when [Father] began his period of incarceration to --
and then different for 2020, and the reality is there wasn’t a
change.
- 11 -
J-A28044-21
His behavior during the COVID period was fairly consistent
with his behavior prior to the COVID period, and that is to say he
was not completely inactive or completely absent from
communication. He did have communication, but it was not
regular communication and it was not communication directed at
fostering a relationship with [I.J.N.].
...
THE COURT: So I spoke to the emails and the overall tone
of the emails, and in addressing that, one thing I did forget to
address is -- I want to address specifically the email of November
26, 2020, and that email clearly -- again, he says, I want to wish
[I.J.N.] a happy Thanksgiving. That’s several words of the email.
The remainder of the paragraph of the email goes on to talk
about his relationship with [Mother] and how he hopes they can
be friends someday and really is not directed at all towards [I.J.N.]
and finding information out about or sharing information with
[I.J.N.]. And that’s, again, one specific email, but I did note that
there was a tone that the communication was directed more
towards [Mother] than towards [I.J.N.] and, again, fostering that
close relationship with [I.J.N.].
I don’t think anyone here would disagree with me when I
say this is not a--an easy case to decide. This is not the typical
case that we may see. The burden here is on the Petitioners, and
they have a high burden. They have a burden of showing by clear
and convincing evidence that they’ve established the grounds
under [S]ection 2511(a)(1), but as I look at the evidence as a
whole, I do have to find that they have established the grounds
under (a)(1) by clear and convincing evidence inasmuch as
[Father] has failed to perform his parental duties, even given the
limitation of his incarceration, for a period of six months prior to
the petition being filed.
N.T., 6/3/21, at 122-28.
On appeal, Father contends the trial court’s determination was not
based on clear and convincing evidence. Father asserts that his interaction
with Child has been constrained due to substance abuse issues and
incarceration for which he has acknowledged and taken responsibility.
- 12 -
J-A28044-21
Father’s Brief at 19. He notes that he maintained contact with Mother and
Child when permitted during his time in rehabilitation. Id. Further, upon his
subsequent incarceration, he wrote several letters to Mother, eventually
receiving a response indicating that she would not allow contact with Child.
Id. at 19-20. Father describes that his “options as to what he could do were
limited.” Id. at 20. Nevertheless, while “cho[osing] to respect Mother’s
wishes with respect to contact with the minor child,” Father avers that he
continued to send correspondence to Mother inquiring as to Child.6 Id.
Further, he has been emailing Mother since February of 2020. Id. at 21. As
to any lapses in communication, Father points to the COVID-19 pandemic.
Id. at 21-22.
Father explains:
It is understood that caselaw states that a person must
exercise reasonable firmness in resisting obstacles placed in the
path of maintaining the parent-child relationship or his rights may
be forfeited. It is argued that Father did this. A review of the
obstacles are as follows. Father acknowledged that he was
responsible for actions which resulted in his incarceration.
However, Mother failed to acknowledge the obstacles she placed
in Father’s path and the [l]ower [c]ourt failed to give sufficient
weight to this. Mother moved from the marital residence and
never gave a new address to Father. This is undisputed. Did
Father quit trying? No. Father responded to this by sending
letters to Mother’s place of employment.
Mother tells Father that she will not permit him to have
contact with the minor child. Again, did Father quit trying? No.
____________________________________________
6Given Child’s young age, Father argues that sending correspondence to
Mother, and not Child, was reasonable. N.T., 6/3/21, at 20.
- 13 -
J-A28044-21
Father responded by continuing to keep in contact with Mother
and asking how the child was. . . .
Id. at 22 (citation omitted).
Lastly, Father suggests that it was not practical to file a
custody petition. “In its decision in this action, the [l]ower [c]ourt
noted that Father failed to file a custody [p]etition. In theory
Father could have done this. However, this was not a practical
option. That requires an inmate to understand the custody
procedure in the home county of the child. Additionally, there
were certain limitations on what he could do while in prison due
to the covid virus.
Id. at 24.
Upon review, the record supports termination pursuant to Section
2511(a)(1). As indicated supra, incarceration does not relieve a parent of the
obligation to perform 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.
Here, the record reveals that Father has not seen Child since October of
2017, when Child was approximately a year and a half old. N.T., 6/3/21, at
58, 77, 96. He only had contact with Child for a total of approximately one
hour over the next year and a half. Id. at 13. Father acknowledged that he
could have made better efforts to communicate with Child during this time
and confirmed that he wrote, in part, “I tried to live my life happily, knowing
it was a matter of time before I would have to serve time.” Id. at 97.
Moreover, Father has been incarcerated since February of 2019, and he
is serving a five-to-ten-year sentence with a minimum date of December 5,
- 14 -
J-A28044-21
2023. Id. at 72, 80. He maintained communication with Mother through
letter7 and then email, which included general inquiry regarding Child.8 Id.
at 22-23, 39. Despite any denial of contact with Child related to Father’s
incarceration,9 id. at 39, 43, Father admitted that Mother did not prohibit him
from writing to Child, who would have been almost three years old at the time
Father began to serve his sentence and was approximately five years old at
the time of the filing of the amended petition. Id. at 99. Father, however,
sent no additional cards or gifts for birthdays or holidays directly to Child.10
____________________________________________
7These letters were sent to Mother at her work address as Mother moved and
did not provide Father her new address. Id. at 30, 42-43. Father, however,
had Mother’s telephone number, which did not change. Id. at 28.
8 Father blamed any lapses in communication on COVID-19, as well as his
transfer to different prison facilities. Id. at 86-89.
9 Pursuant to a letter dated June 22, 2019, Mother indicated that she would
not allow communication with Child while Father was incarcerated but offered
Father to write Child “as much as you want.” Respondent’s Exhibit 1; see
also N.T.,6/3/21, at 39, 43 (“There are various risk factors [Child] can face if
he communicates with you while you’re in prison. Due to your historical lack
of communication prior to incarceration, I will not allow it now. . . . [Y]ou are
more than welcome to write to him as much as you want. I know he is not
able to read now, but he will be able to before you get out. I can assure you
I will not get rid of them.”). Significantly, Mother indicated that Child suffered
“meltdowns” due to the inconsistent contact with Father prior to his
incarceration. N.T., 6/3/21, at 19. Mother further explained that prison is a
difficult concept for a young child to understand. Id. at 18.
10 As recognized by Mother, Father acknowledged birthdays and holidays in
his emails. Id. at 49-50. We observe that Father distinctively directly
addressed Child related to his birthday in a March 5, 2021, email, which was
subsequent to the filing of the original termination petition and just prior to
the filing of the amended termination petition. See Petitioners’ Exhibit 5.
- 15 -
J-A28044-21
Id. at 32, 91-92. Further, he did not inquire about writing a letter directly to
Child until March 5, 2021.11 Id. at 30.
Mother testified she did not receive a letter for Child from Father.12 Id.
at 31. Similarly, although noting he would like to have telephone calls and
visitation with Child, while Mother’s telephone number is on his approved list,
Father confirmed that he did not attempt to call Child, and he failed to file a
custody petition requesting telephone calls and/or visitation. Id. at 100.
Finally, and significantly, Father also conceded that a release in December
2021 to a state drug treatment program is speculative. Id. at 105-07
(confirming that he was not eligible for the drug treatment program at the
time of the hearing and that there is “no guarantee” that he will be admitted
to the program.).
As this Court has stated, “[A] child’s life cannot be held in abeyance
while a parent attempts to attain the maturity necessary to assume parenting
responsibilities. The court cannot and will not subordinate indefinitely a child’s
need for permanence and stability to a parent’s claims of progress and hope
for the future.” In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa.Super.
2006). Upon review, we conclude the trial court’s termination of Father’s
____________________________________________
11Significantly, this was subsequent to the filing of the original termination
petition and just prior to the filing of the amended termination petition.
12 When asked, Father could not recall whether he wrote any letters directly
to Child. Id. at 101-02.
- 16 -
J-A28044-21
parental rights pursuant to Section 2511(a)(1) is supported by competent,
clear, and convincing evidence in the record. See In re T.S.M., 71 A.3d at
267; In re Adoption of T.B.B., 835 A.2d at 394. We are mindful of our
standard of review set forth above, and reiterated in S.P., and, most recently,
in In re S.K.L.R., __ Pa. __, 256 A.3d 1108 (2021), and that we must not
substitute our judgment for that of the trial court.
Because Father failed to act affirmatively in order to maintain a
relationship directly with Child, regardless of any obstacles or circumstances
created by Mother, or Father himself, we find that grounds for termination
under Section 2511(a)(1) are met. See B., N.M., 856 A.2d at 855 (explaining
that a parent “must exercise reasonable firmness in resisting the obstacles”
which limit his or her ability to maintain a parent/child relationship). As we
discern no abuse of discretion, we do not disturb the trial court’s findings.
Thus, Father’s claim fails.
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. [a/k/a E.W.C. & L.M.
a/k/a L.C., Jr.], [533 Pa. 115, 123, 620 A.2d 481, 485 (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
- 17 -
J-A28044-21
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., 620 Pa. at 628, 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 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).
Moreover,
While a parent’s emotional bond with his or her child is a major
aspect of the subsection 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) (quotation
marks, quotations, and citations omitted).
In finding that Child’s best interests favor termination pursuant to
Section 2511(b), the trial court reasoned as follows:
- 18 -
J-A28044-21
That doesn’t end the [trial] [c]ourt’s inquiry. We are then
required to look at Section [b] of 2511, which says, “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.”
In looking at those factors, specifically developmental,
physical, and emotional, [I.J.N.] here has gone from being, I’ll
say, roughly a year-and-a-half old to roughly five years old
without any meaningful inclusion of his father in his life, and at
this point, the termination of [Father]’s parental rights would not
affect the developmental needs and welfare of [I.J.N.].
As far as physical and emotional needs and welfare, [Father]
has been unable to attend to any of [I.J.N.]’s physical needs,
again, since the onset of his incarceration and really even before
that as a result of his inpatient rehab. And so [I.J.N.]’s physical
needs and welfare are not affected by the termination of [Father]’s
parental rights.
And as far as the emotional needs and welfare, again,
there’s been no indication that [I.J.N.] looks to [Father] for
comfort or for care or for, you know, affirmation or for
congratulations when he’s done something well, because, again,
of the lack of accessibility, really, and accordingly, we must find
that the petitioners have also met their burden of proof with
respect to section [b].
N.T., 6/3/21, at 128-29 (some brackets in original).
Father, however, argues that Mother prevented a bond between him
and Child. Father’s Brief at 26-27. He further maintains that, while his
acceptance into the state treatment program is unknown, “he has done what
he can do.” Id. at 27. He suggests that his parental rights were improperly
terminated mainly because of his incarceration. Id. at 27-28.
As to Section 2511(b), upon review, we likewise discern no abuse of
discretion. The record supports the finding that Child’s developmental,
physical, and emotional needs and welfare favor termination of parental rights
- 19 -
J-A28044-21
pursuant to Section 2511(b). See T.S.M., 620 Pa. at 628, 71 A.3d at 267.
Child has not seen Father since October of 2017, and he has had no contact
with Father since 2018. N.T., 6/3/21, at 9, 58, 77, 96. Father missed
numerous milestones in Child’s life. Id. at 15-18, 33. Mother testified that
Child does not know who Father is, and instead believes that Future Stepfather
is his father. Id. at 15, 17, 33.
Q. Would [I.J.N.] recognize his father at this point?
A. No.
Q. Who does he consider to be his father?
A. [Future Stepfather].
Id. at 15. Mother reported that Child never asks about Father, and there is
no parent-child bond. Id. at 31, 33. Notably, Father admitted to a lack of a
relationship with Child. Id. at 95-96. As a result, when asked what Child
wants, Mother stated, “[Child] refers to [Future Stepfather] as his dad if he’s
asked. He wants the family to be an entire family. His pictures that he draws
of his family include [Future Stepfather]. It’s just -- it’s [Future Stepfather],
me, and the three kids, and that’s his family.”13 Id. at 34.
Accordingly, based upon our review of the record, we find no abuse of
discretion and conclude that the trial court appropriately terminated Father’s
parental rights under 23 Pa.C.S.A. § 2511(a)(1) and (b).
Decree affirmed.
____________________________________________
13 Aside from Child, Mother has two older children from a separate biological
father. Id. at 7-8.
- 20 -
J-A28044-21
Judge Lazarus joins the memorandum.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/7/2022
- 21 -