In re Adoption Father, J-S05044-15

IN RE: ADOPTION OF S.N.L., A MINOR CHILD

APPEAL OF: E.L., NATURAL FATHER

J-S05044-15

No. 1646 WDA 2014

SUPERIOR COURT OF PENNSYLVANIA

APRIL 6, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Decree entered September 22, 2014, in the Court of Common Pleas of Fayette County, Orphans' Division, at No: 18 ADOPT 2014

BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:

E.L. (Father) appeals from the decree entered September 22, 2014, in the Fayette County Court of Common Pleas, which involuntarily terminated his parental rights to his minor daughter, S.N.L. (Child). We affirm.

Child was born in Fayette County, Pennsylvania, in September of 2008. At the time of Child's birth, Father was residing with Child's mother, C.D. (Mother). When Child was about a year old, Father, Mother, and Child moved to Virginia. However, Father left Virginia after approximately one month and returned to Fayette County. Mother and Child returned to Fayette County in 2010.

On May 12, 2014, Mother filed a petition to involuntarily terminate Father's parental rights to Child. In the petition, Mother indicated that Father was presently incarcerated in Lehigh County. Father responded by mailing letters, dated June 8, 2014, to Mother's counsel, the orphans' court, and to the orphans' court clerk. In the letters, Father confirmed that he wasincarcerated, and requested that his parental rights not be terminated. A termination hearing was held on August 14, 2014, during which the court heard the testimony of Mother and her fiancé, L.R. (Fiancé). At the beginning of the hearing, Father's court-appointed counsel indicated that he had attempted to get in contact with Father, but that he had not been able to do so until that morning. N.T., 8/14/14, at 3-4. While Father did not participate in the hearing, Father's counsel did participate, and cross-examined Mother. At the conclusion of the hearing, the court requested that an additional hearing be scheduled so that Father could have the opportunity to testify. Id. at 24-25. The hearing was held on September 16, 2014, during which Father participated remotely using a videoconferencing system. Mother was recalled to the stand as a rebuttal witness following Father's testimony.

On September 22, 2014, the orphans' court entered its decree terminating Father's parental rights. Father timely filed a notice of appeal on October 7, 2014, along with a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

Father now raises the following issue for our review.

Did the [t]rial [c]ourt err by abusing its discretion in terminating [Father's] rights as [Mother] failed to sustain [her] burden of proof by clear and convincing evidence to show that [Father] evidenced a settled purpose of relinquishing a settled claim to the child or refused or failed to perform parental duties?

Father's Brief at 6.

We consider Father's claim mindful of our well-settled standard of review.

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. If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. A decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. The trial court's decision, however, should not be reversed merely because the record would support a different result. We have previously emphasized our deference to trial courts that often have first-hand observations of the parties spanning multiple hearings.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks omitted).

Termination of parental rights is governed by Section 2511 of the Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated analysis.

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 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).

In this case, the orphans' court terminated Father's parental rights pursuant to Sections 2511(a)(1), (2), 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.

(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.

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(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)-(2), (b).

We need only agree with the orphans' court as to any one subsection of Section 2511(a) in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Here, we analyze the court's decision to terminate under Sections 2511(a)(1).¹

To meet the requirements of this section, "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 re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citing In re Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super. 2006)). The court must then consider "the parent's explanation for his or her conduct" and "the post-abandonment contact between parent and child" before moving on to analyze Section 2511(b). Id. (quoting In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1998)).

This Court has emphasized that a parent does not perform his or her parental duties by displaying a "merely passive interest in the developmentof the child." In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004), appeal denied, 872 A.2d 1200 (Pa. 2005) (quoting In re C.M.S., 832 A.2d 457, 462 (Pa. Super. 2003), appeal denied, 859 A.2d 767 (Pa. 2004)). Rather, "[p]arental 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." Id. (citation omitted). 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 817, 828 (Pa. 2012) (discussing In re Adoption of McCray, 331 A.2d 652 (Pa. 1975)).

Instantly, the orphans' court found that Father had abandoned Child prior to being incarcerated in 2011, and that he made almost no effort to maintain a relationship with Child thereafter. Orphans' Court Opinion, 10/24/14, at 6-7. Thus, the court concluded that Father had refused and failed to perform his parental duties for a period of four years prior to the filing of the petition to terminate his parental rights. Id. at 7. Father argues that his efforts at parenting Child were hampered by Mother. Father's Brief at 11. Father also contends that Mother made no effort to make Child available to Father, that Mother made no effort to keep incontact with Father, and that Mother "left the jurisdiction where they last resided together." Id.

After a thorough review of the record in this matter, we conclude that the orphans' court did not abuse its discretion. At the August 14, 2014, termination hearing, Mother testified that she and Fiancé have been together for nearly four years, and that they have a child, L.R., who also resides with them. N.T., 8/14/14, at 6, 11. Mother testified that the last time she had any contact with Father about Child was in November of 2009, when Father spoke to Mother over the phone and sent her a "twenty dollar money order that said it was child support." Id. at 8. Mother testified that, upon returning to Fayette County in 2010, she and Child first lived with her grandmother. Id. at 9. According to Mother, Father knew Mother's grandmother, as well as Mother's other family members in the area. Id. However, Father made no effort to contact Mother or Child. Id. Mother testified that she received a message from Fathe...