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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.J.B., A MINOR             IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA




APPEAL OF: A.C., FATHER

                                                     No. 1571 EDA 2016


                     Appeal from the Decree April 29, 2016
              In the Court of Common Pleas of Philadelphia County
                 Family Court at No(s): CP-51-AP-0000793-2015
                             FID: 51-FN-4466-2013


BEFORE: BOWES AND MOULTON, JJ., AND STEVENS, P.J.E.*

MEMORANDUM BY BOWES                             FILED DECEMBER 19, 2016

       A.C. (“Father”) appeals from the April 29, 2016 decree involuntarily

terminating his parental rights to his three-year-old daughter, A.J.B.     We

affirm.

       During June 2013, A.J.B. was born ten weeks premature and

underweight, and both she and R.W. (“Mother”) tested positive for opiates.

A.J.B. remained in the hospital for approximately two and one-half months

before she was discharged to Mother.1 While the Philadelphia Department of

____________________________________________


1
  Although it is unclear whether A.J.B.’s current behavioral issues are related
to her postnatal condition, the record reveals that A.J.B. receives early
childhood intervention services and has been evaluated by behavioral health
specialists.



* Former Justice specially assigned to the Superior Court.
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Human Services (“DHS”) became involved with the family immediately after

A.J.B.’s birth, it did not initiate in-home protective services until July 22,

2013, when it became apparent that Mother could not care for A.J.B., and

her three half-siblings who are not related to Father.2      Father, who was

uncertain of A.J.B.’s parentage, did not reside with the family; however, he

accompanied Mother to the hospital to visit the child.

       The juvenile court matter progressed, and on November 21, 2013,

A.J.B. and her half-sisters were adjudicated dependent. The children were

committed to DHS care and custody and the agency placed them together in

what is now their pre-adoptive foster home. Father did not interact with the

DHS until August 2015, nearly two years later, when he contacted the

agency. Father testified that he “was aware of the situation” for as long as

one year prior to contacting the agency. N.T., 4/29/16, at 12. While he had

suspected A.J.B. was his daughter, he was unsure, and did not interact with

Mother except for receiving photographs of the child from Mother’s Facebook

page. Father was not involved with A.J.B. following her discharge from the

hospital, and he failed to provide any legitimate explanation for his inaction.

DHS advised Father of the next two hearing dates and encouraged him to


____________________________________________


2
  The trial court terminated Mother’s rights to A.J.B. and her half-siblings on
March 2016. This appeal does not concern that order or the status of the
other children.



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appear, identify himself to the court, and request visitation and a paternity

test. Father missed the hearings because his schedule was too busy.

       During a subsequent planning meeting, in which Father participated by

telephone, the agency encouraged him to establish paternity, maintain

involvement with dependency proceedings, form a relationship with his

daughter, and document that he had a suitable residence. Father failed to

achieve the goals of the family service plan (“FSP”).      As outlined, infra,

Father did not participate consistently in the dependency hearings, establish

a relationship with A.J.B., attend visitation, or document that he had

obtained a suitable residence.

       On March 14, 2016, the trial court ordered a paternity test and weekly

supervised visitations.3 Father missed the first three visitations, and out of

the six supervised visitations that were offered between March 14, 2016 and

April 29, 2016, he attended only two. The first visit with A.J.B., occurred on

April 14, 2016; however, Father terminated the visitation after ten minutes

because the nearly three-year-old child cried inconsolably and refused to sit

with him.     The subsequent visitation was canceled because Father arrived

twenty-five minutes late. Father simply failed to attend the final visitation,

which had been scheduled for April 28, 2016.

____________________________________________


3
 The results of the paternity test revealed 99.99% probability that Father
was A.J.B.’s biological parent.



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      Meanwhile, having terminated Mother’s parental rights to A.J.B. and

her half-siblings during March 2016, on April 12, 2016, DHS filed a petition

to terminate Father’s parental rights to his daughter pursuant to § 2511

(a)(1), (2), (5), and (8) of the Adoption Act. During the ensuing trial, the

agency presented the testimony of Khaliah Moody, the caseworker assigned

to the family since October 15, 2014, and introduced portions of the juvenile

court record. Father testified on his own behalf. In addition to presenting

specific examples of Father’s failure to perform parental duties, Ms. Moody

addressed A.J.B.’s life with her pre-adoptive foster parents, testified that

they were satisfying A.J.B.’s specialized needs, and opined that A.J.B. would

not suffer irreparable harm if the court terminated Father's parental rights so

that she could be adopted along with her half-siblings. The trial court made

express credibility determinations in favor of Ms. Moody.     See Trial Court

Opinion, 6/22/16, at unnumbered page 5. At the conclusion of the trial, the

court terminated Father’s parental rights to A.J.B. pursuant to § 2511(a)(1),

(2) and (b). This timely appeal followed.

      Father complied with Pa.R.A.P. 1925(a)(2)(i) by filing a concise

statement of errors complained of on appeal concomitant with his notice of

appeal. He presented two questions, which he reiterates on appeal as

follows:

      1.    Whether the Trial Court erred in [t]erminating Appellant’s
      [p]arental [r]ights under 23 Pa.C.S.A. [§] 2511(a)(1) [when] the
      evidence [was] insufficient to establish [that] Father had

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      evidenced a settled purpose of relinquishing parental claim, or
      . . . refused or failed to perform parental duties.

      2.    Whether the Trial Court erred in [t]erminating Appellant’s
      [p]arental [r]ights under 23 Pa.C.S.A. [§] 2511(a)(2) [when] the
      evidence [was] insufficient to establish [that] Father caused
      [A.J.B.] to be without essential parental care [that] could . . .
      not have been remedied.

Father’s brief at 5.

      Our standard of review is well settled.

      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).

      Involuntary termination of parental rights is governed by § 2511 of the

Adoption Act, 23 Pa.C.S. §§ 2101-2938.           As the party petitioning for

termination of parental rights, DHS “must prove the statutory criteria for

that termination by at least clear and convincing evidence.” In re T.R., 465

A.2d 642, 644 (Pa. 1983).       Clear and convincing evidence is defined as

“testimony that is so clear, direct, weighty, and convincing as to enable the



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trier of fact to come to a clear conviction, without hesitancy, of the truth of

the precise facts in issue.” Matter of Sylvester, 555 A.2d 1202, 1203–04

(Pa. 1989).

      As noted, the trial court terminated Father’s parental rights pursuant

to § 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.

              ....

      (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. § 2511(a)(1), (2) and (b).



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      As “we need only agree with [the court’s] decision as to any one

subsection in order to affirm the termination of parental rights[,]” we review

the trial court analysis under §2511(a)(1).    See In re B.L.W., 843 A.2d

380, 384 (Pa.Super. 2004) (en banc).

      With respect to § 2511(a)(1), this Court has explained,

            A court may terminate parental rights under Section
      2511(a)(1) 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.    The court should consider the entire
      background of the case[.]

In re A.S., 11 A.3d 473, 482 (Pa. Super. 2010) (citations omitted).

      Regarding the definition of “parental duties,” we have 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.

            ....

      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.

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In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004) (citations omitted)

(quoting In re C.M.S., 832 A.2d 457, 462 (Pa.Super. 2003).

      Once the evidence establishes a failure to perform parental duties or a

settled purpose of relinquishing parental rights, the court must then engage

in three additional 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).

      Instantly, the record supports the trial court’s conclusion that Father

failed to perform his parental duties.    During the termination hearing, Ms.

Moody testified that Father knew the child was born during August 2013,

visited the child in the hospital prior to discharge, and as early as August

2014, he suspected that he was the birth father.          Nevertheless, he did

nothing for two years while the child initially struggled in Mother’s care and

then was the subject of dependency proceedings. Significantly, the evidence

demonstrates that Father was aware that his daughter was in DHS care

because he possessed a photograph of the child that was taken during one

of Mother’s supervised visitations.

      Even after Father revealed himself to the agency during August 2015,

he failed to take affirmative steps to perform his parental duties, he rebuffed



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DHS’ initial encouragement to participate in the dependency proceedings,

and he neglected to make in-person contact with his daughter until April

2016.    Father participated in the case planning meeting that produced his

FSP goals, but he was too busy to attend several other hearings.

        Moreover, when Father finally secured supervised visitations with his

daughter, he missed all but two of them, and terminated one of those visits

prematurely because he could not cope with the child’s crying.      The other

visitation was canceled by DHS because Father was twenty-five minutes

late.    Finally, in addition to neglecting his FSP objectives relating to

remaining involved in the dependency proceedings and promoting a positive

relationship with the child, Father failed even to document whether he had

obtained suitable housing.

        In sum, the certified record demonstrates that Father was either

unwilling or unable to perform his parental duties throughout A.J.B.’s lifetime

and specifically during the six months preceding the agency’s petition to

terminate parental rights.   In addition to yielding his parental obligations,

Father failed to utilize visitation, respond to the agency’s outreach, or take

any affirmative steps consistent with his parental duty to provide his

daughter love, protection, guidance, and support.

        Having found clear and convincing evidence that Father failed to

perform his parental duties, we next consider his explanation for his inaction

and any post-abandonment contact he had with A.J.B. As it relates to the

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latter inquiry, we observe that Father has only had two face-to-face

meetings with his daughter: the first happened in the hospital immediately

after   A.J.B.’s   birth;   and   the   other    ten-minute   interaction    occurred

approximately three years later.          Thus, there is no evidence of any

meaningful post-abandonment contact to consider.

        In relation to the remaining component of § 2511(a)(1), Father asserts

three primary explanations for his inaction. First, Father contends that he

did not know that he was A.J.B.’s birth Father, and insinuates that his

parental duties were not triggered until the court verified his paternity.

Second, he claims that Mother was dishonest about the child’s parentage

and concealed her and A.J.B.’s whereabouts, presumably to defeat Father’s

ability to confirm paternity.     Finally, Father asserts that he was too busy,

and DHS refused to accommodate his schedule.

        We find unavailing Father’s initial contention that he was not obligated

to perform parental duties until his paternity was confirmed.               In reality,

Father had an affirmative obligation to be involved in his daughter’s life.

See In re Z.S.W., supra (rejecting the trial court's rationale that a possible

birth father was not required to perform parental duties until paternity is

verified). Thus, this excuse fails.

        Similarly, Father’s reliance upon Mother’s alleged malfeasance is

equally unpersuasive. Father claims the Mother told him that A.J.B.’s birth

father was dead, and he asserts that he did not know how to contact Mother

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to inquire about the child.   The certified record does not support Father’s

contention that he could not have located Mother with a minimum effort and

ascertained the truth about A.J.B.’s parentage.    For example, during the

trial, Father testified that he was in contact with his and mother’s mutual

friends, who had kept him abreast of his daughter’s condition while she was

in the hospital. N.T., 4/29/16, at 28. Likewise, Father stated that he had a

brief exchange with Mother at a McDonald’s restaurant following her

discharge from the hospital.    Id. at 45.   Most tellingly, however, Father

testified that he had been in contact with Mother via social media and that

Mother provided him digital photos of A.J.B., which Ms. Moody confirmed

had been taken during Mother’s supervised visitation. Id. at 15, 29. Thus,

Father’s trial testimony belies his instant contention that he was unable to

locate Mother. It is beyond question that, had Father desired to perform his

parental duties, he could have raised the issue during the in-person

exchange, or attempted to contact Mother through mutual friends or by

social media.

     Father’s third excuse fares no better.       Father complains that his

commercial cleaning businesses and his obligations toward another child

interfered with his efforts to perform his parental duties to A.J.B.    For

example, when asked why he was unable to accept Ms. Moody’s invitation to

attend A.J.B.’s dependency hearings, Father simply stated that he “had so

much going on [that] he could not make it.” Id. at 31. Likewise, in relation

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to the missed visitations, he complained that DHS refused to accommodate

his request to introduce A.J.B. to her half-sister. Id. at 46.           Father’s

complaints are unconvincing for two reasons.         First, the certified record

demonstrates that DHS and the pre-adoptive foster parents modified the

visitations schedule to conform with father’s work requirements. Id. at 24.

Thus, this aspect of the his explanation is factually defective.

       Moreover, Father failed to explain how his daily responsibilities and the

stresses of everyday life impacted his ability to fulfill his parental obligations

to A.J.B.   Stated plainly, assuming arguendo, that Father’s work schedule

and commitment to his other child impeded his ability to perform, Father did

not provide any evidence to demonstrate that he exercised any degree of

firmness to overcome those obstacles. To the contrary, our review of the

certified record confirms that DHS established by clear and convincing

evidence that Father failed to utilize available resources to establish a

parental relationship or exercise reasonable firmness to resist the obstacles

that he claims impeded his ability to perform his parental duties. No relief is

due.

       Finally, while Father does not present an issue on appeal with respect

to § 2511(b), we review the trial court’s needs and welfare analysis in an

abundance of caution. We note that no parental bond exists between A.J.B.

and Father. Rather, as the trial court accurately observed in its opinion, the

meaningful parental bond in this case exists between A.J.B. and her pre-

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adoptive foster parents, with whom she has resided since 2013.             We

highlight the court’s reasoning as follows:

      In the instant matter, the child does not have a parental bond
      with the father (N.T., 4- 29 -16. p. 22). The child has been in
      her pre- adoptive foster home for over two years. She shares the
      pre[-]adoptive home with her three siblings. She looks to the
      foster parent to meet her basic needs. Additionally, the child
      receives specialized services through early childhood intervention
      which are taken care of by the foster family (N.T., 4- 29 -16. p.
      21). Moreover, the child would not suffer irreparable harm if the
      father's rights were terminated (N.T., 4- 29 -16, p. 22). Finally,
      terminating the parental rights of the father would be in the best
      interest of the child (N.T., 4- 29 -16, p. 21).

Trial Court Opinion, 6/22/16, at unnumbered page 5. As the certified record

supports the trial court’s factual determinations, we do not disturb its

conclusion that terminating Father parental rights best satisfies A.J.B.’s

developmental, physical and emotional needs and welfare.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2016




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