J-S77017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: A.L.W., a Minor              IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA

APPEAL OF: J.L.W., Father                       No. 655 MDA 2016


              Appeal from the Order entered March 8, 2016, in the
                   Court of Common Pleas of Mifflin County,
                       Orphans’ Court, at No. 22 of 2015.

                                                 IN THE SUPERIOR COURT OF
IN RE: ADOPTION OF: E.M.W., a Minor                    PENNSYLVANIA


APPEAL OF: J.L.W., Father                       No. 656 MDA 2016


              Appeal from the Order entered March 8, 2016, in the
                   Court of Common Pleas of Mifflin County,
                       Orphans’ Court, at No. 2015-00021


BEFORE: PANELLA, OLSON, and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                       FILED DECEMBER 02, 2016

        Appellant, J.L.W. (hereinafter “Father”), appeals from the orders

entered on March 8, 2016, denying his petitions to involuntarily terminate

the parental rights of C.L.W. (hereinafter “Mother”) to their minor children

A.L.W. (born in August 2007) and E.M.W. (born in July 2005) (hereinafter,

collectively “the Children”). We affirm.

        On July 6, 2015, Father filed separate petitions to terminate Mother’s

parental rights to the Children.    Within the petitions, Father claimed that




*
    Retired Senior Judge assigned to the Superior Court.
J-S77017-16


Mother’s parental rights to the Children should be terminated pursuant to 23

Pa.C.S.A. § 2511(a)(1) because:

        a. . . . Mother has not spent time with [the Children] since
        May 10, 2014.

        b. From November 12, 2011 until May 10, 2014 (a period of
        910 days . . . ), Mother saw the [Children] on approximately
        six [] occasions.

        c. The occasions mentioned above on which Mother has
        seen the [Children] have historically been one to two hour
        visits at a public park.

        d. During the visits[,] Mother and [the Children] interact
        very little.

        e. . . . Mother has had less than eight [] meaningful
        telephone conversations with [the Children] since October
        2013 to the present, a period of approximately [20]
        months.

        f. . . . Mother has had no involvement in the [Children’s]
        educational development. . . .

        g. . . . Mother has had no involvement in the [Children’s]
        medical care and treatment for a period in excess of five []
        years.

        h. Mother has not performed day-to-day parental
        responsibilities such as getting the [Children] out of bed;
        ensuring the [Children’s] proper hygiene; providing or
        arranging childcare, transporting the [Children] to [their]
        community-based[] social events and/or attending the
        same; establishing a supportive, loving[,] and nurturing
        emotional bond with the [Children]; etc., for a period in
        excess of five [] years.

        i. For a period in excess of five [] years, Mother has
        demonstrated only a passive interest at best in the
        [Children] and has refused and/or failed to undertake an
        active role and a position of importance in [the Children’s
        lives].


                                   -2-
J-S77017-16



        j. Mother’s child support order was suspended on June 25,
        2013, nearly two years ago, and she has failed to provide
        financial support for the [Children] since prior to that time.
        Prior to the suspension of [] the support obligation, Mother’s
        support arrearages were in excess of [$5,000.00].

        k. Mother has evidenced a settled purpose of relinquishing
        her parental claim and has refused and/or failed to perform
        any meaningful parental duties for the [Children] by
        conduct continuing for at least six [] months.

Father’s Petition to Terminate Mother’s Parental Rights to A.L.W., 6/6/15, at

2-4; Father’s Petition to Terminate Mother’s Parental Rights to E.M.W.,

6/6/15, at 2-4.

      On December 15, 2015, the trial court held a hearing on Father’s

petitions.   As the trial court explained, during the hearing the parties

presented the following evidence:

        Father and Mother separated . . . in late 2007 to early 2008
        and divorced by official decree [on] March 26, 2009.

        Following divorce, Father began seeing [D.W.] in mid-
        summer 2008 and married [D.W. in] July[] 2011. Following
        [Father and] Mother’s separation, Father maintained a
        calendar illustrating when Mother exercised her rights to see
        the [C]hildren. The calendar reflects that, in 2008, Mother
        visited regularly; in 2009, Mother visited [41] times; in
        2010, the visits decreased towards the end of the year
        (showing one visit in October, in November, and in
        December); in 2011, four visits; in 2012, two visits; in
        2013, three visits; in 2014, one visit; and in 2015, no visits.

        [A custody order entered in 2007] required that Mother’s
        visits be supervised in [the home of B.P., the maternal
        grandmother (hereinafter “Maternal Grandmother”)] and
        [that] the visits [were] to occur once a week for two hours[.
        This] order changed slightly in 2008 by maintaining



                                     -3-
J-S77017-16


       supervision, but no longer limiting Mother’s visits to
       [Maternal Grandmother’s] home. . . .

       According to Mother’s own testimony, the requirement for
       supervision arose following a Children and Youth [Services
       (hereinafter “CYS”)] investigation that concluded that she
       could not meet the basic needs of a child. However, Mother
       testified that [CYS] never removed [the Children] from her
       care and that she was never charged with child abuse
       crimes. . . .

       In 2014, Father’s parents filed a custody action resulting in
       Mother being required to contact Father if she wished to see
       or communicate with [the Children]. Initially, [D.W.] did
       not attend visits, as [Maternal Grandmother] would not let
       her in her home. However, [D.W.] joined the visitations in
       the later years and observed Mother taking pictures of [the
       Children]. Further[,] first-hand observations by Mother’s
       relatives indicate that, at the last visitation in 2014,
       Mother[] and Mother’s other two daughters interacted
       positively with [the Children and] that Mother was warm,
       loving, and interactive.

       [Father also] maintained records reflecting that, in the six
       months prior to filing the July 6, 2015 petitions to terminate
       Mother’s parental rights, Mother had not called [or] left a
       voicemail with Father[;] however, Father’s records from
       Verizon ended [in March 2015]. Notwithstanding his phone
       records, Father testified that Mother texts, stating that she
       loves and misses the [C]hildren and asks that they call her.
       Father supplemented this by stating that, in the six months
       prior to the filing of the petitions, Mother texted him,
       inquiring about the [C]hildren, once per week. Further,
       [K.L.] (Mother’s sister) [(hereinafter “Mother’s Sister”)],
       who receives Mother’s cell phone bill, verified that Mother
       contacts Father via text many times and that her records
       show that Father sometimes fails to respond to the text
       messages.

       Father testified that Mother and her family historically buy
       Christmas gifts for [the Children]. [Mother’s Sister] further
       testified that Mother and her family bought Christmas
       presents for [the Children from 2011 through 2015], and
       that these gifts were given to [B.H.] ([the C]hildren’s great-


                                   -4-
J-S77017-16


       grandmother), to give to Father. Mother corroborated this
       by stating that she buys the [C]hildren Christmas gifts and
       has sent cards. Further, Mother testified that she tried to
       arrange a visit with [the Children] in Christmas of 2014, but
       that Father refused and would only meet with Mother’s
       grandmother.

       In addition to trying to organize a visit over Christmas in
       2014, Mother testified that she tried to schedule a visit for
       Mother’s Day [in] 2015 [with the Children], but Father
       refused. And while Mother acknowledged that, in the past,
       Father tried to provide suitable accommodations for visits if
       he could not coordinate with the times Mother wanted, over
       the past six months[] Father would propose times that were
       inappropriate for [the Children,] who are in school all day.
       For example, Mother testified that Father would propose
       that her visits with the [C]hildren occur from 6:00 [to] 8:00
       p.m. during the week and that Mother believed that the
       [C]hildren should be “unwinding” during that time, eating
       dinner, and bathing.      Mother testified that she wanted
       weekend visits so as not to interfere with the [C]hildren’s
       schooling.

       Father testified that Mother never requested a change in
       custody and that Mother had ample opportunity to do so
       when Father’s parents petitioned the court for custody.
       Father testified that, notwithstanding Mother attending two
       proceedings relating to the 2014 custody case, that Mother
       never met with the [C]hildren’s guardian ad litem
       [(hereinafter “GAL”)], Stuart Cilo, nor did she actively
       participate in the proceedings[.      I]n contrast, Father,
       Father’s parents, and [D.W] all met with the [C]hildren’s
       GAL. . . .

       In response, Mother testified that she did not meet with
       [the GAL], that he did call her, and that she returned the
       call, left a message with his secretary, and never received a
       return call. Mother further testified that she did not relay
       her concerns about not being able to see the [C]hildren to
       [the GAL] because she perceived it to be irrelevant to the
       custody case at issue. In addition, Mother testified that she
       tried to alter the custody visits by, first, contacting the
       [C]hildren’s original GAL, Nancy Searer and[,] two, when
       Ms. Searer informed Mother that she was no longer involved


                                   -5-
J-S77017-16


          in the case, Mother tried to contact an attorney, but could
          not afford one. Mother testified that she was unaware that
          she could proceed without an attorney.

Trial Court Opinion, 3/8/16, at 1-5 (internal citations omitted) (some internal

capitalization omitted).

        On March 8, 2016, the trial court entered orders denying Father’s

petitions to terminate Mother’s parental rights. Father filed timely notices of

appeal and now raises the following claims to this Court:

          1. Were the trial court’s findings regarding Mother’s
          attempts to maintain a relationship and bond with the
          [C]hildren and attempts to meet the emotional needs of the
          [C]hildren supported by competent evidence of record such
          that termination of parental rights is not warranted?

          2. Did the trial court abuse its discretion by concluding that
          Mother adequately fulfilled her parental duties given the
          lack of contact between Mother and the [C]hildren, Mother’s
          failure to use any resources to address Father’s alleged
          obstruction of her visits, and Mother’s mere passive interest
          in the [C]hildren’s development?

          3. Did the trial court commit an error of law in excusing
          Mother’s failure to pursue legal relief based on her
          allegations that she did not realize she could participate
          while attending custody proceedings involving [the
          C]hildren, Father, and paternal grandparents?

          4. Did the trial court, in considering the [C]hildren’s
          developmental, physical and emotional needs and welfare,
          commit an abuse of discretion in finding that Mother had an
          emotional bond with the [C]hildren and that the parental
          relationship was “existing, necessary, and beneficial?”

Father’s Brief at 4-5.1



1
    For ease of discussion, we have re-ordered Father’s claims on appeal.


                                      -6-
J-S77017-16


     In reviewing an appeal from an order terminating parental rights, we

adhere to the following standard:

        [A]ppellate courts must apply an abuse of discretion
        standard when considering a trial court’s determination of a
        petition for termination of parental rights.              As in
        dependency cases, our standard of review requires an
        appellate court to accept the findings of fact and credibility
        determinations of the trial court if they are supported by the
        record. In re: R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). If the
        factual findings are supported, appellate courts review to
        determine if the trial court made an error of law or abused
        its discretion. Id.; R.I.S., [36 A.3d 567, 572 (Pa. 2011)
        (plurality opinion)]. As has been often stated, an abuse of
        discretion does not result merely because the reviewing
        court might have reached a different conclusion. Id.; see
        also Samuel Bassett v. Kia Motors America, Inc., 34
        A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 838 A.2d 630,
        634 (Pa. 2003). Instead, a decision may be reversed for an
        abuse of discretion only upon demonstration of manifest
        unreasonableness, partiality, prejudice, bias, or ill-will. Id.

        As [the Pennsylvania Supreme Court] discussed in R.J.T.,
        there are clear reasons for applying an abuse of discretion
        standard of review in these cases. [The Supreme Court]
        observed that, unlike trial courts, appellate courts are not
        equipped to make the fact-specific determinations on a cold
        record, where the trial judges are observing the parties
        during the relevant hearing and often presiding over
        numerous other hearings regarding the child and parents.
        R.J.T., 9 A.3d at 1190. Therefore, even where the facts
        could support an opposite result, as is often the case in
        dependency and termination cases, an appellate court must
        resist the urge to second guess the trial court and impose
        its own credibility determinations and judgment; instead we
        must defer to the trial judges so long as the factual findings
        are supported by the record and the court’s legal
        conclusions are not the result of an error of law or an abuse
        of discretion. In re Adoption of Atencio, 650 A.2d 1064,
        1066 (Pa. 1994).

In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).



                                     -7-
J-S77017-16


     The burden is upon the petitioner to prove by clear and convincing

evidence that the asserted grounds for seeking the termination of parental

rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

     Moreover, we have explained:

        [t]he 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.”

Id., quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).

     In the case at bar, Father petitioned to terminate Mother’s parental

rights under 23 Pa.C.S.A. §§ 2511(a)(1) and (b). These sections provide:

     § 2511. Grounds for involuntary termination

        (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


                                     -8-
J-S77017-16


        are first initiated subsequent to the giving of notice of the
        filing of the petition.

23 Pa.C.S.A. § 2511.

     We have explained this Court’s review of a challenge to the sufficiency

of the evidence supporting the involuntary termination of a parent’s rights

pursuant to section 2511(a)(1) as follows:

        To satisfy the requirements of section 2511(a)(1), the
        moving party must produce clear and convincing evidence
        of conduct, sustained for at least the six months prior to the
        filing of the termination petition, which reveals a settled
        intent to relinquish parental claim to a child or a refusal or
        failure to perform parental duties.

                                     ...

        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).

        [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.




                                    -9-
J-S77017-16


In re Z.P., 994 A.2d 1108, 1119 (Pa. Super. 2010) (internal citation

omitted); see also In re Adoption of C.L.G., 956 A.2d 999, 1006 (Pa.

Super 2008) (en banc).

      Further, regarding the definition of “parental duties,” this Court has

stated as follows:

        There is no simple or easy definition of parental duties.
        Parental duty is best understood in relation to the needs of
        a child. A child needs love, protection, guidance, and
        support. These needs, physical and emotional, cannot be
        met by a merely passive interest in the development of the
        child. Thus, this court has held that the parental obligation
        is a positive duty which requires affirmative performance.

        This affirmative duty encompasses more than a financial
        obligation; it requires continuing interest in the child and a
        genuine effort to maintain communication and association
        with the child.

        Because a child needs more than a benefactor, parental
        duty requires that a parent exert himself to take and
        maintain a place of importance in the child’s life.

        Parental duty requires that the parent act affirmatively with
        good faith interest and effort, and not yield to every
        problem, in order to maintain the parent-child relationship
        to the best of his or her ability, even in difficult
        circumstances. A parent must utilize all available resources
        to preserve the parental relationship, and must exercise
        reasonable firmness in resisting obstacles placed in the path
        of maintaining the parent-child relationship. Parental rights
        are not preserved by waiting for a more suitable or
        convenient time to perform one’s parental responsibilities
        while others provide the child with . . . her physical and
        emotional needs.

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




                                    - 10 -
J-S77017-16


      Within the trial court’s opinion to this Court, the trial court ably

explained why it concluded that Father “did not, by clear and convincing

evidence, establish the termination ground found in § 2511(a)(1) relative to

Mother.” Trial Court Opinion, 3/8/16, at 6. As the trial court explained:

        Under the totality of the circumstances, [the trial court]
        does not find sufficient evidence proving either a “settled
        purpose of relinquishing parental claim” or a “refus[al] or
        fail[ure] to perform parental duties” on behalf of Mother.
        The [trial] court finds that Mother did attempt to coordinate
        visits with [the Children] on both Christmas 2014 and
        Mother’s Day 2015, and while Father provided phone
        records reflecting Mother’s failure to consistently call,
        Father’s records end in March of 2015, not July of 2015.
        Further, even if phone records illustrate that Mother failed
        to call in the six months prior to the filing, [the trial] court
        finds that Mother texted Father about the [C]hildren to
        convey loving messages. Mother and her family also buy
        Christmas gifts for the [C]hildren and appear to have
        continued that tradition since Mother and Father separated.
        ...

        Parental duties “encompass[] more than financial
        obligation; [they] require[] continuing interest in the child
        and a genuine effort to maintain communication and
        association with the child. In re C.M.S., 832 A.2d 457, 462
        (Pa. Super. 2003). . . . [The trial] court finds that Mother
        satisfied this test. And while Mother did not file a petition to
        modify the current custody arraignment, [the trial] court is
        satisfied that Mother truly believed that her visitation
        concerns were inappropriate to raise at the 2008 custody
        hearing and that she believed that she needed an attorney
        to alter the arraignment.

Trial Court Opinion, 3/8/16, at 6-7 (some internal capitalization omitted).

      Further, with respect to section 2511(b), the trial court concluded that

terminating Mother’s parental rights would not serve the Children’s best

interests. According to the trial court:


                                     - 11 -
J-S77017-16


        Having found that Father failed to establish, by clear and
        convincing evidence, the termination ground stated in
        § 2511(a)(1), [the trial] court further concludes that
        terminating Mother’s parental rights would not serve the
        [C]hildren’s best interests. [The trial] court must give
        “primary determination” to the [C]hildren’s “developmental,
        physical, and emotional needs” and must examine
        “intangibles such as love, comfort, security, and stability”. .
        . .   Of critical concern are the [C]hildren’s needs and
        welfare. . . .

        Here, [the trial] court looked at the emotional bond between
        Mother and [the Children] . . . [and concluded] that
        severing the parental ties “would destroy an existing,
        necessary and beneficial relationship.” In re Adoption of
        T.B.B., 835 A.2d 387, 397 (Pa. Super. 2003). Mother and
        her extended family demonstrably try to maintain a
        relationship with [the Children] despite not having had a
        scheduled visit since 2014. Mother texts Father to convey
        loving messages to [the Children], tried to arrange visits,
        sends Christmas gifts in care of the [C]hildren’s great-
        grandmother, and when visits were organized, Mother and
        all four of her children positively interacted. Testimony also
        indicates that Mother wished to see [the C]hildren on
        holidays as recent as Mother’s Day 2015. Based upon
        Mother’s efforts to maintain a relationship with [the
        C]hildren, [the trial] court finds that severing the tie
        between them would not serve the best interests of the
        [C]hildren.

Trial Court Opinion, 3/8/16, at 7-8 (some internal capitalization omitted).

      Within the “statement of questions involved” section of Father’s brief,

Father lists four separate claims of relief.     See Father’s Brief at 4-5.

However, the argument section of Father’s brief is not divided into separate

parts. See Father’s Brief at 11-24. In fact, within the argument section of

Father’s brief, Father simply argues that the trial court should have viewed

his evidence more favorably, viewed Mother’s action and inaction towards



                                    - 12 -
J-S77017-16


the   Children   more   unfavorably,    and     mistakenly   “overlooked”   certain

evidence that Father put forth. See id. In other words, Father’s claim on

appeal is simply a challenge to the weight of the evidence.           Yet, as our

Supreme Court has explained:

         appellate courts are not equipped to make the fact-specific
         determinations on a cold record, where the trial judges are
         observing the parties during the relevant hearing and often
         presiding over numerous other hearings regarding the child
         and parents. Therefore, even where the facts could support
         an opposite result, as is often the case in dependency and
         termination cases, an appellate court must resist the urge
         to second guess the trial court and impose its own
         credibility determinations and judgment; instead we must
         defer to the trial judges so long as the factual findings are
         supported by the record and the court’s legal conclusions
         are not the result of an error of law or an abuse of
         discretion.

In re Adoption of S.P., 47 A.3d at 826-27 (internal citations omitted).

      In the case at bar, all of the trial court’s factual findings are supported

by the record; and, since Father’s claim on appeal is simply a request that

this Court reweigh the evidence in his favor and arrive at different credibility

determinations than did the trial court, we conclude that Father’s claim on

appeal necessarily fails. Id.

      Order affirmed. Jurisdiction relinquished.




                                       - 13 -
J-S77017-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/2/2016




                          - 14 -
