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### -A14030-19
NON-PRECEDENTIAL DECISION - SEE 

### SUPERIOR COURT 

### I.O.P. 

### 65.37 IN THE INTEREST OF: B.M.V. : IN THE SUPERIOR COURTOF PENNSYLVANIA APPEAL OF: D.V., NOW KNOWN AS D.W.

No. 397 WDA 2019 Appeal

### from the Order Entered, February 12, 2019, in the Courtof Common Pleas 

### of Lawrence County, Orphans' Court at No(s): 20030 of 2018, O.C.A.
BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J. MEMORANDUM BY KUNSELMAN, J.: 

### FILEDAUGUST 

### 9, 

### 2019 D.W., 

### formerly known as D.V. 

### (Mother), appeals the 

### orphans' court's denial of her 

### private petition to 

### terminate the parental rights of the incarcerated B.V. 

### (Father), under the Adoption 

### Act.' See 23 Pa.C.S.A. § 

### 2511(a)(1). After careful review, we 

### affirm. Father and Mother are the parents of a six

### -year-old 

### daughter (Child). The parents wed in 2012, and Child was born in Novemberof

### thatyear. The parties were residing in Ohio during 

### thattime. In 

### September 2013, following

a 

### domesticviolence incident in which Fatherfired a gun, Father pleaded 

### guilty to 

### kidnapping,felonious assault, 

### domesticviolence, and child 

### endangerment. He was sentenced to a 

### term of 

### three to six 

### years; he is scheduled to be released on 

### September 28, 2019. 

### After Father's 

### arrest, Mother applied 

### for,


### ' Mother's husband was prepared to 

### adoptthe child.J

### -A14030-19

and the 

### court in Ohio 

### granted, a Consent

### Agreement and Domestic Violence Civil Protection Order. The 

### order, which expired on October 9, 2018, barred Father 

### from having any 

### contact, 

### direct or 

### indirect, with 

### either Mother or the 

### minor child. Despite the existence of a 

### protection order, Mother 

### facilitated contact between Father and Child during the 

### early months of Father's 

### incarceration. Butthe parents 

### eventuallydivorced, and Mother 

### remarried. Father

### attempted to 

### stay in 

### contactwith Child, but his correspondence was 

### limited once Mother began invoking the protection order. In June 2018, she filed a 

### petition 

### terminate Father's parental 

### rights under 23 Pa.C.S.A. § 

### 2511(a)(1). After a hearing, the 

### orphans'court denied Mother's 

### petition. Mother presents

### this

### timelyappeal. Both Mother and the

### orphans'court complied 

### with Pa.R.A.P. 1925. Mother raisestwo issues

### for our review:
1. As Mother had filed a 

### petition to 

### involuntarily terminate parental rights of Father, did the 

### trial court abuse its 

### discretion 

### and/or err in denying Mother's 

### petition as 

### the weight of the evidence does not 

### supportthe finding 

### that Motherdid not prove by clear and convincing evidence grounds 

### for termination of Father's parental 

### rights under 23 PA.C.S.A. § 

### 2511(a)(1)? 2. Did the 

### orphans'court abuse its 

### discretion 

### and/or err in denying Mother's 

### petition as the

### court did not

### "give primary consideration to the 

### developmental, physical and 

### emotional needs and 

### welfare of the 

### child" pursuant to 23 Pa.C.S.A. § 

### 2511(b), as the 

### total weightof

### theevidencepresented does not

### supportthe finding 

### that it is in the child's best 

### interest to deny Mother's 

### petition?


## -2J

### -A14030-19

Mother's Briefat 8-9.2 Child

### joins Mother's position and adopts Mother's 

### brief

as her own.3 We are 

### mindful of 

### ourwell

### -settled standard of 

### review: The standard of review in 

### termination of parental 

### rights cases requiresappellate courts to accept the

### findingsof

### 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 ifthe 

### 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. 

## Inre

### Adoption

## ofA.C., 162 A.3d 1123, 1128 (Pa. Super. 2017) 

### (quoting 

## In re T.S.M., 71 A.3d 251, 267 (Pa. 

### 2013). Termination of parental rights is governed by section 2511 

### of the Adoption Act, which requires a 

### bifurcated analysis: 

### Initially,the focus is on theconductofthe parent. The 

### party seeking 

### termination must prove by clear and convincing evidence 

### that the parent's conduct satisfies the 

### statutory

2 Mother presents two issues

### for our review, but she included 

### eight issues in her 

### statement of 

### matters complained of on appeal. While the issues she presents before us do not match 

### verbatim any ofthe issues she raised 

### with the 

### orphans'court, the two issues contained in her 

### brief are 

### fairly suggested bythe issues she raised in her concise 

### statement.See Pa.R.A.P. 

### 2116(a) ("No question will be considered unless it is stated in the 

### statement of questions involved or is

### fairly suggested 

### thereby."). We may proceed 

### with our review.

3 Child had 

### proper representation under 23 Pa.C.S.A. § 

### 2313(a).

- 3 -J

### -A14030-19 grounds

### fortermination 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 ofthe child underthe standard of best 

### interests ofthechild. 

## Inre L.M., 923 A.2d 505, 511 (Pa. Super. 

### 2007) 

### (citations 

### omitted). The 

### petitioner must prove by clear and convincing evidence 

### that the asserted 

### statutory grounds 

### for seeking 

### the

### termination of 

### parental rights are valid. 

## Inre R.N.J., 985 A.2d 273, 276 (Pa. Super. 

### 2009). In her 

### first issue, Mother contends 

### that the orphans' court decision is 

### against the 

### weight of the evidence. Mother 

### maintains 

### that termination was 

### warranted because Father's 

### incarceration prevented him 

### from performing parental duties. Section 

### 2511(a)(1) provides 

### that a 

### court can 

### terminate parental rights if, 

### inter alia, the 

### petitioner provides clear and convincing evidence 

### that the respondent

### -parentfailed to 

### perform parentalduties

### for a period ofat least six 

### months 

### immediately preceding the filing ofthe 

### petition. See 23 Pa.C.S.A. § 

### 2511(a)(1). Although it is the six 

### months 

### immediately preceding the filing of the petition 

### that is 

### most critical to the analysis, the 

### trial court must considerthe whole 

### history of a given case and not mechanically apply the 

### six-month 

### statutory provision. 

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

### (citation 

### omitted).



## -4J

### -A14030-19

In an analysis under 

### this section, we have acknowledged 

### there is no simple or easy 

### definition of parental duties. But we have 

### explained: 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 

### developmentof the child. Thus, 

### this court has held 

### that the parental obligation is a 

### positive 

### duty which 

### requires 

### affirmative performance. * * * Parental 

### duty requires

### thatthe parentact 

### affirmativelywith 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 inthe 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 providethe child

### with 

### [the child's] physical and 

### emotional needs. 

### Id. (Internal citations and 

### quotations 

### omitted). The 

### court must examine the individual circumstances of each case and consider all 

### explanations offered bythe parentfacing 

### terminationof hisor her parental 

### rights, to 

### determine if the evidence, in 

### light of the 

### totality of the 

### circumstances, clearly

### warrantsthe 

### involuntarytermination.

### Id. A 

### parent's incarceration does not, in 

### itself, provide grounds 

### for the 

### termination of parental rights. 

### Id. An analysis of an 

### incarceration case depends uponwhich provision under section

### 2511(a) termination is sought.



## -5J

### -A14030-19

When a 

### petitioner seeks to 

### terminate an incarcerated 

### parent's rights under section 

### 2511(a)(1), we have said a 

### parent's responsibilities are not tolled during 

### incarceration. 

### Id. The 

### court's focus is 

### whether the parent utilized resources available while in prison to 

### maintain a 

### relationship with his
or her child. 

### Id. (citation 

### omitted). An incarcerated 

### parent is expected to 

### utilize all available resources to

### foster a 

### continuing close 

### relationshipwith his
or her children. 

### Id. Wherethe 

### parent does not exercise reasonable

### firmness "in declining to yield to 

### obstacles," parental rights may be 

### forfeited. 

## In re 

### Adoption

## ofA.C., 162 A.3d at 1130 

### (quoting 

## In re

### Adoption 

## ofMcCray, 331 A.2d 652, 655 (Pa. 

### 1975)). Finally, the

### courtmustaccount

### for an incarcerated parent'sself-imposed barriers while

### simultaneouslyevaluating the parent'sduty to overcome

### them: Where a non

### -custodial parent is facing 

### termination of his or her 

### parental rights, the court must consider the noncustodial 

### parent's explanation, if any, 

### for the 

### apparent neglect, including 

### situations in which a custodial 

### parent has 

### deliberately created obstacles and has by devious means erected 

### barriers intended to impede free 

### communication and 

### regular association between the non

### -custodial parent and his or her child. 

### Although a 

### parent is not required to 

### perform the impossible, he 

### must act 

### affirmatively to 

### maintain his 

### relationship with his child, even in 

### difficult circumstances. A 

### parent has the 

### duty to 

### exert himself, to take and 

### maintain a place of 

### importance in 

### the child's life. 

## Inre B.,N.M., 856A.2d at 

### 855-856 (citations

### omitted). Instantly, the orphans' court detailed Father's 

### extensive efforts to 

### maintain a 

### relationship with Child:


## -6J

### -A14030-19 Contemporaneous with Father's six

### -year prison sentence was a 

### five-year protection order. Notwithstanding the existence ofthe protection order, Mother 

### initially encouraged a 

### continuing relationship between Father and Child. Father and Child

### visited in the Mahoning 

### County Justice Center in May 2014. But by Fall 2014, the parties divorced, and Mother decided she would not 

### permit a 

### relationship between Father and Child. Father 

### sought 

### visitation but his 

### requestwas denied. From December2014 

### until May 2015, Father'scorrespondenceto Child, which began 

### with his 

### incarceration, increased to a 

### weekly basis. Mother 

### testified 

### that she never opened any ofthe 

### letters. In May 2015, Father learned by prison 

### officials

### that hiscontinued 

### attempt to 

### contact Child would 

### result in his discipline. From May 2015 

### until November2016, he continuedthe correspondence but sent the same to Paternal 

### Grandmother, so she could 

### contact Child. At 

### this point, upon Mother's request, Fatherwas found in 

### violation ofthe protection order. Father continued to 

### write to Child, but instead of

### trying to 

### contact Child, he sent his correspondence to Paternal 

### Grandmother with the understanding 

### that she could keep the 

### letters until the day came

### that Child was old enough and ready

### forthem. While 

### incarcerated, Father completed a 

### parenting class, 

### faith- based 

### programs, and a 

### convocational

### training course,the 

### latter in which he excelled. In March 2017, Father sought to 

### modify the protection 

### order so as to allow Paternal 

### Grandmother to be an 

### authorized 

### intermediary. But Father's 

### petition was denied 

### for lackof service and 

### the hearing was never held. In May 2017, Father appeared 

### telephonically to 

### object to Mother's request to change Child's surname to the

### stepfather's surname; the court granted Mother's request. In June 2018, Mother filed in the 

### instant petition to 

### terminate Father's rights. Father is scheduled to be released in 

### September 2019. 

### See Orphans'Court Findings of Fact, 

### 2/12/19, at 1111 6- 24.

- 7J

### -A14030-19

The 

### court concluded 

### that Father utilized all resources reasonably available to him to 

### maintain the parent-child 

### relationship; 

### that the Father did make sincere, continued 

### efforts to 

### maintain and 

### foster the 

### relationship; and 

### that Fatherexercised reasonable

### firmness, giventhe obstacles placed in

### front of him, in his desire to 

### maintain a bond 

### with Child. 

### Notwithstanding her successful 

### thwarting of Father's 

### efforts to stay in 

### contactwith Child, Mother argues

### that Father

### forfeited his 

### rights because he did nothing in 

### 2018; 

### i.e., the six 

### months 

### immediately preceding the filing of her 

### termination petition. See 23 Pa.C.S.A. § 

### 2511(a)(1). As we said in 

## In re B.,N.M., 

### supra, we do not 

### apply the 

### six-month 

### statutory provision mechanically; we 

### must consider the whole of Father's endeavorsto preservethe 

### relationship. In 

### addition to the

### efforts listed above, the 

### court accepted Father's 

### explanation why he did not engage in 

### further litigation after 2017: "The reason I had stayed my hand was because 

### they
were seeking - - my 

### attorney was also the 

### attorneyfor my 

### mother, who was seeking 

### grandparent's visitation in Ohio. [...] So we were 

### waiting[.]" N.T., 

### 1/16/2019, at 44. The 

### orphans'court concluded 

### that Father did not sleep on his 

### rights duringthe six 

### months leading upto Mother's 

### petition. We agree. Regarding Father's 

### history of domesticviolence, we are 

### mindful of our role as an 

### error-correcting court, and 

### that this case concerns the 

### termination of parental 

### rights, not custody. The 

### Involuntary Termination subchapter of the 

### Adoption Act does not 

### specifically address 

### incarceration. 

### Incarceration analyses arederived 

### from thecase law. In a 

### proper review, we 

### mustyield to

- 8 -J

### -A14030-19

the

### orphans'court's 

### credibility determinationsand 

### findings offact. While the record containsdeplorable instancesof Father'sabuse

## - some ofwhich Father denies and some 

### ofwhich he does not 

## - we 

### must acknowledge

### that the court found Father to be sincere in his 

### efforts to preserve the 

### parent-child 

### relationship. Although Father's obstacles were 

### self-imposed, the court determined he did all he could to overcome them. Under the 

### totality of the 

### circumstances, the orphans' 

### court concluded 

### that termination of parental rights was not

### warranted. We 

### cannot saythe 

### court abused its 

### discretion. Even

### thoughthefacts also

### supporttheopposite result, we adhereto our SupremeCourt's 

### directive in these

### difficult cases: we 

### must resistthe urgeto second guess the 

### orphans' court and not impose our own 

### credibility determinations and 

### judgment. See 

## In re

### Adoption 

## ofS.P., 47 A.3d 817, 

### 826-827 (Pa. 

### 2012). Becausethe

### orphans'courtconcluded 

### that Mother's 

### petitionfailed 

### under section 

### 2511(a),the court had no occasion to proceed to 

### the second prong 

### of the 

### termination analysis under section 

### 2511(b). This procedure was 

### proper, and 

### thus Mother's second 

### appellate issue is moot. We 

### therefore affirm the orphans' 

### court order. Order

### affirmed.



## -9J

### -A14030-19 Judgment Entered.

J seph D. 

### Seletyn, Prothonotary

Date: 

### 8/9/2019

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