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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

IN THE INTEREST OF: B.M.V. : IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

APPEAL OF: D.V., NOW KNOWN AS 

D.W. 

No. 397 WDA 2019 

Appeal from the Order Entered, February 12, 2019, 

in the Court of 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.: FILED AUGUST 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 November of that year. The 

parties were residing in Ohio during that time. In September 2013, following 

a domestic violence incident in which Father fired a gun, Father pleaded guilty 

to kidnapping, felonious assault, domestic violence, 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 adopt the child. 
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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. 

But the parents eventually divorced, and Mother remarried. Father attempted 

to stay in contact with 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 timely appeal. Both Mother and the orphans' court 

complied with Pa.R.A.P. 1925. Mother raises two 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 

support the finding that Mother did 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 

weight of the evidence presented does not support the 

finding that it is in the child's best interest to deny 

Mother's petition? 

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Mother's Brief at 8-9.2 Child joins Mother's position and adopts Mother's brief 

as her own.3 

We are 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 Adoption of A.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 the conduct of the 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 of the issues she raised with 

the orphans' court, the two issues contained in her brief are fairly suggested 

by the 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). 

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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. 

In re 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. In re 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 -parent failed to perform parental duties for a period of at least six 

months immediately preceding the filing of the 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 consider the 

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). 

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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 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 [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 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. 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 upon which provision under section 2511(a) termination is sought. 

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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 relationship with his 

or her children. Id. Where the parent does not exercise reasonable firmness 

"in declining to yield to obstacles," parental rights may be forfeited. In re 

Adoption of A.C., 162 A.3d at 1130 (quoting In re Adoption of McCray, 

331 A.2d 652, 655 (Pa. 1975)). 

Finally, the court must account for an incarcerated parent's self-imposed 

barriers while simultaneously evaluating the parent's duty 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. 

In re B.,N.M., 856 A.2d at 855-856 (citations omitted). 

Instantly, the orphans' court detailed Father's extensive efforts to 

maintain a relationship with Child: 

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Contemporaneous with Father's six -year prison sentence was a 

five-year protection order. Notwithstanding the existence of the 

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 request was denied. 

From December 2014 until May 2015, Father's correspondence to 

Child, which began with his incarceration, increased to a weekly 

basis. Mother testified that she never opened any of the letters. 

In May 2015, Father learned by prison officials that his continued 

attempt to contact Child would result in his discipline. From May 

2015 until November 2016, he continued the correspondence but 

sent the same to Paternal Grandmother, so she could contact 

Child. At this point, upon Mother's request, Father was found in 

violation of the 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 for them. 

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 lack of 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. 

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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 Father exercised reasonable firmness, given the 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 

contact with 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 

endeavors to preserve the 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 attorney for 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 during the six months leading up to Mother's petition. We agree. 

Regarding Father's history of domestic violence, 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 are derived from the case law. In a proper review, we must yield to 

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the orphans' court's credibility determinations and findings of fact. While the 

record contains deplorable instances of Father's abuse - some of which Father 

denies and some of which 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 say the court abused its discretion. 

Even though the facts also support the opposite result, we adhere to our 

Supreme Court's directive in these difficult cases: we must resist the urge to 

second guess the orphans' court and not impose our own credibility 

determinations and judgment. See In re Adoption of S.P., 47 A.3d 817, 

826-827 (Pa. 2012). 

Because the orphans' court concluded that Mother's petition failed 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. 

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Judgment Entered. 

J seph D. Seletyn, 

Prothonotary 

Date: 8/9/2019 

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