J-A19031-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: N.L.T., A 

MINOR

APPEAL OF: J.T., FATHER

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 23 EDA 2020

Appeal from the Decree Entered November 18, 2019

In the Court of Common Pleas of Montgomery County Domestic Relations 

at No(s): No. 2019-A0075

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: Filed: September 1, 2020

J.T. (Father) takes this counseled appeal from the decree entered in the 

Montgomery County Court of Common Pleas (orphans’ court), granting the 

petition of K.K.T. (Mother)1to involuntarily terminate Father’s parental rights

to their minor, female child, N.L.T. (Child), born in July 2010.

2

 We affirm.

____________________________________________

1 The termination petition was jointly filed by Mother and her husband, D.J.T. 

(Stepfather).

2 The orphans’ court appointed Sharon Lynn Jones-Hofer, Esquire, as legal 

interests counsel/guardian ad litem (“GAL”) for Child. The GAL indicated she 

met with Child, who was nine years old, prior to the termination hearing. N.T., 

11/18/19, at 5. The orphans’ court credited the GAL’s statement that there 

is no conflict between Child’s best interest and her legal interest. Id. at 68. 

See In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) (plurality). See 

also In re T.S., 192 A.3d 1080, 1087 (Pa. 2018) (trial court did not err in 

allowing children’s GAL to act as their sole representative during termination 

proceeding because, at two and three years old, they were incapable of 

expressing their preferred outcome); In re Adoption of K.M.G., 219 A.3d 

662, 669 (Pa. Super. 2019) (en banc) (this Court has authority to raise sua 

sponte issue of whether trial court appointed any counsel for the child, and 

not authority to delve into quality of the representation), limited appeal 

granted, 362 WAL 2019 (Pa. Dec. 9, 2019).
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The relevant factual and procedural history are as follows. Mother and 

Father did not marry but lived together for approximately three years after 

Child’s birth. N.T., 11/18/19, at 9-10. In 2014, Mother and Father ended 

their relationship. Father has a history of heroin use and drug addiction. Id.

at 11, 15, 23, 41. In 2016, Father was involved in an automobile accident 

while Child was a passenger in the car. Id. at 11, 15. According to Mother, 

Father was under the influence of drugs at the time of the accident. Id. at 

15. Subsequently, Mother was granted sole physical and legal custody of 

Child. Id. at 11. For a period of time, Mother permitted Father to visit Child 

at the paternal grandparents’ home. Id. at 30. In December of 2016, at 

Father’s last visit with Child, W.J.T. (Paternal Grandfather) ejected Father from 

the home because Father was under the influence of drugs and had drug 

paraphernalia. Id. at 31, 42. Father has not had contact with Child since that 

time. Id. at 11. Father made child support payments approximately every 

three months but was not current with his payments at the time of the

November 18, 2019, termination hearing. Id. at 15.

In 2013, Mother began a relationship Stepfather and they married in 

2018. N.T. at 9. Mother and Child have maintained a close relationship with 

paternal grandparents. Id. at 12.

On May 7, 2019, Mother filed a petition to involuntarily terminate 

Father’s parental rights to Child. On the same day, Mother and Stepfather 

also filed a petition for Stepfather to adopt Child. On November 18, 2019, the 
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orphans’ court conducted an evidentiary hearing on the termination petition. 

At the beginning of the hearing, Father’s counsel stated that he spoke to 

Father on the telephone and that Father indicated he was “about a half an 

hour away. . . and he is worried he is going to run out of gas and doesn’t have 

any money in his wallet or a debit or credit card[.]” N.T. at 3. 

Mother testified, and presented the testimony of Stepfather and Paternal 

Grandfather. Following Mother’s case-in-chief, the orphans’ court took a fiveminute recess so that Father’s counsel could check Father’s whereabouts. N.T. 

at 52. Father’s counsel then reported that he telephoned Father, but got his 

voicemail. Id. at 53. Father did not appear at the hearing and his counsel 

did not present any evidence on his behalf.

At the conclusion of the hearing, the orphans’ court delivered its findings 

of fact and conclusions of law on the record. On that same date, the court 

entered a decree involuntarily terminating Father’s parental rights to Child 

pursuant to 23 Pa.C.S. § 2511(a)(1) and (b). Thereafter, on December 19, 

2019, 31 days after the entry of the decree, Father filed a counseled notice of 

appeal and a Pa.R.A.P. 1925(a)(2) concise statement of errors complained of 

on appeal.

On February 21, 2020, this Court issued a per curiam rule on Father to 

show cause, within 10 days, why this appeal should not be quashed as 

untimely filed. On March 5th, Father’s counsel filed an untimely response, 

which averred the following: (1) “[i]n Montgomery County, court-appointed 
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counsel for birth parents in termination-of-parental [right] cases do not have 

permission to access the electronic Orphans’ Court dockets;” (2) “[a]t 7:59 

p.m. on December 18, 2019, the last day in which to file an appeal in this 

case,” counsel emailed the notice of appeal and Rule 1925(a)(2) statement to 

an orphans’ court employee, whom had previously “accepted . . . appeal 

documents” from counsel; (2) at the same time, counsel sent these 

documents via facsimile to the orphans’ court; (3) counsel also “served” the 

documents on the orphans’ court by first-class mail, and has a receipt stamped 

December 18, 2019, at 8:38 p.m.; (4) that same evening, counsel “received 

an automatically-generated email” that the orphans’ court employee, to whom 

he had earlier emailed, “no longer worked there;” (4) the next morning, 

counsel called the orphans’ court, and was ultimately informed his 

transmissions “would be accepted and the appeal would be filed.” Father’s 

Answer to Order, 3/5/20, at 1-3. Counsel further averred he “underst[ood] 

that the appeal would be filed as of” December 18, 2019, but the court “dated 

this appeal on the following date of December 19[th].” Id. at 3-4. Finally, 

we note, counsel attached to his response: his initial email to the orphans’

court employee, a time-stamped notice of his facsimile transmission to the 

orphans’ court, and a time-stamped post-office receipt.

On March 10, 2020, this Court discharged the rule to show cause but 

advised the parties “the issues may be revisited by” the merits panel. Order, 

3/10/20.
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Father now raises the following issues for our review:

1. Was Father’s appeal timely filed?

2. Was the trial court’s decision to grant the subject Petition for 

Involuntary Termination of Parental Rights supported by 

competent evidence?

Father’s Brief at 4.

In his first issue, Father avers “he acted timely to perfect this appeal on 

December 18, 2019.” Father’s Brief at 8. In support, he relies on the 

statements presented in his response to this Court’s rule to show cause. 

Under the particular circumstances presented, we decline to quash this appeal 

for an untimely notice of appeal.

We note:

[T]his Court can raise jurisdictional issues sua sponte. An 

appellant must file a notice of appeal “within 30 days after the 

entry of the order from which the appeal is taken.” Pa.R.A.P. 

903(a). This Court “may not enlarge the time for filing a notice of 

appeal. . . .” Pa.R.A.P. 105(b). Absent a breakdown in the 

operations of the court, “[t]ime limitations on the taking of 

appeals are strictly construed and cannot be extended as a matter 

of grace.”

Commonwealth v. Valentine, 928 A.2d 346, 349 (Pa. Super. 2007) (some 

citations omitted). “The question of timeliness of an appeal is jurisdictional in 

nature. Failure to file a timely notice of appeal divests this Court of 

jurisdiction.” In re J.M.P., 863 A.2d 17, 19 (Pa. Super. 2004). “The 30-day 

period must be construed strictly. This Court has no jurisdiction to excuse a 

failure to file a timely notice.” In re Greist, 636 A.2d 193, 195 (Pa. Super. 

1994). An appellant may seek to file an appeal nunc pro tunc, which the trial 
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court may grant “when a delay in filing [an appeal] is caused by extraordinary 

circumstances involving fraud or some breakdown in the court’s operation 

though a default of its officers.” In re Adoption of W.R., 823 A.2d 1013, 

1015 (Pa. Super. 2003) (citation omitted).

In the present case, Father had thirty days from November 18, 2019 —

or until December 18, 2019 — to file a timely notice of appeal. See Pa.R.A.P. 

903(a). However, as stated above, Father’s notice of appeal was not filed 

until December 19th, one day later. We note that although counsel 

acknowledged he could not file the documents electronically, he sent the email 

and facsimile at 7:59 and 8:00 p.m., after normal business hours. 

Additionally, counsel did not seek to file the notice of nunc pro tunc. 

Nevertheless, in light of counsel’s averments, with supporting exhibits, we 

conclude there was a breakdown in the orphans’ court operations that excuses 

the one-day delay in filing. Accordingly, we decline to quash this appeal for 

an untimely notice of appeal.

In his second issue, Father contends the orphans’ court erred in 

conducting the hearing in his absence, where he had communicated to his 

counsel that he was en route but had little fuel in his vehicle. Father avers 

the court could have continued the hearing, but instead “improperly prioritized 

its judicial docket over [his] fundamental parental right.” Father’s Brief at 10. 

Father reasons he would have provided “testimony [that] is exactly the kind 

of critical evidence that a trial court must consider when” considering the 
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termination of parental rights. Id. at 10-11. We note Father does not provide 

any explanation of his anticipated testimony. Nevertheless, he concludes “the 

trial court did not acquire sufficiently competent evidence to support its” 

termination decree. Id. at 9. We disagree.

We first consider Father’s challenge to the orphans’ court’s conducting 

the hearing in his absence.

[The admission or exclusion of evidence is] within the sound 

discretion of the trial court, and we may reverse only upon a 

showing of abuse of discretion or error of law. An abuse of 

discretion may not be found merely because an appellate court 

might have reached a different conclusion, but requires a result of 

manifest unreasonableness, or partiality, prejudice, bias, or illwill, or such lack of support so as to be clearly erroneous. In 

addition, [t]o constitute reversible error, an evidentiary ruling 

must not only be erroneous, but also harmful or prejudicial to the 

complaining party.

Jacobs v. Chatwani, 922 A.2d 950, 960 (Pa. Super. 2007) (citation omitted).

Moreover, “[p]rocedural due process requires, at its core, ‘adequate 

notice, opportunity to be heard, and the chance to defend oneself before a fair 

and impartial tribunal having jurisdiction over the case.’” Garr v. Peters, 773 

A.2d 183, 191 (Pa. Super. 2001) (citations omitted). “Due process is flexible 

and calls for such procedural protections as the situation demands.” In re 

Adoption of Dale A., 683 A.2d 297, 300 (Pa. Super. 1996) (citation omitted). 

Here, the orphans’ court noted the termination hearing had “been 

scheduled for several months” and Father had notice of the hearing:

I know he got notice because I heard . . . very credible 

testimony[ ] about text messages that [F]ather gave to several 
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parties in this matter regarding his attendance at the hearing 

today.

N.T. at 3, 74. The court advised Father’s counsel that once Father arrived, 

“he is welcome to join us in this matter.” Id. at 3-4.

As stated above, the explanation provide by Father for his absence was 

a lack of fuel. Where Father had months’ notice of the hearing date, we

conclude the orphans’ court did not abuse its discretion in proceeding in his

absence. Furthermore, we emphasize that although Father now claims he 

would have provided testimony critical to the court’s decision, he does not 

offer any explanation for what that testimony would have been. See Father’s 

Brief at 9-11. Father also does not dispute any of the court’s findings. 

Accordingly, we discern no abuse of discretion by the orphans’ court in 

conducting the hearing in his absence. We now consider the court’s 

termination decree.

We note the relevant standard of review:

In reviewing an order involving termination of parental rights, our 

scope of review is broad, and all the evidence as well as the 

hearing court’s factual and legal determinations will be 

considered. The standard of review is limited to determining 

whether the decree of the lower court is supported by competent 

evidence and whether it gave adequate consideration to the effect 

of such a decree on the welfare of the child.

* * *

We are bound by the findings of the trial court[,] which have 

adequate support in the record so long as the findings do not 

evidence capricious disregard for competent and credible 

evidence. The trial court is free to believe all, part, or none of the 

evidence presented, and is likewise free to make all credibility 
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determinations and resolve conflicts in the evidence. Though we 

are not bound by the trial court’s inferences and deductions, we 

may reject its conclusions only if they involve errors of law or are 

clearly unreasonable in light of the trial court’s sustainable 

findings.

In re M.G., 855 A.2d 68, 73–74 (Pa. Super. 2004) (citations omitted).

This Court has explained:

Termination of parental rights is controlled by statute. See 23 

Pa.C.S.A. § 2511[. U]nder Section 2511, the court must engage 

in a bifurcated process prior to terminating parental rights. 

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) (some citations omitted).

A parent is “required to make diligent efforts toward the reasonably 

prompt assumption of full parental responsibilities. In re A.L.D. 797 A.2d 

326, 337 (Pa. Super. 2002).

“[A] parent’s basic constitutional right to the custody and rearing 

of [their] child is converted, upon the failure to fulfill [their]

parental duties, to the child’s right to have proper parenting and 

fulfillment of [their] potential in a permanent, healthy, safe 

environment. A parent cannot protect his parental rights by 

merely stating that he does not wish to have his rights terminated.

In re B.N.M., 856 A.2d 847, 856 (Pa. Super. 2004) (citations omitted).
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The court cannot and will not subordinate indefinitely a child’s 

need for permanence and stability to a parent’s claims of progress 

and hope for the future. Indeed, we work under statutory and 

case law that contemplates only a short period of time . . . in which 

to complete the process of either reunification or adoption for a 

child who has been placed in foster care.

In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super. 2006) (citations 

omitted).

In the present case, the orphans’ court terminated Father’s parental 

rights pursuant to Section 2511(a)(1) and (b), which provide:

(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) . . . 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.

See 23 Pa.C.S. § 2511(a)(1), (b).

A petitioner seeking termination of parental rights under Section 

2511(a)(1) must demonstrate through clear and convincing evidence that, for 
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a period of at least six months prior to the filing of the petition, the parent’s 

conduct demonstrated a settled purpose to relinquish parental rights or the 

parent refused or failed to perform parental duties. In Re Adoption of 

M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003). With respect to Section 

2511(a)(1), our Supreme Court has held:

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 Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1988). Further,

the trial court must consider the whole history of a given case and 

not mechanically apply the six-month statutory provision. 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.

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

Here, the orphans’ court discussed, at the termination hearing, its 

decision to terminate Father’s parental rights pursuant to Section 2511(a)(1):

[T]he evidence that I have heard today just doesn’t show me 

[Father’s] interest or . . . commitment to have a place of material 

importance in this child’s life.

* * *

This Court received no credible evidence documenting or 

demonstrating [F]ather’s attempt to contact [C]hild. Other than 

through child support payments[,] there was no contact, no 

birthday presents, no holiday presents, no cards, no calls, no 

visits, nothing. Just an absence.
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This Court is also struck by the testimony of [P]aternal 

[G]randfather and how important this matter is to him today, the 

fact that he made a lengthy drive, the fact that he came the night 

before just so he could be here.

* * *

Now, I also heard discussion about what this child wants and 

it sounds like this is a very lucky little girl in that she has very 

positive role models in her life. She has got the love and support 

of her paternal grandparents. She has the love and support of 

[Mother] and [S]tepfather in this matter.

In this case[,] the Court hereby determines that [Mother] has 

established by clear and convincing evidence that [F]ather has 

failed to perform his parental duties other than the payment of 

court ordered child support, and tha[t] even that was sporadic and 

when enforced, for a period of more than six months prior to the 

filing of the petition for termination of parental rights. It is clear 

that a parent who has no interaction with the child other than the 

payment of financial support, who has no visits, sends no cards, 

letters, photographs or gifts, and provides no emotional support 

for the child has failed to parent. In this case this failure has 

endured for approximately three years, well in excess of the six 

months prior to the filing of this petition.

* * *

. . . I note again [that Father] is not here . . . to explain the 

conduct or the reason for his absence. I have heard what could 

possibly be termed an incapacity of substance abuse [sic] or drug 

abuse[;] however, I heard [Paternal Grandfather] talk about 

[F]ather’s failed attempts to remedy that incapacity, and this 

Court finds no valid explanation for the conduct of [F]ather’s

absence in this child’s life for nearly the last three years.

By the same token, there has been no evidence presented 

regarding any post-abandonment contact between [Father] and 

the child in that three-year period.

N.T. at 72-76.
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After careful review, we conclude that competent, clear and convincing 

evidence in the record supports the decision of the orphans’ court. See In re 

L.M., 923 A.2d at 511. The evidence established that, aside from sporadic 

child support payments, Father has failed to perform his parental duties since 

December of 2016 — two years and five months prior to Mother’s termination 

petition filing. We again emphasize Father does not dispute any of the court’s 

findings, and does not explain what testimony he would have provided at the 

hearing. Accordingly, we do not disturb the court’s findings under Subsection

2511(a)(1).

With respect to Subsection 2511(b), we note:

Section 2511(b) “focuses on whether termination of parental 

rights would best serve the developmental, physical, and 

emotional needs and welfare of the child.” As this Court has 

explained, “Section 2511(b) does not explicitly require a bonding 

analysis and the term ‘bond’ is not defined in the Adoption Act. 

Case law, however, provides that analysis of the emotional bond, 

if any, between parent and child is a factor to be considered” as 

part of our analysis. “While a parent’s emotional bond with his or 

her child is a major aspect of the [S]ection 2511(b) best-interest 

analysis, it is nonetheless only one of many factors to be 

considered by the court when determining what is in the best 

interest of the child.”

[I]n addition to a bond examination, the trial court can 

equally emphasize the safety needs of the child, and 

should also consider the intangibles, such as the love, 

comfort, security, and stability the child might have with 

the foster parent. Additionally, this Court stated that the 

trial court should consider the importance of continuity 

of relationships and whether any existing parent-child 

bond can be severed without detrimental effects on the 

child.
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In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (citation 

omitted).

The orphans’ court explained its decision to terminate Father’s rights 

pursuant to Subsection 2511(b) as follows:

[I]n this case the testimony clearly established that [F]ather has 

not maintained contact nor sought opportunities to develop or 

maintain a relationship with this child. And this Court finds that 

there is no parental bond between the child and [F]ather. [F]ather

has not provided a home, has not met the child’s needs, has not 

visited the child, and has not developed and maintained a parentchild relationship. 

By contrast, the testimony of [M]other, [S]tepfather, and of 

[P]aternal [G]randfather all demonstrate convincingly that the 

[S]tepfather has worked diligently and painstakingly to become 

an important parental figure in this child’s life, that he is involved 

in her daily life and in building a loving home. Together with

[Mother, S]tepfather provides for the child’s physical and 

emotional needs and well-being and is a steady, supportive, 

nurturing and constant presence in her life.

I conclude that the emotional needs and welfare of this child 

can best be met by termination of the parental rights of [F]ather,

and that the child will not suffer a detriment as a result of 

terminating [F]ather’s parental rights.

In this case I find that there is no parental bond between 

[F]ather and the child. Moreover, I find that the testimony clearly 

and convincingly demonstrated a bond between [S]tepfather and 

this child. . . .

In addition, I find that the termination of [F]ather’s parental 

rights will best serve the needs and welfare of this child and will 

not irreparably harm the child.

N.T. at 78-79.

After reviewing the record, we conclude the evidence supports the 

orphans’ court determinations. As discussed above, by the time of the 
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November 2019 hearing, Child had not had any contact with Father for almost

three years. There was no evidence that Father and Child shared a parentchild bond. Mother testified that Child did not feel safe with Father. N.T. at 

21. Stepfather testified that Child saw Father at a previous hearing, was

terrified and upset, and cried. Id. at 35. Conversely, Mother testified that 

Stepfather has known Child since she was three years old, Child calls him “her 

dad,” and Stepfather is a “perfect father.” Id. at 12. Mother stated Stepfather 

“goes to all the school events, piano lessons. He does everything. He is what 

a father should be.” Id. Notably, Paternal Grandfather testified to Father’s 

“longstanding” history of addiction, beginning when Father was 15 years old,3

and that Paternal Grandfather “[a]bsolutely” supports “the adoption.” Id. at 

41, 43. We further note Mother has a good relationship with the paternal 

grandparents, and that Child has visits with them. See id. at 12 (Mother 

testifying that paternal grandparents “are great to us”). Contrary to Father’s 

contention, the testimony of Mother, Stepfather, and Paternal Grandfather 

was sufficient to support the court’s conclusions.

For the foregoing reasons, we affirm the orphans’ court’s decree 

granting Mother’s petition to involuntarily terminate Father’s parental rights 

to Child.

Decree affirmed.

____________________________________________

3 At the time of the termination hearing, Father was 30 years old.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/1/20