J-S61030-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN RE: ADOPTION OF E.J.S. IN THE SUPERIOR COURT OF PENNSYLVANIA

APPEAL OF: J.A.S. No. 1035 WDA 2014

Appeal from the Order of May 15, 2014 In the Court of Common Pleas of Cambria County Orphans’ Court at No. 2013 – 1147 IVT
BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and STRASS BURGER, J. * MEMORANDUM BY WECHT, J.: FILED NOVEMBER 7, 2014 In this appeal, J.A.S. (“Father”), appeals the May 15, 2014 order, in which the trial court involuntarily terminated his parental rights to his son, E.J.S. (“Child”), born in October of 2004. We affi rm. The record supports the following summary of the f acts of this case. Child originally lived with Father and S.S. (“Mothe r”) in Ebensburg, Pennsylvania. Notes of Testimony (“N.T.”), 5/14/20 14, at 39. Mother, Father, and Child then lived in Virginia for approx imately six months before they returned to Ebensburg. Id. at 39-40. Due to Father’s work, Mother, Father, and Child then moved to Pittsburgh for appr oximately six months. Id. at 41-42. In either 2005 or 2006, Father left Chi ld with Mother in Pittsburgh and moved back to Cambria County. Id. at 43. Mother and Father had agreed to a visitation schedule in which Father would see Child

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* Retired Senior Judge assigned to the Superior Cou rt.J-S61030-14

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every weekend. However, Mother never returned to p ick up Child after the second weekend. Id. at 43-44. After that, Child lived with Father and his paternal grandparents. Id. at 45. By 2009, Father lived in Nanty Glo, Pennsylvania, while Child continued to live with hi s paternal grandparents until May 2011. Id. at 7, 47. On May 6, 2011, Child’s paternal grandfather (“Pate rnal Grandfather”) died as a result of a brain aneurysm. Id. Child’s paternal grandmother (“Paternal Grandmother”) had a history of health is sues and was unable to care for Child. Id. On June 22, 2011, the trial court entered an emer gency custody order, with Paternal Grandmother’s consent, granting Child’s maternal grandfather (“Maternal Grandfather”) prima ry physical custody and sole legal custody. Id. Paternal Grandmother was granted visitation, including one week during the summer, with Child. Maternal Grandfather had not seen Father since Pat ernal Grandfather’s funeral in May 2011. Id. at 11. Maternal Grandfather also stated that, since Child started living with him, neither Matern al Grandfather nor Child had had any contact with Father, including letters, cards, presents, or phone calls. Id. at 8. On December 13, 2013, Maternal Grandfather petitio ned to terminate involuntarily Mother’s and Father’s parental rights , pursuant to 23 Pa.C.S.A. § 2511(a)(1),(2), and (b). On March 28, 2014, the trial court held an involuntary termination of parental rights hearing. At the request of Father, the trial court granted a continuance as to the det ermination of Father’sJ-S61030-14

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parental rights because Father did not have counsel . On May 14, 2014, a second hearing was held. At the conclusion of that hearing, Father’s parental rights were terminated pursuant to 23 Pa.C .S.A. § 2511(a)(1),(2), and (b). On June 16, 2014, Father filed his notice of appeal and concise statement of errors complained of on appeal. 1 Father presents the following question for our rev iew:
Whether the trial court either abused its discretio n or committed an error of law when it granted the Petition for In voluntary Termination of Parental Rights, thereby terminating the parental rights of [J.A.S.]?

Father’s Brief at 2. In reviewing an appeal from the termination of par ental rights, we review the order in accordance with the following s tandard: [A]ppellate courts must apply an abuse of discretio n standard when considering a trial court’s determination of a petition for termination of parental rights. As in dependency c ases, our standard of review requires an appellate court to a ccept 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 suppo rted, appellate courts review to determine if the trial court made an error of law or abused its discretion. Id. ; In re: 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

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1 While the order at issue was entered on the docke t on May 15, 2014, the docket indicates that notice was not provided t o the parties until May 20, 2014. Because the time in which to appeal does not begin to run until notice is provided, see In re L.M. , 923 A.2d 505, 508-09 (Pa. Super. 2007), Father’s notice of appeal was filed timely.J-S61030-14

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court might have reached a different conclusion. Id. Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partial ity, prejudice, bias, or ill-will. Id. As we discussed in R.J.T. , there are clear reasons for applying an abuse of discretion standard of review in these cases. We observed that, unlike trial courts, appellate court s are not equipped to make the fact-specific determinations o n a cold record, where the trial judges are observing the pa rties during the relevant hearing and often presiding over numer ous other hearings regarding the child and parents. R.J.T. , 9 A.3d at 1190. Therefore, even where the facts could suppor t an opposite result, as is often the case in dependency and termination cases, an appellate court must resist t he urge to second guess the trial court and impose its own cre dibility determinations and judgment; instead we must defer to the trial judges so long as the factual findings are supporte d by the record and the court’s legal conclusions are not th e 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) (citations modified; some citations omitted). Requests to have a natural parent’s rights termina ted are governed by 23 Pa.C.S.A. § 2511, which provides, in pertinent p art: § 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: * * * (2) The repeated and continued incapacity, abuse, n eglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence nec essary for his physical or mental well-being and the condi tions and causes of the incapacity, abuse, neglect or ref usal cannot or will not be remedied by the parent.J-S61030-14

- 5 - * * * (b) Other considerations. —The court in terminating the rights of a parent shall give primary consideration to the developmental, physical, and emotional needs and we lfare of the child. The rights of a parent shall not be termina ted solely on the basis of environmental factors such as inadequa te housing, furnishings, income, clothing and medical care if f ound to be beyond the control of the parent. With respect to any petition filed pursuant to subsection (a)(1), (6) or (8), th e court shall not consider any efforts by the parent to remedy the co nditions described therein which are first initiated subsequ ent to the giving of notice of the filing of the petition. 23 Pa.C.S.A. § 2511(a)(2), (b). In order to affirm the termination of parental rig hts, this Court need only agree that grounds to do so pursuant to any on e subsection of section 2511(a) have been established. See In re B.L.W. , 843 A.2d 380, 384 (Pa. Super. 2004) ( en banc ). Therefore, although the trial court found groun ds to terminate pursuant to multiple subsections, we w ill only address section 2511(a)(2). We need not address section (b) becaus e Father has not challenged the trial court’s finding that section ( b) was satisfied. It is well-settled that a party seeking terminatio n of a parent’s rights bears the burden of proving the grounds by clear an d convincing evidence, a standard that requires evidence that is “so clear, direct, weighty, and convincing as to enable the trier of fact to come t o a clear conviction, without hesitance, of the truth of the precise fact s in issue.” In re T.F. , 847 A.2d 738, 742 (Pa. Super. 2004) (citation omitted). To terminate parental rights pursuant to section 2 511(a)(2), the following three conditions must be met: “(1) repeat ed and continuedJ-S61030-14

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incapacity, abuse, neglect or refusal must be shown ; (2) such incapacity, abuse, neglect or refusal must be shown to have cau sed the child to be without essential parental care, control or subsist ence; and (3) it must be shown that the causes of the incapacity, abuse, neg lect or refusal cannot or will not be remedied.” In re E.A.P. , 944 A.2d 79, 82 (Pa. Super. 2008) (citations omitted). Our Supreme Court has held that incarceration cann ot be used as a ground for involuntarily terminated paternal rights ; rather, it may only be used as one factor in the overall analysis. [A] parent’s absence and/or failure to support due to incarceration is not conclusive on the issue of aba ndonment. Nevertheless, we are not willing to completely toll a parent’s responsibilities during his or her incarceration. Rather, we must inquire whether the parent has utilized those resou rces at his or her command while in prison in continuing a close r elationship with the child. Where the parent does not exercise reasonable firmness in declining to yield to obstacles, his ot her rights may be forfeited. In re: Adoption of McCray , 331 A.2d 652, 655 (Pa. 1975). More recently, the Court held that, [I]ncarceration, while not a litmus test for termin ation, can be determinative of the question of whether a parent i s capable of providing “essential parental care, control, or sub sistence” and the length of the remaining confinement can be cons idered as highly relevant to whether the “conditions and caus es of the . . . refusal cannot or will not be remedied by the paren t.”

S.P. , 47 A.3d at 830.J-S61030-14

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In the instant case, the three conditions mandated by E.A.P. to terminate parental rights have been satisfied. Fat her has demonstrated a refusal to provide Child with essential parental ca re, control, or subsistence. As a result, Child lacks essential parental care, c ontrol or subsistence from his natural father, and Father’s refusal will not b e remedied. Father admits that he has spent only three hours with Child over the last three years. N.T. at 25. He made attempts to contact Child by visiti ng Maternal Grandfather’s former residence, reaching out to Maternal Grandfat her’s nephew, and inquiring with Paternal Grandmother. Id. at 29. However, Father claimed he was unable to find Child and made no other effor t over the last three years to attempt to determine the Child’s whereabou ts. Additionally, Maternal Grandfather attempted to contact Father bu t could not find him, even with Paternal Grandmother’s assistance. Id. at 8. Father took no action in court for custody or time with Child. Id. at 30. At the time of the second involuntary termination o f parental rights hearing, Father had been incarcerated in the Cambri a County prison for nineteen months. However, the record does not indi cate that Father used any of the resources available to him during his in carceration to attempt to contact Child as the Supreme Court contemplated in McCray . Specifically, Father did not attempt to send Child any letters, b irthday cards, or presents for either birthdays or holidays. While Father ave rred that he did not know Maternal Grandfather’s new address, Paternal Grandm other was in contact with Child. Father never asked his mother to conve y a card or message toJ-S61030-14

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Child. Despite the fact that Father stated that he considered sending a birthday present or a Christmas present to the Chil d through Paternal Grandmother, Father never actually did so. Id. at 33. Child has begun referring to Maternal Grandfather a s his father, and has even started calling him “Dad.” Id. at 10. Attorney Gary F. Vitko, the guardian ad litem appointed by the trial court, interviewed Child, w ho stated that he could not remember what Father looked like. Id. at 58. At the time of the involuntary termination of paren tal rights hearing, Father remainded incarcerated in the Cambria County prison and did not have a set release date. Id. at 53-55. However, upon his release from jail, Father will not have suitable housing for both hims elf and the Child during the short term. Id. at 21. At the time of the hearing, Father also ha d not secured employment. Id. at 22. There is no evidence that indicates that, but for Maternal Grandfather initiating these proce edings, Father would have taken any interest in providing parental care, cont rol, or subsistence to Child. Father’s own testimony indicates that, at b est, he made only isolated attempts to get in touch with Child. Our Supreme Court has stated that a recent showing of interest in a child does not negate the lack of interest in a chi ld over an extended period of time. Adoption of Baby Boy A v. Catholic Social Services of Diocese of Harrisburg, Penna., Inc. , 517 A.2d 1244, 1247 (Pa. 1986). Here, Father has not demonstrated a consistent effort to become a part of theJ-S61030-14

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Child’s life. He has not “exercise[d] reasonable f irmness in declining to yield to obstacles” in maintaining a relationship with Ch ild. McCray , supra . Based upon this analysis, Maternal Grandfather has met his burden of demonstrating by clear and convincing evidence that the elements of 2511(a)(2) have been satisfied. Therefore, the tri al court did not abuse its discretion in involuntarily terminating Father’s pa rental rights. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/7/2014