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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 RE: ADOPTION OF: E.M.W., a Minor

IN THE SUPERIOR COURT OF

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.
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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].
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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 midsummer 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 
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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-
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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 
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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.
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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).
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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 
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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 postabandonment 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.
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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).
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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:
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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 greatgrandmother, 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 
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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.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/2/2016