J-S31013-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: L.A.C.H.

APPEAL OF: C.H. & A.H.

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1911 WDA 2016

Appeal from the Order Entered November 17, 2016

In the Court of Common Pleas of Clarion County 

Orphans’ Court at No(s): No. 227 OC 2016

BEFORE: PANELLA, DUBOW, and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J. FILED JUNE 2, 2017

C.H. (“Father”) and A.H. (“Stepmother”) appeal the order entered on 

November 17, 2016, that denied their petition seeking to involuntarily 

terminate the parental rights of K.D.H. (“Mother”), pursuant to the Adoption 

Act, 23 Pa.C.S.A. § 2511(a)(1) and (b), to L.A.C.H. (“Child”), the female 

child of Father and Mother, born in August 2008. We affirm.

In its opinion, the orphans’ court set forth the factual background and 

procedural history of this appeal, which we adopt herein. See Orphans’ 

Court Opinion, 1/24/17, at 1-14 (unpaginated). On September 28, 2016, 

Father and Stepmother filed the petition seeking to involuntarily terminate 
J-S31013-17

- 2 -

the parental rights of Mother to Child pursuant to section 2511(a)(1),1and a 

report of intention for Stepmother to adopt Child. The orphans’ court held an 

evidentiary hearing on November 16, 2016. At the hearing, Father and 

Stepmother presented the testimony of Cami Hrisak, Child’s therapist, as an 

expert as a licensed clinical social worker and in the field of counseling. 

Stepmother and Father testified on their own behalf. They also presented 

the testimony of S.J., who is Child’s teacher at school. Finally, Father and 

Stepmother presented the testimony of D.S., the headmaster at Child’s 

school.

Mother testified on her own behalf. She also presented the testimony 

of Jory Hubler, who is employed at Misty Isle Bridges; and S.M. and K.W., 

who are Mother’s friends.

Based on this testimony and the documentary evidence admitted at 

the hearing, the court entered its order denying the termination and 

adoption petitions. Father and Stepmother timely filed a notice of appeal and 

concise statement pursuant to Pa.R.A.P. 1925(a)(2)(i).

On appeal, Father and Stepmother raise three issues:

1. Did the Orphans Court abuse its discretion and err as a 

matter of law in failing to consider the statute in 23 Pa.C.S.A. 

§ 2511 (a)(1) which states that “[t]he parent by conduct 

____________________________________________

1 The petition provided that Father and Stepmother were married in June 

2014, and that Father had primary physical custody of Child since a March 6, 

2015 stipulation and custody consent order, which provided Mother an 

opportunity for supervised visits with child through Misty Isle Bridges.
J-S31013-17

- 3 -

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

failed to perform parental duties.” [emphasis added] 

...

2. Did the Orphans Court abuse its discretion and err as a matter 

of law in failing to consider the statute in 23 Pa.C.S.A. § 2511 

(a)(2) which states that “[t]he repeated and continued 

incapacity, abuse, neglect or refusal of the parent has caused 

the child to be without essential parental care, control or 

subsistence necessary for his physical or mental well-being and 

the conditions and causes of the incapacity, abuse, neglect or 

refusal cannot or will not be remedied by the parent.” 

[emphasis added]

...

3. Did the Orphans Court abuse its discretion and err as a matter 

of law in failing to consider under “Other considerations” (23 

Pa.C.S.A. § 2511(c)[)] that Mother had been designated a sexual 

abuse perpetrator by the Pennsylvania Department of Welfare 

Children and Youth Services under the Child Line Abuse Registry 

for acts perpetrated on the child in question.

...

Father’s and Stepmother’s Brief, at 5-6 (emphasis and brackets in original). 2

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. If the factual findings are 

supported, appellate courts review to determine if the trial court 

made an error of law or abused its discretion. As has been often 

stated, an abuse of discretion does not result merely because 

____________________________________________

2 We note that the concise statement did not include the statutory section in 

the third issue. We, nevertheless, find the issue preserved for our review.
J-S31013-17

- 4 -

the reviewing court might have reached a different conclusion. 

Instead, a decision may be reversed for an abuse of discretion 

only upon demonstration of manifest unreasonableness, 

partiality, prejudice, bias, or ill-will. 

[T]here are clear reasons for applying an abuse of 

discretion standard of review in these cases. We 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. 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 817, 826-827 (Pa. 2012) (internal citations 

omitted).

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. See In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). 

Moreover, we have explained that

[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 their brief, Father and Stepmother contend that the orphans’ court 

abused its discretion or erred as a matter of law in concluding that the 

evidence was insufficient to support the involuntary termination of Mother’s 
J-S31013-17

- 5 -

parental rights under § 2511(a)(1). Alternatively, they argue the court 

abused its discretion or erred as a matter of law in concluding that the 

evidence was insufficient to support the involuntary termination of Mother’s 

parental rights under § 2511(a)(2).3Finally, they urge that the court abused 

its discretion in failing to consider, under “Other considerations,”4that 

Mother had been designated a sexual abuse perpetrator by the Pennsylvania 

Department of Welfare Children and Youth Services under the Child Line 

Abuse Registry for acts perpetrated on Child. 

This Court may affirm the lower court’s decision regarding the 

termination of parental rights with regard to any one subsection of section 

____________________________________________

3 The orphans’ court never reviewed § 2511(a)(2), finding that section was 

not raised in the petition. We agree with the court that Father and 

Stepmother waived § 2511(a)(2) by failing to raise that section in the lower 

court. See Pa.R.A.P. 302(a). The fact that Father and Stepmother raised the 

claim in their concise statement does not alter our conclusion. See 

Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003) (stating 

“[a] party cannot rectify the failure to preserve an issue [for appeal] by 

proffering it in response” to the court’s request for a Rule 1925(b) 

statement).

4

Father and Stepmother cite § 2511(c) as providing for “Other 

considerations.” This citation appears to be a typographical error, as the 

section captioned “Other considerations” is § 2511(b), infra. Section 

2511(c), is captioned, “(c) Right to file personal and medical history 

information.” Section 2511(c) provides, “At the time the decree of 

termination is transmitted to the parent whose rights have been terminated, 

the court shall advise the parent, in writing, of his or her continuing right to 

place and update personal and medical history information whether or not 

the medical condition is in existence or discoverable at the time of adoption, 

on file with the court and with the Department of Public Welfare pursuant to 

Subchapter B of Chapter 29 (relating to records and access to information).” 

(footnote omitted). 
J-S31013-17

- 6 -

2511(a), along with section 2511(b). See In re B.L.W., 843 A.2d 380, 384 

(Pa. Super. 2004) (en banc). Section 2511(a)(1), (2), and (b), provide as 

follows:

§ 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 are first initiated subsequent to the 

giving of notice of the filing of the petition.

23 Pa.C.S.A. § 2511.

With respect to § 2511(a)(1), our Supreme Court has held that

[o]nce 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). 
J-S31013-17

- 7 -

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

Further, this Court has stated that

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, 854-855 (Pa. Super. 2004) (citations 

omitted).

Father and Stepmother argue that the record clearly established that 

Mother’s conduct over the six months immediately preceding the filing of the 

petition demonstrated that Mother had a settled purpose of relinquishing her 

parental claim and failed to perform her parental duties with regard to Child 

during the six-month period preceding the filing of the termination petition.

In its opinion, the court ably and methodically considered the evidence 

presented at the hearing, and addressed Father’s and Stepmother’s issues. 

The court’s credibility determinations are supported by competent evidence 

in the record, so we will not disturb them. Accordingly, we adopt the court’s 

discussion herein. See Orphans’ Court Opinion, 1/24/17, at 15-18 

(unpaginated). 

Next, in regard to Father’s and Stepmother’s third issue, that the court 

failed to properly consider Mother’s record as “indicated” for child abuse as 

“Other considerations” under the Adoption Act, see Orphan’s Court Opinion, 
J-S31013-17

- 8 -

1/24/17, at 4-5 (explaining circumstances of the “indicated” finding) 

(unpaginated), we view this issue as a matter being raised in relation to 

Child’s needs and welfare, under § 2511(b), see note 4, supra. 

Here, the court found, on the record, that there had been a fairly 

strong bond between Mother and Child at one time in this matter, and that 

there might still be a bond. See N.T., 11/16/16, at 268. The court, however, 

was unable to determine the present existence of a bond because of the 

interference of Father and Stepmother with Mother having the supervised 

visitation to which she was entitled. See id., at 267-268. Thus, the court 

found that Father and Stepmother had failed to sustain their burden of 

proof. See id., at 268-269. 

We have thoroughly reviewed the record, the parties’ briefs, and the 

applicable law with the above standards of review in mind. The record 

supports the court’s factual findings, and the court’s legal conclusions are 

not the result of an error of law or an abuse of discretion. As we agree with 

the court that termination of Mother’s parental rights under § 2511(a)(1) 

was not warranted, and under section 2511(a)(2) was waived, the court 

properly did not proceed to conduct a § 2511(b) analysis. 

We find no abuse of the court’s discretion in failing to find that 

Mother’s record as “indicated” for child abuse impacted on Child’s needs and 

welfare under § 2511(b). The court found from the evidence that Father and 

Stepmother had interfered with Mother’s previous close relationship with 
J-S31013-17

- 9 -

Child by their placement of insurmountable obstacles between her and Child, 

so that Father and Stepmother interfered with the bond between Mother and 

Child. See Orphans’ Court Opinion, 1/24/17, at 18 (unpaginated). This 

determination is supported by competent evidence in the record. 

Accordingly, we affirm the orphans’ court’s order based on the 

discussion in the court’s opinion entered on January 24, 2017. See Orphans’ 

Court Opinion, 1/24/17, at 15-18 (unpaginated).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/2/2017
The petition to involuntarily terminate the parental rights 

of the natural mother was filed on behalf of the natural father 

and stepmother who desires to adopt on September 28, 2016. 

The petition alleges as grounds for the termination at 

paragraph 10 of the petition: "The natural mother, by her 

conduct, has for a period in excess of six (6) months, 

clearly indicated a settled purpose of relinquishing 

parental claim to the adoptee. She has refused and failed 

to perform any parental duties whatsoever." This is an 

allegation under 23 Pa.C.S.A. Section 2511 (a)(l). No other 

section of the statute was cited in the petition as possible 

grounds for termination. After a hearing on November 16, 

2016 this court entered an order denying the petition for 

involuntary termination. The petitioners have appealed that 

decision, This opinion is entered to further explain the 

rationale of the court. 

OPINION 

Millin, P. January 23, 2017 

No. 16-16-227 

INRE: 

ADOPTION OF L.A.C.H. 

(d.o.b.-2008) 

.:RECEIVED 

JAN 2 4 2017 

IN THE COURT OF COMMON PLEAS 

OF CLARION COUNTY, PENNSYLVANIA 

ORPHANS' COURT DIVISION 

__ _ Circulated 05/16/2017 03:38 PM 

=- 

-- - -·- - .. _ - -- - ·- 
when the child was born and lived together with the child until 

July 2010 when they separated. (T p.103) 

At the time of separation the mother obtained a 

protection from abuse order against the father which was 

entered by agreement and which made the natural mother the 

primary custodian of the child and granted the father partial 

custody three weekends per month. (T p. 103) 

In August 2011 father and mother agreed to a 50/50 

custody arrangement. (T p. 158) 

On June 19, 2013 the parties entered into a stipulation 

whereby the father became the primary custodian with mother 

having partial physical custody every other weekend. The 

mother testified that prior to the involvement of the 

stepmother that she and the father successfully co-parented. 

A. When we first separated, I had primary physical 

custody and with him granted the first three weekends 

of the month. And through the week, I would know he 

12, 1990. The child is L.A.C.H., born 2008. 

(Transcript "T" pp. 38-40) 

The natural mother and the natural father were married 

The natural father is C. J. H., born July 15, 1987. The 

natural mother is K. D. H., born June 5, 1988. The step mother 

and proposed adopting parent of the child is A. H., born March 

The relevant facts are as follows: 

... _ ,.,_ - - --- - 
Mother testified that the co-parenting became more 

difficult when the stepmother became involved. She stated that 

the stepmother would give her parenting advice at the custody 

exchange times. (T 159,160) 

Mother agreed to give up her weekday contact and to 

have every other weekend at the time the child was entering 

school. She stated that she had been living with her mother for 

a short time and that they had had a falling out and for that 

reason she agreed to meet with the father and stepmother at 

the father's attorney's office for the purpose of working out 

another custody agreement. (T p.160) 

Mother took the position that the child should be placed 

in a public school rather than the church school. She said that 

"I felt that it would be biased and all one-sided, her going to the 

school being it's their church, it's their friends) it's their home 

life all in the one but my concern was, I would be pushed out 

A. We had to go through his mom with the PFA in effect, 

but yes. (T pp.157-158) 

Q. Would you say that you successfully co-parented? 

~ (~ 

would have certain days off, so I would let him go 

ahead and have [ child] on those days, or I would work 

with his mom if they wanted to do something through 

the week, and I worked with them. 
mother had posted on social media. Father and stepmother 

took the photos to the child's therapist who filed a report with 

ChildLine on January 20, 2015. (Transcript "T" pp.65-66) 

The report initiated a child protective services 

investigation. The investigation led to a finding by the 

Department of Human Services that the mother was the 

perpetrator of an act pf sexual abuse. (Petitioners' Exhibit 1) 

The report states as the category of abuse "Causing Sexual 

Abuse or Exploitation of a Child Through Any Act/Failure to 

Act", and lists the subcategory of abuse as "Actual/Simulated 

Sexual Activity for the Purpose of Producing Visual Depiction". 

The outcome explanation states "This case is being indicated 

~ . 

so I requested, can she please be put into a public school ... " (T 

p.160) 

The father agreed that the child would be put in the 

public schools for kindergarten but then told mother that they 

had missed the deadlines and could notget the child in and he 

enrolled her in the church school stating that she would be put 

in the public school the next year, but that was not done. (T 

pp.161-162) 

In January 2015 the father and stepmother became aware 

that the mother had posted two nude pictures of the child 

among forty pictures of the child and her half sister that 

:.· - • - d - .. 
for sexual abuse. Based on the evidence it has been determined 

that [Mother] was acting recklessly and carelessly when she 

posted a picture of [ child] on the toilet with her genitals 

exposed. Factors taken into consideration are the hand gesture 

[Mother] is making, [Mother's] facial expression, as well as 

[child's] appearance." (Petitioners' Exhibit 1) 

Stepmother has _a bachelor's degree in early child 

development and in special education and works as an autism 

support teacher at the New Story School in Duflois, 

Pennsylvania. (T p. 38) As such she is a mandatory reporter 

for child abuse and had just completed "twenty some hours of 

training" about child sexual abuse. (T pp.65-66) 

When father and stepmother became aware that a 

Children and Youth investigation had been initiated they told 

the mother that if they allowed the mother to have visitation 

with the child that the stepmother could possibly lose her 

license to teach and her job. Father and stepmother sent 

mother a message via Facebook that they were aware of the 

children and youth investigation, knew what it was about and 

would like to postpone the mother's next visit to see how the 

children and youth investigation turned out. They also told 

mother that they would tell the child that the visit was 

postponed due to the fact that the child had the flu. (T p.6 7) 
The children and youth investigation continued and 

neither the father nor mother were kept informed of the status 

of it. No one from Children and Youth had told the father or 

step mother that the mother could not have the custody rights 

expressed in the existing custody order, but father and step 

mother "thought it would be best if custody was modified". For· 

that purpose they .arranged a meeting with the mother and her 

boyfriend at the father's attorney's office. The mother was not 

represented by counsel. (T pp. 6 7-69) 

On March 6, 2015 mother signed a stipulation and 

custody consent order whereby father was granted primary 

physical custody with mother having supervised visits through 

Misty Isle Bridges, a private counseling center. (T p.69) 

The mother believed that father and stepmother were 

trying to help her through the trauma of the Children and 

Youth investigation and that they would help her in 

maintaining a relationship with the child, when, in fact, 

Children and Youth never mandated any change in the 

custodial arrangement. Father and mother were responsible 

for the initiation of the Children and Youth investigation by 

taking the photos to the child's therapist. (T pp. 65- 70) 

. At the time mother signed the consent order terminating 

her custody rights to non-supervised contact, she believed that 

= - - .. 

,,...__ ... -- . 
father and step mother would make the arrangement flexible, 

,, 

that they would allow visits in the park and invite her for 

dinner in their home, but once the agreement was signed they 

took the position that the court order did not permit them to 

do so. (T p. 70) 

When the mother attempted to initiate her supervised 

visits she was told that Misty Isle Bridges needed to receive a 

copy of the court order which had not been given to her by 

father's attorney. She asked the father and stepmother about it 

and was told that father had not received a copy of the order 

either. Father did not receive a copy of the order for a month 

after signing. (T p. 72) 

The father and stepmother refused to permit any type of 

visits even supervised by them unless the Children and Youth 

investigation was dismissed as unfounded. (T p. 73) 

Even after the father and stepmother received a copy of the 

order and were aware that the mother's visits could not be 

initiated at Misty Isle Bridges without it and that mother did 

not have a copy of the order they did not offer to give her a 

copy. They gave. her the phone number for their attorney so 

she could call and see why she had not been sent her copy of 

the order. (T pp. 75-76) 

The father testified as follows: 
Op. 8 

A. I did not feel that it was incumbent upon me to do that 

work for Kayla. 

A. Correct. 

Q. And you chose to not facilitate that supervised 

visitation whatsoever? 

Q. But she wouldn't have had to cope if there were other 

ways to set up the visitation, correct? 

A. I wasn't overly concerned. I was a little concerned, but 

[ child] seem to be coping with it just fine. 

Q. But my question was, were you concerned that she 

wasn't getting any visitation and the reason, at least at the 

beginning, was that Misty Isle Bridges required the 

custody order and she didn't have it? 

A. That's what she was allotted. She didn't always take 

them. 

Q. Were you concerned at all for [child] that she wasn't 

getting any visitation with her mother when she had 

previously, at least three weekends a month, you had 

testified to? 

A. We had notified her when we received ours, and two 

weeks later, she said that she still had not received hers, 

which we then gave her contact for [father's attorney's] 

office, since that's where we signed it, that would be the 

easiest place for her to obtain a copy for herself. 

Q. Were you aware that Kayla did not receive a copy of 

the signed stipulation? 

- . ... .. - - - -- 
Op. q 

A. I was notified in 2015 of photos that were taken in 

2014 of my girls. When they showed me the pictures, I' 

had taken pictures of my girls playing. We were all 

downstairs playing in the playroom, I mean, the 

downstairs in the playroom and her little sister was using 

an exersaucer like a little bit after Christmas. That's what 

she got for Christmas. [Child] had told me she had to use 

the bathroom, and she said, well, I want my baby sister to 

come. I said, you can go to the bathroom. Your baby sister 

will be fine. You'll be okay. And I was cleaning while they 

were playing, and I thought she went to the bathroom, 

and I heard them giggling, so I peeked over, and I saw 

[Child] was sitting on her potty, and she was playing 

peekaboo with her sister in the exersaucer. And I'm like, 

oh, this is adorable, you know, and not thinking, I like 

took pictures, you know, and I'm like, oh, my gos.h, look at 

this. These two are inseparable. And when I posted them, 

I posted them in a big group of like 30 photos, and I didn't 

The only explanation presented to the court concerning 

the pictures which were the basis for the indicated finding of 

child sexual abuse other than the language from Petitioner's 

Exhibit 1 hereinabove quoted came from the mother: 

Q. So I want to talk about what stemmed from the CYS 

investigation. Can you tell me when you were notified 

that there was an investigation? 

A. I guess. (T pp. 121-122) 

Q. So you chose to-not allow your daughter to have any 

visitation during that time? 
Of. to 

A. Yes. We were actually-we wanted to have our 

visitation->I was supposed to get her Valentine's Day 

weekend, which is always a big deal with me and [Child]. 

We always did a mommy/ daughter thing like where we 

would make dinner together, and we would--I called her 

my love bug. So I was supposed to get her, and then I 

contacted them about like getting her that visit and stuff, 

and they were--we had to have a conversation before and 

that with [Child's] being sick, we'll go ahead and try--with 

this going on, just until we know further what's going on. 

We have no clue what this is about, and we're praying for 

you, is what Annie and Caleb were telling me. And--I'm 

sorry, I just--with that, they requested that we have a sitdown conversation, the four of us, and talk things of what 

we can do because knowing how well things went co-- 

parenting over the holidays and stuff, I was like more 

trusting of them. So when she had shown me her concern 

about her degree, she had told me she would lose her 

degree and she would lose her job sending her with this 

investigation, that we need to have a sit down 

conversation to talk about what our options are, that we'll 

Q. So then sometime after that, you were contacted to set 

up a meeting with Caleb and Annie? 

think about it, and I own up to that. I should have. But I 

was notified of the CYS investigation after literally the 

week after I lost--I didn't want to lose [Child], but I 

handed her over after a visit, and they had notified+I'm 

pretty sure it was like the beginning of February when 

CYS had actually called me to set up saying there's 

concerns about your child with sexual accusations, and I 

said oh, my gosh ... (T pp.164-165) 
Op. II 

Mother stated that the stepmother had told her that they 

were already having something written up which would 

provide that until the investigation was completely over that 

she would be limited to supervised visitations but that in the 

A. I couldn't afford any kind of counsel, especially with 

the investigation and everything that went on, just-- 

(Testimony pp.166-168) 

Q. You financially couldn't? Is that what you said? 

A. No. I financially couldn't. 

Q. And were you represented by counsel during this time? 

A. Annie and Caleb told me that the courts, with this 

investigation, would cut my rights off and that they were 

willing to set up some kind of supervision like visits 

where legally, it protects me, but it also lets me get to see 

them and be open to where we would could set up 

different times and dates where we couldQ. Who told you this? 

A. With the investigation going on, they had told me that 

they would terminate my rights then when we were 

talking, that they wouldn't let me see her at all. 

Q. Did you believe that you had to change the custody 

agreement? 

go ahead and tell [Child] right now what we need to tell 

her, and then we'll go from what we discussed. 
(Tpp. 214-_215) 

The mother explained the initiation of her phone 

contacts, 

Q. In the meantime, being that you couldn't set up your 

supervised visitations, what type of contact did you have 

with [Child]? 

meantime they would be willing to "set up like park dates or 

they would--we could meet for dinners or movies, something 

where all of us can be together. That way, no body can be held 

accountable for anything if anything was to come out, that they 

didn't see me as a threat of anything."(T pp. 168-169) 

The mother called Misty Isle Bridges the next day after 

signing the order to set up her visitations but was told that 

Misty Isle Bridges could do nothing until they received the 

court order. The mother also drove with her boyfriend's 

mother to find the location of Misty Isle Bridges within a week 

of signing the custody stipulation. (T pp. 171-172) 

The mother contacted the father's attorney's office to 

request the order and was told, "They said there was nothing 

they can do." (T p. 173) 

The mother did not receive the order until August 31, 

2016. The father's attorney who prepared the stipulation and 

order took the position that it was the responsibility of the 

mother to make sure that the court had her current address. 

_ ...... ~ - -- - ... 
Op.'' 

The mother was familiar with the address and contact 

information for the father throughout the entire lifetime of the 

Child. (T pp 104-105) 

The mother had no custodial time with the child from the 

initiation of the Children and Youth investigation at the end of 

January, 2015 to the time of the hearing on termination of 

parental rights on November 16, 2016. (T pp105-106) 

In a phone conversation between mother and the Child 

between March, 2015 and August, 2015 mother told daughter 

A. They were always doing something. There was 

always this going on or they had this going on, like her 

gymnastics, too. (T pp. 17 4 

Q. When you say when allowed, what do you mean by 

that? 

A. I would have phone conversations after a little bit. 

[Stepmother] had told me--expressed to me about how 

[Child] was having a hard time with electronic devices, 

that she didn't like her pictures taken anymore or she 

was leery about being on the phone or face time. I 

suggested face time because my mother-in-law had an 

!Phone and I know he had an !Phone, so I figured, you 

know, my youngest daughter can't talk, and that way 

they could see each other, but mainly phone calls with 

on-and-off when allowed and we could schedule these 

things. 

------ . 
The mother's attempts at phone communication were 

resisted by the father and step mother and mother's attempts 

lessened after a few months. Letters and pictures sent by the 

mother to [Child] were returned to her. (Transcript pp. 241- 

245) 

that she was waiting on the papers to come in the mail so that 

she could have in person visitation with the Child. (T p. 128) 

The mother had no phone contact with the child from 

September, 2015 through the time of the hearing on 

termination of parental rights. (T pp106-107) 

The father did not feel comfortable with the mother 

having supervised visits with the Child until he could question 

her about where she was in her life. (T pp 118-119) 

When the father was contacted by Misty Isle Bridges that 

the mother wanted to arrange the supervised visits 

(September 19, 2016) he contacted his attorney to file the 

papers for termination of parental rights which he had 

discussed with the attorney previously. Father agreed to a visit 

twice, but cancelled both times. (T pp123-124) 

The mother finally obtained a copy of the court order and 

delivered it to Misty Isle· Bridges on August 31, 2016. (T p. 

185) 
Op. JS 

The statute involved, 2 3 Pa.C.S.A. Section 2 511 provides 

that the parental rights of a parent to a child may be 

terminated after a petition is filed on the grounds stated. Here 

the only section set forth in the termination petition is section 

(a) (1) which provides, "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." In Appellants' statement of 

matters complained of on appeal Appellant asserts that it was 

error for the court not to consider section (a)(2) in making the 

decision in this case, but section (a) (2) was not cited in the 

petition to terminate. Pa.0.C. Rule 15-4 requires that the 

petition to terminate include, "(6) facts constituting grounds 

for the involuntary termination under Section 311 of the 

Adoption Act.and a reference to the applicable subsection or 

subsections; ... n Since section (a)(2) was not cited in the 

petition it would be improper for the court to apply that 

section. 

In a termination of parental rights case, the burden of 

proof is on the party seeking termination to establish by clear 

and convincing evidence the existence of grounds for doing so. 

The standard of "clear and convincing evidence" means 

-------------------~----·------------·---··--···"·------- - - - 
OP· I(; 

testimony that is so clear, direct, weighty, and convincing as to 

enable the trier of fact to come to a clear conviction, without 

hesitation, of the truth of the precise facts in issue. In re Z.P., 

· 994 A.2d 1108, 2010 PA Super 56. 

The statute permitting involuntary termination of 

parental rights on the ground of evidencing a settled purpose 

of relinquishing a parental claim to a child or refusing or failing 

to perform parental duties must be read in the disjunctive. 

Termination may be ordered either if the parent has evidenced 

for a period of six months a settled purpose of relinquishing 

parental claims or if the parent has, for the same length of time, 

refused or failed to form parental duties. Matter of Adoption of 

Charles E.D.M.1/, 550 Pa. 595, 708 A.Zd 88 (1998) 

A court may terminate parental rights under section 2511 

(a) (1) where the parent demonstrates a settled purpose to 

relinquish parental claim to a child or fails to perform parental 

duties for at least the six months prior to the filing of the 

termination petition. Although it is the six months immediately 

preceding the filing of the petition that is most critical to the 

analysis, the 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 

4 " 
Op. 11 

.-.... - - - -- 

offered by the parent facing termination of her parental rights, 

to determine if the evidence, in light of the totality of the 

circumstances, clearly warrants the involuntary termination. 

In Re KZ.S., 946 A.2d 753 (2008), 2908 PA Super 62. 

At the conclusion of the hearing when I rendered my 

decision I may have focused too much on the statutory six 

month period, and the fact that immediately preceding the 

filing of the petition the mother was finally getting around to 

taking the steps necessary to reestablish her custodial rights. 

There is no doubt that she was trying to get visitation restored 

prior to the filing of the petition to terminate. I said in my 

remarks at the conclusion of the hearing that it was almost 

unfair to the father given the long period she went without 

contact, but in reviewing the law and looking more closely at 

the entire period of time and the explanations offered by the 

mother for not having contact it became clear that the father 

and step mother were making it difficult for the mother. All 

circumstances must be considered when analyzing a parent's 

performance or nonperformance of parental obligations. The 

parent's performance must be measured in light of what would 

be expected of an individual in circumstances in which the 

parent under examination finds herself. Did she use the level of 

resolve necessary to overcome the obstacles put in her way? 
Paul H.· Millin, S.J., S.P. 

Given her circumstances I believe that she did. I believe her 

testimony about interference with phone calls and return of 

letters. I believe her testimony about her efforts to obtain a 

copy of the court order. From January 31, 2015 to the time of 

the hearing on termination the father and stepmother were 

placing or maintaining roadblocks to her ability to parent. 

There is no evidence that mother ever had an intent to 

abandon the Child. Mother did not perform parental duties 

because of the interference of the father and stepmother, and 

mother was as of August 31, 2016 actively involved in 

asserting her parental rights by the fact that she had delivered 

a copy of the court order to Misty Isle Bridges and asked to 

have her supervised visits established. I also believe her 

testimony about her previously close relationship with the 

child and the relationship of the child to her other daughter. 

Given the foregoing it is clear that father has failed to prove his 

case by clear and convincing evidence. 

Respectfully submitted, 

If