J-S19016-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN RE: ADOPTION OF: C.M.H., A 

MINOR

APPEAL OF: S.H., MOTHER, & M.S., 

STEPFATHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 78 MDA 2024

Appeal from the Decree Entered January 3, 2024

In the Court of Common Pleas of Luzerne County Orphans’ Court at 

No(s): A-9521

BEFORE: DUBOW, J., BECK, J., and COLINS, J.*

MEMORANDUM BY BECK, J.: FILED: JULY 11, 2024

S.H. (“Mother”) and M.S. (“Stepfather”) (collectively “Appellants”)1

appeal from the decree entered by the Luzerne County Orphans’ Court 

(“orphans’ court”) denying Appellants’ petition to terminate the parental rights 

of natural father, A.M.D.L.R. (“Father”), to C.M.H. (“Child”), born February 

2016. Appellants argue that clear and convincing evidence established 

Father’s parental rights should have been terminated pursuant 23 Pa.C.S. 

§ 2511(a)(1) and (b). Upon review, we affirm.

The record reflects that Mother and Father were never married and, 

during their relationship, resided in Brooklyn, New York with Father’s uncle. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 We have amended the caption to reflect that both Mother and Stepfather 

jointly filed a notice of appeal.
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The parties separated when Child was nine months old. Father moved out of 

his uncle’s home; Mother continued to live there. Father attempted to file

actions for custody and support in New York in 2017; however, he filed 

incorrect legal documents, including a petition for paternity despite the fact 

there was no dispute that he was Child’s father.

2

 Father also was unable to 

locate Mother to effectuate service, as Mother had moved out of his uncle’s 

home. 

Father did not have contact with Child again until he was two years old. 

In 2019, Mother moved to Luzerne County with Stepfather and Child.

3

 Mother 

did not notify Father about the move. Subsequently, Mother informed Father 

that she had been diagnosed with stage 4 multiform glioblastoma, and Father

spent time with Child on multiple occasions in 2020 while Mother received 

medical care in New York City. Mother estimates that Father saw Child six 

times in 2020. Thereafter, Mother sought financial support from Father for 

Child’s care. For approximately one year, Father sent Mother $200 per month.

On two occasions, she returned the money. In 2022, Father continued to see 

Child occasionally. In December 2022, Mother gave Father her Pennsylvania 

____________________________________________

2 The trial court noted that Father required the services of an interpreter as 

he is not a native English speaker and further observed that his limited ability 

to understand English, combined with lack of counsel, could have contributed 

to his filing incorrect documents. Orphans’ Court Opinion, 2/21/2024, at 20-

21.

3 Appellants married in November 2022. 
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address for the first time. In 2023, Father communicated via text messages

with Mother regarding Child and requested visits with Child or the ability to 

FaceTime with Child. Father indicated Mother would make excuses as to why 

he could not see Child. Father, however, called Child on his birthday in 

February 2023.

On June 19, 2023, Appellants filed a petition for involuntary termination 

of Father’s parental rights, alleging Father had no contact with Child for the 

six months preceding the filing of the termination petition, failed to perform 

any parental duties for Child, failed to request any form of physical contact 

with Child—evidencing a settled purpose to relinquish his parental claim—and 

only sporadically asked Appellants about Child.

4

 On July 24, 2023, Father filed 

a custody complaint in Pennsylvania. The parties reached an agreement as 

to Father’s complaint, giving Father periods of partial custody of Child one 

time per week. Father comes from Brooklyn, New York to Luzerne County to 

exercise custody.5

____________________________________________

4 Appellants also indicated that Stepfather would adopt Child if Father’s 

parental rights were terminated. See Petition, 6/19/2023, at 2 

(unnumbered); see also In re Adoption of M.R.D., 145 A.3d 1117, 1120 

(Pa. 2016) (stating that a “petitioning parent must demonstrate that an 

adoption of the child is anticipated in order for the termination petition to be 

cognizable”).

5 Father lives in Brooklyn with his girlfriend and two other children. N.T., 

12/14/2023, at 36-37.
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In December 2023, the orphans’ court held several hearings on 

Appellants’ termination petition, wherein Mother, Father, and Stepfather 

testified.6 The orphans’ court ultimately denied the petition to involuntarily 

terminate Father’s parental rights. The orphans’ court found that Appellants 

did not establish by clear and convincing evidence that Father evidenced a 

settled purpose of relinquishing his parental claim to Child. Appellants filed a 

timely appeal and a concise statement of matters complained of on appeal 

pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).

Appellants raise the following questions for our review:

A. Whether the [orphans’] court erred in denying [] Appellants’

petition to terminate parental rights and/or abused its 

discretion with respect to [23 Pa.C.S. §] 2511(a)(1) of the 

Adoption Act?

B. Whether the [orphans’] court erred in denying [] Appellants’

petition to terminate parental rights and/or abused its 

discretion with respect to [23 Pa.C.S. §] 2511(a)(2) of the 

Adoption Act?

C. Whether the trial court erred in denying [] Appellants’ petition 

to terminate parental rights and/or abused its discretion with 

respect to [23 Pa.C.S. §] 2511(b) of the Adoption Act?

____________________________________________

6 The orphans’ court appointed Attorney Masha Basco (“Attorney Basco”) as 

counsel for Child. The orphans’ court noted that Attorney Basco stated that 

was no conflict of interest in her ability to represent both the best and legal 

interests of Child. N.T., 12/11/2023, at 4; see also In re Adoption of 

K.M.G., 240 A.3d 1218, 1235 (Pa. 2020) (stating that “where an orphans’ 

court has appointed a [guardian ad litem]/[c]ounsel to represent both the 

child’s best interests and legal interests, appellate courts should review sua 

sponte whether the orphans’ court made a determination that those interests 

did not conflict”).
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Appellants’ Brief at 3.

“In cases concerning the involuntary termination of parental rights, 

appellate review is limited to a determination of whether the decree of the 

termination court is supported by competent evidence.” In re Adoption of 

C.M., 255 A.3d 343, 358 (Pa. 2021).

The standard of review in termination of parental rights cases 

requires appellate courts to accept the findings of fact and 

credibility determinations of the trial court if they are supported 

by the record. If the factual findings are supported, appellate 

courts review to determine if the trial court made an error of law 

or abused its discretion. A decision may be reversed for an abuse 

of discretion only upon demonstration of manifest 

unreasonableness, partiality, prejudice, bias, or ill-will. The trial 

court’s decision, however, should not be reversed merely because 

the record would support a different result. We have previously 

emphasized our deference to trial courts that often have first-hand 

observations of the parties spanning multiple hearings.

In re Adoption of B.G.S., 245 A.3d 700, 704 (Pa. Super. 2021) (citation 

omitted).

Termination of parental rights is governed by 23 Pa.C.S. § 2511, which 

requires a bifurcated analysis. C.M., 255 A.3d at 359. “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).” In re C.M.K., 203 

A.3d 258, 261-62 (Pa. Super. 2019). If the orphans’ court determines the 

petitioner established grounds for termination under section 2511(a) by clear 

and convincing evidence, the court then must assess the petition under 

subsection 2511(b), which focuses on the child’s needs and welfare. In re 
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T.S.M., 71 A.3d 251, 267 (Pa. 2013). Clear and convincing evidence is 

evidence that is so “clear, direct, weighty, and convincing as to enable the 

trier of fact to come to a clear conviction, without hesitancy, of the truth of 

the precise facts in issue.” In Int. of J.M., 166 A.3d 408, 423 (Pa. Super. 

2017) (citation omitted).

Appellants initially sought to terminate Father’s parental rights to Child 

pursuant to subsections (1) and (2). However, Appellants abandoned their 

claim regarding subsection (2) and solely proceeded on subsection (1). 

Orphans’ Court Opinion, 2/21/2024, at 18 (citing N.T., 12/28/2023, at 77). 

Therefore, we will address Appellants’ claim regarding section 2511(a)(1).

Appellants argue that they established by clear and convincing evidence 

that Father evidenced a settled purpose of relinquishing his claim to Child. 

Appellants’ Brief at 28, 30. Appellants contend that Father never made himself 

part of Child’s life or performed parental duties, highlighting that Father left

when Child was nine months old and did not have contact with Child again 

until 2020; never attempted to come to Luzerne County after learning Mother 

had moved; never served the incorrect legal documents filed in New York on 

Mother; and only provided minimal child support starting in 2022, which was 

well below the child support guidelines in Pennsylvania. Id. at 29-30, 32, 34; 

see also id. at 30 (noting although Father unsuccessfully filed a custody 

action in New York, he had no issues filing a custody petition in Pennsylvania 

in 2023). Appellants further claim that in the six months prior to the 
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termination filing, Father did not seek to have contact with Child, and only 

sent a message in February 2023 to ask how Child was doing. Id. at 31. 

Appellants assert that Mother has never refused Father from contacting Child 

and would continue to allow Father to see Child even if his parental rights were 

terminated. Id. at 33. Appellants also argue that Father failed to provide any 

explanation for not seeking to obtain custody earlier, contending that, to the 

contrary, Father filed a paternity action seeking to state he was not the father 

of Child. Id. at 33-34. Appellants additionally emphasize the strong 

relationship between Child and Stepfather. Id. at 34.

Section 2511(a)(1) provides that termination is proper if “[t]he 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.” 23 Pa.C.S. § 2511(a)(1); see also C.M., 255 A.3d at 363-

64. “‘Parental duties’ are not defined in the Adoption Act.” In re Adoption 

of L.A.K., 265 A.3d 580, 592 (Pa. 2021). However, 

our courts long have interpreted parental duties in relation to the 

needs of a child, such as love, protection, guidance and support. 

Parental duties are carried out through affirmative actions that 

develop and maintain the parent-child relationship. The roster of 

such positive actions undoubtedly includes communication and 

association. The performance of parental duties requires that a 

parent exert himself to take and maintain a place of importance 

in the child’s life.

Id. (citations and quotation marks omitted). 
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“When considering a request to terminate rights under [s]ection 

2511(a)(1), a parent’s failure or refusal to perform parental duties must be 

analyzed in relation to the particular circumstances of the case.” Id. (citation 

and quotation marks omitted). “[T]he focus under [section] 2511(a)(1) is not 

the degree of success a parent may have had in reaching the child, but 

examines whether, under the circumstances, the parent has utilized all 

available resources to preserve the parent-child relationship.” C.M., 255 A.3d

at 365.

Even where the evidence clearly establishes a parent has failed to 

perform affirmative parental duties for a period in excess of six 

months, the court must examine the individual circumstances and 

any explanation offered by the parent to determine if that 

evidence, in light of the totality of circumstances, clearly warrants 

permitting the involuntary termination of parental rights. 

Id. at 364 (citation, brackets, and quotation marks omitted). Moreover, in 

examining the totality of the circumstances, courts must consider a parent’s 

post-abandonment contact, including a parent’s efforts to “recultivate a 

parent-child relationship.” In re K.Z.S., 946 A.3d 753, 759 (Pa. Super. 2008) 

(citation omitted). Further, courts may “consider the whole history of a given 

case and not mechanically apply the six-month statutory provision, although 

it is the six months immediately preceding the filing of the petition that is most 

critical to the analysis.” C.M., 255 A.3d at 364 (citation, brackets, and 

quotation marks omitted).

In considering a non-custodial parent’s explanation, courts must 

determine “whether a parent has faced barriers that prevented the parent 
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from maintaining the parent-child relationship.” L.A.K., 265 A.3d at 593. 

“What constitutes a ‘barrier’ in the context of a [s]ection 2511(a)(1) analysis 

is a finding within the discretion of the trial court, and what may constitute a 

barrier necessarily will vary with the circumstances of each case.” Id. 

“[O]bstructive behavior by the child’s custodian presents a barrier to the 

parent’s ability to perform parental duties, which mitigates the parent’s failure 

to maintain the parent-child relationship.” Id.; see also C.M., 255 A.3d at 

365 (“[O]bstructive behavior on the part of the custodial parent aimed at 

thwarting the other parent’s maintenance of a parental relationship will not be 

tolerated, and certainly will not provide a sound basis for the involuntary 

termination of parental rights.”) (citation omitted). “Fortitude is required, as 

a parent must act with ‘reasonable firmness’ to overcome obstacles that stand 

in the way of preserving a parent-child relationship and may not wait for a 

more suitable time to perform parental responsibilities.” L.A.K., 265 A.3d at 

592.

With these tenets in mind, we review the evidence presented at the 

hearings. Mother testified that she and Father were in a relationship until 

Child was nine months old, at which time Father moved out of the residence

and she and Child lived with Father’s uncle for an additional year. N.T., 

12/11/2023, at 9-10, 29. Mother indicated Father did not maintain contact 

with Child after moving out and that he seemed uninterested in maintaining 

contact. Id. at 10, 30. Mother emphasized that she did not prohibit contact 
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between Father and Child. Id. at 11, 31. Mother testified that Father did not 

see Child again until he was two years old. Id. at 11-12. Mother stated that 

she moved to Luzerne County in 2019 with Stepfather, but admitted that she 

did not tell Father about the move. Id. at 16, 34-35. Mother did not know 

when Father became aware that she and Child had moved, but could not 

articulate a certain date that she gave Father her address in Luzerne County. 

Id. at 22-23. Mother testified that after her cancer diagnosis, Father met with 

Child on multiple occasions in 2020. Id. at 12-16, 31, 32. Mother indicated 

that Father did not have any physical contact with Child from 2020 until the 

filing of the termination petition. Id. at 8-9, 19; see also id. at 23 (noting 

that Father did not attempt to contact Child by phone in the six months 

preceding the filing of the termination petition). Mother testified that Father 

had her telephone number and that he only contacted her on occasion, 

including Child’s birthday. Id. at 19-20, 35-36, 42. Mother indicated, 

however, she did not recall whether she responded to all of Father’s texts or 

phone calls. Id. at 38. Mother testified that Father began paying $200 per 

month in child support in 2022. Id. at 20-22, 34. Mother acknowledged that 

Child has met Father’s other children—his half-siblings—and that she would 

continue to permit Child to maintain his relationship with them. Id. at 48-49.

Mother sought to terminate Father’s parental rights because if something 

happened to her as a result of her cancer diagnosis, she was concerned that 

Father would attempt to take Child despite the lack of contact. Id. at 24-25. 
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Stepfather testified that he has been in a relationship with Mother since 

2018, and that he and Mother moved to Luzerne County with Child in 2019. 

N.T., 12/14/2023, 4-5. Stepfather stated that Father did not know about the 

move until 2020. Id. at 28-29. Stepfather acknowledged that Father reached 

out to Mother by text messages to ask about visiting with Child, and 

subsequently had visits with Child in 2020 and 2022. Id. at 6-10, 21-22. 

Stepfather testified that Father began providing support in 2022. Id. at 22-

23. Stepfather stated that Father would send texts about Child to Mother. 

Id. at 11. Stepfather emphasized that he considers Child his son and that he 

has taken care of him since he was a baby. Id. at 14; see also id. at 16 

(stating that he financially supports Child).

Father testified that when he initially moved out of his uncle’s residence 

in 2017, he did not talk to Mother about Child. Id. at 40-41. Father indicated 

that because he did not have contact with Mother, he initiated a case in New 

York in 2017 in an attempt to pay child support to Mother. Id. at 41; see 

also N.T., 12/28/2023, at 10-14, 35-36 (wherein Father explained that the 

State of New York indicated he could not get custody or pay child support 

without paternity being established, and that he did not seek to challenge his 

paternity). Father testified, however, that he was unable to serve Mother 

because he did not know where she lived. N.T., 12/14/2023, at 42; see also 

N.T., 12/28/2023, at 9-10 (Father stating that he asked his uncle where 

Mother lived, but could not find her address); id. at 16 (Father stating he 
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could not find Mother and could not hire a private investigator because he did 

not have money to pay for one). In 2018, Father refused Mother’s request 

for her to have full custody of Child. N.T., 12/14/2023, at 42-43. Father 

testified that he repeatedly asked Mother to see Child between April 2018 and 

March 2019. Id. at 43. Father further stated that once he learned of Mother’s 

cancer diagnosis, he offered to take care of Child. Id. at 44-45. 

Father testified that he learned that Mother had moved to Luzerne 

County in 2021, but that Mother did not provide her address to him until 

December 2022. N.T., 12/28/2023, at 24; N.T., 12/14/2023, at 45. Upon 

learning she left the state, Father sought to file another action in New York,

but he had been told that nothing could be done in New York because Mother 

lived in Pennsylvania. N.T., 12/14/2023, at 46. Father stated that he wanted 

to see Child, but Mother was never cooperative. Id.; see also N.T.,

12/28/2023, at 6 (Father stating he looked for Child for a long time and Mother 

refused to give him access to Child). Father visited with Child in 2020, 2021, 

and 2022. N.T., 12/28/2023, at 15-16. Father also testified that Child has a 

positive relationship with his other children. N.T., 12/14/2023, at 54. Father 

further confirmed that he sent monthly child support payments to Mother from 

June 2022 until August 2023, but Mother sent the money back to Father two 
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of the months. Id. at 48-52.

7

 Father indicated that he reached out to Mother 

via text messages in the six months preceding the filing of the termination 

petition in an attempt to see Child, but that she failed or refused to respond. 

N.T., 12/28/2023, at 35, 37; N.T., 12/14/2023, at 48, 58, 66. Father 

attempted to introduce texts from 2023, but acknowledged, on crossexamination, that the texts introduced in the record were from 2020. N.T., 

12/28/2023, at 29-34. Father stated that Mother would come up with excuses 

for him not to see Child. Id. at 25; N.T., 12/14/2023, at 66. Father testified 

that he loves his son and does not believe it would be in Child’s best interests 

to have his parental rights terminated. N.T., 12/28/2023, at 6-7.

The orphans’ court provided the following explanation for denying 

Appellants’ petition to terminate Father’s parental rights:

Although Father did not present evidence of text messages 

that occurred six months prior to the filing date of the petition to 

terminate his parental rights, Father was precluded from seeing 

[C]hild in the past by Mother. Mother, not only relocated from 

New York without telling Father, Mother refused to provide her 

address to Father until December 2022 when she finally did so. 

As a result of Mother relocating without Father’s knowledge, 

Father was compelled to file an action in Pennsylvania since 

Mother was living with [C]hild in Pennsylvania in excess of three 

(3) years at the time he learned of her address and the

whereabouts of [C]hild.

Therefore, despite Father’s lack of contact six months prior 

to the filing date of Mother’s petition to terminate his parental 

rights, Mother did not have clean hands throughout the history of 

____________________________________________

7 Although Father stated that he had evidence of payments made between 

September and December 2023, he did not introduce this evidence at the 

hearing. N.T., 12/14/2023, at 49.
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the case. Father made it clear that he was not able to file for 

custody and support in New York because he did not have Mother’s 

address despite his attempt to learn it from investigation. Mother 

could have left her address with Father’s uncle permitting Father 

to contact her regarding [Child]. Instead, Mother practically went 

into hiding, not notifying [F]ather where she was residing with 

[Child].

... Father stated that he reached out to the Mother several 

times [in the] six months prior to the filing date of the petition to

terminate his parental rights, requesting to see [Child]. Father 

stated that when he filed an action in New York, he did not have 

counsel representing him. Father stated there was no hearing 

held by the court to address his petitions because he had to wait 

for Mother to file against him regarding support. Father stated 

that it was his understanding that he was not able to file on his 

own to pay her support because he was not legally married to 

Mother.

* * *

[The orphans’ court] finds Father’s explanation for his lack 

of contact with [C]hild to be credible and reasonable. [The 

orphans’ court] took into consideration the barriers which 

precluded Father from having contact with [Child], i.e., Mother’s

relocation from the State of New York to the Commonwealth of 

Pennsylvania; Mother refusing to give her home address to 

Father[,] thereby controlling Father’s ability to contact [C]hild; 

and Father’s inability to file legal documents in New York in 2017 

in attempt to have custody of [C]hild or financially support [C]hild.

[The orphans’ court] finds that [Appellants] did not present 

testimony or evidence that is clear, direct[,] and convincing so as 

to enable the [orphans’ court] to come to a clear conviction, 

without hesitance, of the truth of the facts in issue in order to 

satisfy meeting the standard of clear and convincing evidence.

In light of Father having a reasonable explanation for not 

having contact with [Child] at least six (6) months prior to the 

filing of the petition to terminate his parental rights, the [orphans’ 

court] need not address the post abandonment contact between 

parent and child or need not consider the effect of termination of

parental rights on the child pursuant to [] 23 Pa.C.S.[] § 2511(b).
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Orphans’ Court Opinion, 2/21/2024, at 26-27, 28-29.

Based upon the orphans’ court’s credibility determinations, our review 

of the record supports its conclusions. Despite Father’s prior absence in 

Child’s life, Mother’s obstructive behavior, meant to thwart Father’s access to 

Child, mitigates Father’s failure to maintain the parent-child relationship in the 

context of a section 2511(a)(1) analysis. Indeed, Mother took affirmative 

steps to block Father’s ability to see Child by moving to Pennsylvania without 

informing Father, hindering his ability to ascertain her address until December 

2022, and refusing to allow Father contact with Child without her approval. 

Father exercised diligence in attempting to overcome this obstructive behavior 

by repeatedly texting Mother to see and/or talk to Child, visiting Child when 

Mother allowed, and providing child support in the year up to and following 

the filing of the termination petition. 

The record further reflects that Father attempted to gain custody of 

Child in New York, but failed to properly file the action, ostensibly because of

the language barrier and lack of funds. See L.A.K., 265 A.3d at 594 (noting 

that “[i]t is crystal clear, and of vital importance . . . that a parent’s legal 

efforts to enforce custodial rights demonstrate affirmative performance of a 

positive parental duty”) (citation omitted); C.M., 255 A.3d at 367 (noting that 

“when undertaken in earnest to establish meaningful contact with a child who 

is otherwise withheld from access by the custodial parent, a noncustodial 
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parent’s legal attempts to enforce custodial rights will usually be highly 

relevant evidence.”).8 

In light of the foregoing, we find no abuse of discretion in the orphans’ 

court’s conclusion that Appellants failed to present clear and convincing 

evidence that Father demonstrated a settled purpose of relinquishing his 

parental claim to Child or has refused or failed to perform parental duties for 

the six months immediately preceding the filing of the termination petition as 

required by section 2511(a)(1).9 Accordingly, we conclude that the orphans’ 

court’s decree denying termination is supported by the competent evidence.

Decree affirmed.

____________________________________________

8 We note that we cannot consider Father’s filing of a custody complaint in 

Pennsylvania on July 24, 2023, as it occurred after the filing of the termination 

petition. See 23 Pa.C.S. § 2511(b) (“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.”); 

see also C.M., 255 A.3d at 368 (stating that this Court is “cognizant of the 

duplicity enfranchised when a custodial parent’s conduct both causes the need 

for legal intervention and faults the noncustodial parent for failing to take legal 

action more swiftly, and we are loath to require a parent’s prosecution of legal 

proceedings as a mechanism for preserving parental rights”). 

9 Because Appellants failed to prove by clear and convincing evidence that 

Father’s parental rights should be terminated under section 2511(a), we need 

not discuss section 2511(b). C.L.G., 956 A.2d at 1004 (noting that “[o]nly 

after determining that the parent’s conduct warrants termination of his or her 

parental rights must the court engage in the second part of the analysis: 

determination of the needs and welfare of the child under the standard of best 

interests of the child”) (citation omitted).
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Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 07/11/2024