In Re: Adoption of K.M.L., Appeal of: R.J.D. etc.

• Court: Superior Court of Pennsylvania
• Decided: April 13, 2018
• Docket: 974 WDA 2017
• Status: Unpublished

Opinion

J-A27045-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: K.M.L. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : : : APPEAL OF: R.J.D. AND J.E.D. :: No. 974 WDA 2017

Appeal from the Order June 7, 2017 in the Court of Common Pleas of Somerset County, Orphans’ Court at No(s): No. 2 Adoption 2017

BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED APRIL 13, 2018

R.J.D. (“Mother”) and J.D. (“Stepfather”) (collectively, “Appellants” or

“Petitioners”) appeal from the Order denying their Petition to terminate the

parental rights of M.E.L. (“Father”) to K.M.L. (“Child”) (born in December

2007), Father’s female child with Mother. Petitioners filed the termination

Petition so that Stepfather may adopt Child. We affirm.

In its Opinion, the trial court set forth the following procedural history

and factual background as follows:

Mother and [Father] . . . start[ed] dating while they were in high school, and the two moved in together immediately after they graduated. At the time, the two also lived with Mother’s [female] child from a previous relationship, [H.E.] (hereinafter referred to as “H.”), who was approximately four years old at the time. In 2000, Mother and Father had their first child together, a son, named [J.L.] (hereinafter referred to as “J.”). While Mother was pregnant with [J.], Father was arrested for allegedly assaulting Mother’s [a]unt. This arrest resulted in a conviction of Indecent Assault – Complainant is Unconscious or Unaware of Contact[FN1] on November 2, 2001. Father served time in the Somerset County Jail for this offense. J-A27045-17

Mother and Father were married in 2006, and Child was born [in December of 2007]. Child was about five or six months old when Mother and Father separated. Mother moved out of the home and filed a Petition for Protection from Abuse (hereinafter referred to as “PFA”) against Father. Between the time Mother moved out from the residence and filed for the PFA, [J.] and Child were in the sole custody of Father in the home. The PFA was entered on October 30, 2008, and Mother was granted custody of [J.] and Child during the PFA process. On December 8, 2008, the parties came to an agreement regarding custody of [J.] and Child, in which Mother and Father shared legal and physical custody.

Father was arrested in July of 2009 on allegations that he sexually assaulted [H.] A trial was held, and Father was convicted of one count of Indecent Assault[FN2] on January 28, 2011. Father served time for this conviction in the Somerset County Jail. This conviction required that Father register on the Pennsylvania Sexual Offender Registry. From the time of his arrest to the conclusion of his sentence, Father was not permitted to have contact with either [J.] or Child, or any child under the age of eighteen (18)[,] by way of a condition in Father’s criminal sentencing [O]rder.

[R.L.], Father’s father (hereinafter referred to as “Paternal Grandfather”), and [K.L.], Father’s mother (hereinafter referred to as “Paternal Grandmother”)[] (collectively hereinafter referred to as “Paternal Grandparents”)[,] filed a Petition for Intervention in Custody Case on October 30, 2009.[FN3] The parties came to an agreement, and Paternal Grandparents were granted unsupervised visitation with [J.] and Child on December 8, 2009. The visits were scheduled to occur every other Saturday[,] from 9:00 a.m. until 5:00 p.m.

On January 30, 2012, the [c]ourt entered a No Contact Order (hereinafter referred to as [the] “2012 No Contact Order”) between Father and [J.] and Child. Father was prohibited from having any contact whatsoever with [J.] and Child until further order of the [c]ourt. Father filed a Petition for Modification of the Current Custody Order on July 9, 2013, requesting shared legal and physical custody of both [J.] and Child. A custody trial was scheduled for November 14, 2013. However, on the day of trial, in accordance with 23 Pa.C.S.A. § 5329(c), the [c]ourt ordered that Father must first submit himself to an Initial Evaluation to determine whether he poses a threat to [J.] and Child and whether

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counseling is necessary. The custody trial was continued multiple times due to lack of the submission of the Initial Evaluation in February of 2014, April of 2014, and September of 2014.

On May 13, 2014, [J.] was no longer able to reside with Mother, and [J.] went to live with Paternal Grandparents. Father also resided with Paternal Grandparents at that time, and continues to reside in that home. Because of the 2012 No Contact Order that was in effect, [Somerset County] Children & Youth Services (hereinafter referred to as “CYS”) was notified that [J.] would be living in the same home as Father. It is believed that CYS had no objection to this arrangement. [J.] has been living with his Paternal Grandparents and Father since that time, and Father has had de facto primary physical custody of [J.]. [J.] does not currently have contact with Mother. Father filed a Petition for Modification of Custody on January 13, 2017. Father requested in that [P]etition that the 2012 No Contact Order be lifted[,] and that he be granted primary legal and physical custody of [J.]. Additionally, Father requested that he be granted shared legal and physical custody of Child.

On January 30, 2017, Mother filed an Emergency Petition to Suspend Partial Custody, Modify Custody, and Contempt of Custody Order of January 30, 2012. In that [P]etition, Mother alleges that Paternal Grandparents allowed several instances of contact or threatened contact between Father and Child. The [c]ourt found Paternal Grandparents in Contempt of the January 30, 2012 Order in an Order dated March 14, 2017. As sanctions for this contempt, the Paternal Grandparents’ visitations with Child were reduced from 9:00 a.m. until 5:00 p.m. to 9:00 a.m. until 1:00 p.m., and Paternal Grandparents were ordered to pay a three[-] hundred[-] dollar ($300) fine. This March 14, 2017 Order reiterated that Paternal Grandparents should ensure that “there is no contact either directly or indirectly between [Child] and [Father].” Additionally, the March 14, 2017 Order stated that “[t]he prohibition of contact includes presenting photos, written or electronic messages or gifts represented as from [Father].”

Also on January 30, 2017, Petitioners filed the instant Petition. The basis for the Petition is 23 Pa.C.S.A. § 2511(a)(1): that Father has “evidenced a settled purpose to relinquish his parental rights” to Child. Petitioners further requested that Father’s parental rights be terminated so that [Stepfather] is able to adopt Child. Petitioners filed an Amended Petition for

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Involuntary Termination of Parental Rights (hereinafter referred to as “Amended Petition”) on May 2, 2017. In the Amended Petition, the Petitioners allege [that] the basis for termination of parental rights is set forth in 23 Pa.C.S.A. § 2511(a)(11)[,] in addition to 23 Pa.C.S.A. § 2511(a)(1)[,] that Father “is required to register as a sexual offender.” Petitioners again requested that Father’s parental rights be terminated so that [Stepfather] is able to adopt Child.

The [c]ourt appointed [Attorney Robbins as GAL, and Attorney Huston as legal counsel for Child.] GAL filed a Report … on May 9, 2017, in which it was argued that [Child’s] best interests would not be served by terminating Father’s parental rights[,] because instead of a settled purpose to relinquish his rights, Father has “taken measures to begin reestablishing a relationship with [Child].”

A hearing on the Amended Petition was held on May 9, 2017[, and on May 16, 2017]….

___________________________________________________

1 18 Pa.C.S.A. § 3126([a])(4).

2 18 Pa.C.S.A. § 3126([a])(8).

3Docketed at Somerset County 858 CIVIL 2008, 913 CIVIL 2008. All references to the underlying custody case are at this docket number.

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Trial Court Opinion, 6/7/17, at 1-5 (footnotes in original, emphasis added).1

On June 7, 2017, the trial court entered the Order at issue, which denied

the Petition to terminate the parental rights of Father to Child. Appellants

timely filed an appeal from that Order, along with a Concise Statement of

errors complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

In their brief on appeal, Appellants raise the following issues:

1. Whether the trial court erred in denying the Petition to terminate parental rights based upon 23 Pa.C.S.A. § 2511(a)(11)[,] where [F]ather is required to register as a sexual offender[?]

2. Whether the trial court erred in finding [F]ather’s completion of his sentence, [F]ather’s compliance with registration and probationary requirements[,] and the fact that [C]hild was not the victim of the crime for which [F]ather is required to register as a sexual offender[,] as reasons to not terminate [F]ather’s parental rights based upon 23 Pa.C.S.A. § 2511(a)(11)[?] ____________________________________________

1 On February 10, 2017, the trial court appointed Christopher R. Robbins, Esquire (“Attorney Robbins”), as the guardian ad litem (“GAL”) for Child, and, on May 5, 2017, the trial court appointed Sara E. Huston, Esquire (“Attorney Huston”), as the legal counsel for Child. See In re: Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) (initially filed on March 28, 2017) (holding that a trial court is required by statute to appoint counsel to represent a child’s legal interests in a contested involuntary termination proceeding). At the hearing on the termination Petition, both Attorney Robbins and Attorney Huston actively questioned the witnesses. The GAL, Attorney Robbins, recommends that, in the best interest of Child, the court should not terminate Father’s parental rights. GAL Letter, 9/1/17. Child’s legal counsel, Attorney Huston, disagrees, arguing that the trial court improperly denied the Petition to terminate Father’s parental rights to Child, in that it erred in its consideration of section 2511(a)(1) and (11), and it erred in failing to proceed to a best interest analysis under section 2511(b). Brief of Legal Counsel of Child at 3. Thus, we acknowledge that Child’s attorneys are in conflict. This conflict, however, does not alter our scope and standard of review, and our ultimate conclusion, as discussed, infra.

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3. Whether the trial court erred in finding [that] Appellants failed to establish[,] by clear and convincing evidence[,] that [F]ather’s parental rights should be terminated pursuant to 23 Pa.C.S.A. § 2511(a)(11)[?]

4. Whether the trial court erred in finding that it[] “would not be in [Child’s] best interest to terminate [F]ather’s parental rights simply because he is required to register as a sexual offender[,]” when the [c]ourt did not perform a best[-]interest analysis or an analysis to determine if there is a parent-child bond or relationship[?]

5. Whether the trial court erred by not performing an analysis under 23 Pa.C.S.A. § 2511(b)[,] since Appellants established [that] [F]ather is required to register as a sexual offender under 42 Pa.C.S.[A.] Ch. 97 Subch. H[?]

6. Whether the trial court erred in failing to find that [] [F]ather failed or refused to perform parental duties for a period in excess of six months pursuant to 23 Pa.C.S.A. § 2511(a)(1)[?]

7. Whether the trial court erred in finding [F]ather did not demonstrate a settled purpose of relinquishing parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1)[?]

8. Whether the trial court erred in considering [F]ather’s payment of [c]ourt[-][o]rdered and garnished child support as a factor that illustrates [F]ather has not demonstrated a settled purpose to relinquish parental rights to Child[?]

9. Whether the trial court erred in finding [that] [F]ather was prevented from seeing [C]hild by a No Contact Order when the No Contact Order forbid [sic] [F]ather from having contact with both of his children and [F]ather did not abide by the [O]rder and had regular contact with [C]hild’s sibling[, J.?]

10. Whether the trial court erred in finding [F]ather’s filing of a Petition for Modification of Custody in 2013 and 2017, with no other action taken, as concrete steps to overcome the obstacle of a No Contact Order sufficient to defeat a 23 Pa.C.S.A. § 2511(a)(1) Petition[?]

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Brief of Appellants at 4-7. For ease of disposition, we combine Appellants’

arguments, and address (a) whether the trial court properly found that

Appellants failed to meet their burden in establishing grounds for termination

pursuant to section 2511(a)(1) and (11); (b) whether the trial court erred in

not finding that Appellants met their burden of proving grounds for

termination pursuant to section 2511(a)(11), based solely on Father’s status

as a reporting sex offender; and (c) whether the trial court erred in not

conducting a separate best-interest analysis pursuant to subsection (b).

In reviewing an appeal from an order determining a Petition for the

termination of 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., 608 Pa. 9, [19], 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., [614 Pa. 275, 284,] 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., 613 Pa. 371[, 455], 34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely, [575 Pa. 647, 654-655], 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 we discussed in R.J.T., there are clear reasons for applying an abuse of discretion standard of review in these cases. We observed that, unlike trial courts, appellate courts are not equipped to make the fact-specific determinations on a cold record, where the trial judges are observing the parties during the

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relevant hearing and often presiding over numerous other hearings regarding the child and parents. R.J.T., [608 Pa. at 28- 30], 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, [539 Pa. 161, 165,] 650 A.2d 1064, 1066 (Pa. 1994).

In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).

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). The

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. (citation omitted).

Here, Appellants challenge the trial court’s rejection of their argument

that Father’s parental rights should be terminated under section 2511(a)(1)

and/or (11), as well as section 2511(b). Section 2511 provides, in relevant

part, 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

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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.

***

(11) The parent is required to register as a sexual offender under 42 Pa.C.S.[A.] Ch. 97 Subch. H (relating to registration of sexual offenders) or to register with a sexual offender registry.

(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.

Further, regarding subsection (a)(1),

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, 854-55 (Pa. Super. 2004) (citations omitted).

Regarding the definition of “parental duties,” this Court has stated as

follows:

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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.

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 his or her physical and emotional needs.

Id. at 855 (citations omitted).

We are also cognizant that a parent’s incarceration “neither compels nor

precludes termination of parental rights.” In re Adoption of S.P., 47 A.3d

at 828.

Nevertheless, we are not willing to completely toll a parent’s responsibilities during his or her incarceration. Rather, we must inquire whether the parent has utilized those resources at his or her command while in prison in continuing a close relationship with the child. Where the parent does not exercise reasonable firmness in declining to yield to obstacles, his other rights may be forfeited.

Id. at 828 (citation omitted).

Appellants argue that they presented three bases upon which the court

should have terminated Father’s parental rights to Child: (1) Father’s settled

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purpose to relinquish his parental claim in excess of six months preceding the

filing of the Petition, see 23 Pa.C.S.A. § 2511(a)(1); (2) Father’s failure to

perform parental duties in excess of six months preceding the filing of the

Petition, see 23 Pa.C.S.A. § 2511(a)(1); and (3) the fact that Father is

required to register as a sexual offender pursuant to 42 Pa.C.S.A. Ch.97

Subch. H, see 23 Pa.C.S.A. § 2511(a)(11). Brief of Appellants at 13.

Appellants contend that the trial court abused its discretion by affording

significant weight to Father’s filing of a Petition to modify custody on January

13, 2017, and his payment of court-ordered child support. Id. at 14.

Appellants assert that Father’s Petition for modification immediately preceded

their filing of their Petition for termination, and that Father acknowledged his

suspicion that Appellants would be filing the termination Petition. Id.

According to Appellants, Father’s filing of the modification Petition is not

sufficient to demonstrate his desire to parent Child, and to counter a

conclusion that Father has a settled purpose to relinquish his parental rights.

Id.

Appellants point out that, on November 13, 2014, the trial court ordered

Father to provide his evaluation, pursuant to 23 Pa.C.S.A. § 5329(c), before

the court could make a determination regarding custody, and Father has never

provided such evaluation to the court. Brief for Appellants at 14. Because

Father failed to provide evidence that he poses no risk of harm to Child,

Appellants assert, there is no reasonable expectation that Father will remedy

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the circumstances that currently prevent him from having custody of Child.

Id. Appellants argue that Father’s filing of one custody Petition in three years

does not satisfy Father’s parental duties toward Child, and does not defeat

their claim that Father has demonstrated a settled purpose to relinquish his

parental claim to Child. Id. at 15.

Child’s legal counsel, Attorney Huston, joins in the argument Appellants

make in their brief. Brief of Legal Counsel for Child at 3. She asserts that,

after the trial court had entered the Custody Order in 2013, Father sat idly by

for nearly four years. Id. at 8. She contends that Father’s attempt to modify

the Custody Order in early 2017 does not remedy his complete failure to

parent Child for multiple years. Id. Further, she argues, Father’s payment of

child support for Child was not a sufficient reason to deny the termination

Petition. Id. She alleges that the 2012 No Contact Order did not present an

obstacle to Father’s parenting of Child, and that Father’s filing of the custody

modification Petition in 2017 did not show the necessary reasonable firmness

in avoiding an obstacle to his parenting. Id. at 8-9. Thus, Child’s legal counsel

argues, section 2511(a)(1) was satisfied in this matter. Id. at 5-11.

In its Opinion, the trial court addressed Appellants’ arguments regarding

the trial court’s consideration and application of 23 Pa.C.S.A. § 2511(a)(1)

and (11). See Trial Court Opinion, 6/7/17, at 6-17. After a careful review of

the record, this Court finds the trial court’s determination that Father has not

evinced a settled purpose to relinquish his parental duties or failed to perform

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parental duties with regard to Child, where he has continued to pay child

support for Child in the face of the non-contact order, and where he has

attempted to obtain custody of Child, is supported by competent, clear and

convincing evidence in the record. In re Adoption of S.P., 47 A.3d at 826-

27. We must defer to the trial court judge as 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. Id. Accordingly, we discern no

error of law or abuse of discretion with regard to the trial court’s determination

as to section 2511(a)(1). We therefore affirm on the basis of the trial court’s

Opinion with regard to this claim. See Trial Court Opinion, 6/7/17, at 6-17.

Next, we address Appellants’ challenge to the trial court’s interpretation

of section 2511(a)(11). Brief for Appellants at 16. Appellants contend that it

is uncontested that Father is required to register as a sex offender. Id.

Appellants contend that the trial court misconstrued section 2511(a)(11) by

improperly emphasizing the word, “may,” as used in that subsection. Brief

for Appellants at 17.

Child’s legal counsel, Attorney Huston, agrees with Appellants that, as

Father is a sexual offender who is required to register, Appellant established

grounds for termination pursuant to section 2511(a)(11). Brief of Child’s Legal

Counsel at 3-5. She states that, as such, the termination of Father’s parental

rights was mandatory. Id.

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In its Opinion, the trial court addressed this claim, and concluded that

it lacks merit. See Trial Court Opinion, 6/7/17, at 17-19. We agree and affirm

on the basis of the trial court’s Opinion with regard to Appellants’ arguments,

with the following addendum. See id.

We acknowledge that Father undisputedly is required to register as a

sexual offender. Section 2511(a)(11) provides, in relevant part, as follows:

The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:

(11) The parent is required to register as a sexual offender under 42 Pa.C.S. Ch. 97 Sub. H.

23 Pa.C.S.A. § 2511(a)(11) (emphasis added).

Our Court has stated that

“the interpretation and application of a statute is a question of law that compels plenary review to determine whether the court committed an error of law.” Wilson v. Transport Ins. Co., 889 A.2d 563, 570 (Pa. Super. 2005). “As with all questions of law, the appellate standard of review is de novo and the appellate scope of review is plenary.” In re Wilson, 879 A.2d 199, 214 (Pa. Super. 2005) (en banc).

In re Adoption of J.A.S., 939 A.2d 403, 405 (Pa. Super. 2007).

The object of statutory interpretation is to ascertain and effectuate the

intent of the legislature. B.K.M. v. J.A.M., 50 A.3d 168, 174 (Pa. Super.

2012). In interpreting statutory language, initially we look to the plain

language of the statute, and determine whether any ambiguity exists. Id.

“Only when the words are ambiguous may we look to the general purposes of

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the statute, legislative history, and other sources in an attempt to determine

the legislative intent.” Holland v. Marcy, 883 A.2d 449, 455 (Pa. 2005).

Further, “[w]e must construe words and phrases in the statute according to

their common and approved usage. We also must construe a statute in such

a way as to give effect to all its provisions, if possible, thereby avoiding the

need to label any provision as mere surplusage.” Cimino v. Valley Family

Med., 912 A.2d 851, 853 (Pa. Super. 2006) (citation omitted).

Our review of the plain language of section 2511(a)(11) discloses that

a parent’s rights “may” be terminated under that section, but it is not

mandatory. See 23 Pa.C.S.A. § 2511(a)(11). We cannot ignore the plain

language of the statute. See Holland, 883 A.2d at 455. Accordingly, the

trial court properly concluded that section 2511(a)(11) does not mandate that

Father’s parental rights be terminated based solely on his status as a

registered sex offender.

Finally, Appellants argue that the trial court improperly failed to conduct

a best-interests analysis pursuant to 23 Pa.C.S.A. § 2511(b). Brief for

Appellants at 17-18, 22. Appellants assert that, upon finding section 2511(a)

satisfied, the court was required to conduct an analysis of Child’s best interests

under section 2511(b). Brief for Appellants at 17-18, 22. According to

Appellants, because the trial court improperly failed to find section 2511(a)

satisfied, the trial court, in turn, erred in failing to consider Child’s physical

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and emotional needs and welfare in relation to section 2511(b). Brief for

Appellants at 13-14.

Child’s legal counsel likewise argues that because Father is a registered

sex offender, thereby meeting Appellants’ burden under subsection

2511(a)(11), the trial court should have proceeded to consider section

2511(b), and it erred in failing to do so. Brief of Child’s Legal Counsel at 11.

As set forth above, we discern no error or abuse of discretion in the trial

court’s determination that Appellants have failed to establish grounds for

termination pursuant section 2511(a). Subsection (b) provides that if the

grounds for termination under subsection (a) are met, a court “shall give

primary consideration to the developmental, physical and emotional needs

and welfare of the child.” In re: T.S.M., 71 A.3d at 267 (quoting 23 Pa.C.S.A.

§ 2511(b) (emphasis added)). Subsection (b) does not require this separate

best-interests analysis where grounds for termination under subsection (a)

are not met. Because Appellants failed to establish grounds for termination

under subsection (a), consideration of Child’s best interests under subsection

(b) was not mandated. See 23 Pa.C.S.A. § 2511(b). Accordingly, we affirm

the Order of the trial court.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/13/2018

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For P�tili_o��s: : . ' . De��- ���oy'.�; >:. . � � � � 0 WI,� fR\ ' .: · .. IT . ·JUN O 7 2017 I.W ,J •, ..

For Respondent: . . David r, Leake, Esq:. / . i: . � . . ... .. . ' · · ·. · . i � ... ·! •. • . • • • . ! ·: ·:. �: ..... ' . . . . -, .· Argument: ·:... :: ..... M�y ·9- ,.20.i7,May 16,2017·'. ' . . .. . : . . ·. .. . . . �=====:;:====-I By: . ' . ' . . . . ·. . . . . . . . . . 'MEMORANDUM. . .··. . .. . . :' : ·. : � I • ' • .. , : ' ' ;, ': ' •• • .. • .• -. ' (

• • • • •

. This matter comes before· us on R.. :,;....._ ,:iereinafter referfed t� as "Mother") . ' and 1. � , 1· D�. · ) (hereinafter referred to as "Step-F�ther")(collectively hereinafter

refe�ed to as "Petitio�ers") Petition. f�r Involuntary . . . T�nninati�n . . of Parental Rights . (hereinafter . . · . referred to. as. "Petitio�"). Ste�;.fath�r wishes.' to adopt KC,. Ml.'.::. . � . Qiere��r ...-,

refe�ed to as _"Child") if the Court w�re to grant the Petition. For the following reasons, the .

Petition is denied.

... · · · Facfualand Proceduraf Historv . .. '•

Mother· and Mi- · ..;: fa . � : , IJ.,,, .. ·.. :{hereinafter referred to as "Fa9t�') starting dating . . .. ·. . . . . . . . . . . . :. ' . . . while they . were. ui'. high school, and . the. two . moved fu. together immediately . after th�y graduated. . .

At th� time, the two also. lived a previous . relati<;>pshjp,:�···�:t with Mother's child from ..E-.. . -. ..-�1.. . · 1

. .. .;. . . . . . ' :-. ·

(hereinafter referred to as "Ii . ..i"), vJho was approximately four years old at thetime. In 2000, ·. . . . :. . . : · ...· ·... . -

and Father bad the; fust child together, a son, named .J�.. .

Mother ; i, Li' . ·.'.!. (hereinafter referred ,. ., to as "J . : ., ··V{hil� M��� ., p��/�-h �. F��er�--� �o; ���y ', . ! ·.

. assaulting Mother' s Aunt. This arrest resulted in a conviction of In'3:ece:nt Assaultc- _Complainant

...

. :· . .. . ... i.·

' .. is Unco�sci��s '.�r Unaware . of Co . �Uict1 'on ��vemb�r ;, .2001.· . . Father serv�d time in th� . . . . · .. ' . . . . .. ·· .... -, ·. : Somerset Co�ty Jail for this offense: · · .: . · ._:;· · \ :' ·· · .. .. ·:··,, ·:.�.·. : .�· • ··r \ •. • , , ·.-· •• • .: ·••• • •• • •• • ''" • •• •. • • .. ·, �-� • ·.,,... • . • �.-, ..

·. ·. ·..·, .. born ", .:

: :·. Mother ·and ·Father were married in 2006; and. Child was •••. ...

.. . . ·. . ·· ....on 'De�ernher ·. . . 7,'·2007. ·: . . ·. �v�· i. :iath��·�d F��er . .

6µ� a� . :- •. . .... . .. .

. . .. - :· .·. cw.id �;·s�)�o��oid.whe� ;�s �b�µt s�p�ated� :-.�othe/���ed . .. . : ..... .:.. ·.�: .:.... ::'.... ·. ·;·:. ', ....... : .·' � ··: . : .... · .. ·. :. ·.. ;·� . ·. :· .. · . . :· ..· .. ·.· .... · .",, .· .··.. ·: for' ref�rrel '\,

. . . .: the home and filed .a Petitio� .: _.... Protection from: .·Apuse. (hereinafter .: 'to . as '.'PFA"). : : .· .: ��ai�:st .Patb;r,;. B��c�ri.-the .ti�� Mother ���ed·o�� fr�iµi 'the residende .an4 fil�d f�; the �FA,°·· • • • ,• • • : • • .. • -· •• • • : • : ; • • • : • • : • • •• • .: : < • • • •• • .. • • • • • .. • • • • •- • • • • • ••• • •

.... ·-, .· . _.:. :·:,: .; :- ·. · _;:.. :,'· : .. : .. ·: -. ">. ·.'. .. · .. ·.:. : .. · · -: . : :_ .. ¥. .1Dd Child: were in the sole custody of Father ip.,. the home ;.: The PFA· was· entered. on:·;.:" ·, : ': ..:·.. • .. • • •• • • :··.. ;· • .. • ••• • • • : : •• :\ ••• • • l ". ·:

2008, and M�ther �a� granted custody of j,--_:_/�d Child"�UI:ing.the .PFA process ., • -, • ", 0 ',, ·.. • • .:

.•. :

', ·.· . Octob�r,30� . . . •. . . . . . . . ' : . . .

. �-�e�e�be�-�. � � the ��e� ��e· � �- ������ �eg�ding � 0- 8-, -n t ustod� ··:_ :�d:C�lc( �f�· � ; •• • • :.• • • ""' •• :·. tf',. •' • ,•,. I I • ,,• •, ..

which Mother ana'°Father shared Iegal and physical custody.·.. · . . . .· . . •' . • .. , ; I

· .Fathe.r was �ested in July of 2009 on all;gations that he sexually as�ulted ff,.,.}. A

trial was held.and Father was co�victed of one �otm; of ln���tAssaulr on J�uary 28, 2011.

Father served time for this conviction in the Somerset CountyJail. This conviction required that_ ...... .. _ . . Father" register on the Pennsylvenia Sexual Offender Registry.. F�om the time of his arrest to .the

have contact with either J.i.�or Child, I

conclusion.of his sentence, Father was not permitted to . . . . . .. . .. . . . ·. . .� .. ' . " .. . . ·.. :. . . . . or any 'child under the age of eighteen· (18) by way of a condition in Father's criminal sentencing _:· . . .. . : .. . . �- . . : : . . ., . . . . . . :. . . . . . . . :. . . . ·. . . . . . . . ' . . . ·.d . : .' -,: er.. . .. . . ·.. . - � .. : ., ,: . .. . . ... :· .. ·. . / .. , . . . . . : Rf"' _V· �- -� Father'� father· .(here.in.after referred. to as "P�ternal _Grandfather"), and · .. � :• : '•"� •" : ,o • ; • '•' .. • ' •, o ' i_ '\. • • • • I o '1 • o • 0 " • : • ';, :

� . +=1 • • •

(hetcinafter . referred to . as • ' ·, ' • 0 o

L�� �--, �, ·. Father's · moth�� . "Paternal :Grandmother''), .

�'Pa�� ����i�n�"j· ��ed.� ��ti��� . (��Iie·��e{/her����;·r:;err�d:t�.�: ·f��--�te�ention . .. :_ . � : : ·. . � .. ; ··: · .. .:- . . ·. . ·o� ·9�t�ber .30,. _2009.l __ Cu�ody in ·C � ·Toe parties came to an agreement. .and Pate�! ...- . . ' . . . . ·.. . . . :,. . ·.. . ·. . .. .. " .. .

. · .· : .:.· ... ·.· .:• .. . . ... . . . ....: · .\ •• • : i •••

. . . ' .' • ... ' .. . . .. I .. ,' 18 Pa. C.8'.A. § 3126(A)(4). ' ·. , .. . 18 Pa. C.S.A. § 3126(A)(8). · • ': . . Docketed at Somerset County 858 CIVIL 2001, 913 CML 2008. All references to the underlying custody cru.e are t this docket nUIJ:!bcr. · : · ' · ·· · · 2 i . . . � .. : .. .. � . . .. ·. · .. ... . ...11..· ...... . .... ; .. . . ,. ., .. · . , I

. . . . . . t• .....

Grandparents· were granted unsupervised visitation with It....-�. md Child on December 8, 2009. · . . . ·. . .' : ... ·:- ,· .... ·. <· ·". · . . . .. -," .....:· : :._. .: ,.··. ·.' . · .. ' · .: ·>"_:·: \ ., ': . . ... ·.. . . . The visits were scheduled to occur every other Saturday. from 9.:0.0 a.m. ::until 5:00 p.m, ,:· · ,*: ._ ', 0 :•, '.

�9 '• ··:. 0 "", 01,' ,"' 0 », : ;

·. - :· . : On·:··January . 30, 2oi"2; the. • � • • • • ,: 0• -, o ' o • L o ,. ,• .' •, • • • •, • � • ...

Conta�t _Ora�,!(h�refuafte�:��ferred to as . ·.· . .. :· • • • 0 '" 0 • 1

Court ��t�r�d- a: .· ·:.·: .. .. · "', · -.:. :.··.··:.··· ::.:.: · : ·. ·::··�.;·_�.· .. u2012 N9. c�nta� .ordeij i,"eiwee� Fathe�· �� i;_.,__ �iclii1a: F�thir·�·p�ohlbit�d· iom· : _..,__ :. �-···.f ·.-.·.· .· ..... \ . · .. ::·� ..:· ·i(·.:· . ......... · . ::::·:'; ·:··.·.·.:_:· ',· ... · ·, . ·!,.· ·.�:·: ... �· -�·-: 00:

-:.·.:

and 1. ••• •. i .: ': ••

ariy contact-whatsoever ;with Jacob Chll9 until further order pf th� Court, Father filed � · .' :. · .. : , : . ••••

.. . . ·. ·. having . •· .,: .>. ..:_.·:.·.·.··._. :_-.:; ::··: v ;: ..<.:.::· -, ·.-:,'�--: ... : . . � ·.··... · :.:�<·:.·(:: ., <·'·,.·::· � _;· .: .' :··< ...... _ . · , ... , :·. of _ a Petition for fyfodification the Current CustodyOrder ·�n July 9, 201:3; requesting shared legal· : ·. · · '. . . · .-: ·.··. :'· •.. ·:. : ,. ' . ·. '. ·_; ·. : ·-, ( ·_. . >-. ; : : ·.... : ... \ :_. :· .: ... _.; : .' ...;·. ·.,' . ; . ·. . ; ... ': . . . . : : : .' . . . : :· . · ·. ·. and physical custody of both J1.. . \ and Child-. · A custody trial was scheduled for November 14,.· -, · · :· -: ·

, . 2013. ·:_:��we��;; in. -�p-_the ·o/trial, ��c�rd��e � · · t h· . § .5329(�), -�� .Co�:- ·. . ·::' ·-d�; 23 .Pa.\�.�·A.· .. ·• . . ·� . • . . .· ' o, • •• . .. . . . . . . . . .. .. ' . . . - . ·.. . .t,.. ..: . . . . >

. '1 • ' A O • '•

ordered that· Fath�r 'm� 'first SU�fQit himself to an Initial Evaluation to' detennfue whether he . . ... . poses a threat.·to .J, �-J and Child and whethercounseling i� �ecessary .. ·The ��tody. trial was . ; 't : " o • o • o • I •' • • 0 ' ' • ··•

of the Initi� Evaluation in February of • o- o

continued m�tiple. times due to lack �f the subrission

2014, April of 2014, and Septembe:r of 2014 .

. . · · On May i 3, 2014, Jr . ;i was no lon��r able to re�ide with Mother� . and J9 '"'\ 'went to live ...,.. . ··- with Paternal Grandparents. Father also resided ·with Paternal Grandparents at that time, and continues to reside in that home. Because of the 2oi2 No Contact Order that was in effect, . .

Children & Youth Services (hereinafter referred to 'as "CYS�') . : ·.. ·. .. ·_ ... · . . ·, notified. that J� would be :· . was �g�ent� .. b�lie�ed thl� . . living in. the same home as Father. It.is . . :. : � . ... • .... ·. . that CYS had no objection to . . . . : . . ·. - ,. . . .... · ...-, ·. . . . . . .. '· . . . ·.. . : . . . . . .. · .. :· . : J, ··. has.been living with.his . Paternal �pa.rents and Father since that time, and Father . has·. · . . '· . . .. - ... .' . had de facto·· primary. physical

���(.):,::·: . :i :'f i : ' '.·: :· : ·. :•· :\ '."· ':' :'_i: > (. ·:: .i ::'' ... . . .: ,. o · · Father filed a Petition for Modification of Custody ., •,,,' • � •: < o •• ; • • I• • • '':' • • • ' on January-13, 2017. �· • "• • • : • ', Father requested · '': ,·, • �·: 0 •. I • ,, • • • ; • • ' 0

iri. that petition that the 2012 No Contact Order be lifted and thathe be granted·primary legal and ..

physical ��y �; �dditi���. ���er ��d � ;,-,,' j, . fog:.i an� be'�.;,� ·;l,aioo 'I . . ·. \

3. .. •, . :· . .. . . - .. .... • ... , ,37 · .. · · . · .. . ' • I �· I · ... .• ..... . : . •.

physical custody of Child .. : ·. :·: . : .· .. .....· . ·. : ·:· . . .. J • • •

·. ·. . . \ .. · . � . . . • • pp. •

-- •

. : ··. . . :: . . '· . ·. .'· . '.'.° .On January .30, 2017, Mother filed an Emergency Petition to Suspend Partial Custody, .: · : :, ,• '• • : • o O 0 •o ,o • 0 o . '• o � • • • •,. • oo • e ', : o •,.' ,o •, ,o • I o : ', ,; ' I o 00 • • 0 0 • o • •

ofJ�uary :fo, : • O • o O O .. : o o •

C�stody;'.ahd o o

. · _. ·.·,, . _. · Modi.fy C�nte��t �f Cust�dy' Order. 2012. IJ:?. �at.��titi�n, M�t4d- .. : ..... '.: . ::.,P:' .. _.,: ... •>.. 0 �." '. ·,· 0 0 \.,' "• ,•: •: :, "· ... 0 •,• s , _,:. ;,. ·,�•, •,0 •• ,:' 0· :,··:· :.. � ·,.,

ral ins��es'• of contact ..or tbreatened �;nta� . : . ', :-/. ... • P,•

.Grandpa�e�ts'· aiio_w�d. o • .' • o • f .- • • • ,• o o

alleges ·th�t .-P�tefu� S�Ve 0

...... '. . .: . • : . •. '· c .· . : •• ·. •• •. _:_ • ·:· .:-..-�: s •. ': . ·..: · ,' ., .' .. '. .'. ._;" .... .. .:;. . : ... •. ':.. :- :.·.- .: .. _: : ::- _.: ..... : .. ; ·.':· ...... :.\ ,· .....if .: ; : . .. t. ·. · -. : � · ": :: · .. .. ;.. ::- . ·:·. between Father and Child> .The Courtfound Paternal Grandparents in Contempt.of the January,> .... · ': · ·�:··· :.· .·::.:··· ··: ·; ..' . _:.�·· ··-:. ·:.:' .: .: ... ::· ... .. ·:�· ... . ,./ .. ::_·.:- . .. :· . : . ;· -. .: '·': . /,_. . : : .·: .._"·:.... _ :-� · : : . . ·.. , . . 30, 20 ii Order in an Order. dated March 14, 2017. As sanctions for this conte.Dlpt, the Paternal : , ". :.

·G;_�aJ���is_:·. �isi��ti-�ns· ·���-_.9:00 a:�. - til .to.·�-��() wi� -6�1i�ere. reduced � S;o�/�.�.: �in·:·· ... · . � ..:· · · ._:·· until 1:00:.p.m., aniP�t��al·�;��;arl�ts·(�e·o����ed: to -��/a-.tl���- ��i:�,·�.ollar ($;0�; · .:·_, :· :./ /, .: ;: . .. . . ·. . . . .. . . . . . . . . . .. :,,,'• . ·. .. . . .. .. . . . ' ' • ,, '" \ ' .. I• ',. •

fine. This March 14, 2017 Order-reiterated that Paternal Grandparents should ensure that "there · . � .. . .. . . . . . . . . ·. . . : . . . ... . . . . . . .· .. . . .. ' . is no contact eith;; directly .�r indirectly betw�en [Child] and (F�ther]." Additionally, the March . '· • '•. ., I

14, 2017 Order stated that . "[t]he prohibition.of contact. includes presenting photos, written or . . . . . .. . . .· . ··. . . . .. . . electroni� messages or gifts' represented from [Fath�]." .' .' . . . as Also on January 30, 2017, Petitioners filed the instant Petition.. The basis for the Petition ...,. I··- . I •

is 23 Pa. C.S.A·. § �51 l(a)(l): that Father has "evidenced a settle� purpose to .relinquish his

parental rights" to Child. Petitioners further requested tha� Father's �ental rights be terminated

so. that • s��-F �ther • • is abl� to a�opt Child. P�titioners. filed an Amend�d p��tion for· ln�0.iuniary • • • •• • • • ' •• • • • .. 4 ' ' •• • • • .. • •

Termination.of Pare�tal Rights (her�inafter referred to ·as·�'Amend�d Petition") 0�1 May 2, 2017. •• •. : ·.' ... • • • • •• : • ; ' • •• ' • 1• • • ; • • •• • ': • •· .' • •• . •.• ., ••. • • • • . • • • ' .: � • • • •

In the Amended Petition, the Petitioners allege the .basis for termination of parental ;rights_ is ·s� ..... ... , :· • • • .: • • • • c

forth·� 23 Pa. C .S.A. §. 251,l(a)( ll) fu addition to_23 -P�. c.s.�. § 2Sll(a)(l): that Father "is 0 0

·.: "'�. :·:·.-:.·, ....... :�

• 0 •, 0 .'. I • ..:.. o� ••• '•: � :•. !• .·., 0,/ .;:�. • .. ,• 0 • : '., ..... ��.- � .. : o • o • \'. • " • • ·.� o o o o o o • • o • o :• o o o •

requited ·to r�gister as· ·a s�xual offender.' Petitigners·· ag� r�quested that .Father's .parental 1 : . ·. . ·:· . . . . .. . . : . ,,., '. : ... ·. . ..: . . . . _.. •' . : . "·,.' . ·. . .. . . ·.· . .. ;_

· · rights be �ed sq that Step--Father is able to adopt Chil4 . : . ·.. : . . • . · .. ·... . . : . ·- . ..... .. . .. .. , . . . • ' • 1 , ' : I � ,. . . . · ·11ie Court ·appointed Christopher R. Robbins, Esquire as · Guardian ad Liitem for Child . �· .. :'.. ; ·, ·., ' ,.' • • • • ' 0' • ,• • • o, • � 0 o • ' • ',. : • ' • ..• o • 9 ' o : " • o o • • 0 \. I 0 • •

(h�reina:fter referred to as "GAL"). on February 10, 20,17. Additjonally, the Court appointed Sara ..... ' - . ,; :.. . . : ... · . . . ... ·.. . • .. · .

4 • .. � .. � . .. · . . I! :_: : ... · .. . .;. - .. ' •,·, � . .. ' . ' .. v;

Huston, Esquire as legal counsel for Child on May 5, 201.7. GAL filed a Report of Guardian ad ' . Litem on �ay 9, ?017, in which it �as argued that the Child's best inter�s!s would not be served ."

by terminating Father's parental rights be�ause instead of a settled purpose to relinquish his · ' . . . . rights; Father has "taken meas.u:es to begin reestablishing a relllti�nship with [Child].'' . .. ... . . . .-,. . ..

· · A hearing .on the Amended Petition was held on May 9, 20.17 .. Due to the .length of · testhnon;.,. � the. hearing. �� :mable be ... ' o .compl��d ·o� to ���tion�· �f �� "\, ���day.' k·. imony' • ' day A •

was cond�cted on May 16, 201 ?· · The. Chi.id w�s called � � wi�es�. by Mother and was

questioned by both parties, GAL, and legal counsel. for the Child. The matter was taken under .. � ' . advisement on May 16, 2017. ·.

· ·. Standard of Review . . . In . a proceeding to involuntarily terminate parental rights, the . burden of proof is upon the party seeking the termination to prove by "clear and convincing evidence" !he grounds for doing . . .� . so. Jn re Adoption of Atencio, 650 A.2d 1064, �066 (Pa. 1994). "The standard of'cleat 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." In re Adoption ofDale A., JI, 683 A.2d �97, 29� (Pa Super. Ct. 1996) .

� . . / i . 23 P�. C.S.A. § 251 (a) lists on what grounds the rights of a parent .in regard to a child . may b� terminated after a petition is filed. The Ai:nended Petition in the instant. case was based .. . . . . . . ·. ·:. . . . ·. .. ' . . . . . .· . . .. ' . . . on: . ... . . l

.·· . 23 'Pa. C.S.A. § 251 l(a)(l); The parent by.co�duct co�tin�ing for a' . period of. at least six months immediately preceding the "filing of · the petition either bas evidenced a. settled purpose of relinquishing .. . parental · claim to -a child . or has refused or failed to perform • ...... parental duties. ·-·· ..

23 Pa. C.S.A. § 251 l(a)(H): The' parent is r�quired to re�ister ..asa sexual offender under 42 Pa �.S. Ch. 97 Subch. H (relating to ,· 5 ' . . registration of sexual offenders) or· to register with a sexual · · offender registry in another jurisdiction or foreign country. . ,I • /. ,: •• •• . , . , '. , , , • I . , , . .. .

· : . Further, "[w]ith respect. to any' petition filed pursuant to .subs�tion (a)(l) .. · .ithe court· shall not • • • ', ·.... �:. • ", ••, -, .r, ... · •. "'.•_:.. I ' • • •' • • • o : ", -, • • ".• .�,' t •' • • • ". • � •: o t: Z,•, •

. . any efforts by the parent to remedy the conditions consider . � described 'therein which are first .. . . .�

of , .. • •• : • • • • .. •• • • 1 • • .• • • • . initiated subsequent to the giving of'notice of the filing the petition, ,, . 23 Pa. C.S.A. '§ 2511 (b). · : . : . . . . , .· . .. .·. . .. . . two \

Essentially; th� test for terminating parental rights consi�ts of parts: ... :

·:�tiall�. : �e fo��� ·��·'��- ·th/ cond�c�··_·ot·tli� �·�en:-. the.�-�� . 'seeking termination .must'prove by clear and convincing evidence that the parent's. conduct 'satisfies the . statutory grounds for · · · termination delineated in. Section 251 l(a)i Only if the court · determines that the parent's conduct warrants termination· of his .or. her parental rights does the court engage in the second part of the analysis pursuant to Section 251 l(b): determination of the needs and welfare of the child under the standard of best.interests of the child. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between . parent and child, with close attention paid to the effect on the child of permanently severing any such bond,

In re L. M, 923 A.2d 505, 511 (Pa. Super. o. 2007)(intemal citations omitted). . filscussion . . The Amended Petition is based on two Subsections of § 25ll(a): (I) and (11). Each

Subsection �ll be analyzed in turn. .' . . ·. 23 Pa. C.S.A. § 2511 (a)(l ): Settled Purpl!se o(Relinquishment - ,. F��e� has "failed to maintain any meaningfuf : I - •

The Petitioners argue that contact with the !'1 •• . ... subject child for' a period in exc�ss_ of six (6) months," �i thereby has evidenc�d a settled .'. . . . ,. . . ·. . . . .-· .· . . parerititl rights.· Am. Pet. 117. Petitioners cl� that Father has "failed purpose .to . relinquish his . .. . .. . ... . . : ... • I> •

to maintain contact with the child, failed. to· provide support for the . child, failed . to provide . . •, ' . . . . . perman�ncy for the child, and. ·.·.·.has no reasonable likelihood of regaining custody of child." ., · ' • . : • • ... �. • • • • • • • • • • •� • 1. • •

Id at 1 6. · Additionally, Petitioners . . co�tend that . F�ther. has· made no· re��nable . effort . to

6 • "maintain a relationship with [Child] through written correspondence, greeting Ci3IdS, or holiday

gifts." Id. at 1· 18. · . . . . : . . . . .

Fath�r deni�s he· has. deino��ted. a settled thai purpose of.relinq�i�hing .his ·p�ent�·. .. . .. .. : : .· . . . 1\1 • , 0 , 1 ' .�

rights to Child. Father'sresponse toPetitioners' arguments is. that: (1) Father denies that h� has ·. . .. .. . . . . .\ ·: ' . ·: .· . . .. ' . . . .. ' .: . . ; . . · ' · failed to maintain meaningful cc.mtact.with.Child as he bas made reasonable efforts to see Child . · ';. '' •I • t • • • I,- I • • ' • ' o • • ' o • • ,,' I • • •

�bile under th� 2012 �o Contact Orderthroughnumerous legal proceedings inclu�ing an active · . ,'. . . .. . .. ,, . . ... . . : � . . . .:· ' . . . . . . . . Petition for Modificationof Custody that.is to-be scheduled for trial in June of 2017, (2) Father.· . . - . . . . - ' . ... . . . . ., . . . . ... denies he has failed to provide' support for Child as. he has paid child support for Chiid since �- . . . . . ! : .: ·. . . . . . . • ' .. . . .,. .

Father .and Mother separated, and (3) Father deni�s that. he has no reasonable likelihood of

regaining custody of Child. Answer to Pet. ,i,i 5, 6, 16, 17. Each of Father's responses will be I

analyzed in tum .

. Father contends that his lack of contact with Child has been a result of the no contact

order from his criminal sentence and then the 2012 No Contact Order, but that he. has _ .r.

co!ltinu�msly been seeking custody through multiple legal proceedings. Id. at fl 16, 17. Father

testified that he immediately filed for custody of both l - ,. and Child "� soon as [he] finished . . . ev�rything that [he] had to do" with his sentence and parole. Hr'g Tr. vol. 1, 170:8-11. · Most . . . recently, Father filed a Petition for Modification of Custody on January 13, 2017, which was ,•

filed seventeen (17) days prior to the Petition. . . . .. ·, . In order. to terminate ... the . rights of a "parent, "[t]he. parent . by conduct continuing .. for a .

period of at least. six month� �ediateiy preceding'the filing of the petition... has evidenced a . '. 0

.· . • � . • .• '

. • 0 0 # • o • I • , ' • 1 • ., , '

settled purpose _of.relinqcishing parental claim to a child:" 23 C.S.�. § 25ll(a)(l). Father. Pa. � ·... argues that in thesix months immediately preceding the filing the petition inthis case, he has-� of demonstrated a settled purpose to regain custody of Chi�d. · Answer-to Pet. 1 18. This Court finds

. ' 7 • � ·- t • •• • ·.· ' .

. ' Father's argument persuasive. In the six months immediately preceding the filing of the Petition, .� . . Father filed a Petition fo� M�dific�tio� of Custody OD January 13, 2017 .. In that Petition, Father

-�s '._ •.• r. • • : • •• .•. : • ••• • • • • : • • • • •• • • • • • • • • • • • • • ' • i. • .. • • ..

shared legal and 'physical · · .. • F I • I requested primarj, legal and physiJaI. custody Qf Jc . ' \., as well . ... . . . . . ·. . . . . - ·. :. . . . .. � . . . .• ... . : . . . . .' custody of Child.' Pet. for Mod. of Custody 11 17, 18. Father testified that the sole purpose of . . ',

hi�· �et��-nin� D�vi�. . ... - . .. ·. :i: ��ke�· - ii�·q�:� ·;e�ei��fter. refeii��: to .. " "' . · .. , . ... · Ja�· as/A�om�; L�·J�;.� ·to·: "retrievel] some kind of visitati�n with. [Chl�d]," and gain· full custody of Jacob: . . . g .. .vol. . 1; .lh; Tr. .. . . . . . ·: - .. . . . . . . ; •, ... .. ' 147:20-25, .148.:1-2: In this instan�e, ·.the filing dates of Father;s Petition-for Modification of .. . . . :. .' . . . . . .. .-.. ' . . . . . . · - . ·. - . : . . : . . ·. . . . Custody �ci Mother's . _ P eti � ioD .speak fo� thems�lves. · Father's Petition for. Modification .of . ' . . - . . ... Custodywas filed on January 13, 2017. The Petition was ·filed OD January 30, 20.17, after

Father's Petition for Modification of Custody. In the six months immediately preceding the

Petition, Father . . actively. sought custody rights to Child. Therefore, the Court does not find that

Father demonstrated a settled purpose to relinquish parental rights to Child .. in the six months immediately pre�eding the Petition. . . .:.

Father argues. that he has paid child support to Mother for Child since the .parties

separat�d and that h� continues to pay child support i� compliance with the child support order.4

Answer to Pet. ,r 6. Mother testified tha� Father has p�d child support for Child since 2008 .' " . � . . . Hr'g Tr. vol. 1, 52:8-13:. Father further argues that .paying child support, . in and of itself, is �ufficient .grounds to defeat the Petition. Br. in Supp. of Resp. Answer 3 (citing In re Adoption . . . ' . •. . . : I . • •• • .

of Ostrowski, 471 A.2d 541 (Pa. Super. a. 1984)). Mother argues that paying child support as . . . . . . . ... ·. . . . - .. ' . . ' . . .· . . . ·:·. ·� ;

required _by court .order was insuf:fi�ient to defeat a petition to terminate parental rights." Br. in . ,. . ·.. . .. . . ·,, ·. •... . . . . . ·. •·· · .. · . . '. ,,

Supp. of Am. . Pet: 6 (citing In re. Shives, 525 A.2d 80-1 (Pa. Super. Ct. 1987)) .

. Pennsylvania law is clear that payment of child support, in and· of itself, in. compliance

with a court order is not sufficient to defeat a petition to terminate parental rights. See In re · 4 Docketed at Somerset County Domestic Relations N�ber 0006117.

·8

( J'12·. Shives, 525 A.2d 801 (Pa. Super. Ct. 1987). However, "[o]nly where . . the.totality of the .. . . circumstances demonstrates clearly. and convincingly. that a parent has refused ..or failed to .·· . . . . . . . . . . . . . . . . . :. . . ' . . .

perform parental d�ties f�r a minim� period of six months may an order be entered terminating >. : ·. : . . . ·. : . .. . . . '. : . . . . . .· . .. .' -, . . .. . t. • ..: . ': : • ;° • . parental rights." Shives, 525 A.2d at 803. Part of that totality of the circumstances evaluation. • ., • •• • ... ·,· t..

includes the f�ct' that F\1ther has .paid' chiid �� .. . : . . pport . for Child lli�· stj,aration·.of . . . Fath�r and · . . '• ·. ·;in��- Motii�r .in 2008. h F�thei; � r cently Alth�ugfil�d for � modification �f supp�rt �d ;h� is n� 0

iong·e; .. < • • • ' : ,• • • ' • •' • •: ' • • o I • t • • "• ,J. t • • • • • I < • :, • • • ' t '

. support for Child because paying . . Fathernowhas primary custody of Jr ·.A·. Father's.payment . .of..· · 1

�as ' . .

. � child support for .Child sin�e 2008 is. one factor that illustrates that" Father not demonstrated a .. Chi ��.· se.ttl�d purpose r�l�quish ��� �� p to. t ;o . ·. . . . . . . . · · ·: . .�ghts . . .. . · · Finally, Fathermaintains that there. is a likelihood that he. �11 be granted custody rights • • • It

to Child at the upcoming cn:5tody trial on his Petition fo.r Modification of Custody. Answer to

Pet.: 1 6. Father contends that there is a high likelihood that the court will grant him custody . . rights to Child at the upcoming hearing because Father has been providing for Child by paying .. , .. . . �hi]d support, Father currently has de facto primary cu�ody of Jacob, Child an�J:> ·�:: hav� a

.. to Jacob. Id: These sibling bond, and Father is a good father are factors . to be considered . by the .

. custody court in making . the determination for modification . of custody. .. .. .· As the Petition for . . . . Modification of Custody is not currently before the Court, this Court will not make a . #.. . . . . ' determination as to these facts but does take notice.'ofthe upcoming custody trial."' . . . . ·.· ... Petitioners' response to Father's argument that the 2012 No· Contact �der prevented him . . . . . I . '

from maintaining contact with Child is .threefold: (I) Father had the opportunity to lift the order . · l I� , ._ ,.

but did not comply with the Co� in order to. do so, . (2) Courts. can' restrict a parent's contact with.. J- . ' .·

to I • k

their children, and such restriction is applicable with regard 23 Pa. C.S.A. § 251 l(a)(l), and . . . .. . ... . � \ . '

fu-; ��ard (3) iather c�ot argue the-�orce of the �012 No �ontact .Ord�r to ·child when. he is not . . .

9 ,-

abiding by the 2012 No Contact Order in regard to J: Each argume�t will' be analyzed in · . - . ·, turn. . ... ·. . .· . - . .. . . .·. : . . . . ' : •. . . . � .. ·. .. .. � . . . .. . . .

· ···. Petitioners .argue· that Father . . had the opportunity to lift the 20�2 No Contact ..'. Order- and : . . ,... . ' . . . . . .! . . . . . ,, . . have supervised contact with Child when the Court ordered the Initial Evaluation in 2013 in the . ':" .' : ·. . ·., . . . . ... .... . . , . . . . . :_ . : . . . . . . . . ·:' \ : . . ':. . : . . ..... ·. . . . . . '•. : · · underlying custody case.. According to that Orde!: · . · .. : . : , ·. :· ; · .:', · · ,. : · . • ·.� l ... l ,• •• -, • .:. •••• • • • • , • : J • • . . [A]t the time scheduled by the Court for Custody Trial, counsel 'for . · , · , .. . .. . · : al.I parties having appeared and having concurred that ·an "Initial • ,. I " . ' Evaluation" mandated by -23 Pa.C.S.A.§5329(c) must be performed· -bythe Court-to determine whether [Father] 'poses a threatto the. · child[ren] . and whether counseling . .i.s 'necessary. . .' The Custody '. Trial scheduled for this date is CONTINUED to 'the February, · . 2014 Civil Triai Term. ·. . In the event that counseling is indicated as unnecessary, [Father] may approach the Court regarding supervised· visitation in advance of the February trial term. : · . . . Order, Nov. 14, 2913, 858 CIVIl, 200l(e�phasis in original). Petitioners argue that the Court

set forth the actions it required Father to take in order to grant Father custody of Child with this

Order, and that because Father failed to provide the Initial Evaluation to comply with the Court's .. :.

Order, he shows a settled purpose to relinquish those tights. Br. in Supp .. of Am. Pet. 3-5.

·' Father testified that he. did indeed submit. himselfto . the Initial . Evaluation by going to C�ol Hughes' (hereinafter :r�ferred .to as "Hughes") office.5 . Hr'g. Tr. vol. 1, 133:20-23.

However, in. order to complete the Initial Evaluation, Father needed to show completion of the. . .,� . treatment hewas currently'participating in through CYS, which w�uid not happen forsome time . . . . . . .·. . . . . . . . . . ' . after that.visit. -, Hr'� tr.'·v�l. l;.133:24-25. It� Father's u'nde�d�g that Hugh�s � to fill -, � : . � ·... �- • • • \ • • ·, :· : • � • • : •: •! '\ • .:. ' . . I • • ' • - • ' • • • '\ • • • • • • ,, I . . ... ., • • • • •

out' the necessary paperwork to complete the Initial Evaluation upon completion of Father's •: �• -, _: , , • • , r • • , •. .. , �- •• • • - .... • • •,. • • , , • • .. - • • • • '. • • • •· •, •.. : •

eatment, Hr' g Tr.: vol. f, 13-3 :24-25. Father testified that although he completed treatment, ;,,I°'' • .. •' • .'t " \,.'

something occurre� on. H uglies' end that resulted- in the Initial �valuation not being submitted to ·· . ,·

s'The Novemb�r I�, 2013 Order directed Father .to "submit to such Initial .Evaluation fo�with before Carol A. ughes, M.A. of C.A. Hughes � Associates, �IO South Maple Avenue, Greensburg, Pennsylvania."

10 � .

the Court. Hr'g Tr. vol. I, 13�:24-25, . 134:1-2. . Father. �er.testified that he believed . . the . . . , ' . , . Initial Evaluation be��e. �· "non-issue" because judge Geary had granted him visitation with • • r- • • • • • • ·• • ·' . . . ': • • . • . • . • • . ·1 •• • •. . • . . . . J:;:.;. - · and Child6. despite the fact that the Initial Evaluation had not .been submitted .. Hr' g Tr. ·vol. . ... . � . .: . ,

1, 132:12-.18,._ 149:2-4:· 20-21,· 161:16-19, 167:22�24. Additionally, Fathe;·testi:ti,ed th�t because . ... ;- . . . . .: . . . -", . . . · ... -. .. -, . . �' . . . . . . . : . . . . . . . . . . . . . ... . ': .: . . " : \ : of the passage of time, he ''totally forgot about [the.Initial Evaluation]." Hr'g Tr. vol. 1', 149:20-· . '

21. · It should also be noted that. Father's legal 'counsel, Attorney Leake, ·believed, and ..... . consequently counsel�d Father as such, that in . regard . . to the Initial Evaiuatiori . . and Father's was [his]. legal' • . i. • •• , .....

recently filed Petition to Modify Custody, "it . . . .. . analysis that [Father] '. would need to . . . . file-a renewed Petition for Custody first (b�fore submitting to the Court the Initial Evaluation

from 2013] because circumstances have gravely changed since the 2013 custody (p]etition was

filed." .Hrg Tr. V!Jl. 2, 126:13-23 .

. The Court finds Father's testimony credible in that he believed_the Initial Evaluation, as . a "non-issue". in his pursuit to gain -,custody or visitation with Child .. -·· ordered in 2013, had become

Although this belief is incorrect, it reasonably explains Father's actions in regard to the Initial

Evaluation. In a letter from Matthew R. Zatko, Esquire (hereinafter referred to as "Attorney

Zatko"), Father's l�gal co�sel at the time, dated January-Su, 2014� Attorney Zatko stated that .. Hughes was unable to complete the assessment of Father in time forthe custody trial scheduled I • • • • • • • • ' .1' " "' • • • �, ' ' J " • •

l�er supports F��ef's t��ony' that he in fact Sl:Jbnrltt�d f6.the Initial 0

� February 2014. �s ': •,. �- ' • • t • : I • • o • ' ,' • •• 4 • • • • • • • o o t •

Evaluation, put that' Hughes: needed additional ·infoqnatio1i' : � :': : 0 in, order t9 complete her report. '0 I,.

Ad�ti�natiy, Father t��tifi�d·:�t -��ce J� ·.·· • • • : Ii,, •, t ' � 'I o

tq. li�e �th-Fathe;i:, .AttQ��y: �tko ad�cd • • .' ' .. \ 0 " I • 0 0 �. • ' • 0 0

)eg� .' .. . � : • : : ... ·� ·... .. • • • : • • • • • .. 'I • • •. • • ; , .... · � .. • •

Father "t�·not shake the tree," in regard to attempting to obtain custody of Child.' Hr'g Tr. vol. 1, . I •• I' • ' •• •

135:1.:8. Father understood . that t� �� that . ifhe tri�d to pursue custody of Child, Mother . .. could' . . . . ' potentially take legal action . .. be left without · to remove Jc ·\ from his custody, and he would .

6 After thorough review of the underlying custody case, such an Order was not found.

·J. 11 . :·

ll s .. custody or visitation of either of his children. Hr'g Tr. vol, I, 135:1-8. Fa�er�s lack of action to o • :� '• • t o t1 0 0 o I

see that the Initial Evaluation was submitted to :tp.e Court . is consistent with his adherence to this O I • O

. . ' ;

. legal .. adv.ice·: Furthermore, once Fath��·retaineci°Attorriey Leake, it is consistent with Attorney

. ,· :L�i¢e\· l�gal -�d)ice, that :Fathe� -�t:�t file·. a .ren���d pe�ti�n to·;·�odi;· ·c��t�dy before· ·· . . \. . . . ·..... ? �· ,· _;·i.· ....�. .. .ti.·. . • : • -, • , : • • • '. • •• j • •

· submitting himself to an additional Initial Evaluation. · . . . ·. · · , : , •. . · .. ' ; ... : . . . . ; .. - .. . . .. . . . . : : .: . . . � . .. . - . . . · .°This Co� therefore. finds Petitioneri argument that '!iath�

; . · · purpose . of relinquishing . . . his· parental ' r ights, . ·.· iri not ' c ompleting . . the . Initial Evaluation . .· not . . . . . . . ersuasive, . To establish � . a settledpurpose . to relinquish a parental claim.the-petitioner . seeking to .

. terminate parental . �ights. mu�t show that the parent made a delibe�ate decision to..terminat� the . . . . . �en�-child relationship throughout the statutory �ix-month period. Adoption of MS., 664 A.2d . . . . . •. . . . . 1370, 1373 (Pa. Super. Ct. 1995). · First, the initial delay in submitting the Initial Evaluation to· . '

he Court occurred because Father needed time to complete treatment in order for Hughes to

complete her report. Attorney Zatko's letter supports Father's testimony that he submitted to the ... :. -- . Initial Evaluation, but that it could not be completed before the time sched�ed for the custody

trial. Second, Attorney Zatko and Attorney Leake's legal advice supports �ather's .testimony as

to why he did not pursue the. completion of the Initial Evaluation the meantime. Father's m: persistence in �� receipi 0f �e hriti� p g . 'io th� �valuation,. 0

su�missi�n lnit: . ial but ., . �f . . Evaluation and submissi�n to the Court .demonstrates Fath�r following the legal advice of his � • • • • . •. • ., ! . • • • : • • . • .• • • • • .

counsel rath�r. ' � than . a. deliberate \. o \, I decision to relinquish his parental · rights to · Child, • • o J o .The

Petitioners' th�ref�re. have· not sho� through clear and convincing .evidence that F�th�r- "· •••• • \.... • • •• •• ' • • • • •• - w • • •• .. • ••• • • '· .. .. • •

demonstrated a settle�. purpose of relinquishing �arental rights ·to_ Child by not submitting the .

itial Evaluation to the Court. . . · . . . ! .

. �·· . . Petitione�s· n�xt make the argument that Courts can restrict a parent's contact with their ·

12 • nnn.n/. � · children, . and such . restriction . i$ applicable to the 'demonstrated settled . . purpose of. relinquishment. analysis. with regard to _23 Pa. C.S.A .. §. 251 l(a)(l). P�titioners' first -�ite to. incru:ceratio� as an ·.:· .. ex�pl� -of when the Court .restricts a .parent's . contact with . his . . . . . . . .. . 6� her'. �hil���-., While ..

. ·i�· and of itself, . . incarceration, parental rights, . . not constitute grounds .· .: does . . sufficient to. terminate . . . . ·.·. ... . ·.·. -�d· ""' .•

a parent "must act affirmatively, with good faith interes! effort, to" maintain. theparent-child re·l�tionship t�· �e�/�mo/�". ;� °ie:. ·;heir. 7�i_ q;7, .�2��- :(Pa:. Super..CL2000). C.�.;-- �.2d ••• : •• ··.. ··., • • • • • • • • • 1 • - • .» • • • ,\ • •• •• ••• • • : • .... -, • •• •

Petitioners' next cite to Juvenile and Child Protective Services. areas ?S other.examples of when a . . ·. . . . . . . . ·: . '· . (. .

Court can restrict a· pa;ent. 's. contact with 'his or her �hildren and use that restriction in. the 23 .Pa. , ·- . . . . . . . . . . . . . .• . . . . ' '

C.S.A. § 251 l(a)(l) analysis ..

However, the Court does not find Petitioner;' argument persuasive in this respect. While-

Father was incarcerated for a period ·of time, a 1:10 co�tact order was in place as part of the sentencing conditions in his criminal . , case. This no contact order remained in place until Father

successfully completed his incarceration and parole. Father's "best ability" to maintain a parent- ...-,

child relationship with Child while he was incarcerated and serving his parole was completely

limited by that no contact order that' c�ed with it criminal consequences. Furthermore, Father modify promptly .. filed a petition t� as so;n ·.as he completed .ail the requkements of bis . . . . . . custody . : ' . . . . . sentencing. Additionally, in .. . . ' . context of this Petitio�, Child not � . .... . . . s bject . th�· to the Juvenile or is " ... ' ·. /

Child. Protective Services areas. . ·. . ... . Therefore, . . : . . of law those .areas . are. · not relevant to the

determination of the Petition currently before th� Court. While! it. is understood that the -Court • • . � .· . 1. • • • • • •

' · can limit a paren:' � cont�ct �th his 'or'her child and tak� that restriction into �onside;ation when .. • ... ' •• • : • •• • # .... • • ••

�alysis: the are�s �f la� set·forfu by P�titioners' • ... • • ••

completing . . a 23 Pa. c.s.A. §"251.l(�)(I) . . . . � . .. . (

' . .. ,\

J?,Ot relevant and therefore, the Court will not analyze whether Father .demonstrated a settled

purpose of relinquishing his parental. rights to Child . �der these areas . of law.

13. II ' .

...I 7 · . ' '

It is clear that when determining whether to terminateparental rights, theparent's efforts

in maintaining a relationship with the child must be evaluated in light of obstacles confronting · · .,•:

�a. Super. Ct. 1987): : '• 'f • .' ' • • ', '• ' • • • • ' • • • o • : � o f • I • • ' 4 • • • � • • - • ,· • • ' • • I I

that parent. In re JG..J., 532 A.2d. 1218, 12�2 •

.. In the instant case,.�t aU .

times .fro� 2009 forward, Fathe� was confronted with a no contact .order in regard to Child .. . . : I . ,, • ··,. . • . . .

Th.eref�re·,.Fath�r.'s effort� maint�ini�g his reiation�hip with Child �ust be. �;��ted .... 1

. . . . . . . . . hi light'of ·. ·.- • I

this no contact order� anobstacle .. Despite the_2012 Co�tact Order, Father �led aPetition ·. No for Modification of theCurrent Custody.Order on. July 9, 2013 anda Petition for Modification.of . . . ·.· . ; .. .'·. . . . . . p, Custody on January 2017. Albeit unsuccessful up t? this point,' Father has taken concrete ·.. . . . .� . . steps to. modify .the· 2012 No Contact Order in order to ree�tablish ties with Child, which is . . . inconsistent with a settled purpose to relinquish his parental· rights and defeats a petition to

terminate Father's parental rights to Child. See In reAdoption ofR.J.S., 901 A2d 502, 508-09

(Pa. Super. Ct. 2006)(holding termination o� parental rights was proper where evidence showed·

father took no 'concrete steps to modify the custody order containing a no contact order with his ...... . .. . . children). Although the Court c.an limit a parent's contact with their child and then use that

limitation . as a basis to terminate his or her parental rights, the Court is . unable to do. so in this

case. Although Father has not been perfect in his pursuit of custody of Child, he has taken

concrete steps to modify the 2012 No Contact Order . . ,· to permit him to liave contact with Child .. J .

. Finally, the Petitioners' argue thatFather cannot argue the force ofthe.20i2 N� Contact • • . . . . . �. . • •,. • • • I . ... I ' •

Order in regard to .Child when he is not abiding by the 2012. No Co�tact. Order in regard. to� J:

Peti�io��r;'. �ontend tl��t Father:·cannot_ar�e that th� Order prevents him from having contact . . . . .. · . . ' � . . . . with Child while Father is having regular contact with Jc �; whose contact is also controlled by . . . . . . . .

the same Court Order. •Petitio�er(. further claim that Father was choosing one child overthe

other when he allowed Jr. 'O stay in his home while not pursuing custody of Child. Hr'g Tr.

14 . l

,4·8 ' \ . '. ..

vol. 2� 1�_8:s�.11.

Agai�. on January, 30, 2012,· the Court entered the 2012 No 'contact Order between . Failie; an,i" ..,.. .. . ;t.: 's;,d,q,ild. F�th� -�.. pro1tl. �i;eJ �Oui ha�;;;,; ·co�( w�oe;�, �ii,- . '• . . . . . . . . . .. . . ' : ' • • • !, ' ' . ... . . · ...· J�. --.and.'Child until further. order of the Court .. In May of 2014, Jt ·:; was no·longer ab1e to . . ·. . . . ... . . . . . . . . ··, . .. . '• . . . .� . . . . . :. . ' '

go . . . . . • ••• •. . •. l • • •

livewith Mother; As much as the record shows, J1. had nowh�r� �lse·to b�side�·to his ··.- ... · Paternal Grandparents' house.'.. It was. opeitly known . . th�t Father resided .in th� same hom� as ·. . . . •. • .. , • • • • , .. • •. : l .,. • -:._ .. ·· ' : • : • • j • ·• " •• • .,,

Paternal Grandparents. It was made known-to CYS and the Court that Jt ', �would then be . • ; ·, ·.. . ' . • .. . .1-: . . ., . . j .. '\ •. ·; ·:

• • • . .. • • •. • • • • • :

living. with Paternal Grandparents and Father, and no objection was made tothe arrangement. In . . .· . . . ·. . . . .... \.. .·· . ·. fact, it appears that CYS and the Court acquiesced in this arrangement,"

Father testified that 1. . "��"' .noved into his home between the last two continuances of the custodytrial in which Father was pursuing custody of Jc and Child. Hr'g Tr. vol. 1, 134:20- . . . · 25. Again, Father further testified that Attorney Zatko had advised him to "not shake the tree."

Hr'g Tr. vol. 1, _135:1�8. This Court finds Father's testimony credible in that he genuinely .. -, . . . believed from his c�:mnsel' s �dvice that if he were to continue to pursue custody of Child, Mother . . . would file . a . contempt petition_ . against . Father . and have J,. removed from his custody, . . . resulting in Father unable to see either of'his child!en. It w:as only after Fatherretained Attorney

Leake in December of 2016 and was advised that it was· unlikely that th� Court would _remove . . . . . ,, J� from Father's ·custody that Father again filed for a custody modification of Child. This .· • i . \ . . ... action. is consistent with Father's· .f�ar of losing !1 . ,-, i� the pursuit of custody of.Chiid.. It •. •: ", .' ·, •' ... • ' • e , • • ' ' • • • 4 • � • • I • • • • ' , ..._ •. •. : • .. ':. ,·

understands that "[a]n attorney's· advice is not· sufficient ·. : 0

should b 'noted that' this Co'urt �

justification for refusal or failure of parent to visit chllcl," In re Adoption of Y.S., 408 A.2d 1373

(Pa. 1979).· How�ver, 'in.this � � Father didn't simply.refuse to see c _se Child, he was forbidden to ' I o 1. •

do so by the 2012 No Contact Order, Attorney Zatko's advice was not to advise Father not to

.. . - 15. .

- . . . . see Child while Father had an opportunity to do so,. but �ather to be str�tegic in w�e� and how . .. . . #; Court finds Petitioner�'-. .

Father chose to go about obtaining custody of Child. Therefore, : . . . .. . :; � � . .. . . . .. . . . . . . � . . . . . . . ·. . -. . . ... , . ... . .� . . . . ., ! . · argument that Father cannot use the force � of the 2012 No Contact Order because he· is in. . ·.. ,

.. . :.,, I '

violation of the. . order to be . without merit . .. . . .• . , • ..... · ..· .: Additionally, Petitioners' assertion. that. F�ther simply .�hose . one child over . :. . . . . .. -. . . . . . - .,. . .. another · . #

assumes that Father has not tried to. make contact with Child or" otherwise gain custody of Child . �.. ·. : . . . ... . . . since the 2012 No Contact· Order was put · into ·place. This as��rtion is. false. Boti{ M�ther and ' . .. . ' . . . . ,. Father testified th�t Father appeared to watch. both ]( ·· and �hild play soc?er through the· . .. . . ·: ' .. . American Youth Soccer Organization (hereinafter · referred to · as ."A YSQJ program in. ,· . the summer of 2015. Hr'g Tr. vol. I, 50:1-10; 146:6-19'. It is important to n9-t� that �s event

occurred after Father completed his sentencing, in which he was not allowed to have contact with

any child under the age of eighteen (18). The only no contact order in place during this event

'?'as. the 2012 No Contact Order in which Father was not to have contact with bis own children... s,

Additionally, Father had de facto custody of Ji the time of this incident, and J�. . � .• was also playing soccer that day and present at the field. As a response to Mother being alerted to ·.

Father's presence at the soccer field, AYSO officials confronted Father, the Pennsylvania State . . ... : . . . Police wer� contacted, and Father w�s escorted off the soccer field. Hr'g Tr. VO�. 1, 50:1-10; '\ ,.

146:6-19. Additionally, k Jan� 2017� Child was given a 'birthday card Paternal : by . . . . · .. , . . Grandparents, ins�de:of whichwas written that the card was from Father. Hr'g Tr. vol. I, 58:,18"'. • ' . ,• . . . . ... � . I • ' . ,""' ., '• :,,..,

25; 59:1-2 .. At the 'same visit in January of 2017, Child was given gifts that Paternal ., ·'!.. • • • • • • • : .. .....

Gran?parents stated were from Father. Hr'g !;· vol. 1, 65:23-25. -As a response to fua:t :c'.11'd �d . . - . those gifts, Mother filed an Emergency Petition to Suspend Parti� Custody, Modify ·custody,.; ' . . . : .\. . • • • • \ .i;

and Contempt of Custody Order against Paternal Grandparents. Hr'g Tr. vol. 1, 58:1"8-25; 59:1-

/ . . . 16 . • -.50 2, 65:23-25; 66:1-4. · This Court do�s not ffud Petitioriers' ar�ment persuasive that Father · .· .... . . . ·. . simply cho.se' on� child ov�'r the other ,beca�se Father has tri�d to have con�ac� wi tli .Child despite : 0

. .. . . . .. . . . . . ·. . : .. : ' . . . . . . -; . . .. . .. : .. ,·' . the 2012 No Contact Order, but-was prevented from doing so by Mother." · ·, · ·

·. . � . ·;; P�. C.S.A.:·§ 2;�·1 ;;i; ii::·Re·��f,.;m�ritt� ·R�gi;,�; �s·� I• S����l-O((en�e; : .. • ..

to register as a sexual offend.er 'under 42 Pa c.s. ' .� • ·• . . . • ...... : ·,. : ., • � • • •• • '' • • • I • • t ' • .• ' ' ! " • ' • ' ' ', '1 • ' • ' . • '

· ... · ... ·. '. Petiti�ners argue that Father is required

r;�istr�ti��· of s���al �;�n�e;s):.' Pe�tioners �e/��� (r�l�t-in�-��-. . ��.· 9� S�b�{ � . . ·��t·... . . . . .. . . . • : . . . ·. \ . . .. . . ->, ·, . • . . bec�use Father. i� required to r�giste� as �· -sexual off��<:ler, this Court. should t�rmhlate his. . .. ·.

. ,. . parental rights t�·Child in. acco�dance �th,23 Pa. C.S.A. § 251 l(a)(l l), which , states·:·. .. . \ ' ,•, .... . · · · (a) General rule.-The rights ofa parent in regard to a· child may be terminated after a petition filed on any of .the following .. grounds: . . · . . . ( 11) The parent is required 'to register as a sexual offender under· 42 Pa. C.S. Ch. 97 Subch. H (relating to registration of sexual offenders) or to register with a sexual offender registry in another . jurisdiction or foreign country. . . �, f_l ... .:.. Petitioners contend that because Child is of the same age and gender as r·- ,· 'When Father H committed Indecent Assault against J.� . and also because Father has not provided the required . '

Initial Evaluation, Child's best interests would be. served by .terminating Father's'parental rights, . . .. . . . . While Father does not deny that he is require_d to register, Father does deny that it would .. ' be . in Child's best interests . to terminate . . . his parental rights to Child. Answer to Pet.� 22. :father . . . ;

sup �� � rt·' d that. he c�·ntinues � � ar�es t - ay.chil � bimseli� �ain�s a f�ly unit.with J . .., . . . . . . . . . . . . . . .. . '. . ," · : ... ' . . . . . . . . . .· . . .. . ·. . of. ;. ; :

. could be·a � Id .Additionally, and Paternal· Grandparents that.Chilci° p Father emphasizes . that' .. . . . . . . . , •'. . . .· '

the victimof the Indecent Assault wasnot Child . -Id. at New Matter 29 .. ' • j .. .. ••• ,r

. " . .. .. . . . Court was unable to find a case. in. which this subsection was used and its legal analysis for doing

so. However, § 2511 ( a) states that the rights of a parent "may" be terminated on the grounds that . - . .

17 ., . sexual offe�de� a parent is required to. register as . .. Therefore, this Court is riot required to . . . . a par��tal right;· Chil�··simpl; to.re ��ter. te�inat� Fathcir'� t�· . � because b� is � · · quir � a�� se�ai . . .. . . �· .. . . • \ \ •,. I.• · ... ,"'·· . ) ' : ..:. ••: ·�- • ... ... : .: � Io• • •

offender. ·� . "t •• . . . .· .. . . ' '. -� . : ..· •• • • • • • • .., '.·· • ', • •,: .. •• • • • ....� .. 1. • • • • • • • • • • • .. • • • •

. · Other than Father's conviction for Indecent Assatilt against.a victim that was the same t!' : ;• : • � Qffer�d rio·· other ·c�d�nc�··thai°wo�d- .sripport th�:, �- •', • ,," �' •

.Child .. i�- now/Petitl�nex: • ' • ' � J • • '• • • ::� • : " I ,' • .. • ', •• • ' • • •- • " ", ; • • " "

. ,, ·�ge·.'a�d- g��der·as . . .. . � . . '· . - ·... . : . .· . . \ ,· .v

. Court's determination to terminate Father'� parental rights to Child under 'this. provision, . In. · . . . -, ·. . . . to register the Court-takes notice that "[Father] has served_ his • I , . ' •''I ' •

c?nsidering Father's .r equirement • • • I '

time, . �d complied with . all necessary. registration and. probationary requirements of ' [his] . . . . . . . . . .

sentence. The offense that [Father] was convicted of did not involve (Child], nor has there. beeii : . • • • � ' • ' • • ' • ' •• ' • • ( :· ' • I • • I '

any implication that [Father] has abused either (Child] or J, __ '. Rep. of GAL 4. Because the ..

statute allows, but does not require the Court to terminate Father's parental rights due to his . . . requirement to register as a sexual offender, this Court retains discretion in determining whether

to terminate or not. Father ha_s demonstrated a ·settle� purpose to regain custody of Child and bas .:«.

fully completed the terms. of his sentencing. Therefore, the Court does not find by clear and

convincing evidence that it �ould.be in Child's best interest to terminate Father's parental rights

simply because he is required to register as a sexual offender, . . . ' . -

23 Pa. C.SA. § 251 J(b): ·Parent-Child Bond ,. .

.. As stated above; the- Petitioners' .. . have failed to . establish by clear and.convincing . . . - evidence . -,,

. 'that Father has demonstrated a settled purpose to relinquish his· parental. rights to Child �der 23 . ' . - . • . • • . • t . .. ..

. • . . ·. .to '

Pa. C.S.A. §. 2511(a)(l). -Additionally, the Petitioners' have failed 'o ��blish by clear and . lo .: .• • o > .. • o. •o I • • • 0 ·�- • o o ' ' \ ,• ' < • I • o o • o o '

convincing-evidence that Father's parental rig]:its should be terminated under 23 Pa C.S.A: §

251 l(a)(ll). Therefore, the Court cannot, and does not, continue on to the 23 Pa. C.S.A. § . '· 251 l(b) analysis. S�e In re L.M, 923. A.2d 505, 511 (Pa. Super. Ct. 2007).

'52 Conclusion

. It is clear .that Father is not .a perfect father figure.· H��ever, 23 Pa. C.S.A. :§. 2�1 l(a) 0

. . 4 .. .. '

• • •, I , (' • • ' I ; o ,° •

does· not require that Father be a perfect father figure. 23 Pa. C.S.A. § 251 l(a) does require �- . .. . . . . .: . ·.: . . . . . . . . : . . ... . . bowing by clear and convincing evidence that Father demonstrated a settled· purpose of has . . . . . ' .-·. . ,' •, 0./'

�.'. . I • • 0 0 • o I O 0 o

the •

for this ... \ •

elinquishment ·of.hi� parental rights to ·chiid .in. orde� Court to grant Petition. While . . ··.- . . . . . . .. . .. ·ather is not perfect, Father ha�· actually dem�nstr;ted a settled pUIJ)OSe to re�ain 'custody of . . . ... �Id and ·�xerci�e his pai ��tai rights with respect to; � .Again; while' not perfect in his Cbil'd. :

! '' • •

to modify 'custody.in. order to. • • I ' .._ • • ... • • • ' .. t .; ' '. • •' '1 • • t

ursuit to. regain custody . of Child, Father has filed two petitions . . .

llow him to have contact . with Child. . Modification. of . The most recent Petition for . Custody ' . was . . iled two weeks in advance of the Petition-�o Involuntarily Terminate Father's parental rights to

hild, This Court cannot ignore the timeline that shows Father actively sought custody of Child . . . . . , · . Court the six months preceding the Petition. Furthermore, the . understands that Father is .-

equired to register as a sexual offender under 42 Pa. C.S. Ch. 97 Subch. H. However. the Court .....

oes not believe that his requirement to register, in _and of itself, constitutes grounds to terminate

· s parental rights .. in this case as Father successfully completed his sentencing for that

sonviction, the victim was not Child, and Father clearly loves Child and wants to be a part of her

ife. Therefore, the Court denies Petitioners' Petition and Amended Petition. ; .... . . - . . .·· Accordingly, we enter the following order:

I.

.. ...

.. .. .