J-S58017-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN RE: ADOPTION OF K.L.L., MINOR               IN THE SUPERIOR COURT OF
CHILD                                                PENNSYLVANIA


APPEAL OF: E.L.E., NATURAL MOTHER              No. 931 MDA 2015


               Appeal from the Decree entered May 15, 2015,
         in the Court of Common Pleas of Clinton County, Orphans’
                        Court, at No(s): 17-2014 OC

BEFORE: GANTMAN, P.J., OLSON, and PLATT*, JJ.

MEMORANDUM BY OLSON, J.:                        FILED OCTOBER 14, 2015

      Appellant, E.L.E., (“Mother”) appeals from the decree entered on May

15, 2015 in the Court of Common Pleas of Clinton County, denying her

petition to involuntarily terminate the parental rights of Appellee, L.D.L.

(“Father”), to K.L.L. (“Child”). We affirm.

      Mother and Father were married in June of 2009.        In July of 2009,

Mother and Father became the biological parents of twin girls, C.L. and A.L.1

Mother and Father separated in the fall of 2011.         On August 22, 2011,

Mother filed a complaint for divorce.         Father filed an answer and

counterclaim seeking custody of C.L. and A.L.     Child was born in July of

2012. On August 20, 2012, the trial court entered an order confirming that

Father was Child’s biological father.   On August 21, 2012, the trial court



* Retired Senior Judge assigned to the Superior Court.
1
 On August 13, 2012, the trial court granted Mother primary custody of C.L.
and A.L., and granted Father partial custody of C.L. and A.L.
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directed Father to pay child support for Child, effective July 25, 2012.

Father has continued to pay child support for Child, and C.L. and A.L. since

July 25, 2012. Mother and Father were divorced in September of 2013.

      On December 11, 2014, Mother filed a petition to involuntarily

terminate Father’s parental rights to Child pursuant to 23 Pa.C.S.A.

§ 2511(a)(1) and (b). Mother married B.E. in January of 2015. On March

20, 2015, the trial court held a hearing on the termination petition. At the

hearing, Mother, Father, and B.E. testified. On May 15, 2015, the trial court

entered its decree denying the petition to terminate Father’s rights to Child

pursuant to 23 Pa.C.S.A. § 2511(a)(1).

      On June 1, 2015, Mother timely filed a notice of appeal, along with a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b). On appeal, Mother raises the following issues for our

review:

      1. Whether the trial court committed an abuse of discretion
         and/or an error of law in finding that Mother failed to
         establish by clear and convincing evidence that termination of
         Father’s parental rights was appropriate pursuant to 23
         Pa.C.S.A. § 2511(a)(1)?

      2. Whether the trial court committed an abuse of discretion
         and/or an error of law in finding that Mother had obstructed
         Father from initiating contact with Child since birth, and that
         Father’s failure to perform parental duties was due to the
         actions of and/ or obstacles created by Mother?

Mother’s Brief at 4.




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      When reviewing a decree involving terminating parental rights, our

standard of review is well settled:

      In cases involving termination of parental rights[,] our standard
      of review is limited to determining whether the order of the trial
      court is supported by competent evidence, and whether the trial
      court gave adequate consideration to the effect of such a decree
      on the welfare of the child. Absent an abuse of discretion, an
      error of law, or insufficient evidentiary support for the trial
      court’s decision, the decree must stand. ... We must employ a
      broad, comprehensive review of the record in order to determine
      whether the trial court’s decision is supported by competent
      evidence.

In re Z.P., 994 A.2d 1108, 1115 (Pa. Super. 2010) (citations and quotations

omitted).

     In termination cases, 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 S.H., 879 A.2d 802, 805 (Pa.

Super. 2006). We have previously stated:

      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.”

In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).

      The trial court is free to believe all, part, or none of the evidence

presented and is likewise free to make all credibility determinations and

resolve conflicts in the evidence.    In re M.G., 855 A.2d 68, 73-74 (Pa.

Super. 2004). If competent evidence supports the trial court’s findings, we

will affirm even if the record could also support the opposite result. In re


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Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003).          As Mother’s

petition for termination of Father’s parental rights was based on Section

2511(a)(1) and (b), we will focus on those subsections for our review.

     Section 2511(a)(1) and (b) provide:

      § 2511. Grounds for involuntary termination

     (a) General rule.--The rights of a parent in regard to a child
     may be terminated after a petition filed on any of the following
     grounds:

         (1) The parent by conduct continuing for a period of at
         least six months immediately preceding the filing of the
         petition either has evidenced a settled purpose of
         relinquishing parental claim to a child or has refused or
         failed to perform parental duties.

                                   * * *

     (b) Other considerations.--The court in terminating the rights
     of a parent shall give primary consideration to the
     developmental, physical and emotional needs and welfare of the
     child. The rights of a parent shall not be terminated solely on
     the basis of environmental factors such as inadequate housing,
     furnishings, income, clothing and medical care if found to be
     beyond the control of the parent. With respect to any petition
     filed pursuant to subsection (a)(1), (6) or (8), the court shall not
     consider any efforts by the parent to remedy the conditions
     described therein which are first initiated subsequent to the
     giving of notice of the filing of the petition.

23 Pa.C.S.A. § 2511.

     We have explained this Court’s review of a challenge to the sufficiency

of the evidence to support the involuntary termination of a parent’s rights

pursuant to Section 2511(a)(1) as follows:

     To satisfy the requirements of [S]ection 2511(a)(1), the moving
     party must produce clear and convincing evidence of conduct,

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     sustained for at least the six months prior to the filing of the
     termination petition, which reveals a settled intent to relinquish
     parental claim to a child or a refusal or failure to perform
     parental duties. In addition,

            Section 2511 does not require that the parent
            demonstrate both a settled purpose of relinquishing
            parental claim to a child and refusal or failure to perform
            parental duties.   Accordingly, parental rights may be
            terminated pursuant to Section 2511(a)(1) if the parent
            either demonstrates a settled purpose of relinquishing
            parental claim to a child or fails to perform parental
            duties.

            Once the evidence establishes a failure to perform
            parental duties or a settled purpose of relinquishing
            parental rights, the court must engage in three lines of
            inquiry: (1) the parent’s explanation for his or her
            conduct; (2) the post-abandonment contact between
            parent and child; and (3) consideration of the effect of
            termination of parental rights on the child pursuant to
            Section 2511(b).

In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (internal citations

omitted).

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

     There is no simple or easy definition of parental duties. Parental
     duty is best understood in relation to the needs of a child. A
     child needs love, protection, guidance, and support. These
     needs, physical and emotional, cannot be met by a merely
     passive interest in the development of the child. Thus, this
     Court has held that the parental obligation is a positive duty
     which requires affirmative performance.

     This affirmative duty encompasses more than a financial
     obligation; it requires continuing interest in the child and a
     genuine effort to maintain communication and association with
     the child.




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      Because a child needs more than a benefactor, parental duty
      requires that a parent exert himself to take and maintain a place
      of importance in the child’s life.

      Parental duty requires that the parent act affirmatively with good
      faith interest and effort, and not yield to every problem, in order
      to maintain the parent-child relationship to the best of his or her
      ability, even in difficult circumstances. A parent must utilize all
      available resources to preserve the parental relationship, and
      must exercise reasonable firmness in resisting obstacles placed
      in the path of maintaining the parent-child relationship. Parental
      rights are not preserved by waiting for a more suitable or
      convenient time to perform one’s parental responsibilities while
      others provide the child with. . . her physical and emotional
      needs.

In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (internal citations

omitted), appeal denied, 872 A.2d 1200 (Pa. 2005).

      On appeal, Mother argues that the trial court erred by denying

termination of Father’s parental rights to Child.      Mother’s Brief at 11.

Specifically, Mother contends the trial court erred in concluding that Father’s

failure to perform parental duties was due to Mother’s actions.       Mother’s

Brief at 15-19.

      In denying termination of Father’s parental rights pursuant to Section

2511(a)(1), the trial court reviewed the record and the evidence presented,

and concluded that it is clear from the record that Father’s “parental inaction

and lack of interest in excess of six months” did not establish a settled

purpose to relinquish parental rights. Trial Court Opinion, 5/15/2015, at 7

(unpaginated).

      The trial court determined:


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      In December 2012, Father attempted to deliver Christmas gifts
      to [Child] but was met with total resistance by Mother when
      Mother threw the gifts in the back of Father’s truck, calling them
      ‘irrelevant.’ Mother argued that Father’s home was not suitable
      for [Child] to visit, and Father was required to undergo a home
      inspection. Father relocated to a county adjacent to Mother’s
      home county in an effort to be closer to [Child] and her sisters.
      Father made improvements to his residence, which included a
      separate bedroom for [Child]. Father and his family bought
      Christmas gifts for [Child] in December 2014. Father specifically
      asked Mother, via text messaging, to set up a custody schedule
      with [Child] on December 4, 2014, which resulted in Mother
      filing a [p]etition to [t]erminate Father’s [p]arental [r]ights on
      December 11, 2014. The [trial c]ourt finds Mother’s testimony
      to be untrustworthy as Mother initially testified under oath that
      Father’s inquiry came on December 18, 2014, a week after she
      filed her [p]etition when, in fact, the opposite is true. Mother’s
      [p]etition for [t]ermination of [p]arental [r]ights was clearly in
      response to Father’s inquiry to set up a formal schedule with
      [Child].

Id. at 8 (unpaginated).

      Mother testified to the following.   Father directed her not to contact

him about the birth of Child. N.T., 3/20/2015, at 13. There was a question

of paternity concerning whether Father was Child’s biological father. Id. at

30.   On August 20, 2012, an order was entered providing that Father is

Child’s biological father. In September of 2012, Mother’s attorney received a

letter from Father requesting Child be included in the custody order with C.L.

and A.L. Id. at 33. During Christmas of 2012, she refused Christmas gifts

Father had for Child. Id. at 34. She refused the gifts because Father never

met Child, and the gifts were “irrelevant.” Id. at 35. Between Christmas of

2012 and when Mother filed the petition to terminate Father’s rights, Father

never made an effort to contact Child. Id. at 35.     Father indicated to her

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that he constructed an additional bedroom in his home for Child after she

filed the petition to terminate Father’s paternal rights. Id. at 40.

         Father testified to the following.   Mother had sexual relations with

other men following the parties’ initial separation in September of 2011. Id.

at 62.      Father questioned whether Child was his biological child due to

Mother’s relationship with another man.         Id. at 63.   Father paid child

support for Child and attempted to have contact with Child following the

paternity test determining that Child was his biological child. Id. at 63-64.

Father made several attempts with Mother to have contact with Child, either

verbally, in-person, on the phone, or through text messages.           Id. at 65.

Father sent a letter to Mother’s attorney requesting contact with Child. Id.

In December of 2012, he attempted to give Child presents, and Mother

“threw them in the back of [Father’s] truck.” Id. at 66-67. In May of 2014,

Father moved to a new home to be closer to Child, making a forty-five

minute commute into a ten-minute drive.              Id. at 67.        During the

construction of his new home, he constructed an additional bedroom for

Child.    Id. at 68.     On December 5, 2014, he texted Mother to make a

custody arrangement for Child and to inform her that Child’s room was

finished. Id. at 71. Father did not pursue court proceedings with respect to

Child because he did not have the financial resources to pursue custody, and

he wanted to arrange a custody agreement out of court. Id. at 72.




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      The trial court determined Father testified credibly that he attempted

to see Child. Moreover, the trial court found Mother placed barriers in

Father’s path, and that Mother’s testimony was not credible. We defer to a

trial court’s determination of credibility, absent an abuse of discretion, and

discern no such abuse in its finding Father’s testimony credible. In re M.G.,

855 A.2d at 73-74.       Moreover, the competent evidence in the record

supports the trial court’s determinations that Father did not engage in a

course of conduct that demonstrated a settled purpose of relinquishing his

parental rights, nor has he refused or failed to perform parental duties. See

23 Pa.C.S. § 2511(a)(1). Accordingly, we can discern no abuse of discretion

or error of law in the trial court’s conclusion. See id.

      Because we find that the trial court did not abuse its discretion in

concluding that Father’s conduct did not warrant the termination of his

parental rights, there is no need to engage in a Section 2511(b) analysis.

See In re P.Z., 113 A.3d 840, 850 (Pa. Super. 2015) (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 2511(b)). Therefore, we affirm the decree denying the

petition for termination of Father’s parental rights.




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     Decree affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/14/2015




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