J-A25028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: O.H., A MINOR                              IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA




APPEAL OF: J.M. AND J.M.

                                                      No. 1196 EDA 2015


                 Appeal from the Order Entered March 16, 2015
             In the Court of Common Pleas of Northampton County
                  Orphans’ Court at No(s): No. OC-2014-0040


BEFORE: DONOHUE, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                         FILED NOVEMBER 06, 2015

        Appellants, J.M. (Mother) and J.M. (Stepfather), appeal from the March

16, 2015 order denying their petition for the involuntary termination of

parental rights of C.H. (Father) with respect to the female child, O.H. 1 Upon

careful review, we vacate and remand with instructions.

        The record reveals the following factual and procedural history. O.H.

was born in August 2009, during the marriage of Mother and Father. Mother




____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    Mother and Father are the biological parents of O.H.
J-A25028-15


and Father separated in February of 2011.2 N.T., 12/17/14, at 9. Following

the separation, Father lived with his mother (Paternal Grandmother) in her

home. Id. at 48, 50. By an interim custody order dated May 12, 2011, the

orphans’ court granted Mother sole legal and primary physical custody of

O.H.   Id. at Exhibit 8.        The orphans’ court granted Father partial custody

every Sunday from 12:00 p.m. to 6:00 p.m., supervised by Paternal

Grandmother, “until he produces a clean urine test result ….”3 Id. at ¶ 3.

The orphans’ court directed that Father shall undergo random drug testing

for a period of six months, and, if Father “has an unexcused positive, a no

show, or a dilute, his visitation shall automatically become supervised again,

pending further Order of Court.” Id. at ¶ 4. Father exercised unsupervised

visits at Paternal Grandmother’s home for an unspecified period of time. Id.

at 31, 50.

       After   the    marital     separation   of   Mother   and   Father,   Paternal

Grandmother provided childcare for O.H. while Mother was working and/or

attending school. N.T., 12/17/14, at 28, 30. In May 2013, Mother stopped

taking O.H. to Paternal Grandmother’s home. Id. at 24, 32. In June 2013,

Father, through counsel, filed a petition for contempt against Mother and a
____________________________________________


2
  Mother and Father reconciled at the end of 2011, but they separated again
for the final time in January of 2012. N.T., 12/17/14, at 42. They were
divorced by decree dated November 27, 2012. Id. at Exhibit 9.
3
 Father has a history of criminal arrests since 2002 related to illegal drugs.
See N.T., 12/17/14, at 62.



                                           -2-
J-A25028-15


motion to modify the existing custody order. Id. at 18; N.T., 2/10/15, at 7.

A custody conference was scheduled for June 27, 2013, at which time

Father’s counsel appeared, but Father did not appear, without explanation.

N.T., 12/17/14, at 18. As such, by order dated June 27, 2013, the orphans’

court dismissed Father’s contempt petition. Id. at Exhibit 10; N.T., 2/10/15,

at 10.

         On August 20, 2013, during a police raid of Paternal Grandmother’s

home, Father was arrested for manufacturing methamphetamine in the

basement of the home, to which he pleaded guilty.4 N.T., 12/17/14, at 5-6;

N.T., 2/10/15, at 35, 38-39.               Father was sentenced to a term of

imprisonment of three and one-half to seven years.5 N.T., 12/17/14, at 70.

Father’s minimum sentence date is July 20, 2016. Id.

         On July 28, 2014, Appellants filed a petition for the involuntary

termination of Father’s parental rights. On the same date, Stepfather filed a

petition for adoption.      The termination hearing occurred on December 17,

____________________________________________


4
  Paternal Grandmother and Father’s brother were also arrested. N.T.,
2/10/15, at 36. Paternal Grandmother pleaded guilty to conspiracy to
manufacture methamphetamine, for which she was sentenced to a term of
imprisonment not specified in the record. Id. at 31, 36-37. By the time of
the subject proceedings, Paternal Grandmother had been released from
prison.
5
  Father testified that, in 2013, prior to his arrest for manufacturing
methamphetamine, he was arrested for a crime involving the possession of
drug paraphernalia while visiting the home of a friend. N.T., 12/17/14, at
61-62.



                                           -3-
J-A25028-15


2014, and February 10, 2015, during which the following witnesses testified:

Mother; Father; Joseph Yannuzzi, Esquire (Attorney Yannuzzi), Father’s

counsel in the contempt action filed in June 2013; D.R. (Maternal

Grandmother); and Paternal Grandmother.

      On March 16, 2015, the orphans’ court denied Appellants’ involuntary

termination petition. On April 14, 2015, Appellants filed a notice of appeal

and a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(a)(2)(i). On April 22, 2015, the orphans’ court filed its Rule

1925(a) statement adopting the reasoning set forth in its March 16, 2015

opinion denying involuntary termination of Father’s parental rights.

      On appeal, Appellants present the following issues for our review.

            I.    Whether the [orphans’] [c]ourt committed an
            error of law and abused its discretion in its [o]rder …
            entered on March 16, 2015 in denying [Appellants’]
            Involuntary Termination of Parental Rights Petition
            where it was clear from the testimony and evidence
            presented at trial that the biological father had
            demonstrated a settled purpose of relinquishing
            parental claims to the subject child and where the
            biological father failed to perform parental duties for
            more than six months which thereby should have
            resulted in the termination of the biological father’s
            parental     rights    pursuant   to   23     Pa.C.S.A.
            § 2511(a)(1)?

            II. Whether the [orphans’] [c]ourt committed an
            error of law and abused its discretion in its [o]rder…
            entered on March 16, 2015 in denying [Appellants’]
            Involuntary Termination of Parental Rights Petition
            where it was clear from the testimony and evidence
            presented at trial that the biological father’s
            repeated and continued incapacity, abuse, neglect
            and refusal has caused the child to be without

                                     -4-
J-A25028-15


            essential parental care, control or subsistence
            necessary for the minor child’s physical or mental
            well-being and the conditions and causes of the
            incapacity, abuse, neglect or refusal cannot or will
            not be remedied by the biological father which
            thereby should have resulted in the termination of
            the biological father’s parental rights pursuant to 23
            Pa.C.S.A. § 2511(a)(2)?

Appellants’ Brief at 4.

      We review this appeal according to the following principles.

                   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.”

            In re I.J., 972 A.2d 5, 8 (Pa. Super. 2009) (quoting
            In re S.D.T., Jr., 934 A.2d 703 (Pa. Super. 2007),
            appeal denied, 597 Pa. 68, 950 A.2d 270 (2008)).

                   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 B.L.W., 843 A.2d 380, 383 (Pa. Super. 2004)
            (en banc), appeal denied, 581 Pa. 668, 863 A.2d
            1141 (2004) (internal citations omitted).

                   Furthermore, we note that the trial court, as
                   the finder of fact, is the sole determiner of the
                   credibility of witnesses and all conflicts in
                   testimony are to be resolved by [the] finder of
                   fact. The burden of proof is on the party
                   seeking termination to establish by clear and


                                      -5-
J-A25028-15


                 convincing evidence the existence of grounds
                 for doing so.

           In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.
           Super. 2002) (internal citations and quotation marks
           omitted).    The standard of clear and convincing
           evidence means testimony that is so clear, direct,
           weighty, and convincing as to enable the trier of fact
           to come to a clear conviction, without hesitation, of
           the truth of the precise facts in issue.       In re
           J.D.W.M., 810 A.2d 688, 690 (Pa. Super. 2002).
           We may uphold a termination decision if any proper
           basis exists for the result reached. In re C.S., 761
           A.2d 1197, 1201 (Pa. Super. 2000) (en banc). If the
           court’s findings are supported by competent
           evidence, we must affirm the court’s decision, even if
           the record could support an opposite result. In re
           R.L.T.M., 860 A.2d 190, 191[-92] (Pa. Super.
           2004).

           In re Adoption of K.J., 936 A.2d 1128, 1131-32
           (Pa. Super. 2007), appeal denied, 597 Pa. 718, 951
           A.2d 1165 (2008).

In re Z.P., 994 A.2d 1108, 1115-1116 (Pa. Super. 2010).

     Termination of parental rights is governed by Section 2511 of the

Adoption Act, which requires a bifurcated analysis.

           Our case law has made clear that under Section
           2511, the court must engage in a bifurcated process
           prior to terminating parental rights. Initially, the
           focus is on the conduct of the parent. The party
           seeking termination must prove by clear and
           convincing evidence that the parent’s conduct
           satisfies the statutory grounds for termination
           delineated in Section 2511(a). 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): determination of the
           needs and welfare of the child under the standard of
           best interests of the child. One major aspect of the

                                    -6-
J-A25028-15


           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. 2007), citing 23 Pa.C.S.A.

§ 2511. Appellants sought the involuntary termination of Father’s parental

rights on the following grounds.

           (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.

                 (2) The repeated and continued incapacity,
                 abuse, neglect or refusal of the parent has
                 caused the child to be without essential
                 parental care, control or subsistence necessary
                 for his physical or mental well-being and the
                 conditions and causes of the incapacity, abuse,
                 neglect or refusal cannot or will not be
                 remedied by the parent.

                                     …

           (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

                                   -7-
J-A25028-15


            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(a)(1), (2), and (b).            Parental rights may be

involuntarily terminated where any one subsection of Section 2511(a) is

satisfied, along with consideration of the Section 2511(b) provisions. In re

Adoption of R.J.S., 901 A.2d 502, 508 n.3 (Pa. Super. 2006).

      Instantly, we conclude that the orphans’ court abused its discretion in

failing to grant Appellants’ petition under Section 2511(a)(1). To satisfy the

requirements of Section 2511(a)(1), we have explained, as follows.

            [T]he moving party must produce clear and
            convincing evidence of conduct, sustained for at
            least the six months prior to the filing of the
            termination petition, which reveals a settled intent to
            relinquish parental claim to a child or a refusal or
            failure to perform parental duties. 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).

                                     -8-
J-A25028-15



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

omitted).

      This Court has held as follows, regarding the definition of “parental

duties.”

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

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

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

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




                                     -9-
J-A25028-15


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

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

      In In re Adoption of S.P., 47 A.3d 817 (Pa. 2012), our Supreme

Court discussed In re Adoption of McCray, 331 A.2d 652 (Pa. 1975), a

case wherein the orphans’ court considered the issue of the termination of

parental rights of incarcerated persons involving abandonment, which is

currently codified at Section 2511(a)(1).

            Applying in McCray the provision for termination of
            parental rights based upon abandonment, now
            codified as § 2511(a)(1), we noted that a parent
            “has an affirmative duty to love, protect and support
            his child and to make an effort to maintain
            communication and association with that child.” Id.
            at 655. We observed that the father’s incarceration
            made his performance of this duty “more difficult.”
            Id.

S.P., supra at 828. The S.P. Court further continued.

            [A] parent’s absence and/or failure to support due to
            incarceration is not conclusive on the issue of
            abandonment. 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. (citation omitted).

      In concluding that Father’s conduct did not warrant termination under

Section 2511(a)(1), the orphans’ court stated that, “[a]lthough Father has

not [ ] performed any parental duties for [O.H.] in the last six (6) months,

                                    - 10 -
J-A25028-15


the totality of the circumstances demonstrates that Father had been

involved in [O.H.]’s life prior to his incarceration.” Orphans’ Court Opinion,

3/16/15, at 9. We are constrained to disagree, as the testimonial evidence

demonstrates that Father clearly failed to perform his parental duties prior to

his incarceration.

      Mother testified that Father exercised partial physical custody under

the May 2011 custody order for “maybe a month or two.” N.T., 12/17/14, at

15.   She testified on direct examination that Father did not subsequently

make requests to see O.H. pursuant to the custody order.          Id.   Mother

testified that, beginning in June 2011, she started working full-time, and

Paternal Grandmother took care of O.H. approximately three or four days

per week.   Id. at 16, 30.   Mother testified that, upon taking O.H. to and

from Paternal Grandmother’s home, she saw Father there “maybe a few

times.” Id. at 16. Mother testified on cross-examination as follows.

            Q. [A]re you aware was [Father] seeing the child
            while the child was in [Paternal Grandmother]’s
            care?

            A. Yes but, like I said, it wasn’t a consistent
            relationship. He … would go a week or two without
            even seeing her….

Id. at 30. Paternal Grandmother testified that Father worked “a lot.” N.T.,

2/10/15, at 42.

      Mother testified that Father lived in the basement at Paternal

Grandmother’s home, and she had concerns because O.H. “would tell me


                                    - 11 -
J-A25028-15


she would go down in the basement and I told [Paternal Grandmother]

numerous times she is not to go in that basement because it’s … a storm

cellar. It’s not somewhere where the child should be.” N.T., 12/17/14, at

17.   Mother testified that, beginning in December 2012, O.H. developed

head lice which did not clear up.           Id. at 17.     Mother found that Father’s

younger brother, then age 11 or 12, who lived with Paternal Grandmother,

was infested with head lice.        Id. at 17-18. In May 2013, Mother stopped

taking O.H. to Paternal Grandmother’s home.                     Id. at 24, 32.   Mother

testified that Father last saw O.H. in June or July 2013 for a one-half hour

visit at the park, which Paternal Grandmother also attended.6 Id. at 24. On

August    20,    2013,     Father    was       arrested   for    the   manufacturing   of

methamphetamines in the basement of Paternal Grandmother’s home. Id.

at 5-6.

       The testimony of both Mother and Paternal Grandmother demonstrates

that, shortly after Mother’s and Father’s separation in 2011, up to the time

of his incarceration in August of 2013, Father failed to affirmatively perform

____________________________________________


6
  Maternal Grandmother testified with respect to an invitation she extended
to Father and Paternal Grandmother to visit with O.H. at the park
approximately one week before their arrest. Maternal Grandmother testified
that Paternal Grandmother came to the park and said that Father “was
showering and she was going to go back for him.” N.T., 2/10/15, at 25.
Paternal Grandmother did go back for Father, but she returned without him.
Maternal Grandmother explained, “And I said, where was [Father]? And I
guess his girlfriend had come to the house, so he did not want to come to
the playground ….” Id.



                                           - 12 -
J-A25028-15


his parental duties. The evidence reveals that O.H. spent time in Paternal

Grandmother’s    home    while   Father   came   and   went,   and   Paternal

Grandmother provided for the physical and emotional needs of O.H. while in

her care.

      In addition, although Father filed a petition for contempt against

Mother after she stopped allowing O.H. in Paternal Grandmother’s home, he

failed to follow through by not appearing for the custody conference on June

27, 2013. Father testified that his lawyer, Attorney Yannuzzi, did not notify

him by mail of the conference date. Id. at 69. However, Attorney Yannuzzi

testified that his office telephones clients with respect to conference dates.

N.T., 2/10/15, at 8-9.      Further, Attorney Yannuzzi testified that he

telephoned Father at the time of the conference when he failed to appear,

but that he was unable to reach Father. Id. at 9-10. Attorney Yannuzzi also

testified that Father never contacted him after that. Id. at 8, 10-11. Thus,

we conclude the evidence demonstrates that, from May 2013, when Mother

stopped taking O.H. to Paternal Grandmother’s home, until August 20, 2013,

when Father was incarcerated, Father failed to “exercise reasonable

firmness” in maintaining his relationship with O.H. See B.,N.M., supra.

      With respect to Father’s incarceration, the orphans’ court concluded

that Father has failed to perform his parental duties for the six months prior

to the filing of the termination petition. The orphans’ court’s conclusion is

based on the following factual findings. Father is currently incarcerated at


                                    - 13 -
J-A25028-15


State Correctional Institute Mahanoy. Orphans’ Court Opinion, 3/16/15, at

3, ¶ 16.    The orphans’ court found that “Father has not sent any gifts to

[O.H.] during his period of incarceration, but he enrolled in the Prison

Christmas Program.” Id. at 4, ¶ 19. Further, the orphans’ court found that

Father “has contacted [O.H.] during his incarceration through Maternal

Grandmother.”       Id. at ¶ 20.      However, the orphans’ court clarified that,

“since Father has been incarcerated in State Prison he has not spoken to

[O.H.].” Id. at 9. Significantly, in December 2013, Father was transferred

from Northampton County prison to a state correctional institution.           N.T.,

2/10/15, at 23. Nevertheless, the orphans’ court did not conclude that this

conduct demonstrated a settled intent to relinquish parental claim to a child

or a refusal or failure to perform parental duties.

       Father’s   testimony      further   revealed   that   Maternal   Grandmother

initiated telephone calls between him and O.H. for the first four months of

his prison term, which he spent in Northampton County Prison.7                 N.T.,

12/17/14, at 55. Specifically, Father testified that he spoke to O.H. every

Sunday. Id. Father testified that he has not sent any gifts to O.H. while he

has been in prison, but he applied for the Christmas program in prison


____________________________________________


7
  Maternal Grandmother testified that Father “came to live with us when he
was eighteen, and I’ve been more of a mother figure to him over the last
thirteen years. So we have more of a history than just being the … ex-
mother-in-law.” N.T., 2/10/15, at 17.



                                           - 14 -
J-A25028-15


“where they will send home gifts if you’re selected, and I applied for the

program and I haven’t heard anything back yet.” Id. at 56.

     Maternal Grandmother testified regarding the telephone calls between

Father in Northampton County prison, and O.H., then age three, while she

was in Maternal Grandmother’s home.

           Q. Would [Father] call every Sunday?

           A. He called a few – it wasn’t every single Sunday. I
           don’t know how many Sundays, but it wasn’t every
           single Sunday.

                                       …

           A. I didn’t have [O.H.] every single Sunday either.

                                       …

           Q. And how many times, roughly, do you think …
           [O.H.] actually spoke with him?

           A. Four or five.

           Q. [ ] Did there come a time when those phone calls
           stopped? The Sunday phone calls, did there come a
           time when those stopped?

           A. Yes, yes.

              Because we just – it wasn’t worth putting [O.H.]
           through that.    She did not want to talk on the
           phone.

           Q. Who chose to stop those phone calls?

           A. I – me and [Mother].

              Because it just wasn’t worth the aggravation of
           having [O.H.] get upset. She did not want to talk on
           the phone.

                                     - 15 -
J-A25028-15



            Q. So you and the child’s mother decided to stop
            those phone calls?

            A. Yes.

Id. at 19-21. Maternal Grandmother testified that she and Mother stopped

allowing the telephone communication in October 2013.         Id. at 21.   No

evidence suggests Father has attempted to communicate with O.H. after

Maternal Grandmother ceased to initiate telephone communication.

      Thus, the foregoing testimonial evidence supports the conclusion that

Father has failed to perform any parental duties for the last six months prior

to the filing of the termination petition on July 28, 2014. Indeed, Father has

had no communication with O.H. since his transfer to a state correctional

institution, which occurred in December 2013. The evidence demonstrates

that Father has failed to “exercise reasonable firmness in resisting obstacles

placed in the path of maintaining a parent-child relationship” both before

and during his incarceration. See B.,N.M., supra; S.P., supra. As such,

we conclude that the orphans’ court abused its discretion in denying

Appellants’ termination petition pursuant to Section 2511(a)(1).

      With respect to considering the effect on O.H. of terminating Father’s

parental rights pursuant to Section 2511(b), we note that the orphans’ court

made no findings as it had concluded termination was not proper pursuant

to Section 2511(a). See Orphans’ Court Opinion, 3/16/15, at 10, 13. Upon

remand, the orphans’ court will need to conduct an analysis pursuant to


                                    - 16 -
J-A25028-15


Section 2511(b). See L.M., supra (holding “[o]nly 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)[]”).

      We note, however, that although the orphans’ court made no specific

findings, the record in this case disclosed the following. Mother testified that

she never observed a bond between O.H. and Father. N.T., 12/17/14, at 24.

On direct examination Mother testified as follows.

            Q. Does [O.H.] ever speak about her father?

            A. No. I mean, in the beginning she would ask
            where her mum-mum was and where –

            Q. Who’s mum-mum?

            A. Her grandmother.

            Q. Okay.

            A. And she asked [about] her da-da in the basement
            at her mum-mum’s, is how she referred to him as,
            but that was a little bit after they got arrested and,
            ever since then, I mean, she hasn’t said anything to
            me.

            Q. Is [O.H.] well-adjusted now?

            A. Yes.

Id. at 25-26.

      In contrast, Mother testified that O.H. and Stepfather “have a very

strong bond”, and that O.H. refers to him as “Dad.”       Id. at 22.    Mother

testified she and Stepfather began living together in July 2013. Id. They

                                     - 17 -
J-A25028-15


married on September 7, 2013.         Orphans’ Court Opinion, 3/16/15, at ¶

15(b).

      In addition, the Guardian Ad Litem (GAL) informed the orphans’ court

on the record in open court that she observed O.H. with Stepfather and

“from her body language … she … is openly affectionate with him, felt safe

and comforted.” N.T., 2/10/15, at 54-55. The GAL also told the orphans’

court that O.H. “is extremely shy.” Id. at 54. Finally, the GAL stated to the

orphans’ court that, “if the Court determines to terminate father’s rights in

this matter, I definitely believe that the best interest and welfare of the child

would be served by allowing an adoption to proceed as contemplated.” Id.

at 55-56.

      Based on the foregoing, we conclude that that orphans’ court abused

its discretion in denying Mother and Stepfather’s petition, as they had met

their burden under Section 2511(a)(1).        Accordingly, the orphans’ court’s

March 16, 2015 order is vacated, and the case is remanded with instructions

for the orphans’ court to determine whether termination is proper pursuant

to Section 2511(b), and enter an appropriate order.

      Order vacated.      Case remanded with instructions.           Jurisdiction

relinquished.




                                     - 18 -
J-A25028-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2015




                          - 19 -
