J-S60005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: E.A.S., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: M.S., FATHER                    :
                                               :
                                               :
                                               :
                                               :   No. 881 MDA 2018

                 Appeal from the Order Entered April 24, 2017
       In the Court of Common Pleas of Clinton County Orphans' Court at
                               No(s): 16-2017


BEFORE:      SHOGAN, J., NICHOLS, J., and STRASSBURGER*, J.

MEMORANDUM BY SHOGAN, J.:                              FILED OCTOBER 29, 2018

       Appellant, M.S. (“Father”), appeals from the order granting the petition

of B.M.B (“Mother”) and Mother’s paramour, J.S.L.1 (“Stepfather”), seeking to

involuntarily terminate Father’s parental rights to his son, E.A.S. (“Child”),

born in April of 2010, pursuant to 23 Pa.C.S. § 2511(a)(1) and (b) of the

Adoption Act, 23 Pa.C.S. §§ 2101-2938.             For the reasons that follow, we

affirm.

       The trial court presented the following findings of fact, which set forth a

factual background for this matter:

       1. Petitioners [Mother] and [Stepfather] currently reside together
       [in] Renovo, Pennsylvania.


____________________________________________


1 We note that the testimony of record establishes that Mother and Stepfather
intend to be married. N.T., 12/13/17, at 9, 12, 17.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     2. [Child] was born [in] April [of] 2010 in Renovo. [Stepfather]
     was present at [Child’s] birth.

     3. [Father] is the natural father of [Child]. [Father] was not
     present at [Child’s] birth and no specific reason was given for his
     absence.

     4. [Mother and Stepfather] have resided in Renovo[,] a town of
     approximately 1,800 people since [Child’s] birth.

     5. [Father’s] residence is in Coal Township, which the [trial c]ourt
     has been advised is located in Northumberland County,
     approximately two hours by automobile from Renovo.

     6. [Father’s] contact with [Child] since [Child’s] birth up until
     Christmas of 2015 has been nonexistent or at best negligible.

     7. During the 2015 Christmas season [Father] attempted to
     contact [Child] but was unable to do so because of resistance from
     [Mother]. No further effort at seeing [Child] was made at this
     time.

     8. Since [Child’s] birth [Father] has had relatives and friends in
     the Renovo area some of [whom] are also friends of [Mother and
     Stepfather] and who were aware of [Mother’s] current residence
     in Renovo. [Father] has testified that he feels no obligation to ask
     these sources where [Mother and Stepfather] resided.

     9. It appears that [Father] has formed no degree of bonding with
     [Child] up through the present time.

     10. Child knows [Stepfather] as his father and has participated in
     family activities with [Mother and Stepfather] and their two
     children born after [Child’s] birth.

Opinion and Order, 4/27/18, at 1-2.




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       On September 14, 2017, Mother and Stepfather filed a petition to

involuntarily terminate Father’s parental rights to Child.2 On September 18,

2017, the trial court entered an order that, among other things, appointed

Patrick Johnson, Esquire, to represent [Child]. The trial court held hearings

on December 13, 2017, and February 22, 2018. On February 26, 2018, the

trial court entered an order allowing the parties to file additional briefs with

the trial court. On February 27, 2018, Mother and Stepfather filed a proposed

finding of facts and conclusion of law with the trial court.

       On April 27, 2018, the trial court entered its opinion and order, which

involuntarily terminated Father’s parental rights to Child. This timely appeal

by Father followed.       Both Father and the trial court have complied with

Pa.R.A.P. 1925.

       Father presents the following issue for our review:

             Should the parental rights of [Father] have been terminated
       with respect to [Child] considering the intentional barriers erected

____________________________________________


2 We note that Father did not challenge, either in the trial court or on appeal,
Stepfather’s standing to join Mother in the petition to terminate Father’s
parental rights. However, a court should not raise the issue of standing sua
sponte. See In re Adoption of Z.S.H.G., 34 A.3d 1283, 1288-1289 (Pa.
Super. 2011) (setting forth explanation of relevant law holding that whether
a party has standing to maintain an action is not a jurisdictional question that
may be raised sua sponte). Furthermore, whether Stepfather had standing to
cosign the petition for termination of Father’s parental rights is of no moment
in light of the fact that there is no doubt that Mother had standing to file the
petition. See 23 Pa.C.S. § 2512(a)(1) (stating “A petition to terminate
parental rights with respect to a child under the age of 18 years may be filed
by . . . [e]ither parent when termination is sought with respect to the other
parent”).


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      by Mother to prevent [Father] from exercising his parental
      rights[?]

Father’s Brief at 4. Father argues that the trial court should have considered

the effect of Mother’s intentional barriers in preventing Father from exercising

his parental rights.

      In reviewing an appeal from an order terminating parental rights, we

adhere to the following well-established 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, 9 A.3d
      1179, 1190 (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.; [In re:] R.I.S., 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., ___ Pa.
      ___, 34 A.3d 1, 51 (2011); Christianson v. Ely, 575 Pa. 647,
      838 A.2d 630, 634 (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
      relevant hearing and often presiding over numerous other
      hearings regarding the child and parents. R.J.T., 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

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      conclusions are not the result of an error of law or an abuse of
      discretion. In re Adoption of Atencio, 539 Pa. 161, 650 A.2d
      1064, 1066 (1994).

In re Adoption of S.P., 47 A.3d 817, 826-827 (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).

Moreover, we have explained that:

      [t]he standard of clear and convincing evidence is defined as
      testimony that is so “clear, direct, weighty and convincing as to
      enable the trier of fact to come to a clear conviction, without
      hesitance, of the truth of the precise facts in issue.”

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

      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 Adoption of

T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003).

      Termination of parental rights is governed by Section 2511 of the

Adoption Act, which requires a bifurcated analysis.

      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

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     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. 2007) (citations omitted).

     As previously stated, the trial court terminated Mother’s parental rights

pursuant to 23 Pa.C.S. §§ 2511(a)(1) and 2511(b), which provide as follows:

     (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 notice of the filing
     of the petition.

23 Pa.C.S. §§ 2511(a)(1) and (b).

     This Court has explained that the focus in terminating parental rights

under Section 2511(a) is on the parent, but under Section 2511(b), the focus

is on the child. In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super.


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2008) (en banc). In In re Z.S.W., 946 A.2d 726 (Pa. Super. 2008), this Court

stated:

           To satisfy the requirements of section 2511(a)(1), the
     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 re Adoption of R.J.S., 901 A.2d
     502, 510 (Pa. Super. 2006). 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.

     In re Adoption of Charles E.D.M., 550 Pa. 595, 708 A.2d 88,
     91 (Pa. 1998).

           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).

     Id. at 92 (citation omitted).

In re Z.S.W., 946 A.2d at 730.

     In addition, we are mindful of the following:

     Although it is the six months immediately preceding the filing of
     the petition that is most critical to the analysis, 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

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     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.

           The Supreme Court has defined parental duty as follows:

                 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 his or
     her physical and emotional needs. . . .

            Where a non-custodial parent is facing termination of his or
     her parental rights, the court must consider the non-custodial
     parent’s explanation, if any, for the apparent neglect, including
     situations in which a custodial parent has deliberately created
     obstacles and has by devious means erected barriers intended to

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     impede free communication and regular association between the
     non-custodial parent and his or her child. Although a parent is
     not required to perform the impossible, he must act
     affirmatively to maintain his relationship with his child,
     even in difficult circumstances. A parent has the duty to
     exert himself, to take and maintain a place of importance
     in the child’s life.

           Thus, a parent’s basic constitutional right to the custody and
     rearing of his or her child is converted, upon the failure to fulfill
     his or her parental duties, to the child’s right to have proper
     parenting and fulfillment of his or her potential in a permanent,
     healthy, safe environment. A parent cannot protect his parental
     rights by merely stating that he does not wish to have his rights
     terminated.

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

(emphases added). Also, “[t]he parent wishing to reestablish [his] parental

responsibilities bears the burden of proof relative to post-abandonment

contact.” In re C.L.G., 956 A.2d at 1006 (quoting In re K.Z.S., 946 A.2d

753, 759 (Pa. Super. 2008)).

     After hearing two days of testimony from the parties and their

witnesses, the trial court analyzed the evidence and legal arguments in

support of termination pursuant to Section 2511(a)(1) as follows:

            23 Pa.C.S. §2511(a)(1) governs the involuntary termination
     of parental rights.     Alternative [sic] grounds exist for such
     termination.    First, if for a period of at least six months
     immediately preceding the filing of the Petition [the respondent]
     has evidenced a settled purpose of relinquishing parental claim to
     a child. The second ground looks at whether [the respondent] has
     failed to perform parental duties.

          In the present case[, Father’s] testimony does not really
     address the five years following [Child’s] birth in 2010. [Father]
     has presented a vague case involving his coming to the Renovo
     area and not being able to see [Child] because of his being

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     arrested and placed in jail. Few details about these episodes have
     been presented although [Father] admits to being charged with
     DUI and carrying a blackjack. [Father] blames these incidents on
     altercations with [Stepfather] although it does not appear that
     [Stepfather] has been arrested for anything arising from these
     claims.

            [Father] has further argued that he did not know where
     [Mother and Stepfather] lived in Renovo and felt that he had no
     duty to inquire from those who [Father] knew[,] or elsewhere[,]
     as to their residence. The [trial c]ourt cannot accept this thinking
     as taking reasonable steps to establish contact with [Child].

          It further appears that the relationship between [Father]
     and [Mother] has been an acrimonious one and continues to
     remain so. The reasons for this have not been disclosed.

            [Father’s] counsel has submitted two appellate decision in
     opposition to involuntary termination of [Father’s] parental rights.
     The first of these is In re TLG and DAG, 351 Pa. Super. 256, 505
     A.2d 628 (1986). In that case[,] the natural father resided in
     Texas while the mother resided in Pennsylvania. While the
     parents did not have an amicable relationship[,] which may have
     interfered with the father’s physical contact with the child, [the
     father] did send cards and gifts and provided other financial
     support. In the present case there seems to be a lack of such
     effort. [Father] was not hampered by the distance separating the
     parties. Further, [Father] felt he had [no] obligation to try to
     ascertain [M]other’s address. In essence[, Father] fell short of
     performing parental duties toward [Child].

           The second case submitted is Commonwealth of
     Pennsylvania v. Alice Arnold, 445 Pa. Super. 384, 685 A.2d 836
     (Pa. Super. 1995). In that case termination was upheld based on
     a long history of failure to perform parental duties, and the [trial
     c]ourt has discerned nothing in that case to support the denial of
     termination in this matter. The Court in that case did discuss what
     a parent must do in dealing with any claimed barriers to [the
     parent] exercising parental rights, and that requires one to exhibit
     reasonable firmness in attempting to overcome the barriers or
     obstructive behavior of others. The testimony presented by
     [Father] did not rise to this level.




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            Perhaps the most compelling reason for termination lies in
      the fact that [Child] is now eight years of age, and there is virtually
      no bond between [Child] and [Father]. To try to forge one now
      would be problematical in view of [Child’s] existing relationship
      with [Mother and Stepfather].            [Child] has only known
      [Stepfather] as his father since birth. To inject [Father] into that
      role under these circumstances might well cause emotional issues
      and problems that would outweigh the maintaining of [Father’s]
      parental status.

             In essence[,] the [trial c]ourt concludes that [Father,] by
      clear and convincing evidence has failed to perform parental
      duties with regard to [Child] for a period far in excess of six
      months. Further, [Father’s] attitude about the situation does not
      seem to be conducive to remedying that failure. Accordingly, the
      [trial c]ourt will grant the prayer of [Mother] to terminate
      [Father’s] parental rights.

Opinion and Order, 4/27/18, at 2-3.

      In his appellate brief, Father concedes that he has not had contact with

Child for at least six months immediately preceding the filing of the petition.

Father’s Brief at 6. Father explains his lack of contact with Child by claiming

that Mother has hampered his ability to participate in Child’s life.        Father

asserts that Mother refused to allow Father to see Child, and that his attempts

to locate Child were thwarted because Father did not know where Mother and

Child resided. Id. Father claims that “Mother deliberately created obstacles

and barriers to prevent Father from seeing, having any contact, or being able

to communicate whatsoever with [Child].”         Id. at 7.    In addition, Father

contends that he “lives three hours away from Renovo, Pennsylvania where

the Mother and [C]hild resided[,] had no relatives in the Renovo area, no

contacts in the area and no reasonable way of locating the Mother and


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[C]hild.”   Id.   Also, Father argues that “Mother did various acts including

moving without telling [Father] of her new address, blocking Facebook

messages from both [Father] and others who tried to intervene on [Father’s]

behalf, preventing [Father] from bringing presents and gifts to [C]hild and

otherwise having any contact whatsoever with [C]hild.” Id. at 7-8.

      Here, the trial court found clear and convincing evidence that Father

failed to perform parental duties in excess of the six-month period. After a

thorough review, we conclude that there was competent evidence to support

the trial court’s finding. Concerning Father’s claim that he was prevented from

performing his parental duties, we reiterate the following:

      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.

In re B., N.M., 856 A.2d at 855 (citations omitted). Although Father alleges

that he attempted to contact Child and be a part of Child’s life, the evidence

showed that Father failed to utilize all available resources to establish contact

with Child. Indeed, the record contains no evidence that, in the six months

prior to the filing of the termination petition, Father took reasonable steps to

ascertain Child’s whereabouts and send any correspondence, letters, or gifts

to Child. In fact, the following testimony offered by Father supports this

determination:


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      Q [Since] December of 2015 you’ve made no attempts to send
      anything to your son?

      A Yes, I have. I have made attempts just to be in his life. She
      don’t let me. I mean, what am I supposed to do?

      Q Those attempts were trying to contact Mother through
      Facebook?

      A What else am I supposed to do? Drive three hours up, three
      hours back? Come on.

      Q To see your son?

      A Yeah.

      Q You were asking if you should drive six hours round trip to see
      your son?

      A Yeah. Three kids I take care of. I have custody of three of
      them.

N.T., 12/13/17, at 27-28. This testimony supports that Father failed to utilize

all available resources to preserve the parental relationship and failed to

exercise reasonable firmness in resisting obstacles placed in the path of

maintaining the parent-child relationship. Thus, by conduct continuing for at

least six months immediately preceding the filing of the termination petition,

Father failed to perform parental duties.      Hence, we conclude there is

competent evidence in the record to support the trial court’s findings with

regard to the first two lines of inquiry of the test set forth in In re Z.S.W.,

946 A.2d at 730.

      Next, regarding the third line of inquiry of the test set forth in In re

Z.S.W., which requires a review under section 2511(b), we examine whether


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termination of parental rights would best serve the developmental, physical

and emotional needs and welfare of Child.     In re C.M.S., 884 A.2d 1284,

1286-1287 (Pa. Super. 2005). “Intangibles such as love, comfort, security,

and stability are involved in the inquiry into the needs and welfare of the

child.” Id. at 1287 (citation omitted).

      Pennsylvania courts have held that, in a termination of parental rights

case, the trial court is required to consider “whatever bonds may exist

between the children and [a]ppellant, as well as the emotional effect that

termination will have upon the children.” In re Adoption of A.C.H., 803 A.2d

224, 229 (Pa. Super. 2002) (quoting In re Adoption of A.M.R., 741 A.2d

666 (Pa. 1999) (citations omitted)).

      In In re K.Z.S., this Court stated that there are some instances where

direct observation of the interaction between the parent and the child is not

necessary and may even be detrimental to the child. In re K.Z.S., 946 A.2d

at 762. The panel explained that, in cases where there is no evidence of any

bond between the parent and child, it is reasonable to infer that no bond

exists. Id. at 763. “The extent of any bond analysis, therefore, necessarily

depends on the circumstances of the particular case.” Id. The panel in In re

K.Z.S. emphasized that, in addition to a bond examination, the court can

equally emphasize the safety needs of the child and also should consider the

intangibles, such as the love, comfort, security, and stability the child might

have with the foster parent.    Additionally, the panel stated that the court


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should consider the importance of continuity of relationships and whether any

existing parent-child bond can be severed without detrimental effects on the

child. Id.

      In In re K.Z.S., this Court observed that, where the subject child had

been almost constantly separated from his mother for four years, any

relationship between the two had to be “fairly attenuated,” such that the fact

that some bond existed did not defeat the termination of the mother’s parental

rights. Id. at 764. Based on the strong relationship that the child in In re

K.Z.S. had with his foster mother, the child’s young age, and his very limited

contact with his mother, the panel found competent evidence to support the

trial court’s termination of the mother’s parental rights, even without a

bonding evaluation.

      In this case, we conclude the trial court correctly determined Mother

and Stepfather satisfied the burden of proof that the termination of Father’s

parental rights would best serve the needs and welfare of Child pursuant to

23 Pa.C.S. § 2511(b). The trial court recognized that Child was over eight

years old at the time of the hearings and there is virtually no bond between

Child and Father. Opinion and Order, 4/27/18, at 3. The trial court found

Child has known Stepfather as his father since birth.          Id.   The record

establishes that Father has seen Child twice in Child’s lifetime, and that Father

was introduced as a friend. N.T., 12/13/17, at 10. In addition, the record

contains competent evidence from which the trial court correctly concluded


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that Mother and Stepfather satisfy Child’s needs and welfare. With regard to

Stepfather, the record reflects that he financially provides for Child. Id. at

15. In addition, he participates in Child’s recreational activities, education,

and physical needs by attending various medical appointments. Thus, the

trial court properly discerned that terminating Father’s parental rights would

have no effect on Child for there is little, if any, bond that would be severed.

      Because the trial court’s determinations are supported by competent

evidence, we discern no abuse of discretion or error of law on the part of the

trial court when it terminated Father’s parental rights pursuant to 23 Pa.C.S.

§ 2511(a)(1) and (b). Consequently, we affirm the order terminating Father’s

parental rights to Child.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/29/2018




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