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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: H.I.C.                       IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA




APPEAL OF: J.E.B., SR., FATHER

                                                      No. 928 MDA 2014


                   Appeal from the Order Entered May 6, 2014
                 in the Court of Common Pleas of Clinton County
                         Orphans' Court at No.: 23-2013


BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED OCTOBER 29, 2014


        J.E.B., Sr. (Father), appeals from the order of the Court of Common

Pleas of Clinton County, entered on May 6, 2014, that terminated his

parental rights to his daughter, H.I.C., born in December of 2009.        We

affirm.

        C.M.P. (Mother) and S.M.P. (Stepfather) filed a petition to terminate

Father’s parental rights on October 7, 2013.1 The trial court held a hearing

on that petition on April 25, 2014. Testifying at that hearing, in addition to



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Mother and Stepfather are married and have a child of their own. (See
N.T. Hearing, at 19-20).
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Mother, Father, and Stepfather, were Father’s son by another marriage,

J.E.B., Jr., and Father’s former wife, S.M.A.

       Mother and Father each testified that Father had regular and

consistent contact with Child until December of 2011.          (See N.T. Hearing,

4/25/14, at 5, 71).       Thereafter, Mother precluded contact between Father

and Child on the advice of Northumberland County Children and Youth

Services (NCCY) because of allegations of child abuse against Father. (See

id., at 29-30). Father was ultimately convicted of crimes related to these

allegations and began to serve an eighteen to thirty-six month sentence in a

state correctional facility on August 22, 2012.2 (See id., at 47). The parties

agree that Father had little, if any, contact with Child after December of

2011. (See id., at 5, 43, 72). Mother and Stepfather testified that Father

attempted no contact with Child from December of 2011 until Mother

received a letter from Father, addressed to her, dated March 1, 2013.

Mother testified that Father never attempted to contact her or Child after

that date.

       Father testified that he sent letters to Child each month as well as

Christmas cards and other writings.              On this question, the trial court

resolved the issue of credibility in favor of Mother, “This [c]ourt, concerning

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2
  At the time of the hearing, Father was incarcerated at S.C.I. Mahanoy.
(See N.T. Hearing, 4/25/14, at 75). Father was still incarcerated as of the
date of the trial court opinion. (See Trial Court Opinion, 5/6/14, at 1 ¶ 2).



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the allegations of Father that Father forwarded numerous items to Mother

for [Child], accepts the testimony of Mother and Stepfather and rejects the

testimony of Father.” (Trial Ct. Op., 5/6/14, at 3 ¶ 17 [Finding of Fact]).

      Mother testified that she resided at the same address from December

of 2011 until August of 2012. She testified that she has had the same cell

phone number from 2009 until the present and that Father knew that

number.   Mother also testified that the Postal Service forwarded all of her

mail to her new address when she moved in August of 2012. Mail forwarded

to this address included Father’s letter dated March 1, 2013.

      Mother testified that she did not receive any phone communications

from Father other than a text message in which he asked to see Child, and

two text messages asking why Mother would not talk to him.              Mother

responded to the request to see Child by telling Father she would not allow

him to see her until NCCY advised her to permit contact.        Mother did not

respond to the other texts.

      Mother testified that Child has no recollection of Father and was unable

to recognize him from photographs.      Mother and Stepfather testified that

Child views Stepfather as her parent, and refers to him as “Daddy.”

Stepfather testified that he views Child as his biological offspring and has,

and will, continue to treat her as if she were. Stepfather testified that he

intends to adopt Child.




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       The trial court issued its order terminating Father’s parental rights on

May 6, 2014. Father filed his notice of appeal on June 2, 2014. Father filed

his statement of matters complained of on appeal on June 6, 2014, in

response to the trial court’s order of June 3.3

       Father raises the following question on appeal:

             Whether the decision of the [trial] court to terminate
       Father’s parental rights was so against the weight of evidence as
       to constitute an abuse of discretion[?]

(Father’s Brief, at 4).

       Our standard of review is as follows:

       In an appeal from an order terminating parental rights, our
       scope of review is comprehensive: we consider all the evidence
       presented as well as the trial court’s factual findings and legal
       conclusions. However, our standard of review is narrow: we will
       reverse the trial court’s order only if we conclude that the trial
       court abused its discretion, made an error of law, or lacked
       competent evidence to support its findings. The trial judge’s
       decision is entitled to the same deference as a jury verdict.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).

       Further, we have stated:

             Where the hearing court’s findings are supported by
       competent evidence of record, we must affirm the hearing court
       even though the record could support an opposite result.
             We are bound by the findings of the trial court which have
       adequate support in the record so long as the findings do not
       evidence capricious disregard for competent and credible
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3
  There was no objection or claim of prejudice from Mother to this late filing
so we have accepted it in reliance on our decision in In re K.T.E.L., 983
A.2d 745 (Pa. Super. 2009).



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     evidence. 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.
     Though we are not bound by the trial court’s inferences and
     deductions, we may reject its conclusions only if they involve
     errors of law or are clearly unreasonable in light of the trial
     court’s sustainable findings.

In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citations omitted).

     To affirm the termination of parental rights, this Court need only agree

with any one subsection of Section 2511(a). See In re B.L.W., 843 A.2d

380, 384 (Pa. Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa.

2004).

     Requests to have a natural parent’s parental rights terminated are

governed by 23 Pa.C.S.A. § 2511, which provides, in pertinent part:

     § 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

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      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.

      It is well-settled that a party seeking termination of a parent’s rights

bears the burden of proving the grounds to so do by “clear and convincing

evidence,” a standard which requires evidence 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 T.F., 847 A.2d 738, 742 (Pa. Super. 2004). Further,

      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 the Interest of K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (internal

citations omitted).

      To terminate parental rights pursuant to section 2511(a)(1), the

person or agency seeking termination must demonstrate through clear and

convincing evidence that, for a period of at least six months prior to the

filing of the petition, the parent’s conduct demonstrated a settled purpose to

relinquish parental rights or that the parent has refused or failed to perform

parental duties. See In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.


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Super. 2003).   With respect to subsection 2511(a)(1), our Supreme Court

has held:

           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 Adoption of Charles E.D.M., 550 Pa. 595, 602, 708 A.2d 88, 92

(1998) (case citation omitted). Further,

     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 N.M.B., 856 A.2d 847, 854-855 (Pa. Super. 2004), appeal denied,

872 A.2d 1200 (Pa. 2005) (citations omitted).

     The Adoption Act provides that a trial court “shall give primary

consideration to the developmental, physical and emotional needs and

welfare of the child.”   23 Pa.C.S.A. § 2511(b).    The Act does not make

specific reference to an evaluation of the bond between parent and child but

our case law requires the evaluation of any such bond. See In re E.M., 533

Pa. 115, 620 A.2d 481, 484 (1993). However, this Court has held that the

trial court is not required by statute or precedent to order a formal bonding




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evaluation performed by an expert.     See In re K.K.R.-S., 958 A.2d 529,

533 (Pa. Super. 2008).

     In regard to incarceration, our Supreme Court has stated:

           [I]ncarceration is a factor, and indeed can be a
     determinative factor, in a court’s conclusion that grounds for
     termination exist under § 2511(a)(2) where the repeated and
     continued incapacity of a parent due to incarceration has caused
     the child to be without essential parental care, control or
     subsistence and that the causes of the incapacity cannot or will
     not be remedied.

                                   *     *   *

            [W]e now definitively hold that incarceration, while not a
     litmus test for termination, can be determinative of the question
     of whether a parent is incapable of providing “essential parental
     care, control or subsistence” and the length of the remaining
     confinement can be considered as highly relevant to whether
     “the conditions and causes of the incapacity, abuse, neglect or
     refusal cannot or will not be remedied by the parent,” sufficient
     to provide grounds for termination pursuant to 23 Pa.C.S. §
     2511(a)(2). See e.g. Adoption of J.J., [511 Pa. at 605], 515
     A.2d at 891 (“[A] parent who is incapable of performing parental
     duties is just as parentally unfit as one who refuses to perform
     the duties.”); [In re:] E.A.P., [944 A.2d 79, 85 (Pa. Super.
     2008)] (holding termination under § 2511(a)(2) supported by
     mother’s repeated incarcerations and failure to be present for
     child, which caused child to be without essential care and
     subsistence for most of her life and which cannot be remedied
     despite mother’s compliance with various prison programs). If a
     court finds grounds for termination under subsection (a)(2), a
     court must determine whether termination is in the best
     interests of the child, considering the developmental, physical,
     and emotional needs and welfare of the child pursuant to §
     2511(b). In this regard, trial courts must carefully review the
     individual circumstances for every child to determine, inter alia,
     how a parent’s incarceration will factor into an assessment of the
     child’s best interest.




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In re Adoption of S.P., 47 A.3d 817, 828, 830-31 (Pa. 2012).4

       In support of his argument that the trial court abused its discretion

when it terminated his parental rights, Father states, “Father testified that

he wrote to [Child] at least monthly. Father’s testimony was supported by

the testimony of his son and his ex-wife that Father’s habit was to write

regularly to his children.” (Father’s Brief, at 12). We accord limited weight

to Father’s claim that he wrote to Child monthly, because we are bound by

the trial court’s finding that Father’s testimony to that effect was not

credible. Similarly, we accord limited weight to Father’s statement about the

testimony of his son and ex-wife, for two reasons.               First, whether Father

wrote regularly to another child has no relevance to the question of whether

he wrote to Child here.        Second, in its opinion, the trial court ignores the

testimony of Father’s son and his ex-wife. We conclude that the trial court

found that it was not probative on the issue.

       We    agree     with   the    trial     court’s   determination   that   Father’s

incarceration was not a factor in his failure to parent Child. The trial court

concluded, “Father during six (6) months previous to the filing of the Petition

was incarcerated but made no effort to overcome the obstacles that are

obvious from Father’s incarceration.            Father is required to use substantial

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4
  Even though incarceration is discussed here in terms of subsection (a)(2),
we note that the case applies to subsection (a)(1), as well.



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effort to overcome the obstacle of incarceration and has done almost nothing

to maintain any type of relationship with [Child].” (Trial Ct. Op., at 3-4).

      The record supports the trial court’s determination that “Father has for

a period of at least six (6) months immediately preceding the filing of the

Petition evidenced a settled purpose to relinquish Father’s parental claim to

[Child] and has failed to perform parental duties.” (Id. at 3 ¶ 2).

      Father does not question or discuss the trial court’s determination that

the termination of his parental rights will best serve Child’s developmental,

physical and emotional needs and welfare pursuant to subsection (b). The

trial court made the following findings regarding Child’s best interests:

      18. [Child] has no memory of Father and refers to Stepfather as
      Daddy and Mother, Stepfather and [C]hild, along with Mother
      and Stepfather’s other child, have formed a family unit.

      19. Father has no bond with [Child].

      20. Stepfather has a substantial bond with [Child].

(Id. at 3 ¶¶ 18-20). Based on these findings, the trial court concluded:

      3. [Child’s] developmental, physical and emotional needs and
      welfare will be best served by terminating Father’s parental
      rights as Father has no bond with [Child], and Stepfather and
      [Child] have bonded.

(Id., at 4 ¶ 3).

      Our review of the record reveals that it supports the trial court’s

findings and that the trial court did not abuse its discretion when it found




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that the termination of Father’s parental rights will serve Child’s best

interests.5

       The trial court’s decision to terminate Father’s parental rights under

Sections 2511(a)(1) and (b), and to permit Child’s adoption without notice

to or consent from Father is supported by clear and convincing evidence.

Accordingly, we conclude that there was no error of law or abuse of the trial

court’s discretion in the trial court’s decision. See In re L.M., supra at 511.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/29/2014




____________________________________________


5
 We also note that affirmance of the trial court’s decision is urged by the
Guardian ad litem. (See Brief of Guardian ad litem for H.I.C., at 7).



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