J-S54002-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF E.A.B., A MINOR                 IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA


APPEAL OF: I.P.
                                                       No. 769 MDA 2014


                  Appeal from the Order Entered April 4, 2014
                In the Court of Common Pleas of Franklin County
                     Orphans' Court at No(s): 60-Adopt-2013


BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.

MEMORANDUM BY LAZARUS, J.                           FILED OCTOBER 22, 2014

       I.P. (“Father”) appeals from the order of the Court of Common Pleas of

Franklin County involuntarily terminating his parental rights to his daughter,

E.A.B., born in February 2012.1 After careful review, we affirm.

       K.B.J. (“Mother”) and Father were never married. A.F.J. (“Stepfather”)

and Mother married in September 2013, when E.A.B. was about seven

months old.

       Following E.A.B.’s birth, Father and Mother entered into a verbal

arrangement whereby Father visited E.A.B. at Mother’s home; at that time,

Mother was residing with her parents.          Mother and Father established a




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1
  We note that Father’s brief twice refers to termination of Mother’s parental
rights. This is clearly a typographical error. See Appellant’s Brief, at 6, 8.
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schedule whereby Father could visit with E.A.B. three days each week for

two hours in the morning.2 N.T. Termination Hearing, 4/4/2014, at 11-12.

       On December 16, 2013, Stepfather filed a petition for involuntary

termination of Father’s parental rights; Mother joined in the petition.     The

court held a hearing on April 4, 2014, after which the trial court entered a

decree terminating Father’s parental rights under section 2511(a)(1). See

23 Pa.C.S. § 2511(a) (parent by conduct continuing for period of at least six

months immediately preceding filing of petition has either evidenced settled

purpose of relinquishing parental claim to child or has refused or failed to

perform parental duties).3

       At the hearing, Mother testified that Father initially denied that the

child was his, and that when he came to the hospital when E.A.B. was born

he was intoxicated. Id. at 6, 9-10. Additionally, Mother testified that Father

was consistently late for his visits with E.A.B., that he was hostile and angry

at the visits, and that he did not focus on E.A.B. during the visits but instead



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2
  Mother’s father is an attorney; he suggested Father contact an attorney of
his own in order to establish a formal custody agreement.
3
  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. 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.
See Matter of Adoption of Charles E.D.M., II, 708 A.2d 88, 91 (Pa.
1998).



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used the time to attempt to reconcile his relationship with her. Id. at 12-

14. Maternal Grandmother also testified as to Father’s visits with E.A.B.:

      Q:   —what was your impression how these visits between
      [Father] and [E.A.B.] were going?

      A:    They were very hostile. I felt very strongly that the visits
      were more about [Mother] than they were about [E.A.B.]. They
      were more about trying to get her back than they were about
      [E.A.B.], so much to the point that I stated to her on several
      occasions that I sincerely wondered once she went back to work
      if he would ever come when she wasn’t there. He never stayed
      the full – well, he either showed up late for the two-hour visit –
      it was regular to show up an hour-and-a-half late or he wouldn’t
      show up, or if his conversation didn’t go with [Mother] the way
      he wanted it to, he would leave within a half an hour. So it
      wasn’t about visiting with [E.A.B.], it was about [Mother].

Id. at 50-51. Maternal Grandmother also testified that Father always had

her home and cell phone number, that there was never a time he could not

reach her and that she never denied him access to her home for visiting with

his daughter. Id. at 54. She also stated that Father’s last visit was in April

2012, and that Mother went back to work that month. Id.

      Mother testified that other than a pink teddy bear Father purchased

before E.A.B. was born, Father never gave E.A.B. gifts or cards, nor did he

purchase diapers, bottles or any type of supplies for her.     Id. at 18-19.

Mother did state, however, that Father paid $50 a week in support until April

2012, which totaled $300. Id. at 19. Mother testified that Father last saw

E.A.B. in April 2012, and that Father called her six months later, in October

2012, to tell her he was moving to California. Id. at 15.




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      Mother also testified that Stepfather has been a father figure for E.A.B.

since she was born, that they are extremely close, that he financially

supports E.A.B., that E.A.B. calls him “Daddy,” and that Stepfather would

like to adopt E.A.B.   Id. at 21. Stepfather confirmed at the hearing that he

had assumed financial responsibility for E.A.B., that if Father’s parental

rights were terminated he would adopt E.A.B., and if Father’s rights were not

terminated he would continue financial support for E.A.B. as her stepfather.

Id. at 42.    Stepfather testified that E.A.B. “is [his] daughter” and, “no

matter what happens today, that’s not going to change.”              Id. at 43.

Maternal Grandmother also testified to the relationship between E.A.B. and

Stepfather: “She lights up when he walks in the room. He takes care of

her. . . . He’s Daddy.” Id. at 56.

      Paternal Grandfather also testified.      He stated that he and his wife

never prevented Father from visiting with E.A.B., and that his daughter

never did either.   Id. at 70.

      Mother acknowledged that she moved twice from her parents’

residence and did not tell Father, but explained that she did this because she

was afraid of him. Id. at 31, 34. She also explained that since visits with

E.A.B. took place at her parents’ home, there was no need for her to inform

him of her new address. Id.

      Father also testified.     He stated that he visited with E.A.B. until she

was three months old. Id. at 78. He also stated that the reason he stopped

visiting was that he was “running low on giving [Mother] weekly money,”

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and “[Mother] wasn’t happy with that[,] and that she said, “You don’t have

the money, you can’t see your daughter. Simple as that.” Id. at 78-79. He

also stated that he was afraid if he showed up at maternal grandparents’

property, “they’d probably call the police.” Id. at 79. However, Father also

testified that he felt comfortable with maternal grandfather and that

maternal grandfather told him if he ever needed “to talk to him about

anything about [E.A.B.] or anything I can just call.” Id. at 81-82.

        Father claims that the trial court erred in terminating his parental

rights under section 2511(a)(1). He argues that Mother presented obstacles

that impeded communication between Father and E.A.B. and, therefore, the

evidence did not establish either that Father failed to perform parental duties

or that he exhibited a settled purpose of relinquishing his parental rights.

Father also argues the court did not have sufficient information to determine

the bond between Father and E.A.B. and the effects of termination on that

bond.    Our review of the record belies Father’s claims.

        In reviewing an appeal from the termination of parental rights, we

utilize the following standard:

        [A]ppellate courts must apply an abuse of discretion standard
        when considering a trial court’s determination of a petition for
        termination of parental rights. As in dependency cases, our
        standard of review requires [that we] accept the findings of fact
        and credibility determinations of the trial court if they are
        supported by the record. In re: R.J.T., 9 A.3d 1179, 1190 (Pa.
        2010). If the factual findings are supported, appellate courts
        review to determine if the trial court made an error of law or
        abused its discretion. As has been often stated, an abuse of
        discretion does not result merely because the reviewing court


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      might have reached a different conclusion. Instead, a decision
      may be reversed for an abuse of discretion only upon
      demonstration     of     manifest unreasonableness,  partiality,
      prejudice, bias, or ill will.

      As [was] 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 conclusions are not the result of an error of law or an abuse
      of discretion.

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

citations omitted).

      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). We

have explained:

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

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

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




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

section 2511(a)(1):

      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. . . . 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 [s]ection 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 postabandonment
      contact between parent and child; and (3) consideration of the
      effect of termination of parental rights on the child pursuant to
      [s]ection 2511(b).

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

citations omitted).

      After our review of the record, we find that the court properly

determined that the evidence clearly and convincingly showed that Father

failed to perform his parental duties for at least six months prior to the filing

of the petition. The court found Father’s testimony was not credible and his

explanation for his conduct was not supported in the record.

      Father readily acknowledged that, other than the $300 he gave to

Mother, he did not provide for E.A.B. after she was born. N.T. supra, at 89.

He admitted he never bought clothes or toys or sent birthday or Christmas

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presents, and that he never reached out to E.A.B. on her birthday.             Id.

Further, Father testified that he felt comfortable with maternal grandfather,

but later stated, in an attempt to explain why he did not visit E.A.B., that he

was not comfortable going to maternal grandfather’s residence. Id. at 81-

82, 90. Additionally, Father testified that although he told Mother he was

planning to move to California, he never did move and has been living in

Carlisle since 2000. Id. at 98.

      Appellees, Mother and Stepfather, have established by clear and

convincing evidence that Father, for a period exceeding six months prior to

the filing of the petition, has failed to perform his parental duties. He failed

to support E.A.B., even while employed, and failed to visit her.           In fact,

Father had no contact with E.A.B. for almost eighteen months prior to the

filing of the petition.   The trial court did not find Father’s explanations for

either of these failings credible, and in fact determined that there were no

actual obstacles or limitations to his performance of parental duties that he

did not have control over himself.

      This   Court    has   held    that   parental   duty   requires   affirmative

performance, more than financial obligation, but a “continuing interest in the

child and a genuine effort to maintain communication and association with

the child.” In re C.M.S., 832 A.2d 457, 462 (Pa. Super. 2003). There is

nothing in the record before us to support a finding of genuine or continuing

effort by Father.    In sum, Father’s own lack of effort created the obstacle to

his relationship with E.A.B.       See In re Z.P., 994 A.2d 1108, 1125 (Pa.

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Super. 2010) (child’s life cannot be put on hold in hope that parent will

summon ability to handle responsibilities of parenting).

       With respect to section 2511(b), the trial court found that given

E.A.B.’s age and the lack of contact with Father for almost two years, there

is no bond between Father and E.A.B. and that termination would not

adversely affect her developmental, physical or emotional needs and

welfare.       Additionally, the court determined Stepfather was a stable

influence    on   E.A.B.    and    was    able   and   willing    to   provide   for   her

developmental, physical and emotional needs.                     The court, therefore,

concluded that termination of Father’s parental rights was in E.A.B.’s best

interests. See In re C.M.S., 884 A.2d 1284, 1286-87 (Pa. Super. 2005).

       After a careful review of the trial court’s application of the law to the

facts of this case, we find no reason to disturb the court’s conclusions. The

court’s findings and credibility determinations are supported in the record.

We further find that the trial court committed no abuse of discretion or error

of law. See In re R.J.T., supra (we defer to trial judge so long as factual

findings are supported by record and court’s legal conclusions are not result

of error of law or abuse of discretion).4




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4
  The guardian ad litem for E.A.B. has also filed a brief adopting the trial
court’s position that termination of Father’s parental rights is in E.A.B.’s best
interests.



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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/2014




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