J-S75045-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.N.C., A MINOR             IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA




APPEAL OF: A.F.C., MOTHER                       No. 2309 EDA 2014


                Appeal from the Decree entered July 8, 2014,
              in the Court of Common Pleas of Monroe County,
                    Orphans’ Court, at No(s): 2014-00016

BEFORE:     ALLEN, LAZARUS, and MUNDY, JJ.

MEMORANDUM BY ALLEN, J.:                        FILED DECEMBER 08, 2014

      A.F.C. (“Mother”) appeals from the decree involuntarily terminating

her parental rights to her minor child, A.N.C. (“Child”), born in March of

2004, upon petition of J.D.C. (“Father”) and A.C. (“Stepmother”).           We

affirm.

      The trial court summarized the background of this case as follows:

      The minor child was born on March [], 2004. Her natural
      parents are [Mother] and Appellee, [Father]. [Mother] and
      [Father] were married, but divorced on November 12, 2008.
      [Father] then remarried [Stepmother] [].

             [Father] testified [Mother] has had no contact with the
      minor child in the last eight years. The child is now 10 years old.
      During the eight year period, [Mother] has not seen the minor
      child, nor spoken to her. She has not sent the minor child any
      cards or gifts for her birthday or holidays. The minor child and
      [Father] have had contact with [Mother’s] mother (“maternal
      grandmother”), who resides in Palmerton, Carbon County,
      Pennsylvania. [Father] did not know the current whereabouts of
      [Mother] at the time of filing the petition to terminate parental
      rights, nor at either hearing held in this matter on May 19, 2014
      and July 7, 2014. [Father] believed [Mother] was incarcerated.
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            At the time of the hearing held May 19, 2014, [Father]
     represented that he believed [Mother] had most recently been
     incarcerated in the Dauphin County (Pennsylvania) Correctional
     Facility. [Father] clocked into this file on March 26, 2014, a
     prison list of Dauphin County available on-line with [Mother’s]
     name listed thereon (highlighted in green on the document
     contained in the docket). However, at the time of the May 19,
     2014 hearing in this matter, [Father] testified that [Mother] was
     no longer at the Dauphin County Correctional Facility, her
     whereabouts were unknown, and he was unable to serve her
     prior to her release.

           This Court ordered that the matter be continued to July 7,
     2014, and authorized service by publication. An Order was
     entered on May 20, 2014 requiring service by publication one
     each time in The Times News, a newspaper of general circulation
     in Carbon County, Pennsylvania, and the Carbon County Legal
     Reporter, believed to be the legal publication of the Carbon
     County Bar Association. (It is actually the Carbon County Law
     Journal). [Father] believed Carbon County was the last known
     residence of [Mother] and [Mother’s] mother resided in Carbon
     County.

            At hearing held July 7, 2014, [Father] provided proof of
     publication in The Times News and in The Standard Speaker
     (published and circulated in the Hazleton, Pennsylvania area).
     The contents of the Notices published provided sufficient
     information as to the nature of the action and date and time for
     hearings. (See Petitioner’s Exhibit 1). There was no proof of
     publication submitted for the Carbon County Legal Reporter
     (sic). The Court discussed with [Father] about serving [Mother]
     by advertising in a newspaper of general circulation in The
     Standard Speaker. (See N.T. July 7, 2014 p.p. 3-4 and 6-7).
     No other inquiry was made by the Court concerning service.

           [Father] testified he did not hear anything from [Mother]
     following publication of notice on June 10, 2014. [Father] also
     advised [Mother’s] mother in person of the intention to
     terminate [Mother’s] parental rights with no objection from her.
     [Father] and the minor child have resided at the same address
     for the last eleven (11) years and [Mother] knows that address.

           The testimony of [Father] and his wife, [Stepmother],
     confirmed [Stepmother’s] intention to adopt the minor child.
     There was a close mother/daughter relationship, and it was

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      apparent there was a strong bond between the minor child and
      [Stepmother]. Based upon the lack of contact by [Mother] for
      the last eight years, it was shown by clear and convincing
      evidence that [Mother] exhibited a settled purpose of
      relinquishing her parental rights.      There was a clear bond
      between the minor child and stepmother, and it was in her best
      interest to grant the termination of parental rights.

Trial Court Opinion, 8/26/14, at 1-3.

      Mother filed a timely notice of appeal, along with a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925.           Mother

presents two issues for our review:

         1. DID THE TRIAL COURT COMMIT AN ERROR OF LAW IN
         FINDING FATHER MADE SUFFICIENT AND EFFECTIVE
         SERVICE OF THE NOTICE OF THE TERMINATION HEARING
         ON MOTHER, THUS DEPRIVING HER OF DUE PROCESS?

         2. DID THE TRIAL COURT ERR IN FINDING FATHER
         PROVED BY CLEAR AND CONVINCING EVIDENCE THAT
         MOTHER, BY CONDUCT OVER THE COURSE OF SEVERAL
         YEARS,   EVIDENCED  A   SETTLED  PURPOSE   OF
         RELINQUISHING HER PARENTAL RIGHTS TO HER
         DAUGHTER AND FAILED OR REFUSED TO PERFORM HER
         PARENTAL DUTIES?

Mother’s Brief at 4.

      Our standard and scope of review is well-established:

         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.



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In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). “[O]ur

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 Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012).

      In her first issue, Mother asserts that the service was “ineffective and

insufficient to properly advise Mother that [Father and Stepmother] had filed

a Petition to Terminate her rights and they were insufficient to ensure

Mother’s due process rights were met.” Mother’s Brief at 10.

      With regard to this issue, the trial court opined:

             As to service, while [Father and Stepmother] did not
      publish notice in the Carbon County Legal Reporter (sic) as
      ordered, they made service in The Times News as ordered and in
      The Standard Speaker, both newspapers with general circulation
      in the Carbon County area. There was no evidence of any other
      known address for [Mother]. [Mother’s] mother, who resided in
      Carbon County, Pennsylvania, was personally made aware of the
      petition and hearing in this matter. We found at time of the
      hearing, that [Father and Stepmother] had sufficiently met the
      service requirements of the Adoption Act and Rules of Civil
      Procedure, even if not fully compliant with this Court’s Order.

Trial Court Opinion, 8/26/14, at 4.

      We agree with the trial court.       Section 2513(b) of the Adoption Act

provides the disjunctive requirement that “at least ten days’ notice shall be

given to the parent … whose rights are to be terminated, by personal service

or by registered mail to his or her last known address or by such other

means as the court may require.”            23 Pa.C.S.A. § 2513(b) (emphasis

added).


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     Our review of the record reveals the following exchange at the May 19,

2014 hearing, between the trial court and Father and Stepmother regarding

attempts to locate Mother:

     THE COURT:        But you have checked and [Mother] is no
                       longer [at the Dauphin County Correctional
                       Facility]?

     FATHER:           As of last week, we looked and we did not see
                       her.

     THE COURT:        Now, did you mail a copy to her down in the
                       jail once you found out she was there of the
                       petition or the order?

     STEPMOTHER:       No. I thought that that was something that
                       was going to happen with you guys. I thought
                       that was on your end. I didn’t realize we had
                       to mail it to her.

     THE COURT:        How about publishing notification? Did you do
                       that?

     STEPMOTHER:       See I also thought that was something else
                       you guys did. I did not – nobody really had
                       any information to give me when I went up
                       there with all the paperwork.

     THE COURT:        No, I understand. It’s difficult too when you
                       are pro se and you don’t always get all the
                       answers, but also you don’t always know what
                       questions to ask. So no, actually in all these
                       cases, whether pro se or represented by
                       counsel, the parties have to arrange service.


                                    ***

     THE COURT:        … If you locate her – now, I know she’s no
                       longer in Dauphin County Jail, if she had still
                       been there, then my other suggestion would be
                       that you also serve her there; either, you
                       know, by certified mail that she has to sign for
                       or somebody signs for her or you send

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                         somebody down there personally to at least
                         hand it in to the jail officials for them to give it
                         to her. She’s out. You probably have no idea
                         where now, correct?

      FATHER:            No.

N.T., 5/19/14, at 5; 7. The trial court then entered an order continuing the

hearing to July 7, 2014 “to effect service on [Mother]”. Order, 5/20/14. The

trial court’s order stated:

            AND NOW, this 20th day of May, 2014, [Father and
      Stepmother] shall make service of the Order setting forth the
      time and date for a hearing on their Petition to Terminate
      Parental Rights of [Mother] by publication one time each in the
      Times News, a newspaper of general circulation in Carbon
      County, Pennsylvania, and the Carbon County Legal Reporter.
      [Father and Stepmother] shall bring proof of publication to the
      Court hearing to be held in this matter.

      At the commencement of the July 7, 2014 hearing, the following

exchange occurred:

      THE COURT:         … We continued this matter from last time to
                         make sure that [Father and Stepmother]
                         attempted service on [Mother] in this matter,
                         correct?

      FATHER:            Correct.

      THE COURT:         Were you able to do that?

      FATHER:            Yes, we did.

      THE COURT:         Excellent. All right. If you bring that up to the
                         court reporter, she will have it marked.
                         (Petitioner’s Exhibit No. 1 marked for
                         evidence.) Okay. We note that Petitioner’s
                         Exhibit No. 1 collectively is proof of
                         publication; one in the Times News, LLC and
                         the other in the Standard Speaker.


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N.T., 7/7/14, at 3.

      The trial court concluded that Father and Stepmother had “sufficiently

met the service requirements” of the trial court’s order when they appeared

at the July 7, 2014 hearing.      See Trial Court Opinion, 8/26/14, at 4.

Because 23 Pa.C.S.A. § 2513(b) provides for notice “by such means as the

court may require”, we find no abuse of discretion in the trial court’s

conclusion that Father and Stepmother met the service requirements by

publication.

      In her second issue, Mother claims that Father and Stepmother failed

to establish clear and convincing evidence to support termination of Mother’s

parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1). Mother’s Brief at 20-

27.   The essence of Mother’s argument is that “Father’s testimony and

evidence falls far short of the heavy burden on him.”       Id. at 23.   We

disagree.

      Section 2511 of the Adoption Act, which sets forth grounds for

involuntary termination, provides in pertinent part:

             (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.


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23 Pa.C.S.A. § 2511(a)(1). As the petitioners, Father and Stepmother had

the burden of proving by clear and convincing evidence that Mother had

evidenced a settled purpose of relinquishing her parental claim to Child

pursuant to 23 Pa.C.S.A. § 2511(a)(1).         See, e.g., In re Adoption of

W.J.R., 952 A.2d 680, 683 (Pa. Super. 2008).             Clear and convincing

evidence 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 C.L.G., 956 A.2d 999, 1004 (Pa. Super. 2008).

Furthermore:

         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 K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citation omitted).

      Here, the trial court noted that it had “reviewed the record and [was]

satisfied there was clear and convincing evidence to terminate [Mother’s]

parental rights as cited and discussed in the Discussion portion of the July 9,

2014 Decree.” Trial Court Opinion, 8/26/14, at 4. We agree.

      Father testified to being married to Stepmother for five years, and that

Stepmother intended to adopt Child.        N.T., 7/7/14, at 5.   With regard to

Mother, Father testified that Mother had not seen Child in eight years. Id.

Likewise, Mother had not “contacted” Child – by telephone, “letter or card”

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for eight years. Id. at 5-6. Father stated that although he and Child had

resided at the same residence for the past eleven years, Mother had not

seen Child for eight years because:


      [Mother] had just sort of become a convict more or less. She
      was running from the law and doing things that a parent should
      not be doing.

N.T., 7/7/14, at 9. Father averred that Mother would be able to find Father

and Child if she wanted to, and Father “definitely” had not tried to hide from

Mother in any way.    Id.   Father further testified that he “would love for”

Stepmother    to   adopt Child, and that the      two   have   an “excellent”

relationship, treating one another as “mother and daughter.” Id. at 8.

      Stepmother testified that she “got along great” with Child and wished

to adopt her. Id. at 10. Stepmother stated, “I feel like [Child] is one of my

own.” Id. With regard to Mother, Stepmother testified that she had “been

here for five [years] and we have not heard from [Mother].”        Id. at 12.

When asked about any contact from Mother, Stepmother replied, “Absolutely

nothing.” Id.

      Child testified that she would like Stepmother to adopt her. Id. at 13.

      Based on the foregoing, there is competent evidence in the record to

support the trial court’s credibility and weight determinations, such that we

find no abuse of the court’s discretion in concluding that Father and

Stepmother sustained their burden with regard to Section 2511(a)(1). See

e.g., In re Adoption of W.J.R., supra (the trial court is free to believe all,


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part, or none of the evidence presented in a termination of parental rights

proceeding); see also In re T.D., 949 A.2d 910 (Pa. Super. 2008) (if a

parent is to avoid the involuntary termination of parental rights, it is

incumbent upon the parent when separated from her child to maintain

communication and association with the child, which requires an affirmative

demonstration of parental devotion, imposing upon the parent the duty to

exert herself, to take and maintain a place of importance in the child’s life).

      For the above reasons, we find no error in the trial court’s exercise of

its discretion, and affirm the decree terminating Mother’s parental rights.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/8/2014




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