J-S13015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: G.A.V., A MINOR                 :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
                                        :
                                        :
                                        :
                                        :
 APPEAL OF: S.A.V., NATURAL             :
 FATHER                                 :        No. 1530 WDA 2017

            Appeal from the Order Entered September 22, 2017
              In the Court of Common Pleas of Clarion County
                  Orphans’ Court at No(s): 109 O.C. 2017


BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                           FILED MAY 08, 2018

      Appellant, S.A.V. (“Father”), appeals from the order entered in the

Clarion County Court of Common Pleas Orphans' Court, which granted the

petition of E.H. (“Mother”) and M.H. (“Stepfather”) for involuntary termination

of Father’s parental rights to the minor Child, G.A.V. (“Child”). We affirm.

      In its opinion, the Orphans’ Court fully and correctly set forth the

relevant facts and procedural history of the case.     Therefore, we have no

reason to restate them. We add only that on September 22, 2017, after a

hearing, the court terminated Father’s parental rights. Father timely filed a

notice of appeal and a concise statement of errors raised on appeal pursuant

to Pa.R.A.P. 1925(a)(2)(1) and (b), on October 18, 2017.

      Father raises the following issues for our review:

         WHETHER THE TRIAL COURT ERRED IN TERMINATING
         FATHER’S PARENTAL RIGHTS UNDER 23 PA.C.S.A. §
J-S13015-18


         2511(A)(1)?

         WHETHER THE TRIAL COURT COMMITTED AN ERROR
         AND/OR ABUSE OF DISCRETION IN FINDING THAT THE
         TERMINATION OF FATHER’S PARENTAL RIGHTS WAS
         IN…CHILD’S BEST INTEREST IN ACCORDANCE WITH 23
         PA.C.S.A. § 2511(B)?

(Father’s Brief at 6).

      Appellate review of termination of parental rights cases implicates 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 Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972

A.2d 5, 8 (Pa.Super. 2009)).

            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 convincing evidence the existence of grounds for
            doing so.

         In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.

                                     -2-
J-S13015-18


           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 Z.P., supra at 1115-16 (quoting 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)).

     The petition for the involuntary termination of Father’s parental rights

to Child implicated the following grounds:

           § 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 beyond the control of the parent.

                                       -3-
J-S13015-18


        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(a)(1), (a)(2), (a)(5), (a)(8), and (b). “Parental rights

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

is satisfied, along with consideration of the subsection 2511(b) provisions.”

In re Z.P., supra at 1117.

        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… 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.

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

     Termination under Section 2511(a)(1) involves the following:

        To satisfy the requirements of [S]ection 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 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.


                                     -4-
J-S13015-18


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

omitted).      Regarding the six-month period prior to filing the termination

petition:

            [T]he 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… parental
            rights, to determine if the evidence, in light of the totality of
            the circumstances, clearly warrants the involuntary
            termination.

In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.

718, 872 A.2d 1200 (2005) (internal citations omitted). With respect to an

incarcerated parent, this Court has stated:

            [I]ncarceration alone does not provide sufficient grounds for
            the termination of parental rights. Likewise, a parent’s
            incarceration does not preclude termination of parental
            rights if the incarcerated parent fails to utilize given
            resources and fails to take affirmative steps to support a
            parent-child    relationship.       As   such,    a   parent’s
            responsibilities are not tolled during incarceration.

In re Adoption of K.J., supra at 1133 (internal citations omitted).

      Under Section 2511(b), the court must consider whether termination

will meet the child’s needs and welfare.          In re C.P., 901 A.2d 516, 520

(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability

                                          -5-
J-S13015-18


are involved when inquiring about the needs and welfare of the child. The

court must also discern the nature and status of the parent-child bond, paying

close attention to the effect on the child of permanently severing the bond.”

Id. Significantly:

         In this context, the court must take into account whether a
         bond exists between child and parent, and whether
         termination would destroy an existing, necessary and
         beneficial relationship.

         When conducting a bonding analysis, the court is not
         required to use expert testimony. Social workers and
         caseworkers can offer evaluations as well. Additionally,
         Section 2511(b) does not require a formal bonding
         evaluation.

In re Z.P., supra at 1121 (internal citations omitted).

      “The statute permitting the termination of parental rights outlines

certain irreducible minimum requirements of care that parents must provide

for their children, and a parent who cannot or will not meet the requirements

within a reasonable time following intervention by the state, may properly be

considered unfit and have his…rights terminated.”      In re B.L.L., 787 A.2d

1007, 1013 (Pa.Super. 2001). This Court has said:

         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 [C]ourt 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

                                     -6-
J-S13015-18


         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… 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.

In re B.,N.M., supra at 855 (internal citations omitted). “[A] parent’s basic

constitutional right to the custody and rearing of his…child is converted, upon

the failure to fulfill his…parental duties, to the child’s right to have proper

parenting and fulfillment of [the child’s] potential in a permanent, healthy,

safe environment.” Id. at 856.

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Paul H. Millin,

S.J., we conclude Father’s issues merit no relief. The Orphans’ Court opinion

comprehensively discusses and properly disposes of the questions presented.

(See Orphans’ Court Opinion, filed November 21, 2017, at 1-9) (finding: (1)

Father’s testimony was not credible; although Father admitted he failed to

visit Child for two months before incarceration, he attempted to blame his


                                      -7-
J-S13015-18


failure to visit Child on Mother; even if Mother had stopped Father’s visits,

Father is responsible for enforcing his parental rights; while incarcerated from

May 2016 to January 2017, Father failed to communicate with Child; Mother

did not change her cell phone number until October 2016, five months after

Father was incarcerated; Mother credibly testified she provided Father notice

of change of her phone number in January 2017; paternal grandmother’s

testimony contradicted Father’s testimony that he could not call Child while

incarcerated because he had no money to use phone; Father also testified he

did not call Child while incarcerated, because court’s July 2016 order precluded

him from communicating with Child; Father, however, made no effort at all to

communicate with Child and did not write to Child, even though he did not

know Mother changed her address until after he was released from

incarceration; after he was released from prison in January 2017, Father

attempted to communicate with maternal grandparents to locate Mother and

Child only via Facebook, even though Father had maternal grandparents’

phone numbers; Father’s use of Facebook belies his statement he could not

locate Mother via internet because he was unable to use internet; Father’s

behavior before, during, and after incarceration established Father had settled

purpose of relinquishing parental claim to Child and failed to perform parental

duties for Child; (2) Child and Stepfather are bonded as parent and child;

Child is integrated with Stepfather’s other children in family unit; Stepfather

wishes to adopt Child, and Mother also desired Stepfather to adopt Child).


                                     -8-
J-S13015-18


Accordingly, we affirm on the basis of the Orphans’ Court opinion.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/8/2018




                                    -9-
                                                                            Circulated 04/10/2018 10:02 AM


                                                                     Cili'ri,
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                                                                               --:,,.,  -

                       IN THE COURT OF COMMON PLEAS                                      erst -
                     OF CLARION COUNTY, PENNSYLVANIA                                          ' lack
                         ORPHANS' COURT DIVISION

IN RE: G.A.V., a    Minor                            NO: 109 QC 2017


Appearances:
For the Petitioners: Scott A. White, Esq.
For the Respondent: Danielle Melillo, Esquire
For the Child: Cassandra M. Munsee, Esquire

Millin, S.J.                                                November 21, 2017

                                        OPINION


        This opinion is entered to supplement the comments and findings            I




entered following the hearing which may be found in the Transcript (T.) at pages

119 through 128 (T.119-128).

FINDINGS OF FACT:

   1.   G.A.V. (hereinafter "Child") was born                2008. (Petition, para. 2)

   2. E.H. (hereinafter "Mother") is the biological mother of Child. (Petition, para.

        1)

   3.   S.A.V. (hereinafter "Father") is the biological father of Child. Father was

        born                1988. Father and Mother had a relationship for about

        two years before the child was born and separated a few months after the

        child was born. (Petition, para. 3, T. 44)

   4. M.H. (hereinafter "Stepfather') is the stepfather of Child. (Petition, pare 1)

   5.   Mother and Stepfather, petitioners in this matter, are asking for the

        termination of parental rights of the biological father. (Petition, p.1)
6. The Petition   for Involuntary Termination of Parental Rights was filed April

     17, 2017. (Petition p.1) (T.51)

7. Since 2009, there has been a custody order spelling out the rights of

     Father and Mother concerning custody of the child. (Court Exhibit           1)


8.   Prior to July 27, 2016, the order dated March 7, 2011 stated that the

     parties would have shared legal custody; that Mother would have primary

     custody and that Father would have periods of partial custody on

     alternating weekends from Friday at 6:00 p.m. to Sunday at 6:00 p.m. and

     in the summer one week in June, July and August. (Court Exhibit 1)

9.   Prior to incarceration Mother described Father's visits as "hit or miss". She

     stated that he would miss two or three Visits and then would make several,

     and then miss some more. When he missed he would not call and cancel,

     he just would not come. (T. 31) The Court finds this testimony credible. It

     was partially corroborated by Father's testimony that he missed dates due

     to their being bench warrants for his arrest for support arrearage. He

     stated that Mother told him he could not see the child while there was a

     support deficiency. The Court finds that placing the blame for missing

     visits on Mother is not credible. Mother testified to   a   visit in "March or April

     2016" at a time when Father was admittedly in arrears and Mother drove

     to Father's residence to pick the child up after the visit. (T. 20, 21)

     Mother's testimony was supported by Stepfather. (T. 15)




                                         2
10. Mother also testified credibly that transportation for custody exchanges

   was changed from meeting halfway "to doorstep to doorstep, because              I




   was driving halfway to meet him, and he wasn't showing up." (T. 30)

11. Mother stated that the visit in March or April 2016 was Father's last visit,

   and following it there was no contact at all between Father and the child,

   no cards, no letters, no gifts, no phone calls and no financial support. (T.

   21) Father corroborated that his last visit with the child was around March

   2016. (T. 73).

12. Mother testified concerning the last support payment she received, "I

   received, at our last hearing, a payment, because at our last hearing that

   we had, he had a bench warrant and to get the --they paid whatever to get

   the --I don't remember the exact amount. I got a payment then but before

   that, it'd been over a year since received a payment, and the payment
                                         I




   that   I   received was like $10, and before that, it'd been quite a distance

   before that. (T. 32)

13. Father was incarcerated in May 2016 and remained incarcerated in the

                               jail until January "middle to the end", 2017. Father

   is currently on parole. (T. 48)

14. On July 27, 2016, this court held a hearing on a Petition for Special Relief

   filed by Mother in the custody matter and issued an order suspending

   Father's partial custody rights and legal custody rights while Father was

   incarcerated. The order stated, "Upon his release from incarceration, both

   his partial custody rights and legal custody rights under the prior court




                                             3
   order shall be reinstated, pending further order of the court. (Court Exhibit

   1)

15. The charge which resulted in Father's incarceration was "manufacturing

   drugs out of                          New Kensington, which was Father's

   place of residence where he took the child during periods of partial

   custody." (T.65)

16.At the time of Father's last visit with the child and up until October 2016

   Mother and Stepfather resided with the child and their other children at

               Lucinda, PA. In October 2016 Mother and Stepfather moved to

   their current residence at                            Titusville, PA. (T. 29)

17. Mother gave no formal notice to Father of the change of address in

   October, 2016 as required by Pa.C.S.A. Section 5337. Likewise, Father

   gave Mother no notice of his change of address either to or from the

   prison or from his mother's home to his current address. (T.68)

18. Mother did give Father notice when she changed her phone number in

   early January, 2017. (T. 33      - 34, 36) The envelope which held the notice
   of the change of phone number showed Mother's new address in Titusville

   Pennsylvania. (T. 34)

19. When Father was released from prison he made no attempt to contact

   Mother. He stated "I had no way of reaching out to her.      I       had no address,

   phone numbers. was blocked from all social media, so
                      I                                             I   couldn't reach

   out to her in that manner.   I   had tried reaching out to her parents on

   Facebook because didn't have a number for them either. (T. 54) Father
                          I




                                          4
stated that he first learned of Mother's change of address when he was

released from prison. (T. 55) This assertion was contradicted by the

paternal grandmother who testified that she informed Father of the change

of address and phone number while he was incarcerated. (T. 96, 97)

Father's assertion that he had no contact information for the maternal

grandparents is also contradicted by the paternal grandmother's testimony

that she had the maternal grandparents house phone number and spoke

to them. (T. 97, 98) Father also had the maternal grandparents' home

address. It was the address on record with the Clarion County

Prothonotary in the custody action, and it had not changed since the

custody action started in 2009. The maternal grandparents had lived at

the same address for 14 or 15 years (T. 38, 41        - 42) Mother testified
credibly that the reason for the change of address was not to make it

difficult for Father to find her, but rather because, "our landlord was selling

our home, we were outgrowing our home, and we were having plumbing

issues that the landlord would not fix because she was selling the home,

and we moved into a much bigger house." (T. 24) Father also stated that

he could not make any phone calls from prison because he had no money

to make calls, "I had no way of reaching out.   I   had no money on the

phones. I couldn't call out." (T. 66) This was also contradicted by his

mother who stated that she spoke to him while he was imprisoned on the

phone and purchased time for him,

"Q.   Did you have communication with your son over the phone in jail?




                                    5
      A. We spoke a few times if he had money on his books.

      Q. Who would put money on his books?

      A. had done it a couple of times. His sister-in-law had done it a couple of
            I




      times. It wasn't something that was done regularly, so we spoke

      occasionally." (T.103)

The petition to terminate parental rights alleges the grounds for termination in the
following terms:
       5. That the Natural Father in this case has performed parental duties not
       at all during the last 12 months.
       6. That the Natural Father in this case has conduct continuing for a period
       of at least six (6) months immediately preceding the filing of the within
       Petition and has not evidenced a purpose of parental claim to the child or
       has refused or failed to perform parental duties. Petition For Involuntary
       Termination Of Parental Rights Pursuant To 23 Pa.C.S.A. Section 2511,
       p.3.

This is an allegation under 23 Pa.C.S.A. Section 2511(a)(1) which states:
                (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.

The Pennsylvania Supreme Court has stated regarding the application of section
2511 (a) (1):
       To satisfy 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. 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." It is well -established that a court must
       examine the individual circumstances of each and every case and
       consider all explanations offered by the parent to determine if the
        evidence in light of the totality of the circumstances clearly warrants the
        involuntary termination....



                                                6
       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. Matter of Adoption of Charles E.D.M.II, 550 Pa. 595, 601,
       708 A.2d 88, 91 (1998) (citations omitted).

Incarceration of a parent alone will not provide sufficient grounds for termination

of parental rights, but "an incarcerated parent's responsibilities are not tolled

during his incarceration." In re D.J.S., 737 A.2d 283, 286 (Pa.Super.1999).


       Parental rights may not be preserved by waiting for some more suitable
       financial circumstance or convenient time for the performance of parental
       duties and responsibilities. Further, parental duty requires that the parent
       not yield to every problem, but must act affirmatively, with good faith
       interest and effort, to maintain the parent -child relationship to the best of
       his or her ability, even in difficult circumstances. In the Interest of C.S.,
       761 A.2d 1197 (citations omitted).
       The focus is on whether the parent utilized resources available while in
       prison to maintain a relationship with his or her child. In re the Adoption of
       Dale, A.II, 453 Pa.Super 106, 683 A.2d 297, 302 (1996).

       Once the Court concludes that clear and convincing evidence has been

presented that Father has refused or failed to perform parental duties for at least

six months prior to the petition for termination or that Father has by his conduct

evidenced a settled purpose of relinquishing parental claim for a period of six

months prior to the petition for termination, then the Court must determine

whether there is clear and convincing evidence that termination of parental rights

best serves the needs and welfare of the child.



       Before granting a petition to terminate parental rights,it is imperative that a
       trial court carefully consider the intangible dimension of the needs and
       welfare of a child--- the love, comfort, security, and closeness --entailed
       in a parent -child relationship, as well as the tangible dimension. In re
       Matsock, 416 Pa.Super. 520, 540, 611 A.2d 737, 747 (1992). "Continuity


                                           7
      of relationships is also important to a child, for whom severance of close
      parental ties is usually -extremely painful. In re William, 477-Pa. -322, 348,
      383 A.2d 1228, 1241 (1978). The trial court, "in considering what situation
      would best serve the child[ren]'s needs and welfare, must examine the
      status of the natural parental bond to consider whether terminating the
      natural parents' rights would destroy something in existence that is
      necessary and beneficial." In re P.A.B., 391 Pa.Super. 79, 86, 570 A.2d
      522, 525-26 (1990), appeal dismissed, 530 Pa. 201, 607 A.2d 1074
      (1992), In the Interest of a S. ,761 A.2d 1197 (2000 PA Super 318).


       As I said in my comments after the hearing, it was the obvious bond
between the child and the paternal grandmother which gave me pause. Father's
testimony was so lacking in credibility that almost everything he said is
questionable. His complete stoppage of visits with the child for two months prior
to being incarcerated is admitted, although he attempted to blame it on Mother.
       I   do not believe Mother stopped his visits, but even if she had, he is
responsible for having the intestinal fortitude to enforce his custody rights spelled
out in a court order. When he went to jail he admittedly had Mother's cell phone
number which would not be changed for months. Mother testified that she
changed the phone number after Christmas in 2016 and she tied the change to
Stepfather's grandmother being ill and needing a local number to communicate
with her.
       The paternal grandmother stated the change of phone number occurred in
October 2016. Mother tied the change to a conversation with the maternal
grandmother concerning events surrounding a birthday. believe Mother's
                                                             I




version to be more credible because I accept her testimony that she sent Father
a notice of the change in early January 2017, but even if the change occurred in

October, Father would still have had five months into his incarceration when he
could have been making calls to his son. His first explanation for not making the
calls was that he could not use the phone in jail at all because he had no money,
then he used the excuse that the order terminating his custodial and legal
custody rights terminated his right to communicate. We know because of the
paternal grandmother's testimony that the first explanation is not true. Even if he
believed the court order prevented communication, a reasonable father with a


                                             8
continuing and abiding interest in his     ,
                                       tint 1.1.
                                                       would have made an effort. Here there
was no effort. He said the reason that he did not send cards or letters was
because he did not have an address, but he told us that he did not know that
Mother's address had changed until he left the prison. If he had sent cards or
letters before the change of address in October 2016, they would have gone to
the proper address. If he had sent them after the change of address, Mother had
left forwarding instructions at the post office so that the cards or letters would
have gotten through. All he needed to do was try.
       When he left the prison in January 2017, none of his excuses are viable.
Accepting his "understanding" of the court order, his visitation rights were
restored. He knew where the maternal grandparents lived and maternal
grandmother had their phone number, but he states his only effort at
communication with them was through Facebook. He says that he could not use
the Internet to help him locate Mother, because he was never able to do anything
on the Internet, yet his familiarity with Facebook belies this statement. Father's
actions prior to incarceration, during incarceration, and following incarceration
established by clear and convincing evidence that Father had a settled purpose
of relinquishing parental claim to the child. Father likewise refused and failed to
perform parental duties for the same period.
       The clear and convincing evidence also shows that the Child and
Stepfather are bonded as parent and child; that the Child is integrated with the
parent's other children in a family unit, and Stepfather wants to adopt him and
Mother wants the adoption to occur.
       For the foregoing reasons the court granted the petition to terminate the
parental rights of Father.


                                                   BY THE COURT:


                                                                    14-   1W14-1-- t
                                                   Paul H. Millin, S.J.




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